A Stitch in Haste

A small newspaper in Connecticut had to issue an apology for running a joke photo caption:

The Immaculate High School team was celebrating a goal scored in a championship game Nov. 5. But the caption on the Web site of The News-Times said the team was celebrating a teammate's decision to "come out of the closet as a lesbian."

"It was a flagrant, awful violation of every journalistic principle," said Paul Steinmetz, the paper's editor. "It's just embarrassing to us and untenable."

Of course, hopefully the newspaper is referring to the broadly defined act of running an inaccurate caption of any kind under any circumstances and not the specific act of falsely portraying someone as gay. As if being falsely portrayed as gay would be "awful."

On the other hand, there was a time not very long ago when being gay was such a social stigma that falsely calling someone a homosexual could be actionable as defamation (i.e., slander or libel). In fact, under the (somewhat obsolete) doctrine of "slander per se" — which holds that falsely accusing someone of criminal conduct is so outrageous that the plaintiff need not prove actual harm to recover damages — in a pre-Lawrence environment calling someone a practicing homosexual where gay sex was illegal could qualify as "slander per se."

At this point, I suspect there are few if any jurisdictions where simply calling someone gay is actionable defamation. Yet another sign of how far we've come, and yet another reminder that gays shouldn't drown themselves in the marriage debate while losing sight of all the other progress that's been made.

FUN FACT: There were three other categories of false statement (besides criminal conduct) that were deemed so outrageous as to constitute "slander per se" — (1) having a communicable disease, (2) being unfaithful to one's spouse (originally applied only to women), and (3) engaging in fraudulent or unethical business practices.