Homosexuality & Libel
Is it an insult to be called gay?
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It is possible to falsely accuse people of things like pedophilia or theft and be found guilty of slander or libel. According to the law, you aren't permitted "defame" someone by claiming without basis that they do or have done something generally considered repugnant or illegal - especially when those accusations can damage a person's reputation.
The fact that one of the standards involves the public perception of what is being accused raises an interesting moral question: is it still slander or libel when you are accused of something which people are slowly changing their minds about? When does something "generally considered repugnant" stop being "repugnant," and how do you tell? Such social shifts have happened in the past with various accusations, but today we can witness it occurring with the question of homosexuality.
There was a time not so very long ago when being accused of homosexuality would definitely result in the loss of a job, of a security clearance, the loss of business, social ostracization, or worse. Moreover, homosexuality generally implied sodomy, an act which was illegal in most states. As a consequence, falsely and maliciously accusing a person of being gay was treated as "defamatory per se." In other words, the accusation was treated as so obviously awful and damaging that it wasn't necessary for a person to prove any specific or particular damages.
Today, however, much has changed. There are still many ways in which the label "homosexual" can result in discrimination or censure, but there are many places now where the community won't think a great deal less of you simply because they know that you are gay. It's still not easy being gay, but it's also not as difficult as it once was. Does this mean, then, that being accused of homosexuality should no longer be treated as a form of defamation?
Probably not - at least not yet. There are still many examples of people initiating and winning lawsuits on the theory that homosexuality is defamatory. Tom Cruise sued Chad Slater, a gay porn actor, when Slater claimed in tabloids that Cruise had an affair with him. According to Cruise, the allegation exposed him to "hatred, ridicule and humiliation" and a judge awarded him $10 million in a default judgment.
The question remains, however, at what point the legal system will take the necessary steps to remove homosexuality as something which qualifies as "defamation per se" and make it "defamation per quod" (meaning you have to prove actual damages). If the system moves too quickly, then people falsely accused of homosexuality will suffer for it; if the system moves too slowly, then people can be found guilty of defamation when no defamation really occurred.
The existence of homosexuality as a cause for defamation lawsuits acts as a sort of barometer of the public perception of gays. So long as it remains a basis for lawsuits, it will be clear that homosexuality is treated in a discriminatory way. When it ceases to be defamatory, as have the accusations of being black or of having been raped, then it will mark an important stage in society's acceptance of gays.
The question of defamation can also serve as a personal barometer: if you were accused of being gay, how would you react? If you would be outraged, does that suggest that you harbor negative feelings about gays? Perhaps not - sodomy is still a crime in 13 states, and as with Tom Cruise, the accusation could imply adultery. Both are fair reasons to at least be uncomfortable with the claim.
On the other hand, if you aren't gay and really don't care if you are accused of being gay, does that indicate genuine acceptance of homosexuality on your part? Perhaps - or perhaps it indicates ignorance of the social and legal ramifications.
One way or another, the times are changing and homosexuality is becoming less and less of a basis for defamation claims. This is surely a good thing and it is probably worth considering just how you feel about that.
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