New York common law has finally changed with the times and declared that false accusations of homosexuality are not per se defamatory. A recent unanimous New York State Appellate Division Third Department decision in a case entitled Yonaty v. Mincolla, (3rd Dep’t May 31, 2012) overturned its own precedent and those of three other appellate division departments and abandoned a long-standing legal assumption that if someone is falsely accused of being gay, lesbian or bisexual, the statement is per se defamatory.
The “prior cases categorizing statements that falsely impute homosexuality as defamatory per se are based on the flawed premise that it is shameful and disgraceful to be described as lesbian, gay or bisexual,” asserted Judge Mercure in the Third Department decision.
Until this recent decision, falsely imputing homosexuality was only one of a handful of statements that were considered per se defamatory in New York. The other statements considered per se defamatory include falsely charging someone of committing a serious crime, making statements that damage a person in their profession, claiming that someone has a loathsome disease or accusing a woman of unchastity.
Judge Mercure opined that lumping in accusations of homosexuality with accusations of committing a serious crime, for example, improperly equates these two groups of people.
The Third Department based its decision on the following: a U.S. Supreme Court decision, Lawrence v. Texas, 539 US 558 (2003), which invalidated laws that criminalized homosexual conduct; New York Executive Law §296 which bars discrimination based on sexual orientation; and evolving social mores as evidenced by New York State’s recent recognition of same-sex marriage.
The Yonaty case arose in upstate New York where defendant spread a rumor that the plaintiff was gay, thereby causing plaintiff to break up with his longtime girlfriend.
The last time a New York court grappled with the issue of whether statements of homosexuality were defamatory was in 1984. Social mores have changed significantly since then. No longer are such statements met with opprobrium. Moreover, New York legislation affords great protection and respect to homosexuals and bisexuals. Hence, public opinion would not support a rule that would equate statements imputing homosexuality with accusations of serious criminal conduct or a loathsome disease.