Until recently, falsely accusing someone of being gay was considered defamatory per se in New York. Recently however, a New York appellate court broke with decades of precedent in ruling that such a statement no longer constitutes defamation per se. In so ruling the court cited recent transformations in the law and cultural attitudes towards homosexuality as justification for changing the standard as it relates to accusations of being gay.

Defamatory statements fall into one of two distinct categories: defamation per se and defamation per quod. When a statement is considered to be defamatory per se, it is considered so obviously harmful to one’s reputation that proof of harm or actual damages are not required.

The plaintiff in the case was a former elder in a Seventh Day Adventist church in New York. According to the complaint, the plaintiff alleged that he was defamed by the pastor of the defendant church when the pastor told members of the congregation that the plaintiff was a homosexual who viewed gay pornography on the church’s computer. The complaint further alleged that the pastor made the statements to influence the church to vote to relieve the plaintiff of his responsibilities at the church and to terminate his membership. The former elder responded by suing the pastor and the church to recover damages for defamation per se.

The church asserted three defenses in its motion to dismiss the claims. First, the church argued that the court lacked subject-matter jurisdiction to inquire into ecclesiastical proceedings, discipline, and church doctrine. Second, the church argued that the complaint failed to state a cause of action for defamation per se, since falsely ascribing homosexuality to a person no longer constituted defamation per se, and the plaintiff had failed to allege that he sustained any special damages. Finally, the church argued that the allegedly defamatory statements were protected by a common-interest privilege because they were made at a church membership meeting. The trial court rejected the church’s arguments and the church appealed.

On appeal, the Court agreed with the trial court that it had jurisdiction to resolve the dispute as the case could be determined by application of neutral principles of law. The Court disregarded the church’s citation to the prohibition against homosexual activity in the church manual as the plaintiff was not challenging his expulsion from the church or requesting reinstatement as a church elder. The Court also rejected the argument that the statements were privileged from liability. While acknowledging that the common-interest privilege had been applied to statements made in furtherance of a religious organization, the Court noted that the privilege could be overcome by a showing of malice, which the complaint sufficiently alleged to overcome the privilege.

In turning to the church’s second argument concerning the continuing validity of case law holding that false accusations of homosexuality were defamatory per se, the Court reviewed decades of New York precedent on the issue. The Court held that finding such statements to be defamatory per se was inconsistent with current public policy. “In light of the tremendous evolution in social attitudes regarding homosexuality” and “the considerable legal protection and respect that the law of this state now accords lesbians, gays and bisexuals,” the Court reasoned that “it cannot be said that current public opinion supports a rule that would equate statements imputing homosexuality with accusations of serious criminal conduct or insinuations that an individual has a loathsome disease.” Accordingly, the Court dismissed the action and overruled prior precedents finding false imputations of homosexuality defamatory per se.

The Court’s full opinion is available here.

Whether you are being accused of harming someone’s reputation or you believe someone else has harmed your reputation by making defamatory statements, it is important to consult an experienced slander law and cyber-smear law attorney. Our DuPage County defamation attorneys defend individuals’ First Amendment and free speech rights to post on Facebook, Yelp and other websites information that criticizes businesses and addresses matters of public concern. Here you can view a federal court decision where we prevailed in a libel per se claim asserting the innocent construction defense. Here is an arbitration decision where we successfully defended our client by presenting evidence that our client’s 20+ YouTube videos containing negative opinions about a used car dealer were substantially true and were protected opinion under the First Amendment. We recently required a defendant who publicized an allegedly false lawsuit regarding our client to provide an apology and full retraction as part of a confidential financial settlement following our filing of a $16 million suit for libel per se in federal district court.

Our Chicago and Naperville defamation and libel attorneys also represent and prosecute claims on behalf of businesses throughout the Chicago area including in Wilmette and Evanston who have been unfairly and falsely criticized by consumers and competitors in defamatory publications in online and offline media. We have successfully represented businesses who have been the victim of competitors setting up false rating websites in order to publish defamatory content about our business clients. Beyond slander and libel law, our Chicago business, commercial, class-action, and consumer litigation lawyers represent individuals, family businesses and enterprises of all sizes in a variety of legal disputes, including disputes among partners and shareholders as well as lawsuits between businesses and consumer rights, auto fraud, and wage claim individual and class action cases. In every case, our goal is to resolve disputes as quickly and successfully as possible, helping business clients protect their investments and get back to business as usual. We serve clients throughout Illinois and the Chicagoland area. You can call us on our toll-free number at 833-306-4933 or locally at 630-333-0333 or contact us online here.