97 A.D.3d 141
N.Y. App. Div.2012Background
- Plaintiff alleged the defendant repeated to a close family friend that plaintiff was gay or bisexual, harming plaintiff's relationship.
- Supreme Court dismissed some claims but allowed slander claim to proceed, citing per se defamation for homosexual imputations.
- Court previously followed line of Appellate Division cases treating false homosexual imputations as slander per se; those were challenged.
- Court overrules prior cases and holds statements falsely imputing homosexuality are not defamatory per se.
- Court cites public policy favoring acceptance of lesbians, gays and bisexuals, including Human Rights Law protections and Marriage Equality Act.
- Case ultimately dismisses both the slander claim (due to lack of special damages) and other claims; orders dismissal of both complaint and third-party complaint.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statements describing a person as lesbian, gay or bisexual are slander per se | Plaintiff argues such statements are inherently defamatory | Defendant and amici argue they are not per se defamatory | Not per se defamatory |
| Whether special damages are required for slander when the statements are not per se | Plaintiff contends damages need not be proven absent per se | Defendant contends damages are required unless per se | Special damages not required; claims dismissed for lack of per se basis; slander claim barred for lack of damages |
Key Cases Cited
- Liberman v. Gelstein, 80 NY2d 429 (NY 1992) (establishes four per se categories; damages presumed in per se cases)
- Kimmerle v. New York Evening Journal, Inc., 262 NY 99 (N.Y. 1933) (defamatory meaning hinges on exposure to contempt and disgrace)
- Bytner v. Capital Newspaper, Div. of Hearst Corp., 112 AD2d 667 (2nd Dept. 1985) (discussion of disgrace as inherent to defamation)
- Golub v. Enquirer/Star Group, 89 NY2d 1076 (NY 1997) (recognizes defamation analysis for statements with potential defamatory connotations)
- Matherson v. Marchello, 100 AD2d 233 (2d Dept. 1984) (formerly treated homosexuality as per se defamatory; relied on social opprobrium)
- Lawrence v. Texas, 539 U.S. 558 (U.S. 2003) (reaffirmed respect for private life and invalidated criminalization of homosexual conduct)
- Tourge v. City of Albany, 285 AD2d 785 (3d Dept. 2001) (fifth per se category recognized by some Appellate Divisions prior to reconsideration)
- Klepetko v. Reisman, 41 AD3d 551 (2d Dept. 2007) (cited as prior authority that false imputations of homosexuality could be per se)