Lambda vs. Howard K.
Stern

Anna Nicole Show costar Howard K. Stern is suing an author in Manhattan district court for claiming in a tell-all book that Stern is gay. Stern is demanding $60 million in damages, but if the efforts of legal activists are successful, he may not get a cent.

Lambda Legal, the country's largest legal organization dedicated to gay rights, recently filed a "friend of the court" brief in the case, arguing that it is not defamatory under New York law to falsely identify someone as gay. Attorneys for the organization say gay defamation suits "impermissibly stigmatize lesbians and gay men" and are based on "outdated prejudices." Judge Denny Chin is set to decide soon whether the case should proceed to trial.

"It seemed inappropriate -- especially in 2009 -- for [a gay defamation] claim to have weight," said Thomas Ude, a senior staff attorney with Lambda Legal. "There's nothing shameful about being identified as gay."

Lawyers for the book's author, Rita Cosby, have made a similar argument.

"Stern is relying on this court to affirm a discriminatory, humiliating, and outdated notion about the community's response to homosexuality," Cosby's lawyers said in a motion seeking to dismiss the charges.

Stern, of course, played lawyer -- and later rumored lover -- to former supermodel Smith, who died in 2007 of an accidental drug overdose. In the months leading up to her death, Smith maintained that Stern was the father of her infant daughter, Dannielynn.

DNA testing later proved that Stern was not Dannielynn's dad.

For Stern to win the defamation suit, he must show that the false statement damaged his reputation. But what is considered a stain on one's reputation changes over time. In the past, courts have recognized defamation claims based on false accusations of being black, being a communist, being Roman Catholic, etc.

Whether the suits win also depends on where they are filed. In Los Angeles in 2003, Tom Cruise won a $10 million judgment in a gay defamation case against a porn star who claimed he and Cruise had been lovers. But in 2005, U.S. district court judge Nancy Gertner threw out a similar suit filed in Massachusetts by Madonna's former bodyguard.

In New York, Ude pointed to the number of openly gay public officials -- and the respect they are accorded -- as evidence that being gay is increasingly accepted by society. According to the Gay and Lesbian Leadership Institute, New York has 41 openly gay elected or appointed public officials. Nationwide, the number is 635.

Ude added that recognizing these claims are also inconsistent with the protections offered to gays and lesbians under New York state law, which include employment and housing nondiscrimination, the right to adopt children, and recognition of same-sex marriages performed in other states.

"[State] laws -- if we look at them together -- express New York's policy that gays and lesbians should be treated equally," he said. "New York just is not a place where the law should be reinforcing the idea that there's something shameful about being gay."

Arguably the best legal defense against gay defamation cases is Lambda Legal's 2003 win in Lawrence v. Texas, a ruling that decriminalized sodomy across the country. Before Lawrence, gay defamation cases were often won on the basis that labeling someone gay connoted participation in "criminal" behavior, but since the Supreme Court has struck down these laws, such an argument no longer bears weight.

Lawyers for the defense have also questioned whether Stern can really claim damages given that Hollywood is generally accepting of gays and lesbians.

"[C]ertainly in the milieu Stern has lived in for the past decadeaEUR|saying someone is gay or bisexual, even if false, is not defamatory," a defense brief states.

Stern's lawyer did not respond to requests for comment, but the nature of the suit raises the question of the role that plaintiffs play in furthering antigay prejudice.

Ude, however, said that the particulars of the case or the motive of the plaintiff matter less than the broad implications of having courts recognize that being called gay -- false or not -- is not damaging to one's reputation.

"It's less about the individual plaintiff than about what recognizing the claim could mean for society," he said.