Today an Appellate Division, Third Department panel held, in Yonaty v. Mincolla, that false accusations that one is gay, lesbian, or bisexual no longer qualify as defamation “per se”. Defamation “per se” does not require proof of economic or pecuniary harm because statements falling into that category “are commonly recognized as injurious by their nature, and so noxious that the law presumes that pecuniary damages will result.”
The four established “per se” categories are statements (1) charging a plaintiff with a serious crime, (2) that tend to injure another in his or her trade, business or profession, (3) that a plaintiff has a loathsome disease, or (4) imputing unchastity to a woman. Various courts had recognized “falsely imputing homosexuality” as a fifth category of “per se” defamation.
The Yonaty court, however, held that this was improper, reasoning that the essence of per se defamation is inconsistent with the general social acceptance of homosexuality. The court wrote:
Defamation necessarily . . . involves the idea of disgrace. … [T]he prior cases categorizing statements that falsely impute homosexuality as defamatory per se are based upon the flawed premise that it is shameful and disgraceful to be described as lesbian, gay or bisexual. In fact, such a rule necessarily equates individuals who are lesbian, gay or bisexual with those who have committed a “serious crime” – one of the four established per se categories. … That premise is inconsistent with the reasoning underlying the decision of the Supreme Court of the United States in Lawrence v Texas (539 US 558 ), in which the Court held that laws criminalizing homosexual conduct violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution. …
In regard to New York in particular, we locate the public policy of [this] state in the law as expressed in statute and judicial decision and also [by] consider[ing] the prevailing attitudes of the community. … Rather than countenancing the view that homosexuality is disgraceful, the Human Rights Law, since 2002, has expressly prohibited discrimination based on sexual orientation in employment, public accommodations, credit, education and housing (Executive Law § 296). Most revealing of the respect that the people of this state currently extend to lesbians, gays and bisexuals, the Legislature passed the Marriage Equality Act … in June 2011, which was strongly supported by the Governor and gave same-sex couples the right to marry in New York, thereby granting them all the benefits of marriage[.] …
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, 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. … While lesbians, gays and bisexuals have historically faced discrimination and such prejudice has not been completely eradicated, the fact of such prejudice on the part of some does not warrant a judicial holding that gays and lesbians [and bisexuals], merely because of their sexual orientation, belong in the same class as criminals.
Accordingly, a plaintiff alleging defamation based on a false imputation of homosexuality must allege damages in the form of economic or pecuniary loss.