Communication Currents

Are Accusations of Homosexuality Defamatory, and Why Does it Matter?

October 1, 2013
Freedom of Expression

In the United States between 2004 and 2009, 42 court cases were decided that involved claims of homosexuality as defamation. Comparatively, 59 cases were decided during the previous 150 years. Despite: 1) judges in three states ruling it is not defamatory to call someone gay; 2) the Supreme Court striking down sodomy laws nationwide in 2003 via Lawrence v. Texas, thereby removing sodomy and the implication of criminal activity as a justification for defamation; and 3) positive shifts in public opinion about gays and lesbians in the U.S. and numerous policy changes at the local, state, and federal levels, there has been a dramatic increase in the number of defamation cases pertaining to claims of homosexuality but comparatively few answers provided by courts as to why. In a 2012 study, I set out to examine this phenomenon and explain its implications.

Through an analysis of 42 cases, I found that recent U.S. federal and state defamation rulings regarding claims of homosexuality did not parallel other legal advancements and positive shifts in public attitudes toward gay men and lesbians. As prior defamation cases regarding racial and political identities had shown, case rulings largely relied upon public opinion. However, this trend was not true for sexual minorities after Lawrence, a population whose civil rights remain in flux worldwide. Among the cases analyzed, one portion of which included defendants’ verbal and/or written accusations of plaintiffs’ presumed or affirmed sexual orientation, behavior, or identities, claims of homosexuality as defamatory failed in 38 out of 42 cases because judges granted summary judgment for the defendants, dismissed the cases altogether, or concluded that statements were not capable of being defamatory. Overwhelmingly, judges failed to directly address whether claims of homosexuality are defamatory today, a deliberate oversight that is problematic for several reasons. 

When judges or state legislatures choose not to address whether imputations of homosexuality are defamatory, all are left with an incomplete picture of the issue, which may in turn result in both a higher number of defamation cases and more confusion in the ongoing equality battle. Unless the issue is formally addressed and precedent established, plaintiffs will continue to clog the lower courts with defamation charges against those who name call, potentially taking valuable legal resources away from more pressing issues. Evidence for this statement is provided by the sheer influx of defamation cases filed in recent years. More pointedly, established precedents could help to reduce the number of defamation lawsuits brought by prisoners, which accounted for nearly one-third of all defamation cases analyzed, but were all unsuccessful.

In the United States today, gays and lesbians do not share equal rights with heterosexuals, yet significant advancements have been made in the last decade, such as repeals of the military’s Don’t Ask, Don’t Tell (DADT) policy and the Defense of Marriage Act (DOMA), 12 states offering marriage to all residents, and President Obama signing the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act into law, to name just a few. These policy changes, combined with the fact that defamation law relies on social mores, renders the issue of homosexuality as defamatory a relevant, ever-changing topic for investigation for individuals concerned with equality in any capacity.

As gays and lesbians secure more civil rights in conjunction with changes in public opinion, it is likely that judges’ rulings will be more inclined to mirror public opinion, as happened in prior defamation cases. Yet, as the contradictory rulings of two New York judges recently illustrated, public opinion alone does not always lead to non-defamatory rulings within the same geographic locale, nor does the existence of same-sex relationship recognition and other laws affording gays and lesbians equal rights. Defamation rulings feed into public opinion, as citizens look to the law to establish social norms, creating a proverbial chicken-or-the-egg debate with the likelihood of stunting policy change and possibly further contributing to the bullying-related youth suicides among individuals who identify as or are perceived to be lesbian, gay, bisexual, transgender, or queer (LGBTQ). 

Quite possibly, other variables are at play as well. For example, public opinion research suggests that homosexuality continues to be a polarizing issue in American politics, and judges at all levels may be allowing their own attitudes towards homosexuality to interfere, as appeared to be the case with Chief Justice Warren Burger in the Lawrence v. Texas precursor, Bowers v. Hardwick. The implications of these decisions, particularly those mandated by the Supreme Court, are likely to influence how lower courts rule in defamation cases despite defamation law being common law – especially when homosexuality as defamatory cases are currently underway nationwide with little precedent for courts to rely on for decision making.

About the author (s)

Laurie M. Phillips

University of Oregon

Assistant Professor