➤ DEFAMATION, from p.14
Laguerre fi led a lawsuit in New
York Supreme Court in Brooklyn,
claiming that Pastor Maurice’s
statements were defamatory per
se. His claim relied on a 1984
decision by the 2nd Department,
Matherson v. Marchello, which
recognized the old rule and had
not been overruled. As of 1984,
all four New York appellate departments
had decisions agreeing that
a false charge of homosexuality
was defamatory per se.
A defamation claim seeks to
hold a speaker or writer fi nancially
responsible for the harm cause by
their false statements about people.
The essence of defamation, as
the word suggests, is a statement
that infl icts injury on the person
who is the subject of the statement
by attacking their reputation and
impairing their ability to function
in society. Courts have traditionally
treated some statements as
so automatically harmful that the
court will presume that they will
cause such harm, including economic
harm. This is referred to as
“defamation per se.”
Courts have long treated a false
statement that somebody is gay
as such an automatically harmful
statement — in light of criminal
laws against gay sex and widespread
discrimination — but in
this case, the New York Appellate
Division for the 2nd Department,
based in Brooklyn, became the
second appellate division court in
the state to hold that falsely calling
somebody gay is not automatically
so harmful.
In 2012, the Albany-based
3rd Department of the Appellate
Division abandoned the old rule
in a case called Yonaty v. Mincolla,
but that decision was binding
only on courts within the upstate
3rd Department. The state’s highest
court, the Court of Appeals,
has never issued a decision on this
subject, and until December 23
neither of the other Appellate Division
departments had done so.
Pastor Maurice asked the trial
court to dismiss the case, noting
the 3rd Department’s Yonaty
decision, but the trial court was
bound to follow 2nd Department
precedent and refused to dismiss
the case. Pastor Maurice’s appeal
to the 3rd Department gave that
court an opportunity to bring their
defamation law up to date.
Finding the reasoning of Yonaty
v. Mincolla to be persuasive, the
2nd Department now holds that
Matherson v. Marchello and the
earlier cases that it had cited “are
inconsistent with current public
policy,” wrote Justice Roman.
“This profound and notable transformation
of cultural attitudes
and governmental protective laws
impacts our own consideration of
stare decisis,” she wrote.
The court recited a litany of legal
developments since 1984, particularly
noting the Supreme Court’s
2003 decision in Lawrence v. Texas
striking down as unconstitutional a
Texas statute outlawing gay sex and
that Court’s 2015 decision, Obergefell
v. Hodges, fi nding a constitutional
right for same-sex couples to
marry. The court also noted that
New York State has banned sexual
orientation discrimination in employment,
housing and public accommodations
since 2002, and that
the state enacted its own marriage
equality law in 2011, several years
before the Obergefell decision.
The court concluded that it is
no longer true that falsely calling
somebody gay can be presumed to
be so harmful to their reputation as
to cause economic injury. If it is not
defamation per se, that means that
the plaintiff has to include in his
complaint factual allegations of actual
fi nancial harm caused by the
defamation, referred to by courts
as “special damages.” A complaint
that lacks such allegations must be
dismissed, so the Appellate Division
sent the case back down to Brooklyn
Supreme Court with directions
to dismiss the lawsuit.
The court rejected two other
arguments that Pastor Maurice
made. He argued unsuccessfully
that his constitutional right to free
exercise of religion shielded him
from any liability for defamation,
since his dispute with Laguerre
arose out of church business, but
that didn’t fl y with the court. Neither
did his argument that his
comments to the congregation fell
within the doctrine of “common interest”
privilege, which allows people
to make defamatory statements
to others with whom they share a
commonality of interest.
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