False Accusations of Homophobia and Racism: Are They Libelous?

In brief, Kenny Kramer may have lost on the facts, but the judge seemed to recognize that, under different circumstances, false accusations of homophobia can indeed be defamatory.
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Is it libelous in 2014, when same-sex marriage is gaining both legal traction and cultural acceptance, to falsely accuse someone of being a homophobe?

Thanks to a fading, two-decades-old catchphrase -- "not that there's anything wrong with that" -- synonymous with a 1993 episode of Seinfeld called "The Outing," we're starting to find out.

In that episode, characters Jerry and George adamantly deny being gay but, to emphasize their supposed open-mindedness, maintain there is nothing wrong with homosexuality.

This week, the pop-cultural expression made it into the legal lexicon. On July 14, New York trial court judge Barbara Jaffe tossed out a defamation suit filed by Kenny Kramer, the real-life inspiration for Seinfeld's Cosmo Kramer character and who now provides bus tours of New York City spots made famous in the series. The case of Kenny Kramer vs. Skyhorse Publishing, Inc. pivoted directly on the alleged use of "not that there's anything wrong with that."

Specifically, a 2013 book authored by comedian and former Seinfeld writer Fred Stoller claims that while Stoller was riding on one of Kelly Kramer's bus tours back in 1996, the bus traveled through what Stoller dubbed "gay-dominated Greenwich Village." While there, one of Kramer's employees supposedly twice made everyone on the bus scream out the windows, "Not that there's anything wrong with that!"

Kenny Kramer sued, alleging the book falsely accused him of taunting members of the gay community, thereby harming his reputation.

Judge Jaffe rejected Kramer's contention, writing that reasonable readers of Stoller's book would find the alleged use of the phrase at issue in the case amounted to little more than:

Seinfeld-related shtick, even if the phrase was repeatedly screamed out as the bus wended its way through "gay-dominated Greenwich Village." And, although pointing at gay people and taunting them with the phrase from within a large tour bus wending its way down tiny streets in Greenwich Village may reasonably reflect homophobia, nowhere does Stoller depict any pointing and he never uses the term "taunting."

In brief, Kenny Kramer may have lost on the facts, but the judge seemed to recognize that, under different circumstances, false accusations of homophobia can indeed be defamatory.

It's clear that the question of whether falsely branding a person a homophobe is libelous will arise again. For instance, an April article on Gawker labeled Bill Shine, a Fox News executive, "a major, major homophobe." Openly gay Fox News contributor Ellen Ratner blasted that accusation as false in the Advocate.

The fact that calling someone a homophobe may be defamatory represents a dramatic legal shift when it comes to the intersection of libel law and homosexuality. How so?

For many years and in most states, it was considered defamatory per se -- something that would be presumed to harm one's reputation - to falsely state that a straight person was gay. That, however, is starting to change today in some states like New York and Massachusetts.

"The law should not endorse homophobia," writes First Amendment attorney Jean-Paul Jassy on the question of whether falsely calling a straight person gay should result in a successful libel suit. Although acknowledging "the very real contempt, hatred, and sometimes violence that people experience from being labeled gay," Jassy asserts that "the question is moving forward as a society. Moving away from the notion that there something 'wrong' with being gay."

Of course, it was also once defamatory in the United States to falsely state that a white person was black. That's clearly no longer the case.

The bottom line is that what is defamatory will vary from time to time and place to place. Proving whether or not one actually is a homophobe will be extremely difficult; only factual assertions are grounds for libel suits, not subjective assertions of opinion. Mere name-calling generally does not make for successful libel suits. And to the extent that people loosely bandy about the word homophobe, much like they often do "racist," some courts may simply find it to be an expression of opinion unless there are factual instances of discrimination to back it up. As a federal court observed in 2013 in Forte vs. Jones, "the allegation that a person is a 'racist'... is not actionable because the term 'racist' has no factually-verifiable meaning."

For now, however, legal observers and those in both the gay and straight communities can thank Seinfeld for sparking an important discussion that's anything but a laughing matter.

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