The sensitive issue of whether it is still defamatory “in today's culture” to falsely allege someone is homosexual has surfaced in the libel case of Anna Nicole Smith's attorney against the author of a book about the late pinup.

“Blonde Ambition” by TV journalist Rita Cosby describes a sex tryst between Howard K. Stern and Smith boyfriend Larry Birkhead which Smith allegedly witnessed. In suing Cosby and her publisher, Stern denied “any sexual activity whatsoever with Birkhead” and said the allegation of a tryst was defamatory per se because “it conveys to the reader that Stern is homosexual.”

Any liability for that statement may now depend on whether U.S. District Judge Denny Chin of New York believes “shifts in social perceptions of homosexuality” have, in effect, made false allegations of homosexuality libel-proof.

In a motion for summary judgment, Cosby argues that “in today's culture ... saying someone is gay or bisexual, even if false, is not defamatory as a matter of law.”

The legalization of homosexual acts, the motion says, has “fatally undermined” the connection between homosexuality and criminality and “the Court should reject the prejudice held by some that homosexuals are less reputable than heterosexuals.”

“Stern is relying on this Court to affirm a discriminatory, humiliating and outdated notion about the community's response to homosexuality,” Cosby concludes.

She echoes the point in a supporting declaration:

With gay marriage increasingly common and statutory equal rights afforded to gay and lesbian citizens, there is little support for the conclusion that Howard should be held in low esteem because he may be bisexual or even gay.

Several states have found that an imputation of homosexuality is no longer defamatory. “[W]e are unable to rule the bare allegation that an individual is 'gay' or 'bisexual' constitutes today an accusation which ... holds that individual up to disgrace, ridicule or contempt,” the North Carolina Court of Appeals said in Donovan v. Fiumara, 442 S.E.2d 572 (1994).

But Stern stresses that under New York law, “False imputations of homosexuality are still considered libelous per se.” In a recent decision, a New York federal judge said “the prejudice gays and lesbian experience is real and sufficiently widespread” to justify including homosexuality in the category of slander per se.

“[T]he unfortunate truth is that many people still hold prejudicial views on the subject,” Stern argues in a response brief, and

While Defendant attempts to minimize this truth by focusing on 21st Century Manhattan, Stern does not live in Manhattan and has been the brunt of strangers' offensive statements in multiple locations throughout the U.S. and the Bahamas.

Whatever the state of the law may be in New York, should courts still be accommodating anti-gay prejudice in defamation cases rather than rise above it?

Cosby also wrote in her book that Smith watched a videotape of Stern and Birkhead having sex. That statement, she argues, is not defamatory because "Innumerable famous people have been found to have sex videotapes" and "A possible sex tape was hardly something that would raise an eyebrow in the milieu of Anna and Howard's life."

By Matthew Heller
3/4/09