Calling someone gay is not grounds for a defamation case, a New York judge ruled yesterday, with regard to a $60 million lawsuit brought by Howard K. Stern against author Rita Cosby over claims she made in her "tell-all" book about Anna Nicole Smith, Blond Ambition: The Untold Story Behind Anna Nicole Smith's Death.
"Southern District of New York Judge Denny Chin said in a ruling Wednesday that a 'veritable sea change in attitudes about homosexuality' has led him to conclude that today the New York Court of Appeals would not hold that calling someone a homosexual was defamation per se. However, the judge also said that statements asserting homosexual conduct might be found by a jury to be defamatory in Stern v. Cosby, 07 Civ. 8536."
First, the U.S. Supreme Court's decision invalidating laws criminalizing homosexual conduct in Lawrence v. Texas, 539 U.S. 558 (2003).
"[T]o the extent that courts previously relied on the criminality of homosexual conduct in holding that a statement imputing homosexuality subjects a person to contempt and ridicule ... Lawrence has foreclosed such reliance," Chin said.
"Second, in 2009, the 'current of contemporary public opinion' does not support the notion that New Yorkers view gays and lesbians as shameful or odious," he said, citing the movement to legalize gay marriage and a poll showing that gay marriage is favored by 51 percent of New Yorkers and there was a two-thirds majority in favor of civil unions.
"Finally, the New York Court of Appeals has not, in its most recent opinion touching on social attitudes toward homosexuality, given any indication that it perceives widespread disapproval of homosexuality in New York," he said.
Chin did say, however, that allegations of homosexual acts were possibly grounds for defamation because they are "susceptible to a defamatory meaning." Chin reportedly allowed the case to proceed to trial on 11 of the 19 statements originally listed in the complaint, according to Stern's lawyer.
In December 2008, Cosby had motioned to dismiss the defamation claims.
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