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"The assertion that someone is gay is not defamatory"

That’s the holding of the United States District Court for the District of New Jersey in Murphy v. Millennium Radio Group LLC, No. 08-1743, Op. at 13 (D.N.J. Mar. 31, 2010). The full opinion is available here.  The case, brought by a photographer against two shock jocks, involves a number of issues including copyright infringement and defamation based on claims that the plaintiff, Murphy, was a bad business partner and homosexual.

Focusing on the latter issue, the court granted the defendants’ motion for summary judgment, finding the speech about Murphy’s business relationships to be rhetorical hyperbole.  The court’s grant of summary judgment about the defendants’ claim Murphy was gay, though, represented a clear shift in New Jersey’s law on this issue.  In Gray v. Press Communications LLC, 342 N.J. Super 1, 10 (App. Div. 2001), the court held that “a false accusation of homosexuality is reasonably susceptible to a defamation meaning.”  But as times change, so does the law; after New Jersey adopted a statutory regime allowing for same-sex civil unions, New Jersey’s Supreme Court held that “there has been a developing understanding that discrimination against gays and lesbians is no longer acceptable in this state.” Lewis v. Harris, 188 N.J. 415, 338 (2006) (emphasis added).

Marc previously addressed the evolving meaning and power of words in the defamation context.  The word “slut” traditionally has been defamatory per se, but the word has evolved alongside terms like “scam” to be, potentially, a garden-variety insult rather than a statement of fact.

The term “slut” has different meanings to different people. C.f. McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987) (finding that the term “scam” “means different things to different people . . . and there is not a single usage in common phraseology. While some connotations of the word may encompass criminal behavior, others do not. The lack of precision makes the assertion ‘X is a scam’ incapable of being proven true or false.”);Lauderback v. Am. Broad. Cos., Inc., 741 F.2d 193, 196 (8th Cir. 1984) (insurance agent referred to as a “crook”). “Clearly, if the statement was not capable of being verified as false, there could be no liability for defamation.” Woodward v. Weiss, 932 F. Supp. 723, 726 (D.S.C. 1996). (Source.)

As terms like slut lose their original meanings, they become general pejorative terms that represent ideas instead of facts.  As such, they lose their ability to convey defamatory meaning.

“Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas. But there is no constitutional value in false statements of fact.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974). An alleged defamatory statement “must be provable as false before there can be liability under state defamation law.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 19 (1990). (Source.)

The Murphy court takes this analysis a step further: Even if the term “gay” is being used with defamatory intent, it’s incapable of having a defamatory meaning.  The District Court based this on New Jersey’s statutory acceptance of same-sex gay and lesbian relationships and the equal rights conferred onto those couples by the state.  A Florida court engaging in identical analysis, though, may reach the opposite result in light of the public’s approval of Amendment 2 to the State Constitution, restricting “marriage or the substantial equivalent thereof” to male-female couples.  Nevertheless, if “gay” loses the negative associations surrounding it to the satisfaction of a court considering the term’s negative implications, it can no longer be a defamatory term.  Bringing same-sex and heterosexual couples to parity under the law furthers this goal.

Similarly, crusades to devalue the harmful effect of terms such as gay may also achieve this end.  Despite lacking the force of law found in New Jersey’s statutes, removing the stigma of “gay” could remove it from the dictionary of defamatory terms.  A similar analysis may apply to “slut” as well, as activists like Jessica Valenti try to make the word meaningless by rationalizing promiscuity as normal and decrying purity. (Many men would disagree.)  Such an analysis would require greater context than mere statutory analysis, and courts may thus be wary to engage in it.

While it is established that words not offering a statement of provable fact are not defamatory – many colorful insults come to mind – courts are now moving to consider which facts actually are harmful.  The Murphy decision opens a new window for defamatory terms, as changing circumstances may denude them of their previously harmful implications.  Eventually this will reduce the pool of defamatory terms and result in freer speech.  Because the inquiry in Murphy seems to be so fact- and state-specific, though, a national consensus will not soon be reached.

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