Sodomy and Per Se Defamation

Arthur Leonard has an interesting post about the effect of Lawrence v. Texas on defamation law. The connection may not be immediately clear, but think about - saying someone is gay has long been and still is the basis for many a defamation suit. The most famous, of course, was the ill-fated libel suit Oscar Wilde brought against his lover's father; the trial proved that Wilde, of course, was homosexual, which shortly led to Wilde's arrest. But such suits continue today, often against the tabloid press.

Until recently, accusations of homosexuality was classed with the kinds of defamation that were so shocking, so reputation-wrecking, that it was unnecessary for the plaintiff to prove damages; this was "per se defamation." While this is nice for plaintiffs, one can easily see how this assumption of scandal and loss of reputation is in tension with the principle of Lawrence v. Texas, that gay people should not be treated as second-class citizens. If the law simply assumes that gays are such pariahs that to be identified as a member of that group is per se injurious, the law is reinforcing homophobia.

Leonard notes that a post-Lawrence, at least some courts have recognized this and rejected the per se categorization. You can still sue for defamation if someone spreads rumors that you're gay, but you have to prove it was harmful to you. In a recent decision, a federal district judge said the per se rule had "the same effect" of demeaning gay people that sodomy laws did. Leonard observes: "this little adjustment in the common law marks yet another interstitial move as the law adjusts to the idea of gay people as equal citizen."