In a punctured story this week about alleged internal politics at Fox News, Gawker used an anonymous source within a parenthetical to allege that Fox News executive Bill Shine was a “major, major homophobe.”
There are journalistic problems with using such sourcing to slime someone in that manner. But what of the legal ones? How actionable is “homophobe” in 2014? For some feedback on that question, we turned to regular Erik Wemple Blog legal-input guy Prof. Clay Calvert, director of the Marion B. Brechner First Amendment Project at the University of Florida. Is calling someone a “homophobe” tantamount to calling someone a “racist”? Calvert:
While some courts today have said that calling a person a racist isn’t necessarily libelous because the term is so loosely bandied about these days, I think that falsely calling someone a homophobe at a time when same-sex marriage is gaining much wider public acceptance and traction would indeed be defamatory. The bottom line is that what is defamatory will vary from time to time and place to place. It used to be defamatory to falsely say that a straight person was gay, but that is no longer the case in some jurisdictions. Same thing on falsely saying someone was a communist.
The bummer for a guy like Shine is Philadelphia Newspapers, Inc. v. Hepps. That’s a 1986 Supreme Court case establishing that private figures are burdened with proving the falsity of negative characterizations in the media when they relate to matters of public concern. “If a court finds that the subject matter in question is about a matter of public concern, which it seems to be given Shepard Smith’s high profile, then Shine would have to carry the burden of establishing falsity — that he is not a homophobe and not insensitive toward gays. There’s obviously no clear or established way for determining whether one is or is not a homophobe,” notes Calvert. Talk about a cherished legal protection for media.
Such a civil action would preoccupy the country’s media critics: Huge cable-news outfit attacks Web gossip site, court documents yield details about Fox News, accusations fly everywhere.
Factoid: Mexico has declared that two homophobic terms are exempted from the constitution’s freedom of expression guarantees.