Is it still defamatory to call somebody gay.... after Lawrence v. Texas?

That old perennial has popped up again... Is it defamatory to call somebody "gay"?  Under tort law in the U.S., a statement about somebody is defamatory if it would tend to harm their reputation, or, as the saying goes, might "expose a person to public hatred, contempt or ridicule."  Of course, one is privileged to utter the truth without being liable for defamation, even if a statement is defamatory.  In many jurisdictions, truth is an affirmative defense, while in some jurisdictions, the plaintiff has to allege that the statement is false as part of the prima facie case... 

I remember being outraged in my bar review course back in 1977 when the instructor was reviewing the law of defamation and stated that calling somebody gay is "per se" defamatory, which means the law will presume injury in such a case because calling somebody gay was always considered to be harmful to their reputation.  Back then only a handful of states had decriminalized consensual sodomy, which remained a felony in many states, there were no laws against sexual orientation discrimination, and there were only a handful of openly gay people practicing law in the entire United States, or being "out of the closet" in any profession.  (Just a few years before then, a NY trial court had rejected a proposed corporate charter for Lambda Legal Defense Fund on the ground that advocating for the rights of gay people did not qualify as a "charitable purpose" for a "public interest" organization.)  But we've come a long way.  In 2003, in Lawrence v. Texas, the Supreme Court found that the Due Process Clause protects the right of gay adults to have consensual sex in private, states comprising about half the population of the country prohibit sexual orientation discrimination, and five states let same-sex couples marry, while the media is full of depictions of gay characters and openly gay celebrities abound.  Should it still be considered defamatory to call somebody gay?

In Robinson v. Radio One, Inc., 2010 Westlaw 606683 (N.D. Texas, Feb. 19, 2010), U.S. District Judge Reed O'Connor answers that question with a firm "maybe."  Henry Robinson was working as a security guard at Love Field Airport in Dallas when Rickey Smiley, a talk radio personality, got off a flight there in February 2009.  Robinson approached Smiley and asked to have his picture taken with the celebrity.  When Robinson asked for a second picture, Smiley "became abusive, calling him 'the gay security guard' and 'faggot.'  Smiley told Plaintiff that he was going to put him 'on blast,' which Plaintiff understood to mean Smiley would refer to him during a broadcast."  Sure enough, a few days later, during a radio broadcast of his show, Smiley "made reference to Robinson by name, again calling him 'the gay security guard.'  After that broadcast, people began calling Plaintiff 'gay.'"  Robinson, who says he is not gay, sued Smiley and his radio station.

Ruling on the motion to dismiss the case,  Judge O'Connor confronted the defendants' argument that calling somebody "gay" could no longer be considered defamatory, despite existing Texas precedents that would support a contrary finding (all of which pre-date Lawrence v. Texas).  The question on a motion to dismiss is whether the statement could be capable of a defamatory meaning to the hypothetical typical listener.  If the answer is doubtful, it would need to be submitted to a jury to decide.  If the statement could not be found defamatory as a matter of law, the court should dismiss the case.

"In Texas, the imputation of homosexuality has historically been defamatory per se as it imputes the crime of sodomy," wrote O'Connor.  "False imputation of criminal behavior is per se defamatory.  Indeed, a concurring opinion [in Lawrence v. Texas, by Justice Sandra Day O'Connor] raised that point as the United States Supreme Court overturned the Texas sodomy statute in 2003.  No case appears to address whether imputation of homosexuality continues to be defamatory as a matter of law in the wake of Lawrence.  At a minimum, though, judicial caution requires the Court to acknowledge that the imputation of homosexuality might as a matter of fact expose a person to public hatred, contempt or ridicule.  At this stage, the allegation is sufficiently well pled to warrant discovery."

In a footnote, the judge pointed out that neither party to the case had addressed Lawrence's possible impact on the most recent Texas precedent.  "The issue is indeed a complex one," wrote O'Connor, "ripe for the clarification that comes from allowing litigation to proceed rather than the imposition of a single judge's view."

Judge O'Connor also faced the argument that a reasonable listener would not consider the statement to have been seriously made, because it was spoken in jest in the context of satire.  O'Connor referred to a reference clip from the broadcast, lasting just under two minutes.  "The clip includes, from various on-air personalities, a reference to 'Henry' working at Love Field, a poem about 'Henry, Henry" who 'sure acts gay,' off color humor about 'Henry's' duties including personal searches, an admonition to 'Henry' to stop taking pictures, and a laughing 'Sorry, Henry!'"

"From that brief clip," observed O'Connor, "a reasonable listener could well conclude that the broadcast is referring to a real person, not a comic character, who was a security guard named Henry working at Love Field.  Further, nothing in the clip suggests parody or satire, which involve mischaracterization or exaggeration.  An assertion is not necessarily parody or satire simply because it was made to provoke laughter. . . There is no question but that the use of humor to make a defamatory point can give rise to a cause of action."  O'Connor also rejected the defendants' argument that because Robinson's last name was not used on the air, the statement was not clearly "about him" and thus could not have defamed him.

So this case will go to discovery, and presumably then to summary judgment motions based on whatever is uncovered... or perhaps eventually to a trial so a jury can decide whether a typical listener to the Rickey Smiley Show would think less of 'Henry the gay security guard at Love Field' after having heard the broadcast.