Judge’s Ruling Out Of Touch With Reality

22 thoughts on “Judge’s Ruling Out Of Touch With Reality”

1. There’s actually some solid legal history for this reasoning. One of the early responses to desegregation was violence against the new students, and this was obviously a very real threat. Many states refused to desegregate, not for some invidious reason, but for the simple fact that they considered the children’s safety to be a compelling interest against desegregation, at least until people learned to be more tolerant. But this defense of maintaining segregation was rejected. The theory behind the rejection of this rationale is the same as the response to the “heckler’s veto” in First Amendment cases: the state can’t allow someone’s wrongful actions to dictate the boundaries of someone else’s rights, because that would be giving legal effect to their wrondgoing. There is a similar rationale for refusing to enforce contract claims that are against public policy: the law will not give illegal or invidious actions any legal effect.
   I would share your concern here that this simply isn’t the same thing, because homosexuals aren’t a protected class. But the real test case would be deliberately and falsely accusing someone of having some racial ancestry. If that happened in a particularly racist town, the person’s business might suffer, but I would argue that the law should not call that defamation. The only damage that could possibly be done by the untruth is a racist backlash, and if you legally found that statement to be defamatory, it would allow the racists’ wrongdoing to cabin someone else’s free speech rights (the alleged defamer’s) by being racist. On the one hand, it’s not wrong for a racist to refuse to shop at a particular store, but on the other hand, the court would be giving their refusal for this reason legal effect.

2. Wow. Jimmy, you really need to read the opinion before making a comment like this.
   FYI it can be found at “http://pacer.mad.uscourts.gov/dc/opinions/gertner/pdf/albrightdecision.pdf”
   Far from “furthering the homosexual agenda”, the judge was simply “furthering the law”.
   The Martian example you posited assumes an economic impact to you from the false statement made about you. Such claims are generally actionable. Had the plaintiff in the Albright case alleged any actual harm from being mis-identified as homosexual, his case would have proceeded to the jury.
   However, when, as in the Albright case, there is absolutely no economic harm alleged, the statement must be shown to be “defamatory per se”,which is set out by state law and which clearly was not met in this case.
   Specifically, Massachusetts law sets forth four specific categories of “defamation per se”: libelous statement; statements that charge the plaintiff with a crime; statements that allege plaintiff has a communicable disease; and statements that may prejudice the plaintiff’s business or profession.
   Courts that have found calling someone a homosexual to be defamatory have generally relied upon the second category, because same-sex acts in those jurisdictions were criminal. Thus, calling someone gay was tantamount to accusing them of illegal sodomy.
   More generally, the graveman of defamation per se is an false accusation that an individual belongs to a group that would unequivocally expose them to public hatred, comtempt or outrage. Aside from the “homosexual agenda”, even our Catechism makes clear that simply being a homosexual does not fit that criteria.
   Again, the plaintiff would have had an actionable claim if he could have demonstrated actual harm from the false identification. Absent that, the judge was simply following state law in recognizing that simply calling someone gay, without any resultant harm, is not defamatory per se.
   Beyond that, there was a serious question as to whether any “statement” was even made about the plaintiff by virtue of his being misidentified in a caption of a photograph. Further, even if a statement was being made, there was a further question as to whether that statement could be construed as identifying the plaintiff as a homosexual.
   Basically, the charge was that the photograph mis-identified another individual walking next to Madonna as the plaintiff (when he was not). Further, it may be known to some people that the individual actually shown in the photo walking next to Madonna happens to be gay. Therefore, for the claim to even make sense, someone would have to view the photograph of person X walking next to Madonna, know that he is gay, and be (mis) informed by the caption that person X is named Albright (the plaintiff). Then in some subsequent dealing with Albright, treat him adversely based upon the mistaken belief that he is gay, despite the fact that he is obviously not the person in the photograph.
   Let’s not be so quick to see homosexual activists hiding behind every tree and in every legal opinion to attack a jurist without the courtesy of actually reading the opinion and making an appropiate analogy.

3. BTW Jonathan:
   If you check out the opinion, the Judge actually refers to cases dealing with the racial issue you suggested as a test case.
   Interestingly, initially, identifying a white person as black aims was considered defamatory. More recent cases have rejected that approach, using precisely the rationale you allude to: finding such statements defamatory per se “assumes without question that the plaintiff’s community was a considerable and respectable one whose values are worthy of the law’s attention, respect and support, and in doing so validating racist views.”

4. I wouldn’t base my disagreement on the fact that homosexuals are a protected group (though that is true) but on the fact that it is a mistake to read the first amendment in this way.
   The first amendment, despite its phrasing, is not an absolute guarantee of being able to say anything one wants. In particular, it does not create a legal right to say false and injurious things about another person. If it were then the ratification of the first amendment would have instantly made *all* libel and slander laws unconstitutional. Since the ratifiers did not intend the nullification of all libel and slander laws, the first amendment does not create a right to say false and injurious things about another person.
   It does not matter what the content of the false and injurious speech is. The courts *should not* get into the business of deciding whether false speech *ought* to be injurious or not. They should stick to establishing whether it is demonstrably false and is demonstrably injurious.
   Thus in a racist area accusing a person of having a racial ancestry other than he does (whether it is accusing a white person of having black ancestry or a black person of having white ancestry or something else entirely) with the result that he suffers injury is not a protected activity under the Constitution.
   If courts, or the Supreme Court, rule or have ruled to the contrary then it the ruling is wrong, IMO. The right of free speech does not entail the right to deprive another person *his* right to his reputation. If it did, all libel and slander laws would be ipso facto unconstitutional.

5. Esquire,
   Since I am not writing a legal blog, I am not in the main pushing back to the rulings themselves but allowing myself to be dependent on the reportage of them in the press for purposes of comment. I acknowledge that there may be factors in the case documents that would change what I would say about the case. I am directing my comments to the issues surfaced in the reportage.
   If what you say about the case is true (and I have no reason to think that it is not) then this case would be a pertinent example. You write:
   “Beyond that, there was a serious question as to whether any ‘statement’ was even made about the plaintiff by virtue of his being misidentified in a caption of a photograph. Further, even if a statement was being made, there was a further question as to whether that statement could be construed as identifying the plaintiff as a homosexual.”
   *This* IMHO is a real defense. Misidentifying one person as another (esp. with no evidence of malice or recklessness) is not the same as stating that he is a homosexual. Had the judge confined herself to this reasoning, I would have agreed. Similarly, had she simply argued that *in fact* the man was not harmed by being so identified, I wouldn’t have objected.
   But the judge went beyond that to introduce reasoning that I regard as false and out of touch with the values that defamation laws are intended to protect against, and it is to *that* that I objected. I’m not expressing an opinion about whether the guy should receive damages. I might well concur with the bottom line ruling, but I am pointing out what I regard as an erroneous element in it.
   You also wrote:
   “More generally, the graveman of defamation per se is an false accusation that an individual belongs to a group that would unequivocally expose them to public hatred, comtempt or outrage. Aside from the ‘homosexual agenda’, even our Catechism makes clear that simply being a homosexual does not fit that criteria.”
   I don’t find this argument persuasive because the Catechism is not going to say that *any* group should be exposed to public hatred. It is doubtful that it would say any group should be exposed to public contempt. It *might* say that some groups should be exposed to public outrage, though predicated on this outrage being understood in a very moderate and non-threatening way.
   For purposes of civil law, however, it seems to me that the relevant consideration is or should be whether the individual is harmed or risks being harmed by another person making false statements about him. If he *does* suffer or risk public hatred, contempt, or outrage then this should trigger the relevant clauses of the law, regardless of whether he *should* suffer such calamities if the statement were true.
   In other words, “The town *shouldn’t* have gotten all riled up and lynched you when the other guy knowingly said false things that would put you in danger of being lynched” should not be a valid defense IMO.

6. Jimmy:
   I don’t believe courts have ruled that the First Amendment protects and immunizes the infliction of harm to a person’s reputation.
   It is just that the harm to reputation must be, as you say, “demonstrable”. The categories for which a showing of actual economic harm are not required (and therefore “emotional distress” alone can be compensated) are, understandably limited.
   Otherwise, one person’s civil liability would be defined by another person’s sensibilities. What if you called Jack Chick a Catholic? No doubt he would consider the allegation defamatory. But assuming no one actually responded adversely to the allegation (i.e. refrained from picking up his tracts on the subway or in a phonebooth and thus restricting his distribution) do you really think he should be able to sue you for defamation and recover damages for emotional distress?

7. Jimmy:
   I agree that there is a difference between the way things “are” and the way things “should be”.
   (parenthetically, the mainstream media has the same problems reporting on legal issues that you’ve pointed out regarding scientific issues, and that we’ve all seen regarding theological or religious issues).
   But you really need to acknowledge the distinction between cases of defamation where actual harm can be shown, and those in which no actual harm is shown, or even alleged.
   In the latter case, which is the theory chosen by the plaintiff himself, the court really is required to determine whether the false allegation is so utterly offensive and would expose the plaintiff to such public opprobrium that it is actionable, or not.
   In this day and age, is simply (mis)identifying an individual as homosexual PER SE defamatory? Regardless of whether it “should be”, I don’t think you can even say that it “is”? It would certainly be no problem in someplace like Provincetown, MA or San Fransciso, CA, or myriad other locales.
   Aside from the legal niceties, however, the flip side of the argument that the courts and legislatures ought not be in the business of dictating “tolerance” or “diversity” is that they also ought not be in the business of institutionalizing and furthering the opposite tendencies.

8. I wrote,
   “(parenthetically, the mainstream media has the same problems reporting on legal issues that you’ve pointed out regarding scientific issues, and that we’ve all seen regarding theological or religious issues).”
   Just a thought, is the qualifying “parenthetically” required when actually writing something IN parentheses? I really need to get back to my “concise legal writing” resources.

9. I wrote,
   “(parenthetically, the mainstream media has the same problems reporting on legal issues that you’ve pointed out regarding scientific issues, and that we’ve all seen regarding theological or religious issues).”
   Just a thought, is the qualifier “parenthetically” required when actually writing something IN parentheses? I really need to get back to my “concise legal writing” resources.

10. No, and I didn’t say or imply that I did. If you read my comments above, they are directed to the reactions others may have to the defamed person. I don’t raise the question of his emotional distress because of the difficulties (not insurmountable, but considerable) to establishing such.
    What I am commenting on is where the judge says “In fact, a finding that such a statement is defamatory requires this court to legitimize the prejudice and bigotry that for too long have plagued the homosexual community.”
    I dispute that. It does legitimize prejudice to find that someone can be harmed by false statements which put them in a position of being subject to prejudice. Further, courts should not be in the business of deciding what is prejudice and what is not because this would imply a social value judgment on the part of the court, and allowing courts to determine which social values will be legally enforcible is a very dangerous proposition that turns judges into lawmakers.

11. Jimmy:
    I think you’re digging a hole here that isn’t going to get anywhere. 🙂
    I agree that there is an exception in the First Amendment for defamation. But first of all, defamation is a legal category, not simply “false and injurious speech.” There are a lot of false and even false and injurious things that I can say about someone that aren’t defamatory, particularly when the target is a public figure. Oddly enough, sometimes you are protected in your ability to say false and injurious things (the freedom to be wrong, in essence). So the boundary of defamation is indeed a legal decision about where First Amendment rights end, not simply a generic class of regulation that is immune from First Amendment scrutiny. I think your characterization of defamation laws as protecting a “right to reputation” gets to the heart of the problem. There is no constitutional “right to reputation.” The state government has decided to protect people’s reputation in a certain way, and that protection restricts another person’s ability to speak, so it is subject to First Amendment scrutiny.
    Second, the concern about giving invidious motives legal effect is a 14th Amendment concern, which would override any previous legislation to the contrary anyway. The state’s exercise of its power to protect its citizens is also subject to the prohibition on enshrining invidious discrimination, as it is in many other areas of the law having nothing to do with free speech. In some cases, the state MUST NOT protect rights that would otherwise be protected. For example, enforcing a racially restrictive covenant on property is considered state action subject to 14th Amendment scrutiny, even though the individuals have a state-protected right to contract with one another and even though they have a protected right in the property itself.

12. Incidentally, the courts already are in the business of deciding what is and isn’t prejudice under the 14th Amendment. That’s why we have protected classes.

13. Esquire,
    I am not prepared to have a protracted discussion on this point in a comments box.
    Also, please do not keep bringing in new issues. As I have explained, my comments were on a particular part of the judge’s ruling and its implications, not on other matters.
    When you write about the whether calling someone a homosexual really *is* still sufficiently offensive to trigger the law in the absence of concrete evidence of harm, you are introducing a matter about which there is no disagreement and which I have already addressed.
    As indicated, if the judge had simply found that in the state of Massachusetts people are so pro-homosexual that the plaintiff was not at risk of injury, I would not object. *However* she went beyond this to place the court in a position of making social value judgments and thus stepped out of the role of judge and into the role of legislator.
    *This* is the substance of my objection.

14. I think I agree that the court is called upon to make a “value judgment”, but that is not something inherent in “furthering the homosexual agenda” but rather something required by the legislature itself in estalishing a defamation law in the first place.

15. I’m sorry, but I’m going to have to pull out of this thread. I am preparing for an event today and I am simply out of time.
    I suspect that the difficulty we are having here is that y’all are performing a different *kind* of analysis than I am.
    Specifically, I suspect y’all may be lawyers or other legal professionals and that this is responsible for the disconnect (which is to say, y’all are performing the kind of analysis that you would ordinarily perform in the course of doing your job).
    Unfortunately, I simply do not have time at the moment to try to figure out the particulars of the disconnect or formulate practical ideas for avoiding it in the future.
    God bless, and talk to y’all later!

16. No sweat, Jimmy. Thanks for the dialogue!

17. FWIW, it seems clear to me (though I’m no law expert) that:
    [a] the lawsuit was so groundless as to be frivolous, and the judge was right to throw it out; HOWEVER,
    [b] having said that, the judge’s argument that “a finding that such a statement is defamatory requires this court to legitimize the prejudice and bigotry that for too long have plagued the homosexual community” represents a disturbing activist stance rather than a legally relevant argument.
    To us non-legal types, this judge seems to be saying, in effect: “For speech to be defamatory, you have to be called something that I can agree is really bad, like a Nazi or a child molester. This is 2004, we’ve got legal marriages in Massachusetts, we’re making great strides against homophobia, society today finally recognizes that to be gay is not a bad thing. I won’t have any turning back the clock.”
    Whether speech is defamatory should not be predicated on a judge’s moral opinion of whether a particular group has been wrongly targeted for prejudice or bigotry. And certainly the judge’s opinion that such prejudice and bigotry has gone on for too long should not be a legally relevant factor.
    The specifics of the case aside, the opinion Jimmy quoted seems unavoidably disturbing. That’s the point that Jimmy was making, I think.

18. Sergei:
    Maybe it would help in this case if you think of the test for defamatory speech as being what a reasonable person would find defamatory (i.e., would reduce that person’s reputation in the reasonable person’s eyes). So if a reasonable person would not consider a person being of a particular race to be a bad thing, then it’s not defamatory to say that someone is a member of that race, even if you do it falsely. But by law, we consider some motives, like racism, to be inherently unreasonable by law, so we don’t take those into account when determining whether a reasonable person would find the remarks defamatory.
    It’s not so much that it has to be something that the judge considers really bad, but it has to be something that the hypothetical reasonable person would consider bad. And as usual in law, the “reasonable person” has very little to do with the average person. 🙂

19. : And as usual in law, the “reasonable person”
    : has very little to do with the average
    : person. 🙂
    Well, there you go. This judge is saying not only that a reasonable person would NOT consider homosexuality a bad thing (though in fact many reasonable and average people do), she’s saying that (un)reasonable people have been considering it a bad thing for too long.

20. Sergei:
    At the risk of beating a dead horse or continuing to go around in circles:
    The whole point of the law regarding defamation per se is that there are certain things you can call someone that are so patently offensive (i.e. defamatory) in and of themselves (i.e., per se) that the person is entitled to legal compensation even if they’ve suffered no demonstrable tangible injury.
    Someone has to decide what sorts of labels, if you will, fall into that category, and the law, as drafted by the various state legislatures, generally leave that up to the judge in the first instance, or in certain cases to the jury.
    You may not agree with that, but it’s the law.
    Now on the question of whether this judge was correct in holding that calling someone a homosexual is not so inherenty awful as to entitle them to compensation, I would direct you attention to Paragraph 2358 of the Catechism of the Catholic Church, which provides in pertinent part that:
    “They [homosexuals] must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided. These persons are called to fulfill God’s will in their lives and, if they are Christians, to unite to the sacrifice of the Lord’s Cross the difficulties they may encounter from their condition.”
    Homosexuality itself was not on trial and the judge did not pass judgment on whether it is a “bad thing”. Rather, the sole question was whether falsely calling someone a homosexual is a “bad thing”, per se. In finding that it is not, the judge is in line with the Cathechism of the Catholic Church, and if she is “furthering the homosexual agenda”, then so is the Catechism on that point.

21. You all might find this legal analysis from the Curmudgeonly Clerk helpful. It points out some of the flaws with the decision.
    http://www.curmudgeonlyclerk.com/weblog/archives/2004_06.html#000838

22. I’m sorry, but determining the objective moral status of something is a job for philosophers and theologians, not Massachusetts judges…
    —————————————————–
    Shouldn’t judges regularly compare the law and their own judgments against the natural law? Wouldn’t this activity make them moral philosophers?

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