State Appellate Court Rules Calling Someone 'Gay' Isn't Defamation

By Ben Fractenberg on June 1, 2012 2:09pm 

An Albany appellate court said its decision to rule that falsely calling someone lesbian, gay or bisexual is not defamation was based in part on New York State legalizing same-sex marriage in 2011.
An Albany appellate court said its decision to rule that falsely calling someone lesbian, gay or bisexual is not defamation was based in part on New York State legalizing same-sex marriage in 2011.
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DNAinfo/Paul Lomax

ALBANY — Falsely calling someone gay can no longer be considered defamatory an Albany appellate court ruled Thursday.

With the Yonaty v. Mincolla decision the court overturned its own ruling as well as the rulings of three other appellate courts, reversing the legal assumption that calling someone lesbian, gay or bisexual is inherently defamatory, the New York Law Journal first reported Thursday.

Incorrectly labeling someone as gay was considered part of "per se" defamation, a form of defamatory comments where you falsely accuse someone of a crime, being unfit at their business or trade, having a "loathsome disease" or "imputing unchastity to a woman," according to the ruling.

"Given this state's well-defined public policy of protection and respect for the civil rights of people who are lesbian, gay or bisexual, we now overrule our prior case to the contrary and hold that such statements are not defamatory per se. " wrote Justice Thomas Mercure in the unanimous decision by the Appellate Division's Third Department.

The court based its decision on the U.S. Supreme Court's decision in Lawrence v. Texas, which struck down anti-sodomy laws, New York human rights law and the state's recognition of same-sex marriage in 2011.

Mercure also wrote that the Lawrence decision affirmed respect for gay people's private lives, which the panel felt could not "be reconciled with the prior line of Appellate Division cases concluding that being described as lesbian, gay or bisexual is so self-evidently injurious that the law will presume that pecuniary damages have resulted."

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