“The Outing” – First Amendment/Defamation

After Sharon, an NYU journalism student, “outs” Jerry by saying that he and George are a couple, the bickering long time companions desperately try to demonstrate otherwise. Once the article is published, could Jerry sue the newspaper and the writer for defamation?

To begin with, truth is the ultimate defense against a claim of defamation. If Jerry and George were lifelong steam-room partners then Jerry would have absolutely no claim of defamation.

So how did you two meet?

A defamatory statement is any false statement which injure a person’s reputation, profession, trade or business, accuses someone of committing an indictable offense, tends to bring an individual into public contempt. This means that as community standards change, so does the definition of defamation. For example: courts used to rule that calling someone a communist was defamatory. But as the red-baiting of the McCarthy era wound down in the the late 1950s, courts stopped finding that there is anything wrong with simply calling someone a “communist.”

The first step in the analysis would be to determine if calling someone “gay” is defamatory.

In 1984, a New York court found that due to the “social opprobrium of homosexuality” and “[l]egal sanctions imposed upon homosexuals in areas ranging from immigration to military service…. the potential and probable harm of a false charge of homosexuality, in terms of social and economic impact, cannot be ignored.” Essentially, the court found that both the law and society discriminated against the LGBT community and, thus, mere association with that community could impact career prospects or social standing. The court concluded that, at least according to social standards, there was something wrong with being gay.

This changed just a few years ago, in 2012, when the New York courts found that society had evolved to the point that even though “lesbians, gays and bisexuals have historically faced discrimination and such prejudice has not been completely eradicated,” being gay no longer results in widespread legal, social, or economic marginalization. Finally, society agreed with Jerry; there is nothing wrong with being steeped in gayness.

Steeped in gayness.

The incident in question took place on February 11, 1993, just a couple years before the (unconstitutional) Defense of Marriage Act was signed into law and Bill Clinton ordered the military to issue a policy of “Don’t Ask Don’t Tell” regarding gays in the military, a point addressed by The Sailor that thanks Jerry midway through “The Outing.” It seems fair to think that the LGBT community in 1993 still faced serious societal discrimination. So, yes, according to the courts in the early 90’s there is something wrong with falsely calling someone gay.

Since Jerry is, in fact, a heterosexual, even though he wore culottes as a kid, it is likely that a court would find the newspaper article to be defamatory. But Sharon and the NYU newspaper could still offer a defense that they are protected under the Public Figure Doctrine.

They were culottes! You bought them in the girls' department.

Under the Public Figure Doctrine, which is an extension of the Public Official Doctrine, defamatory statements against anyone classified as a public figure are only actionable if the reporter acted with actual malice: either Sharon had to (1) know her article was false or (2) act with reckless disregard as to its truth or falsity. This is a high standard for the plaintiff to show and is almost always a winning defense.

So is Jerry a public figure? The traditional definition is anyone who “invite[s] attention and comment” is considered to be a public figure. We know that Jerry is a professional comedian, has appeared on national TV, and is writing his own sitcom. He is also, in the words of the super Silvio, “all about, me, me, me. Please, look at me! I am so pretty! Love me! Want me!” It is true that Sharon, herself, has “never even seen [Jerry], has no idea who I am,” but the simple fact that she does not know who he is does not mean that the general public is unaware of Jerry. At the end of the day, he is “an entertainer and [he is] desperate for attention.” It is likely that a court would find Jerry has enough of a public profile to be recognized as a public figure.

Since Jerry is a public figure, he would then need to show that Sharon either knew Jerry was not gay or that she acted with reckless disregard to the truth of his sexuality, i.e. she did not do her research for the story.

Sharon has quite a bit of evidence to support her angle of the story. She overhears Elaine saying to Jerry and George that “just because you two are homosexuals, so what? I mean you should just come out of the closet and be openly gay already.” Jerry himself admits that “people think I’m gay,” because “I’m single, I’m thin and I’m neat.” Even after Jerry and George convince her that they are both heterosexuals, Sharon later overhears Jerry and George joking that the two of them “fooled her.” Much like George’s parents, it’s hard to know what’s going on.

(Editor’s note: Since George is a private figure, it is far more likely he could win on a case of defamation. This will have to be the subject of a different post.)

Given the confusion over the situation, and Jerry’s own self admission that he is commonly thought to be gay, Sharon almost certainly did not act with actual malice when writing the story. While her article may not be 100% factual, it is not defamatory.

When it comes to public figures, people’s sexual preferences can often be everybody’s business… not that there’s anything wrong with that.

She thinks we're heterosexual. I guess we fooled her.

2 thoughts on ““The Outing” – First Amendment/Defamation

  1. I think it is no coincidence that one of my top five episodes coincides with my favourite posting of yours on this blog. 🙂

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