Questioning the Closet- False Gay Accusations and Defamation Law - Fordham Intellectual Property, Media & Entertainment Law Journal
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Questioning the Closet- False Gay Accusations and Defamation Law

Questioning the Closet- False Gay Accusations and Defamation Law

The New York Appellate Division for the Second Department recently ruled that a false accusation of being gay isn’t inherently harmful.1 The court in Laguerre v. Maurice concluded that the accusation alone – a “false imputation of homosexuality” – is not egregious enough on its face to be brought forward as defamatory per se claims.2 In the case, a church elder sued a pastor accusing him of spreading to the congregation a false rumor that the elder watched gay pornography on the church’s computer.3 The elder further alleged that the pastor had a malicious agenda to use these statements to influence the church to terminate the elder’s church membership.4 The elder sued to recover damages for a defamation per se action.5 Given that the church elder’s allegations did not fall into any other categories of defamation per se, the court ultimately required the elder to plead financial damages.6 Because he failed to do so, the case was dismissed.7

The ruling is indicative of popular culture discourse in the past several years, particularly of when Canadian singer Shawn Mendes addressed rumors on himself being gay.8 In an interview with TheGuardian from April 2019, the celebrity called constant speculation around his sexual orientation “hurtful.”9 In 2020, Mendes weighed in again on such rumors on an episode of the Armchair Expert podcast with Dax Shepard and Monica Padman. 10Mendes claimed that he “suffered” from these ongoing rumors since they had led him to question his own mannerisms and presentation.11 Some defended Mendes’ reactions: the notion of perpetually questioning his sexuality legitimizes the harmful idea that effeminate qualities are ones that are worth mocking.12 Others, however, argued the contrary view that Mendes’ comments actually reinforced negative stereotypes of the LGBTQ+ community because it came across him implying the thought of being gay as an insult.13

Generally, to create liability for defamation there must be: (a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.14 When a false accusation is gauged as defamation per se, the plaintiffs are not obligated to provide proof of special damages such that there is a concrete economic injury flowing from the defamatory statement.15 The four established categories of per se defamation involve accusing someone of committing a serious crime, injuring their business reputation, alleging they have a loathsome disease, or accusing them of unchastity.16 In no longer applying the defamation per se standard, the judgment reversed what previous courts have held in perceiving false accusations about being gay as innately damaging.17

To support its ruling, the Second Department argued that change of public opinion over time has made previous decisions inconsistent with public policy.18 It noted the “profound and notable transformation of cultural attitudes and governmental protective laws,” the legalization of same-sex marriage, and various New York statutes barring sexual orientation discrimination.19 For now, however, it remains to be seen if courts will consider other labels as no longer attaching the negative stigmas required to merit presumed damages for defamation per se claims.

  1. Laguerre v. Maurice, No. 2018-11567, 2020 WL 7636435, at *5 (N.Y. App. Div. Dec. 23, 2020).

  2. Id. at *4-5.

  3. Id. at *1.

  4. Id.

  5. Id.

  6. Id. at *5.

  7. Id.

  8. See Michael Cragg, Shawn Mendes: ‘I’m 20. I want to have fun’, The Guardian (Apr. 7, 2019, 3:00 PM EST), [].

  9. Id.

  10. See Riley Gillis, Shawn Mendes calls constant gay rumors ‘so frustrating’, MetroWkly. (Dec. 2018, 2020),[].

  11. Id.

  12. See, e.g.,Yusuf Tamanna, We Need to Stop Speculating About Shawn Mendes’ sexuality, Into (May 11, 2018),[].

  13. See, e.g., Daryl Bruce, Shawn, Being Called Gay Isn’t Hurtful, Medium (May 21, 2019), [].

  14. See Laguerre v. Maurice, No. 2018-11567, 2020 WL 7636435, at *3.

  15. See id.

  16. Id.

  17. Id. at *4-5.

  18. Id.

  19. Id.

Daniela Weinstein

Daniela Weinstein is a second-year J.D. candidate at Fordham University School of Law and a staff member of the Intellectual Property, Media & Entertainment Law Journal. She also plans to compete on the Brendan Moore Trial Advocacy team in Spring 2021. She holds a B.A. in journalism and a B.A. in politics from New York University.