By prudishly disregarding the context of gay sex allegations in a book about Anna Nicole Smith, a New York judge has decided that the late pinup's attorney can sue the book's author for implying he cheated on her with a man.

Howard K. Stern	Rita Cosby

TV journalist Rita Cosby reported in “Blonde Ambition” that Howard K. Stern had a sex tryst with Larry Birkhead and that Smith watched a tape of the two men having sex. Birkhead is the father of Smith's daughter Dannielynn and Stern has said he was also romantically involved with Smith before her death in February 2007.

Ruling on Cosby's motion for summary judgment, U.S. District Judge Denny Chin agreed with her in an Aug. 12 opinion that the gay sex allegations “are not defamatory per se because they impute homosexuality to Stern.”

“[T]he 'current of contemporary public opinion' does not support the notion that New Yorkers view gays and lesbians as shameful or odious,” he noted.

But Stern can still proceed to trial because Chin found the allegations are “susceptible of a defamatory meaning” and meet the test for actual malice. “A reasonable jury could find that engaging in oral sex at a party is shameful or contemptible,” he said, and “to the extent that the Statement implies that Stern was unfaithful to Smith, this would be a further reason for a jury to find that the Statement is defamatory.”

Chin was completely unsympathetic toward Cosby's argument that the allegations “must be filtered through the 'outrageous' lives Anna and Howard lived, particularly when it came to anything to do with sex, drugs or their seeming unbridled willingness to exploit themselves for profit.”

“I understand that Smith and Stern led what many people would describe as an unorthodox lifestyle,” he said. “Even in the context of an unorthodox lifestyle, however, [the sex tape statement] is hard to fathom.”

He also said it was “absurd” for the defense to argue celebrity sex tapes have become so common that they do not expose the celebrity to contempt.

The decision left most of Stern's case intact by denying summary judgment on 11 of the 19 statements in “Blonde Ambition” that he alleged were defamatory. Chin found “substantial” evidence of malice, saying a jury could conclude the sex tape allegation “'is so inherently improbable that only a reckless person' would have published it.”

Chin's notion that a jury would find Stern's alleged infidelity shameful and Cosby's reporting reckless suggests he is out of touch with “contemporary public opinion” -- or should at least have watched a few episodes of Smith's reality TV show.

“In the highly-charged sexual world of Anna's 'outrageous' life (as sold on The Anna Nicole Smith Show) where Howard dressed in drag and the press called his sexuality 'ambiguous,' I most certainly did not see Howard and Larry having sex as inherently incredible,” Cosby said in a court declaration.

The ruling is also puzzling because Stern argued the gay sex statements had a defamatory meaning not because they suggested he was unfaithful to Smith but because “they paint a picture of Stern as ... using these alleged sexual encounters to pressure and extort an agreement out of Birkhead to give Stern financial control of Ms. Smith's estate.”

That argument gives Stern a much stronger basis for liability than any imputation of infidelity, but Chin never mentions it in his ruling.

Chin has previously shown that he isn't too media-friendly. Last year, he ruled that NBC could be sued for provoking the death of a man who shot himself as a camera crew waited outside his home to film his arrest for a segment of the “To Catch a Predator” show.

New York's high court has yet to find that an imputation of homosexuality is no longer defamatory. But Chin said the court's plurality opinion in a recent same-sex marriage case “clearly recognized ... that social attitudes toward gay and lesbian New Yorkers had changed dramatically in the past few years.”

By Matthew Heller
8/15/09