Unchaste no longer?

The dismissal of Britney Spears’ libel lawsuit reflects the courts’ changing view of what can be considered defamatory.

From the Winter 2007 issue of The News Media & The Law, page 20.

By Elizabeth Soja

November was a tough month for Britney Spears.

Just four days before the pop starlet announced her divorce from aspiring rapper Kevin Federline on Nov. 7, a Los Angeles judge dismissed Spears’ defamation lawsuit against US Weekly magazine.

Although the divorce announcement may have gotten more attention from the press, the lawsuit dismissal was just as much a sign of the times as the split.

Spears initially sued US Weekly after the tabloid published a story that said Spears and Federline made a sex tape of themselves during their marriage.

The magazine reported that a friend of Spears threatened to make the tape public, and that Spears and Federline visited an attorney to talk about the consequences of the tape. The article said that Spears “acted goofy” while viewing the tape at the attorney’s office.

In the order dismissing the case, Judge Lisa Hart Cole questioned whether stating a married couple taped themselves having sex could be considered libelous these days.

“The standard for defamatory statements is constantly changing,” she wrote.

Indeed, the lawsuit is one of a several recent cases to show that statements that once led to libel judgments against the media may now be easier for libel defendants to challenge because of society’s constantly changing view of sexuality, whether that applies to an implication that a woman had premarital sex or a suggestion that a man is gay.

In the Spears case, the judge never concluded whether a typical couple could successfully sue for libel in a sex-tape case because she emphasized that “[t]he backdrop against which this issue must be addressed is that [Spears] has publicly portrayed herself in a sexual way in her performances, in published photographs and in a reality show.”

While the court said that a husband and wife taping themselves for their own personal use could probably not be considered “sexually deviant” or “immoral,” the opinion suggested that even if that fact would be defamatory to most people, it would not be defamatory if the wife involved was Spears since she had used her sexuality to market herself.

‘Changing social mores’

For centuries, it has been presumably defamatory to say that a woman was “unchaste” or to suggest that she was promiscuous or somehow sexually deviant. Implying that a woman had sex out of wedlock was actionable without the plaintiff even having to show that she suffered any damage from the remark.

But as society’s perception of what is sexually deviant changes, so do the standards for a libel lawsuit.

In 2005, an ex-girlfriend of KISS lead singer Gene Simmons sued after VH1 ran a “rockumentary” in which she was portrayed, she claims, as an “unchaste woman.”

The plaintiff, Georgeann Ward, said that a portrayal of her as promiscuous was defamatory. The defendants argued that “changing social mores could affect how certain sexual conduct is viewed by the community, and that what was defamatory at one time may no longer be the case.”

While the New York state court refused the defendants’ motion to dismiss the lawsuit, the judge did suggest that the proper “legal authority or social science data” might convince a court that saying a woman is promiscuous is no longer automatically defamatory. The two sides have since settled.

Professor Lisa Pruitt of the University of California at Davis School of Law said that although it might be more difficult for a woman to sue today when she is defamed in a sexual manner, the change in the law is “a net gain for women because it signifies, through law’s expressive function, that women’s most important attribute is no longer their sexual propriety.”

Indeed, it is not just the courts that are showing a changed perception.

Studies by the U.S. Centers for Disease Control showed that in 2005, nearly 40 percent of babies in the U.S. were born to unwed mothers. Simultaneously, the studies showed that teen births were at the lowest rates in 60 years.

Presumably, this means that adult women are choosing to give birth out of wedlock, thus reducing the level of shame traditionally associated with premarital sex.

According to Pruitt, this recent study is “an important and compelling argument that our sexual mores have changed. Reports of out-of-wedlock birth and cohabitation would clearly have been defamatory before,” she said. “Now, in most communities, having a false statement that someone had a child out of wedlock might not carry a defamatory meaning.”

However, Pruitt said, “this doesn’t mean that any statement that could impute sexual impropriety is not defamatory. But the norms certainly are shifting.”

‘Catching up slowly’

Kelli Sager, a Los Angeles attorney who handles defamation cases, said that standards for all defamation cases are constantly evolving.

“The idea that what’s defamatory changes depending on what’s going on in society is not new,” Sager said. “For example, it used to be defamatory to say that someone was a communist. Obviously now, it doesn’t matter if you call someone a communist, and the courts recognize that.”

During segregation, for example, it was defamatory in some states to say that a white person was black. In 1957, the South Carolina Supreme Court said that “in view of the social habits and customs deep-rooted in this State, such publication is calculated to affect [the white plaintiff’s] standing in society and to injure her in the estimation of her friends and acquaintances.”

It is not just the public perceptions of race and women’s sexuality that have changed defamation standards over the past decades. As the gay community becomes more accepted in mainstream America, the standard of what is defamatory with regard to that community is changing as well.

Until recently, it was illegal in many states for gay people to engage in consensual sexual acts. Consequently, an accusation of homosexuality meant an accusation of criminal wrongdoing.

For example, in 1997, a federal court applying Texas law found that calling someone a “faggot” was defamatory because it implied that the person was guilty of the crime of sodomy.

But in the wake of court decisions such as Lawrence v. Texas — the 2003 U.S. Supreme Court case that legalized consensual sexual acts between adults behind closed doors —
and the decision to legalize same-sex marriage in Massachusetts, this is no longer the case.

“When it comes to homosexuality, the law is just now catching up to society,” Sager said. “As the law has changed in recognizing that homosexuality is not a crime, the defamation laws are catching up slowly with the public’s view.”

In 2004, Madonna’s former bodyguard James Albright sued an author and publishing company when he was accidentally identified as gay in a book.

The federal district court in Massachusetts found that the bodyguard could not argue that identifying someone as gay was defamatory, even though some people still view homosexuals as “less reputable than heterosexuals.”

The judge wrote that if the court “were to agree that calling someone a homosexual is defamatory per se it would, in effect, validate that sentiment and legitimize relegating homosexuals to second-class status.”

The Ohio Court of Appeals followed suit the next year in Wilson v. Harvey and found that “publicizing that someone is a homosexual is not libel per se because being a homosexual is not a crime nor is it a disease.” The court in Wilson found that being gay “would not tend to injure a person in his trade or occupation.”

Although these rulings may deprive a plaintiff of a remedy in conservative communities where an allegation of homosexuality would be professionally damaging or a suggestion of promiscuity truly damning, Sager said that courts should always “err on the side of speech” since “what courts do helps shape public opinion.”

Additionally, erring on the side of speech protects members of the news media who report on issues that involve public opinion.

“If a court says that being gay is wrong, it feeds the notion that there’s something wrong with it,” Sager said. “The court is walking a line, and it’s important for them to look at the bigger picture.”