One of the big stories in defamation law last year was the decision by the Third Department of the New York Appellate Division in Yonaty v. Mincolla.[1]   In Yonaty, the Third Department became the first New York state appellate court to hold that an imputation of homosexuality does not constitute defamation per se.

Ordinarily, a defamation plaintiff must allege special damages, i.e., that she has suffered “the loss of something having economic or pecuniary value[.]”[2]  But there are a few types of statements that New York courts have found to be so inherently harmful to a person’s reputation that they are defamatory per se.  For statements in these narrow categories, the plaintiff is exempt from the requirement to plead and prove special damages.  The plaintiff in Yonaty, Mark Yonaty, alleged that the defendant told a family friend of Yonaty’s girlfriend that Yonaty was gay.  Yonaty claimed that when this statement was repeated to his girlfriend, she broke up with him, but he did not allege any economic injury.  Nevertheless, the lower court denied the defendant’s motion for summary judgment, holding that “a statement imputing homosexuality is defamation per se[.]”[3]   On appeal, the Third Department reversed.  Citing New York’s “well-defined public policy of protection and respect for the civil rights of people who are lesbian, gay or bisexual,” the appellate court held that “statements falsely describing a person” as gay “do not constitute slander per se.”[4]  The court explicitly “overrule[d] [its] own prior case to the contrary” and departed from the longstanding rule followed by the other departments of the Appellate Division.[5]

New York’s highest court, the Court of Appeals, has never held that an imputation of homosexuality is per se defamatory.  The only categories of statements that the Court of Appeals has ruled do not require a showing of special damages are “statements (i) charging plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that plaintiff has a loathsome disease; or (iv) imputing unchastity” to another person.[6]  Nevertheless, a long line of cases in New York’s four intermediate appellate courts, called Appellate Divisions, established the false imputation of homosexuality as a de facto fifth category of defamation per se. [7]

In the years leading up to Yonaty, the reasoning of these Appellate Division decisions, to the extent they provided reasoning at all, grew more and more outdated.  For example, some decisions stated that homosexuality was a category of defamation per se because legal sanctions against homosexuals remained on the books.[8]    Negative public opinions of homosexuality were also cited as a justification for the rule.[9]   But in the present day, sex with a person of the same gender is no longer a crime anywhere in the United States,[10] laws have been passed protecting homosexuals from discrimination,[11] and other legal constraints have been lifted.[12]  Public opinion has changed rapidly, with more and more Americans supporting measures to provide full equality for gay people, such as legalizing same-sex marriage.[13]  Indeed, the New York legislature voted to allow same-sex marriage on June 24, 2011, just weeks after the lower court’s decision in Yonaty.[14]

These changing societal attitudes have been noted by judges in the United States District Court for the Southern District of New York.  When called upon to apply New York law, they have become increasingly skeptical of the idea that the imputation of homosexuality constitutes defamation per se.  They have noted that “[g]iven welcome shifts in social perceptions of homosexuality[] there is good reason to question” the New York precedents. [15]  But, for the most part, they have not felt empowered to contradict the weight of Appellate Division authority as to the state of New York law.  For a while, it seemed that the farthest a judge in the Southern District would go would be to note society’s progress in recognizing civil rights for gays and lesbians and to declare that if “the degree of … widespread prejudice disappears, this Court welcomes the red flag that will attach” to its decisions.[16]

Finally, in 2009, the pattern of deference was broken.    In Stern v. Cosby, a case in which Davis Wright Tremaine represented one of the defendants, Judge Denny Chin held that an imputation of homosexuality in a non-fiction book was not per se defamatory.  Judge Chin pointed out that federal courts applying state law are not bound by rulings of the state’s intermediate appellate courts.  Accordingly, the court felt free to disregard the Appellate Division precedents[17] and to base its ruling on its own belief about how the New York Court of Appeals would rule if faced with the issue today.  In support of his prediction that the Court of Appeals would exclude the imputation of homosexuality from the defamation per se categories, Judge Chin cited the recent “veritable sea change in social attitudes about homosexuality[.]”.[18]

In addition to Judge Chin’s holding in Stern and the criticism of other S.D.N.Y. judges, support for change came from a 2005 decision by a federal court in Massachusetts, Albright v. Morton,  which held that to treat the imputation of homosexuality as per se defamatory would “legitimize relegating homosexuals to second-class status[.]”[19]  Albright attracted a great deal of attention because of its powerful affirmation of the civil rights of gays and lesbians, but it was only one in a string of cases across the country holding that the imputation of homosexuality is not defamatory per se.[20]  New York state courts also recognized society’s evolving views of homosexuality, but feeling bound by Appellate Division precedent, they did not act.   As the lower court in Yonaty put it, “[w]hile the law may, at some point, change in response to evolving social attitudes regarding homosexuality, the existing law in New York, as expressed by the Appellate Divisions—which this court is bound to follow—is that imputation of homosexuality constitutes defamation per se[.]”[21]

And so, the stage was set for the Third Department’s historic ruling.   On May 31, 2012, the appellate court overturned the lower court’s decision in Yonaty, dismissing the plaintiff’s claim for slander.  In its opinion, the Third Department made clear from the outset why the New York precedents could not stand:  “the prior cases … are based on the flawed premise that it is shameful and disgraceful to be described as lesbian, gay or bisexual.”[22]  That premise, the court found, could not be squared with the reasoning of the United States Supreme Court in Lawrence v. Texas, the landmark case holding that laws criminalizing homosexual conduct violated the Due Process Clause of the Fourteenth Amendment.  In Lawrence, the Supreme Court struck down anti-sodomy laws in part because it found that the criminalization of homosexual conduct justified, and even invited, discrimination.  Further, the Third Department found that the public policy of New York promotes respect and protection for the civil rights of gays and lesbians.  As evidence of this policy, the court pointed to the state’s statutory prohibition of discrimination on the basis of sexual orientation, as well as the recent passage of the Marriage Equality Act, legalizing same-sex marriage.

Finally, the Third Department noted that the last Appellate Division case to consider the question in depth, Matherson v. Marchello, was nearly 30 years old.  Given the massive shift in public attitudes and the lifting of legal restrictions on homosexuals in the intervening decades, the court concluded: “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[.]”[23]  Because of its holding that an imputation of homosexuality cannot constitute slander per se, the Third Department ruled that Yonaty’s failure to plead special damages warranted the dismissal of his claim.

As of this writing, Yonaty remains the only New York appellate decision to remove the imputation of homosexuality from the defamation per se categories.  But given recent trends, both in public opinion and statutory recognition of civil rights for homosexuals, it seems very likely that other Appellate Divisions, and eventually the Court of Appeals, will follow the Third Department’s lead should the issue be raised in future.[24]  It is also possible that, post-Yonaty, litigants will simply refrain from making an argument that an imputation of homosexuality is defamatory per se, recognizing that it is no longer viable.  Indeed, the trend line may even be moving in the opposite direction.  In one recent case, a plaintiff argued that accusing an employer of hating homosexuals and discriminating against them is itself defamation per se.[25]  While that argument was unsuccessful, the fact that it could plausibly be made demonstrates the progress that has been achieved. The Third Department’s decision in Yonaty made that progress into law,[26] marking another step in society’s effort to free itself from the discriminatory attitudes of the past.[27]