The National Enquirer and Radar Online claimed that Richard Simmons was a tranny, which really ground his gears. So he sued for defamation.
Simmons sued the publications in May over a story alleging that he was in the process of becoming a woman. While affirming his support for trans people, Simmons has vehemently rejected the claim.
But in his tentative ruling, Judge Gregory Keosian ruled that being misidentified as transgender does not inherently expose someone to “hatred, contempt, ridicule or obloquy,” and therefore does not rise to the level of defamation.
As Turley discusses, defamation per se had long been based on our American tradition of Puritan ickiness with sexuality.
There was a time when homosexuality was treated as a per se category of slander under common law torts. I have long discussed this issue in my torts class. Common law torts has always treated statements alleging moral turpitude and unchastity as per se categories of defamation. Accusing someone of being gay was long treated as a per se defamatory statement. It was not only viewed as alleging sexual impropriety and immorality but it was a crime in many states.
But that was back when being gay or transgender was an inherent slur. While we may remain a few steps away from acceptance, is it still defamatory for a straight person to be called a faggot or tranny?
“While, as a practical matter, the characteristic may be held in contempt by a portion of the population, the court will not validate those prejudices by legally recognizing them,” Keosian ruled.
And therein lies the dilemma. While there is nothing wrong with being anything you want to be, what if you don’t want to be it, and aren’t? It may be a lie, but defamation isn’t merely the false characterization, but the lie plus damages.
To provide some context, what if a tabloid published that a gay celebrity was, in fact, straight? It might be utterly false, but what are the damages? Of course, if the gay celebrity was, to some extent, reliant on his orientation for popularity, there could well be damages if that was called into question and impaired his reputation.
Are false allegations of sexuality (for lack of a better word) no longer susceptible to defamation? There may be nothing wrong with being gay, but if you’re not, are you wrong to be upset when a newspaper headline says you are?
More to the point, does a court “validate prejudice” by “legally recognizing” that a guy who is falsely accused of being transgender is pissed?
In this instance, Judge Keosian’s foundation is itself problematic. While acknowledging that societal norms have yet to change so much as to eliminate the per se harm, he simply refuses to go along with the law because it offends his sensibilities, precedent notwithstanding. Granted, this is how precedent changes, but when the rationale for tossing Simmons’ claim is that it doesn’t rise to the level of defamation because the judge doesn’t feel that he should “empower” prejudice by allowing it, is there any justification beyond his feelz?
As more historic taboos are broken, or at least it becomes politically incorrect to admit that the unduly woke don’t speak for most grown ups, will this be the fate of whatever the latest cause célèbre may be, diminution of legal recourse to accommodate the social justice victim of the day?
After all, if sexuality is off the table as a cause of action for defamation, the transmission of false allegations of sexuality on the front page will make for a lot of tabloid sales as long as the societal norms lag behind the cutting edge of social justice.