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Publication Date

2010

Abstract

This Article argues a statement misidentifying a personas homosexual should be deemed not defamatory as a matter of law. Whether a statement is defamatory changes as social mores and policies evolve, such that a statement deemed defamatory in the past may not be defamatory now. For example, historically, courts deemed statements misidentifying a person as homosexual defamatory per se. As society's opinion of homosexuality began to improve, courts instead required proof of special damages for a plaintiff to maintain a defamation action for such statements. No American court, however, has yet held that such a statement is not defamatory as a matter of law. When courts allow false imputations of homosexuality to serve as the basis for defamation claims, they endorse an erroneous value judgment that homosexuality is worthy of scorn. Courts can and should exercise their normative judgment and deem homophobes not worthy of the law's respect, and should hold the misidentification of someone as a homosexual not defamatory as a matter of law.

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