A federal judge has ruled that stating that someone is gay does not libel or slander them, particularly in light of new court decisions granting gays more rights. The ruling by U.S. district judge Nancy Gertner in Boston came as she threw out a lawsuit by a former boyfriend of pop singer Madonna who claimed he was libeled because his name appeared in a photo caption in a book about Madonna--under a picture of Madonna walking with a gay man. "In 2004, a statement implying that an individual is a homosexual is hardly capable of a defamatory meaning," Gertner wrote in the ruling, issued Friday. Courts in other jurisdictions are split on whether stating that someone is a homosexual is defamatory, Gertner wrote in the 23-page opinion.
The attorney for plaintiff James Albright, who had worked for Madonna as a bodyguard, didn't immediately respond to telephone and e-mail messages left Saturday seeking comment. Attorneys for the defendants, who included Madonna biographer Andrew Morton and St. Martin's Press, the publisher, also didn't respond. Albright, who had a romantic relationship with Madonna in the early 1990s, had sold information about the pop star that later appeared in the book Madonna, Gertner said. Albright objected to a mislabeled caption to a photo printed in the book and in two periodicals that showed Madonna walking with Jose Gutierez, a gay man who had performed with her on two worldwide tours. The caption read, "Jim Albright (with Madonna in 1993) told Morton he felt 'overwhelming love' for her."
Gertner first rejected the idea that the mistake in captioning constituted a "statement" that Albright was gay. But she then went further, addressing whether a statement that somebody is gay could be construed as defamation. She said previous court rulings in which such statements were found to be defamatory relied on laws that criminalized same-sex sexual acts. Previous decisions also didn't take into account more recent court decisions recognizing equal rights for gay men and lesbians, she said. She pointed to a U.S. Supreme Court ruling last year that found the Texas sodomy law unconstitutional. And she pointed to the Massachusetts supreme judicial court ruling last November that found it to be unconstitutional to prevent same-sex couples in the state from marrying. "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect," she wrote, quoting the supreme judicial court ruling. "In this day and age, recent rulings by the Supreme Court and the supreme judicial court of Massachusetts undermine any suggestion that a statement implying that an individual is a homosexual is defamatory," she wrote.
Gertner also compared the case with cases from the past where plaintiffs claimed they were harmed by falsely being linked to racial, ethnic, or religious groups and said those cases would "plainly not qualify as defamation per se today."
"We completely agree with the judge that in this day and age, calling someone a homosexual or gay is not an insult and shouldn't be," said Arline Isaacson, cochair of the Massachusetts Gay and Lesbian Political Caucus. "It's merely a description and no different than describing someone by their ethnicity or religion."
Paul Martinek, editor of Lawyers Weekly USA, said the ruling in the civil case on defamation would have no effect on hate-crime statutes that protect people from hate-motivated attacks. He said Gertner is known as a liberal judge and that she was "obviously trying to make new law in this case" on defamation. But until an appeals court adopts her reasoning, Martinek said, "it's just one judge issuing an interesting, novel opinion, and other judges will look at it and decide for themselves whether or not they agree with it." The written form of defamation is called libel; the spoken form is called slander.