Doing away with gay libel suits

By Edward Wasserman
Week of March 30, 2009

Here’s a question: Since being gay has lost much of the stigma it once had among heterosexuals in this country, should a celebrity who is falsely reported to have same-sex lovers still be able to sue for libel?

And are courts perpetuating the idea that homosexuality is bad if they accept the argument that labeling somebody as gay is defamatory?

The answer to both questions is yes, according to a provocative column by Gabriel Arana published recently on Slate.

Arana takes issue with the basis for gay libel suits, in which celebrities haul people into court for alleging closeted same-sex liaisons. Howard K. Stern, the lawyer and former companion of Anna Nicole Smith, is demanding $60 million from the author of a book that claims he’d had sex with other men. Megastar Tom Cruise was awarded $10 million in 2003 from a male porn star who allegedly said he had been Cruise’s lover.

What’s with that, Arana asks. Defamation requires showing that the person’s reputation has been harmed, at a minimum, in the view of a “substantial and respectable minority” of the community. In light of evidence of ever widening acceptance of homosexuality among straights, why do courts continue to hear such suits? Doesn’t that mean they regard the dwindling number of homophobic bigots as a “respectable minority?”

Even when plaintiffs like Cruise insist they don’t intend to disparage the gay community, “these cases inevitably send the message that it’s shameful to be gay,” Arana writes. What if the allegation was that his grandfather was African-American? How can he argue that allegation defamed him without also saying it’s harmful to be thought part-black?

Arana’s got a point, to be sure. But I’m far from convinced. The question is how sizable a free-fire zone we want to maintain for lies.

It’s important to remember that this isn’t a matter of outing someone—bringing to light their secret homosexuality. Outing is different. True, it raises issues of its own relating to an individual’s right to keep personal affairs private. But with outing the allegation is true, and the question is whether it’s any of our business.

Here the allegation is false. Libel, by and large, requires falsity. What’s more, under U.S. law, when it involves a person in the public eye—as celebrity cases invariably do—the falsehood has to be pretty much deliberate, or made so recklessly that it might as well be deliberate. And from that the court has to find the intent was malicious.

So we’re talking about a lie. Plus, it’s a lie that the liar tells with evil intent and which the subject of the lie believes causes harm.

But still, what if there is no harm? Let’s look closer at that.

Is it true that falsely labeling somebody gay harms them only in the eyes of homophobes? I don’t think so. Remember, this isn’t an allegation that the actor, say, is attracted to other men. It’s an allegation that he has been having furtive, amorous adventures with same-sex lovers, that he has a sham marriage intended to mislead millions of fans. And that’s likely to be surprising, if not shocking, and profoundly disruptive to a whole range of personal relationships with spouse, children, relatives and friends.

That’s not because those people dislike gays. It’s because the allegation suggests that when it comes to the most fundamental realities of someone they thought they knew, that person had deceived and dissembled, had hypocritically misrepresented his or her sexual identity, had been unfaithful and disloyal, and in a profound sense, shouldn’t be trusted or believed.

Those, it seems to me, are among the implications of the allegation—which, remember, isn’t true. And those are harms.

My chief concern here is not with tolerance of sexual freedom, where things are getting better, but with tolerance of lying, where things are getting worse. Libel law is already a pathetically ineffective weapon against media irresponsibility, and has no real power over the growing ranks of people with the capacity to originate or amplify falsehoods and keep them in wide circulation.

But the problem is aggravated by deciding that a particular kind of lie will henceforth be defined as harmless. Deliberately mischaracterizing somebody’s sexuality is nasty and harmful, and even celebrity victims deserve a chance to make their case against people who do it.