Lambda vs. Howard K. Stern

By Gabriel G. Arana

Originally published on Advocate.com April 10 2009 12:00 AM ET

Anna Nicole Show

costar Howard K. Stern is suing an author in Manhattan
district court for claiming in a tell-all book that Stern is
gay. Stern is demanding $60 million in damages, but if the
efforts of legal activists are successful, he may not get a
cent.

Lambda Legal, the
country's largest legal organization dedicated to gay
rights, recently filed a "friend of the court" brief
in the case, arguing that it is not defamatory under New York
law to falsely identify someone as gay. Attorneys for the
organization say gay defamation suits "impermissibly
stigmatize lesbians and gay men" and are based on
"outdated prejudices." Judge Denny Chin is set to
decide soon whether the case should proceed to trial.

"It seemed
inappropriate -- especially in 2009 -- for [a gay defamation]
claim to have weight," said Thomas Ude, a senior staff
attorney with Lambda Legal. "There's nothing shameful
about being identified as gay."

Lawyers for the
book's author, Rita Cosby, have made a similar
argument.

"Stern is relying
on this court to affirm a discriminatory, humiliating, and
outdated notion about the community's response to
homosexuality," Cosby's lawyers said in a motion
seeking to dismiss the charges.

Stern, of course,
played lawyer -- and later rumored lover -- to former
supermodel Smith, who died in 2007 of an accidental drug
overdose. In the months leading up to her death, Smith
maintained that Stern was the father of her infant daughter,
Dannielynn.

DNA testing later
proved that Stern was not Dannielynn's dad.

For Stern to win the
defamation suit, he must show that the false statement damaged
his reputation. But what is considered a stain on one's
reputation changes over time. In the past, courts have
recognized defamation claims based on false accusations of
being black, being a communist, being Roman Catholic, etc.

HOWARD K. STERN ANNA NICOLE SMITH X390 (GETTY) | ADVOCATE.COM

Whether the suits win
also depends on where they are filed. In Los Angeles in 2003,
Tom Cruise won a $10 million judgment in a gay defamation case
against a porn star who claimed he and Cruise had been lovers.
But in 2005, U.S. district court judge Nancy Gertner threw out
a similar suit filed in Massachusetts by Madonna's former
bodyguard.

In New York, Ude
pointed to the number of openly gay public officials -- and the
respect they are accorded -- as evidence that being gay is
increasingly accepted by society. According to the Gay and
Lesbian Leadership Institute, New York has 41 openly gay
elected or appointed public officials. Nationwide, the number
is 635.

Ude added that
recognizing these claims are also inconsistent with the
protections offered to gays and lesbians under New York state
law, which include employment and housing nondiscrimination,
the right to adopt children, and recognition of same-sex
marriages performed in other states.

"[State] laws --
if we look at them together -- express New York's policy
that gays and lesbians should be treated equally," he
said. "New York just is not a place where the law should
be reinforcing the idea that there's something shameful
about being gay."

Arguably the best legal
defense against gay defamation cases is Lambda Legal's 2003
win in
Lawrence v. Texas,

a ruling that decriminalized sodomy across the country. Before
Lawrence,

gay defamation cases were often won on the basis that labeling
someone gay connoted participation in "criminal"
behavior, but since the Supreme Court has struck down these
laws, such an argument no longer bears weight.

HOWARD K. STERN MUG X390 (GETTY) | ADVOCATE.COM

Lawyers for the defense
have also questioned whether Stern can really claim damages
given that Hollywood is generally accepting of gays and
lesbians.

"[C]ertainly in
the milieu Stern has lived in for the past decade…saying
someone is gay or bisexual, even if false, is not
defamatory," a defense brief states.

Stern's lawyer did
not respond to requests for comment, but the nature of the suit
raises the question of the role that plaintiffs play in
furthering antigay prejudice.

Ude, however, said that
the particulars of the case or the motive of the plaintiff
matter less than the broad implications of having courts
recognize that being called gay -- false or not -- is not
damaging to one's reputation.

"It's less
about the individual plaintiff than about what recognizing the
claim could mean for society," he said.