A Stitch in Haste

As I suspect was the case with many bloggers, I wanted to wait for independent confirmation about this enraging story:

A top student and varsity athlete at a Texas Christian school was forced out after administrators found he was running a Web site about homosexuality.

The 18-year-old senior had attended Trinity Christian Academy in Addison since kindergarten, winning multiple service and citizenship awards and helping younger students with their Bible studies. But he was forced to leave the school months before graduation because school administrators deemed the Web site forum he designed to help teens discuss their sexuality "immoral behavior," the Dallas Morning News reported.

"I feel completely violated. The big lesson here for me is that you can't really trust anybody. That, and I should have kept my mouth shut," said the student, who asked the newspaper not publish his name.

Trinity's headmaster, David Delph, issued a statement that read in part: "We strive to handle each situation, as Jesus Christ would. Since love is at the core of Jesus' nature, we try to ensure each student is surrounded by an abundance of loving care during any disciplinary process."

The student will finish his senior year at a school in Plano. He has already been accepted to a prestigious university.

The expelled student's name is James Barnett; his website is my-boi.com.

The story has actually been circulating around the Blogosphere for over two weeks — it was first reported (with more detail than this cryptic UPI report) here and here; see also here. More recent commentary here and here and here.

As difficult as it may be, I want to put aside the outrage for a moment and focus on the legalities (or lack thereof) of this shameful incident. Stated differently: Can Barnett sue, either for being outed or for being expelled?

Most people, even non-lawyers, know that truth is an absolute defense to defamation. Whether (falsely) "outing" a heterosexual can constitute defamation is an evolving legal question, as it should be. But that's orthogonal to Barnett's situation — there is no defamation here.

Breach of contract for being expelled? Tough one — the contract was likely with his parents anyway, which means Barnett would have to sue on a third-party beneficiary theory. A cursory glance at the facts would suggest such a lawsuit would be difficult.

Instead I'd like to pull a different rabbit out of my hat. There's a rare little tort, a close cousin of defamation, called "public disclosure of private facts." Like defamation, "public disclosure" is a reputational tort, the prima facie case for which is detailed in the (non-binding) Restatement (Second) of Torts, Section 652D:

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.

Note that, in the context of reputational torts, there is a distinction between "publication," which means communicating to any third person, and "publicity," which does require some form of "public communication." In other words, under Section 652D, even though Barnett was an adult, the school's outing him "only" to his parents would likely not rise to "publicity" for which Barnett could sue.

On the other hand, expelling him is very much a "public act" that would likely rise to the level of "publicity" for purposes of the Restatement. The school would not only communicate that fact to anyone who had a legitimate reason to inquire (e.g., a college or employer), but even went so far as to issue a press release regarding Barnett. Clearly that qualifies as "publicity."

So, having satisfied the publicity requirement, we must now ask whether the two elements of Section 652D are met:

--Is it offensive to be outed? I believe that's the correct framing of the question, as opposed to whether it's offensive to be called gay. As I mentioned above, the law on the latter subject is evolving toward a clear majority view that it is not offensive to be called gay (whether you are or are not actually gay). Nevertheless, even if it's not offensive to be called gay, it is offensive to be outed. (Assuming, of course, that you are a private person; I have very different views about public persons, and especially politicians, who are in the closet.)

Note also that the test of offensiveness is objective rather than subjective. This means that the school's outing-expelling of Barnett must be offensive, not to Barnett, but to a "reasonable person." (Whether that means a reasonable anybody, or a reasonable gay, or a reasonable 18-year old gay, or a reasonable 18-year old gay running a website, is a whole other final exam answer blogpost that I won't go into here.)

I don't think it's much of a stretch to summarily posit that "outing a private person is offensive to a reasonable person." By linking Barnett's expulsion to his outing, the school publicized a private fact that was offensive to a reasonable person. Section 652D(a) is satisfied.

--Is being gay a matter of public concern? As for Section 652D(b), clearly a private person's sexuality is not of any concern to the public, and although his expulsion might, by itself, be a public concern, since the school linked his expulsion to his outing, the school cannot now claim that the expulsion in isolation is privileged — the expulsion and the outing are, essentially, the same act. Since the school could not expel Barnett without outing him, the question of whether the outing was a public concern (it was not) negates the defense that the expulsion was a public concern. Stated differently, since the school was not privileged to directly out Barnett, it cannot be privileged to indirectly out him by expelling him for no other reason than his sexuality.

All the elements of Section 652D are satisfied. In a jurisdiction that has adopted the part of the Restatement, Barnett would be entitled to a judgment in his favor.

Is the Restatement (Second) of Torts the law in Texas? Is there case law in Texas comparable to Section 652D? I have no idea and I don't intend to research it. My only goal here is to stir up a little outrage over this travesty and to try to get readers thinking in terms of why, legally, the incident is in fact outrageous.

Additionally, I hope you come away with a sense of how eminently fair the law can be, at least when it's actually followed. If one has to be a little creative in adapting and applying the law to fit the facts, then so be. That's how Anglo-American jurisprudence has been functioning for several centuries. It's not about "judicial activism" or an advocacy group's wise or foolish "agenda." It's about basic equity, equality, and dignity, on a case-by-case basis (no pun intended). It's not about "Massachusetts" or "Texas" or "Cincinnati" or "San Francisco."

It's about John Lawrence. It's about Judy Goodridge. It's about Matthew Limon. It's about James Barnett.

"Sue not, lest ye be sued"? "Sue not, lest ye lose in next year's state anti-gay referendum"?

Nonsense.

Related Posts:
Equal Rejection Clause
Gay Couple Told Kissing "Illegal" in Texas
"We Hate You, But In A Nice Way..."
The Ghost of Dale Continues to Haunt
Gay Marriage as the "New Abolition"

A few bloggers have picked up on this story from San Francisco: Roberto Hernandez, a gay radio station employee privately confided to a co-worker that he had visited a gay bar. The co-worker then staged a "phone prank" that resulted in the gay employee being "outed" on the radio.

The gay employee sued:

Arbitrator Rebecca Westerfield found on Friday that Hernandez had suffered emotional distress but dismissed claims of sexual harassment. She said that Hernandez had no choice but to quit his job and was owed workers' compensation.

Hernandez was awarded $250,000 and nearly $20,000 in economic damages because of the emotional distress that led to seven months of unemployment after quitting his job.

The facts are complicated somewhat by the workers compensation nature of the litigation. But the underlying fact pattern has led bloggers to revisit the issue of privacy torts and sexual orientation.

The incident reminds me of this previous post of mine over another "involuntary outing." The tort I described in that post, "Publicity Given to Private Life," again seems applicable even if one disagrees with the "emotional distress" workers comp claim than Hernandez actually received:

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that: (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.

Working backwards, it would seem to me that the whole point of "gay rights" is to strive for a world where sexual orientation was "not of legitimate concern to the public."

But what about the first requirement? This is where reasonable gays seem to disagree. Some gays who are militantly "anti-closet" might suggest that, since being gay is "no big deal," then it must follow that being outed is "no big deal" and that a plainitff like Hernandez should receive no compensation under any circumstances. Others might respond that while staying in the closet might be okay, "out to one" means "out to all" and that Hernandez should have known the risks of telling a co-worker and deserves nothing for his embarrassment. If you're ashamed to be gay, some might say, then too bad so sad -- never tell anyone.

I can't go that far. I'm certainly glad that simply calling someone gay is no longer generally considered defamation. And at the other end of the spectrum I have little problem with outing public figures, and especially politicians, who issue anti-gay rhetoric.

But I also recognize the huge swath between those two endpoints. Private gay people have a right to stay in the closet if they, for whatever reason, think that's best for them. Gays also have the right to selectively out themselves, whether to family, friends or coworkers. And those who do are entitled to expect the persons they tell not to betray that trust. This has nothing to do with being gay and everything to do with being a private person in a civilized society.

Hernandez wasn't hurt because he was outed -- he was hurt because he was humiliated over the (very) public disclosure of something he considered personal and a matter to be shared only with those whom he trusted. That his trust was misplaced is in my opinion irrelevant. That's precisely what tort law is supposed to correct.

Whether it is for "emotional distress" or for "publicity given to private life," Hernandez was the victim of a privacy tort and was entitled to a judgment. (I have no opinion as to the actual dollar amount.)

Other thoughts at Good as You and Daily Dose.

Intriguing story:

Two diners on a date at a fancy Jersey Shore restaurant were furious when they saw the check — which listed their table as that of the "Jew Couple."
...
As if that weren't bad enough, the 23-year-old shoe buyer told The [New York] Post, the offensive phrase then turned up on his credit-card statement two weeks later.

"My grandfather went through all that in old-school Europe," an angry Stein said yesterday. "But that happened more than 50 years ago. You don't expect it to happen in 2005, especially when a lot of their money comes from our community."
...
Stein said he took the offensive bill and showed it to Jewish friends seated nearby who said they could not believe it.

When the group started questioning the manager, Stein said she simply told them there was nothing derogatory about the statement. Stein said he was then asked to leave for making a fuss.
...
"We use it as a form of identity," she said. She would not elaborate on what the restaurant does when there is more than one couple assumed to be Jewish at the restaurant.

Obviously a very dumb waitress (who, according to the story, has "moved on"). But it got me to wondering: what if it had been a gay couple and the check had said "Gay couple"? "Homo couple"? "Fag couple"?

What about "Mixed couple"? "Fat couple"? "Handicapped guy"? "Burn victim"? "Mom with brats"? "Bush haters"?

I don't see a lawsuit here, except maybe over the fact that the term "Jew couple" appeared on the credit card statement. Perhaps another case of "Publicity Given to Private Life," similar to this fact pattern?

I'd guess not. I think the couple in question made the right move by engaging in "name and shame" rather than litigation.

So open thread: what would it take on a check to offend you enough to make a scene?

Other thoughts at The Rob Log.

POST SCRIPT: The restaurant in question was Parkhill's Waterfront Grill in Allenhurst.

UPDATE #1: Here are more stories, courtesy of The Rob Log.

UPDATE #2: New Jersey's Attorney General is investigating --

It stands to reason if the [restaurant] is labeling someone by religion, they are also labeling someone by race.

Huh? If I spit on the sidewalk, does it "stand to reason" that I also urinate in public? And I thought Eliot Spitzer was an activist attorney general...

UPDATE #3: Still more --

Longtime customer Joanne Fordyce said she was outraged when she noticed that her check from Parkhill's Waterfront Grill in Loch Arbour printed, just below her table number, "Dirty Joanne."
...
She said she was so shocked, she held onto her July 15, 2004, receipt for a year.
...
Fordyce yesterday filed a complaint with the New Jersey Division on Civil Rights.

I of course don't think that calling someone "dirty" on a bar tab is a civil rights violation, but I also wonder how long it will be before an "Under New Management" sign appears at the restaurant.

When I first saw the news story about the couple who were stunned to see "Jew Couple" printed on their restaurant check, I was reluctant to blog about it, since I deemed it only marginally newsworthy.

Now, however, it's extremely newsworthy:

The New Jersey attorney general will subpoena computer records from the Jersey Shore restaurant that printed "Jew Couple" on a bill, a lawyer for the slurred diners said yesterday.

The Attorney General's Office, which is apparently anxious to sniff out any possible civil rights abuse by the Parkhill Waterfront Grill, also contacted the couple's attorney, Mitchell Ansell.

"They are serving a subpoena to the restaurant for their cash register receipts to see how widespread the practices are," Ansell said yesterday, adding his clients were looking to launch legal action.
...
"It's a clear-cut case of discrimination," he said. "They absolutely violated their civil rights."

This is, of course, utter nonsense.

The couple was not denied service. They were not charged a different price. They were not publicly embarrassed (until they themselves chose to go public). Where exactly is the discrimination?

There is no evidence, absolutely none, that any crime was committed. The state attorney general therefore has no authority, absolutely none, to subpoena the restaurant's records.

Since when does the government get to "sniff out" possible civil rights violations when there no probable cause, absolutely none, to conclude that any such violation occurred? Since when are groundless fishing expeditions not banned by the Fourth Amendment?

Not only is there no evidence, absolutely none, of any crime, there is also no evidence, absolutely none, of any viable civil action against the restaurant.

A media-driven "name and shame" campaign is one thing. But no law, absolutely none, has been broken here.

My father always used to say that Richard Nixon should have taken the tapes, walked out into the middle of the White House lawn, poured gasoline on them and struck a match.

I feel much the same way for the restaurant and their register receipts.

The couple has had their fifteen minutes and have gotten their "name and shame" media coverage. Now it's time instead to "name and shame" New Jersey's activist attorney general.

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.

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.)