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NY Judge: Howard K. Stern Can't Sue for Being Called Gay

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.

Stern_birkhead "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."

More from the New York Law Journal:

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.

Previously...
Threats Fly Over Birkhead-Stern Gay Sex Claims in New Book [tr]
Larry Birkhead Explains Why He and Stern Hit Up Gay Pride [tr]
Howard K. Stern files $60 Million Lawsuit Over Gay Sex Claim [tr]


Author Rita Cosby on Stern-Birkhead Sex: It's Not a 'Lewd Act'

If you can believe it, the court battles are still going on between author Rita Cosby and Howard K. Stern. The latest news is that Cosby filed a motion to dismiss the $60 million lawsuit Stern served her with for alleging, among other things, that Stern and Larry Birkhead were having a gay affair and that a sex tape exists.

Stern_birkheadIn Cosby's motion to dismiss the defamation claims, Cosby says "the fact that Howard and Larry videotaped a sexual encounter does not make the acts any more negative."

The Smoking Gun: "Even if she was wrong when reporting that Howard K. Stern and Larry Birkhead had a sexual encounter, the author of a book about Anna Nicole Smith contends that the claim is not defamatory because 'engaging in a homosexual tryst, even if videotaped, does not reflect poorly on someone and in the 21st Century it most certainly is not a 'criminal lewd act.'' This 'not-that-there's-anything-wrong-with-it' defense is included in a new federal court declaration filed by TV journalist Rita Cosby, whose 2007 book 'Blonde Ambition' triggered a defamation lawsuit brought by Stern, Smith's lawyer and confidante. In her book, Cosby reported that Stern and Birkhead, father to Smith's daughter Dannielynn, engaged in sexual relations, and that a videotape of the two men having sex existed and was viewed by Smith, who died last February. In a December 19 U.S. District Court declaration, an excerpt of which you'll find below, Cosby argues that 'the fact that Howard and Larry videotaped a sexual encounter does not make the acts any more negative.'"

Not That There's Anything Wrong With It [tsg]


Anna Nicole Bodyguard Claims Larry Birkhead is Gay

Birkhead

On recent nights you may have seen Anna Nicole's daughter Dannielynn paraded across a cemetery in the Bahamas by Larry Birkhead under the gaze of entertainment TV cameras. Well, so has Anna Nicole's former bodyguard, and he's not happy about it. He talked to Access Hollywood about Birkhead's recent well-televised return to Anna Nicole's grave with his daughter: "I thought that was very disgusting, I thought it was staged. I do believe he loves his daughter, but the thing is, when he comes on TV and he parades her off, it seems like it's like a laugh in Anna's face. Like, 'Ha! I got her anyway!’"

The bodyguard also claims that Birkhead is gay and was only a sperm donor to Anna Nicole. Said Big Moe (ironically, that's his name): "Well, (Anna Nicole) told me that, you know, he was a homosexual. She knew deep down that he didn't want to be with her...Anybody that's been around Anna, they would know that Larry wouldn't be her type. First of all, she liked men that was wealthy, I mean that's no secret...Because of how Larry looked, she figured, oh my child would look great. Blonde hair, blue eyes, you know, 'Go great with me and my baby will come out beautiful.'"

It's not the first time the rumor has surfaced. In April 2007 a male model named Kerrick Ross came forward claiming to be Birkhead's lover. And in September last year, a tell-all book by Rita Cosby claimed that Birkhead and lawyer Howard K. Stern were involved sexually and made secret deals to split Smith's estate. In the meantime, lawsuits have been filed.

Anna Nicole's Bodyguard Big Moe Takes Aim At Larry Birkhead [access hollywood]


News: George Clooney, Dogs, ENDA, Gay Muslims, Rudy Giuliani

road.jpg ENDA: Michelangelo Signorile asks some tough questions of HRC's Joe Solmonese about the decision to go from opposing a non-transgender ENDA to fully backing it. (AUDIO)

Lanceroad.jpg Lance Bass and new man Ben Thigpen spend their bread at Butter.

road.jpg George Clooney and Fabio get their claws out at West Hollywood restaurant: "I thought you were a nice guy. Stop being a diva!"

road.jpg All I can say is, thank goodness there aren't many cliffs in Wisconsin.

road.jpg Judge sees evidence that Rita Cosby "crossed the line" in evidence gathering for her Anna nicole book which alleges a gay relationship between Howard K. Stern and Larry Birkhead: "A federal judge in the Southern District of New York issued an order today in the wake of Stern's allegation that Cosby 'sought to tamper with two witnesses by offering to pay them thousands of dollars for their testimony.' The judge allowed Stern to probe the allegation, concluding he has 'presented substantial -- indeed troubling -- evidence that Cosby has sought to improperly influence witnesses...' In a statement to TMZ, Rita Cosby said 'I am pleased that the Court will get to the bottom of these unfounded allegations. I trust that when all the facts come out that a very different picture will be shown.'"

Gyllenspoonroad.jpg Gyllenhaal and Witherspoon in nocturnal paparazzi ambush.

road.jpg Sydney summer Gay Day going green.

road.jpg According to Mother Jones, Towleroad is blocked at the Denver International Airport: "Your request to URL "http://www.towleroad.com/" has been blocked by the URL Filter Database. The URL is listed under categories (Provocative Attire, Politics / Opinion), which are not allowed by your administrator at this time. The following reputation level was assigned to it: Neutral."

road.jpg Democrats take back the state Senate in Virginia.

Dogsroad.jpg World's tallest dog meets world's smallest.

road.jpg The NYT visits gay Muslims who have gained asylum in NYC: "Even as they reveled in newfound freedom compared with the Muslim world, they remained closeted, worried about being ostracized at the mosque or at their local falafel stand. 'They’re afraid of the rest of the community here,' said Ayman, a stocky 31-year-old from Jordan, who won asylum in the United States last year on the basis of his sexuality. 'It’s such a big wrong in the Koran that it is impossible to be accepted.' For gay Muslims, change may come via a nascent body of scholarship in minority Muslim communities where the reassessment of sacred texts used to damn homosexuality is gaining momentum."

road.jpg I'll take the two of spades: Eva Mendes plays with some hot cards.

road.jpg Pat Robertson endorses Rudy Giuliani. Talking Points Memo: "...the Robertson endorsement Rudy Giuliani bagged today is perhaps the ultimate fusion of right-wing religious extremism and war on terror mania. Giuliani's claim to the presidency is based on his service as mayor during and immediately after 9/11. What stops him from being a shoe-in for the nomination is his track record supporting abortion rights and gay rights. But, Robertson is on record saying that 9/11 was America's punishment for its sinful gay-loving, abortion permitting culture. As Robertson says on his website, the attacks happened because God withdrew his protection from America. He agreed with the late Jerry Falwell that America "deserved" 9/11."

road.jpg Clinton lead slips 10% following debate debacle.


Nannies Shoot Down Stern and Birkhead Gay Sex Claims

Quethlie Alexis and Nadine Alexie, two nannies for the late Anna Nicole Smith, say they never spoke with Rita Cosby, who claims that the nannies told her that Anna Nicole liked to watch a video of Larry Birkhead and Howard K. Stern having sex with one another.

CosbySaid Cosby, who was served with a $60 million libel lawsuit by Stern at her book party last week: "We have a number of sources. We have it attributed directly to a private investigator who specifically said that."

According to the New York Daily News, "The nannies said they spoke with a private investigator who they believed worked for an attorney for Smith's mother. But they never mentioned any alleged encounter between Birkhead and Stern."


Rita Cosby Served with Howard K. Stern Lawsuit at Book Party

Former MSNBC host and author Rita Cosby was served with the $60 million libel lawsuit from attorney Howard K. Stern yesterday at her own book party, according to The Insider. Stern is suing for $10 million in compensatory and $50 million in punitive damages over allegations made in Blonde Ambition: The Untold Story Behind Anna Nicole Smith's Death including claims that Stern and Larry Birkhead were sexually involved and conspired to share Anna Nicole Smith's estate.

Cosby told US Magazine: "What crossed my mind...they knew I was walking into a big book party. It just shows you that with these guys it's all just smoke and mirrors. It's all PR and spin. And that's what I write about in my book. So I'm not surprised that they used this opportunity. This is par for the course for these characters."


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