A Stitch in Haste

I had originally declined to blog about the Robbie Williams "I'm not gay" libel award in the U.K. for two reasons:

1. Libel law in the U.K. is, for lack of a better term, nuts. There is no reason to think that "I'm not gay" libel law in the U.K. is especially more or less nuts than the rest of U.K. libel law.

2. I have absolutely no idea who Robbie Williams is.

But then I saw this interesting FindLaw op-ed about the repeated "I'm not gay" litigation by Tom Cruise:

Cruise has chosen, in the past, not only to challenge allegations that he cheated or lied to cover up his alleged homosexuality, but also to directly challenge allegations that he is gay.
...
Cruise already had a strong suit based on suggestions that he was an adulterer and a liar -- cheating on his wife and misrepresenting the character of their marriage to the public. Did he need to also directly take aim at the statement that he was gay?

Here's the thing about "gay as defamation" lawsuits. Consider the following five statements about the hypothetical 45-year old "Cruisey Williams." For the sake of simplicity, assume that Cruisey Williams is not a "public figure" for the purposes of First Amendment law. Also assume that each statement was widely disseminated and is in fact false.

1. Cruisey Williams is gay.
2. Cruisey Williams is gay and repeatedly lies about it.
3. Cruisey Williams is gay and cheats on his wife.
4. Cruisey Williams is gay and has anonymous sex in public restrooms.
5. Cruisey Williams is gay and likes to have sex with minors.

For the purposes of a defamation lawsuit, there is a fundamental difference between false statement #1 and false statements #2-5. For each of the "gay and..." statements, the "and..." is, by itself, defamatory with or without the "gay" part. Each would just as defamatory if they had been "Cruisey Williams is straight and..."

As I understand it, that pretty much takes care of the Robbie Williams defamation suit. There was more to the allegation than just "Robbie Williams is gay" (i.e., the story "suggested that Williams had numerous homosexual encounters with strangers" -- that sounds pretty defamatory to me, regardless of Williams' sexual orientation).

But is the Tom Cruise type of defamation lawsuit, based solely on false statement #1, still permissible? Is calling someone gay, without more, actionable as defamation?

Under the common law, in order to be "defamatory," a statement must tend "so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." -- see Restatement of Torts (Second), §559. Now of course "community" can mean many things, especially regarding Tom Cruise -- America generally? Hollywood? Scientologists?

But "communities" don't have courts; states have courts and states have tort law, so it follows that "community" should be interpreted expansively (i.e., societally).

In a Twenty-First Century, post-Romer, post-Lawrence society, there is no basis to assert, as a matter of law, that being called gay is, without more, defamatory. Even if a person is so uptight about his sexuality and his reputation that he feels compelled to fight for his right just to be straight, then he still should be required to bring in the truly defamatory "and..." element to the litigation.

Homophobic celebrities may have a right to be uptight. But that doesn't mean they should be allowed to sue to defend the "sanctity" of their uptightness.

(Cross-posted at Spectrum Bloggers.)