A statement reporting that someone had a sexual fantasy is distinguishable from one reporting that the person acted on the fantasy, a New York appeals court has ruled in dismissing a transgender woman's $100 million libel lawsuit against the New York Post.

"Ava" Cordero

The newspaper published two articles about Maximilia “Ava” Cordero in October 2007 after she accused wealthy money manager Jeffrey Epstein of sexually exploiting her when she was a minor. The second article –- headlined “GENDER-BEND SHOCKER, Kinky-sex suit gal is a man” -- discussed the ambiguity over her gender identity.

On one MySpace page featuring her picture, the Post reported, “she lists her gender as male,” but on another “[s]he is listed as female” and “gives a graphic depiction of a masturbatory fantasy she has of being with multiple men and then multiple women.”

In suing the Post, Cordero alleged the report of that fantasy implied she was a “promiscuous slut” and was libelous per se, meaning she could recover damages without having to prove “special harm.” She also said other statements in the article were defamatory but a trial court judge dismissed all of her case except the claim based on the implication of promiscuity.

The New York Appellate Division, First Department ruled in a July 2 opinion that that claim should also be dismissed because

The words plaintiff complains of ... do no more than report that plaintiff described on an Internet page a 'masturbatory fantasy' she had involving multiple men and women. Nothing in that sentence or elsewhere in the article supports the inference that plaintiff in fact was promiscuous.

The court also noted that the references to the MySpace pages served to highlight the “thrust” of the article -- “that although the young person who had commenced the lawsuit [against Epstein] had purported to be a woman, that person is in fact a transgender individual who was born a biological male.”

The Post's first article about Cordero had identified her as a woman. “The stunning model wannabe who says she was pressured into a hush-hush affair with billionare Jeffrey Epstein when she was only 16 has an even bigger secret -- she's a man,” the second article said.

In Rejent v Liberation Publications, 197 AD2d 240 (1994), a New York judge said a male modelm could sue The Advocate magazine for falsely implying he was promiscuous. The magazine, which serves the gay community, had published a sexually suggestive photo of the model in an ad accompanied by text that repeatedly used the word “lust.”

But Rejent “must be contrasted” with Cordero's case, the Appellate Department said, because the allegedly defamatory statement in the Post's article “was not accompanied by any sexually suggestive photographs of plaintiff.”

Cordero's suit said the tabloid had “engaged in a vicious smear campaign to 'rape' [her] a second time through a series of malicious false stories.” Manhattan Supreme Court Justice Walter B. Tolub ruled there was enough ambiguity surrounding the report of her sexual fantasy that a jury should decide whether the article was harmful to her reputation.

“The court is mindful that changing social mores could affect how certain sexual conduct is viewed by the community, and recognizes that what was once considered defamatory per se may no longer be considered defamatory today,” he said.

A judge threw out Cordero's case against Epstein in October after he filed court papers alleging she was not a minor at the time she was his sexual partner.

By Matthew Heller
7/9/09