Pride and Prejudice: Defamation and the LGBTQ+ Community

Don’t get me wrong – I love rainbow sprinkles and Kate Bush and Pose, but I’m reminded every time I talk to my family in Florida that the fuzzy feeling of June in the city isn’t shared by all in this hot, hot mess of a country. So I am here to shed some legal realness as it relates to defamation and the LGBTQ+ community. It’s actually good news, so stay with me.

It should shock no one that in 1917, it was defamatory to misidentify someone’s race.[1] It took seventy years for the courts to finally conclude that:

It would ignore reality to suggest that racial and ethnic prejudices do not exist or that all manifestations of those prejudices have been eliminated . . . The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.[2]

On the heels of Lawrence v. Texas, where the Supreme Court held that criminalizing homosexual conduct “demeans the lives of homosexual persons,”[3] a Massachusetts court concluded that to characterize sexual identity as defamation per se would have the same effect.[4] The law cannot tolerate prejudices, no matter how widespread, nor can it validate “relegating homosexuals to second-class status.”[5] Then, in 2017, California ruled that while, “as a practical matter, the characteristic [of being transgender] may be held in contempt by a portion of the population, the court will not validate those prejudices by legally recognizing them.”[6]

While framed in the context of defamation, the widespread importance of these rulings cannot be overstated and the underlying messages need to be shouted from the rooftops:

Black people are not second-class citizens.

Gay people are not second-class citizens.

Transgender people are not second-class citizens.

I know that words offer little comfort. I know that private biases cause actual harm, regardless of whether “the law” gives them effect. It took us one hundred years to get here, and I know that we have so much more work to do, but I want to end this post on a gay[7] note. When confronted by bigotry and hatred, know that there are countless allies out there, somewhere, that will stand with you. We at Reavis Page Jump stand with you. Yes, we enjoy a little festive rainbow branding but we walk the walk too. You are born perfect, dear reader. Happy pride.

 

This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Associate Michelle Lamardo who counsels clients in areas of  entertainment and media, intellectual property, privacy and employment law. Ms. Lamardo is admitted to practice law in New York.

 

 

[1] See Stultz. Cousins, 242 F. 794, 797 (6th Cir. 1917); see also Bowen v. Independent Pub. Co., 230 S.C. 509, 513 (1957).  It should shock no one that the plaintiffs in these cases were not upset about being misidentified as white.

[2] Thomason v. Times-Journal, Inc., 190 Ga. App. 601, 603 (Ga. Ct. App. 1989).

[3] 539 U.S. 558, 575 (2003).

[4] Albright v. Morton, 321 F.Supp.2d 130, 137 (D. Mass. 2004).

[5] Albright, 321 F.Supp.2d, at 137-138.

[6] Simmons v. American Media Inc., 2017 WL 5325381, 45 Media L. Rep. 2321, p. 9.  It is worth noting that the court explicitly stated that it “does not mean to imply in its holding that the difficulties and bigotry facing transgender individuals is minimal or nonexistent.” Id. at 11.

[7] Love a good pun.