Is False Imputation of Being Gay, Lesbian, or Bisexual Still Defamatory? The Arkansas Case

Authors

Jay Barth

Document Type

Article

Abstract

Falsely identifying someone as lesbian, gay, or bisexual (LGB) has historically been defamation per se in American courts. In modern times, however, courts have become conflicted as to whether a false imputation of a person as LGB is defamatory. Accordingly, this article examines the roots of defamation law as it relates to sexual minorities, and then examines questions regarding the defamatory status of false identification of another as LGB, whether community or national standards should drive such a determination, and finally, to what degree is any legal recognition of harm to reputation for being LBG a perpetuation of the status quo for sexual minorities.

Recent case law involving the false imputation of LGB status shows the confusion emanating from changes on all matters related to sexual orientation in the United States - courts seem to be randomly ruling gay defamation legitimate or not. This article argues that there is no continuing justification for deeming false imputation of an individual as being gay, lesbian, or bisexual defamatory, even in locales where community standards illustrate negative attitudes toward LGB individuals. Specifically, because sodomy laws have been abolished nationwide, gay defamation cases function as state-driven perpetuation of denigration of sexual minorities, which is the opposite of the trajectory of American law regarding sexual orientation.

Because empirical evidence of Arkansans' attitudes toward homosexual behavior and status is so clearly negative, traditional defamation law would likely dictate that false imputation as LGB in Arkansas is harmful to an individual’s reputation. Such a result would stymie an otherwise mostly pro-equality shift in Arkansas law. Accordingly, the article concludes that it is important for Arkansas courts to refuse to perpetuate biases against gays, lesbians, and bisexuals through recognition of false imputation of a person as LGB as defamatory.

Recommended Citation

Jay Barth, Is False Imputation of Being Gay, Lesbian, or Bisexual Still Defamatory? The Arkansas Case, 34 U. Ark. Little Rock L. Rev. 527 (2012).
Available at: https://lawrepository.ualr.edu/lawreview/vol34/iss3/3