What one court has called “a veritable sea change in social attitudes about homosexuality” has evidently not reached Texas where a judge ruled that an airport security guard can sue a radio show host for calling him “gay” on the air.

Rickey Smiley

Henry Robinson alleged the imputation that he is homosexual was defamatory as a matter of law in his suit against Rickey Smiley of the Dallas radio station known as “The Beat.” Smiley referred to him as the “gay security guard” in a February 2009 broadcast after an incident several days earlier at the Dallas Love Field Airport.

The U.S. Supreme Court struck down Texas' sodomy law in Lawrence v. Texas, 539 U.S. 558 (2003). But in denying Smiley's motion to dismiss, U.S. District Judge Reed O'Connor said earlier this month that “No case appears to address whether imputation of homosexuality continues to be defamatory as a matter of law in the wake of Lawrence.”

“At a minimum,” he concluded, “judicial caution requires the Court to acknowledge that the imputation of homosexuality might as a matter of fact expose a person to public hatred, contempt or ridicule.”

The decision conflicts with a recent case in which a New York judge said statements in a book imputing that Anna Nicole Smith's lawyer is gay were not defamatory per se.

“[T]o the extent that courts previously relied on the criminality of homosexual conduct in holding that a statement imputing homosexuality subjects a person to contempt and ridicule, Lawrence has foreclosed such reliance,” U.S. District Judge Denny Chin said in Stern v. Cosby, 645 F. Supp. 2d 258 (2009).

Smiley hosts the morning show at 97.9 The Beat. He met Robinson at Love Field after disembarking from a flight and allegedly became abusive after posing for a photograph with him, calling him “the gay security guard” and “faggot.”

“Smiley told Plaintiff he was going to put him 'on blast,' which Plaintiff understood to mean Smiley would refer to him during a broadcast,” O'Connor noted, and, after Smiley called Robinson “gay” on the air, “people began calling Plaintiff 'gay.'”

A false imputation of criminal behavior is defamatory per se and, in 1997, the 5th U.S. Circuit Court of Appeals cited Texas' sodomy law in finding it was defamatory to call someone a “faggot.” Plumley v. Landmark Chevrolet, 122 F.3d 308.

O'Connor indicated some regret that Smiley did not address “Lawrence's possible impact on Plumley” in the motion to dismiss. “The issue is indeed a complex one, ripe for the clarification that comes from allowing litigation to proceed rather than the imposition of a single judge’s view,” he said in a footnote.

But a less cautious judge could have followed Chin's lead –- and, perhaps, forced the 5th Circuit to reconsider Plumley.

Smiley argued that the case should be dismissed on First Amendment grounds because “[v]iewed in context of the comedic nature of the radio show and Smiley's professional background [as a comedian], no reasonable listener would perceive his statements as factual.”

The First Amendment protects parody and satire but O'Connor said Smiley's statement about Robinson did not involve “mischaracterization or exaggeration.”

By Matthew Heller
2/26/10