A state legislator in Virginia has filed a defamation suit against a John Doe defendant for circulating an anonymous text message identifying him as gay. The case is in its initial stage, but it raises interesting policy questions and litigation strategy issues.
According to the complaint, “[i]n April 2021, an anonymous text message was sent to registered voters in the Republican May 8, 2021 Convention to nominate Republican statewide officers which states that Glenn Davis is ‘Gay’ and that because he is ‘Gay’, he is not a conservative. The text asks voters to help Glenn Davis ‘come out of the closet’ by ‘not ranking him’ in the May 8th convention. The message intends to impress to voters that someone who is ‘Gay’ should not be voted for in a Republican nomination contest.”
But for the use of text messaging, this sounds like a fact pattern from the 1950’s rather than from 2021. And that comment highlights an interesting issue raised by this type of fact pattern. There are several elements to a defamation claim. For starters, the statement has to be false. But that’s not enough. The false statement also has to lower the reputation of the plaintiff in the eyes of the community. So, in the unenlightened 1950s, calling someone gay might very well have damaged that person’s reputation. But that says more about society’s bigotry than anything else.
In 2021, though, things are supposed to be different. And while it hasn’t gone away, anti-gay bigotry is not what it once was. Gay marriage is a fundamental right. Employers can’t discriminate on the basis of sexual orientation. An openly gay man was a credible presidential candidate in 2020. All of which raises the question, is it defamatory to say that someone is gay even if that person is not?
On the one hand, the text may have cost Davis votes. And so, there is an argument that Mr. Davis suffered real damage here. It’s hard not to feel sorry for him and want to see him compensated. But in order for Davis to recover, it would essentially require an acknowledgment that people think less of gay people. And that is precisely the kind of 1950s bigotry that we’ve supposedly moved beyond. So does that mean Davis has to forego any remedy here?
Maybe not. As Davis points out in his complaint, he is married to a woman and has been for his entire political career. So, putting aside the question of whether the allegation of being gay is defamatory, Davis may choose to pursue the argument that the anonymous texter is calling Davis a liar. The text implies, at least, that Davis is actively living a lie, presumably to further his political ambitions. Typically, accusations of dishonesty are deemed defamatory. So the strategy would be to not focus on the notion that there is something wrong with being gay, but rather focus on the uncontroversial notion that calling anyone a liar is actionable.
We’ll see how the case plays out. But it would be nice to finally move past this type of conduct. It is 2021 after all.
Jack Greiner is managing partner of Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues; He can be reached at jgreiner@graydon.law.
