Movie star Ron Livingston will have no slam dunk in his defamation suit against an anonymous Internet user who falsely claimed Livingston was romantically involved with a man. CMLP’s Sam Bayard says there is no firm legal precedent supporting Livingston’s lawsuit. -DB
December 9, 2009
By Sam Bayard
Last week, Livingston filed a libel lawsuit against a “John Doe” defendant in California state court, alleging that an unknown Internet user repeatedly edited Livingston’s Wikipedia entry to falsely claim that he is romantically involved with a man named “Lee Dennison.” Livingston also claims that John Doe created fake Facebook profiles for Livingston and “Dennison” and used them to create the false impression that the two were “in a relationship.”
Livingston will no doubt subpoena Wikipedia and Facebook in an effort to unmask the anonymous prankster. California courts, like most courts across the nation, require plaintiffs to make a substantial legal and factual showing before ordering the disclosure of an Internet speaker’s identity. So, Livingston will have to show he’s got a good claim just to get the case started. This could require litigation on a fascinating topic—whether falsely claiming that someone is a homosexual is actionable defamation. Ben Sheffner raised the question and hit the high points on Monday; this post will try to fill in a bit of the legal landscape and touch on California law.
(The complaint also includes claims for false light invasion of privacy and misappropriation of name and likeness, but I won’t get to them in this post.)
In California, “libel” is defined as a false statement of fact “which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” Cal. Civ. Code § 45. The formal language is not all that helpful, but the gist is that the allegedly defamatory statement must hurt the plaintiff’s reputation in his/her community, or at least “an important and respectable body of the community.” Peck v. Tribune Co., 214 U.S. 185, 190 (1909) (Holmes, J.); see Restatement (Second) of Torts § 559 cmt. e (a “substantial and respectable minority” of the community will suffice). With a quick search, I didn’t turn up California cases discussing the scope of the relevant community, so please drop a note in the comments if you know some good cases on this point.
As this excellent Slate article points out, community norms can change from place to place and from one generation to the next. Or, as one court put it, whether a statement is defamatory “depends, among other factors, upon the temper of the times, the current of contemporary public opinion, with the result that words, harmless in one age, in one community, may be highly damaging to reputation at another time or in a different place.” Beamer v. Nishiki, 670 P.2d 1264, 1267 (1983); compare Washburn v. Wright, 261 Cal. App. 2d 789, 787 (Cal. Ct. App. 1968) (holding that “in the mental climate of 1964” it was not defamatory per se to assert that the plaintiff was a member of the John Birch Society and an extremist). So, it was once defamatory to claim that a white person had African-American ancestry, but that is no longer the law. The same is generally true for calling someone a “communist,” at least outside Vietnamese-American communities.
When it comes to falsely claiming that someone is gay, the courts appear to be split, but it is hard to say for sure because of the evolving nature of the inquiry. There are some cases saying that labeling someone a homosexual is defamatory per se under one state’s law or another. See, e.g., Plumley v. Landmark Chevrolet, 122 F.3d 308, 310-11 (5th Cir. 1997) (Texas law); Gallo v. Alitalia-Linee Aeree italiane-Societa Per Azioni, 585 F. Supp. 2d 520, 549-50 (S.D.N.Y. 2008) (New York law); Murphy v. Pizarrio, 1995 WL 565990, *3 (S.D.N.Y. 1995) (New York law); Nazeri v. Missouri Valley College, 860 S.W.2d 303, 312 (Mo. 1993) (Missouri law). Conversely, there are cases coming out the other way, holding that false claims of homosexuality are not defamatory per se, but leaving open the possibility of recovery if the plaintiff can show specific economic harm flowing from the allegedly defamatory statement. See, e.g., Donovan v. Fiumara, 442 S.E.2d 572, 575-76 (N.C. Ct. App. 1994) (North Carolina law); Moricoli v. Schwartz, 361 N.E.2d 74, 76 (Ill. Ct. App. 1977) (Illinois law); Albright v. Morton, 321 F. Supp. 2d 130, 136-39 (D. Mass 2004) (Massachusetts law).
As Ben points out, this past summer Judge Denny Chin ruled that a false allegation of homosexuality is not defamatory per se under New York law. Stern v. Cosby, 645 F. Supp. 2d 258 (S.D.N.Y. 2009). Judge Chin cited a “veritable sea change” in social attitudes about homosexuality over the past few decades and concluded that New Yorkers do not “view gays and lesbians as shameful or odious.” Importantly, he also pointed out that labeling someone a homosexual can no longer be viewed as imputing criminal conduct after the Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003), which invalidated state laws criminalizing homosexual sodomy between consenting adults. This development undercuts an argument that many—but not all—of the older cases coming to the opposite conclusion relied upon. Judge Nancy Gertner’s earlier decision in Albright v. Morton, 321 F. Supp. 2d 130 (D. Mass 2004), makes many of the same points as Judge Chin’s opinion in Stern.
When we turn our eyes towards California, at first it looks pretty bad for our mischievous and juvenile John Doe. Slate reports that, in 2003, Tom Cruise won a $10 million dollar judgment in California court in a libel suit against a porn star who claimed he and Cruise had been lovers. That’s about as bad as bad gets, I suppose. But, precedent-wise, the case has little value because it appears the defendant defaulted so the case wasn’t contested.
But there’s more. As I’m sure Livingston’s lawyers are aware, there’s a 1980 case from the Court of Appeal, Fourth District, holding that “false imputation of the commission of a homosexual act is slanderous per se.” Schomer v. Smidt, 113 Cal. App. 3d 828, 835 (Cal. Ct. App. 1980). Making things interesting, the court did not rely on the outdated and legally vulnerable argument that calling someone a homosexual imputes criminal conduct, but rather on the equally outdated—but probably less legally vulnerable—argument that calling someone a homosexual imputes lack of chastity (oh my!):
Based on the new thinking a homosexual or heterosexual act could be proper, legal and questionably “moral.” But everyone has a right to refrain from such activity and to enjoy an unsullied reputation of restraint. To state that one carries on sexual conduct be it alone, with members of the opposite or similar sex imputes to them “want of chastity,” which in the eyes and minds of their peers might and could subject them to disgrace, ridicule, damage to reputation, lacking virtue or reliability.
I’m not sure what a California judge in 2009 would do with this argument. On this very point, the leading defamation treatise quips: “Many adult American women might well consider it more harmful to be called ‘unchased’ than ‘unchaste,’ the common law to the contrary notwithstanding.” Sack on Defamation § 2.4.4. And I’m sure the same can be said for modern American men. Given that defamation law can “evolve from one generation to the next,” Stern, slip op. at 24, we might be looking at a whole new ball game.
But, getting back to basics, what about the views of the relevant community? California is on the left coast; it’s liberal, right? Doh! See Proposition 8. But what about the most pertinent community in which to judge reputational injury to a movie star—are you telling me Hollywood is intolerant towards homosexuals? That’s a toss up, but actor Rupert Everett just published a piece in the Huffington Post called “Rupert Everett’s Advice to Gay Actors: Stay in the Closet.” Ian McKellen made similar criticisms in 2007.
Alas, California might be a situation where, in the words of Judge Colleen McMahon interpreting New York law, “the prejudice gays and lesbians experience is real and sufficiently widespread so that it would be premature to declare victory.” Gallo, 585 F. Supp. 2d at 549-50. But, you could always end up with a judge who refuses to validate the prejudices of the community. Judge Gertner relied on this line of argument in construing Massachusetts law: “If the Court were to agree that calling someone a homosexual is defamatory per se—it would, in effect, validate the sentiment and legitimize relegating homosexuals to second-class status.” Albright, 231 F. Supp. 2d at 138. I’ll leave it to you to decide which approach better suits your vision of democracy.