Gay Not Grounds for Defamation

Stating that someone is gay, regardless of whether the person is, cannot be considered slanderous in New Jersey, a U.S. district court judge ruled last week.

Judge Joel Pisano ruled that two radio shock jocks, Craig Carton and Ray Rossi, on WKXW 101.5 FM in Trenton, would not have to paying damages to freelance photographer Peter Murphy. In 2006, Carton and Rossi posed for a photo by Murphy, which was included in New Jersey Monthly magazine. The photo was a shot of them naked with only a placard featuring the station's name held up to cover their midsections, according to the New Jersey Law Journal.

As a promotional push, the station asked listeners to alter the photo, but did so without crediting Murphy as the original photographer. When listeners submitted their own versions of the photos with Michael Jackson or former New Jersey governor Richard Codey, Murphy's lawyers sent a cease-and-desist letter in June 2007.

After the letter arrived, Carton and Rossi went on the air complaining about how Murphy made them pose for the shoot, implying that he was gay. They also said that Murphy was "a man not to be trusted" and that he "will sue you."

Murphy then sued on the basis of defamation and copyright infringement.

Judge Pisano ruled that because the 2006 case that said civil unions would be treated equally to marriages, "it appears unlikely that the New Jersey Supreme Court would legitimize discrimination against gays and lesbians by concluding that referring to someone as homosexual 'tends to so harm the reputation of that person as to lower him in the estimation of the community as to deter third persons from associating or dealing with him.'"

The gay references were "nothing more than rhetorical hyperbole, name calling or verbal abuse."

The judge also rejected the copyright claims, holding that the fair use doctrine applied to the use of the original photograph and the altered versions. He said that the photo appeared in the magazine, not with copyright notice, but with a photo credit added to the design of the page.