There s an old Seinfeld episode where a newspaper erroneously reports that Jerry and George are gay, prompting their refrain, Not that there s anything wrong with that.
Jerry: I’ve been outed ! I wasn’t even in !
George: Now everyone’s going to think we’re gay!
Jerry: Not that there’s anything wrong with that.
George: No, not at all.
What Jerry and George didn t do was sue the publication for libel.
But celebrity fitness guru Richard Simmons did after The National Enquirer and Radar Online wrongly reported he had transitioned to a woman.
Last week, a judge in Los Angeles ordered Simmons to pay his opponents legal bills after ruling it was not defamatory to say someone is transgender. Because, well, there s nothing wrong with that.
It s a remarkable decision. Just as courts over time have found that it s no longer defamatory per se to say a person was born out of wedlock or has cancer, or to incorrectly report someone s race, so too Los Angeles Superior Court Judge Gregory Keosian determined that misidentification of a person as transgender is not actionable defamation absent special damages.
While I applaud the groundbreaking ruling, the journalist in me is still kind of appalled. The National Enquirer printed something about Simmons that he says was completely wrong, yet he is the one being punished, forced to pay their attorneys fees.
And the bill is likely to be steep: The plaintiffs were represented by a team from Davis Wright Tremaine including renowned First Amendment litigators Kelli Sager and Eric Stahl and entertainment litigators Richard Kendall of Kendall Brill Kelly and Jean Paul Jassy and Kevin Vick of Jassy Vick Carolan, according to court papers.
The article in question was published on June 8, 2016 with the headline Richard Simmons: He s Now a Woman!
According to the story, Simmons has undergone shocking sex surgery to change from a man to a woman, was now living as a gal named Fiona, and has slowly transformed into a female with breast implants, hormone treatments, and medical consultations on castration.
I can accept that s not defamatory per se, but would you want someone to write that about you if it wasn t true?
Didn t think so.
Simmons, represented by Neville Johnson of Johnson Johnson and First Amendment scholar Rodney Smolla, the dean of Delaware Law School, sued the publications on May 8, 2017.
Johnson wrote, The National Enquirer and Radar Online have cheaply and crassly commercialized and sensationalized an issue that ought to be treated with respect and sensitivity. Principles of freedom of speech and press may protect their prerogative to mock and degrade the LGBTQ community. But freedom to speak is not freedom to defame. Mr. Simmons, like every person in this nation, has a legal right to insist that he not be portrayed as someone he is not. Even the most ardent supporter of sexual autonomy and LGBTQ rights is entitled to be portrayed in a manner that is truthful.”
The Enquirer punched back, filing an anti-SLAPP motion to strike the complaint. In a statement on its website, the tabloid said that it is ironic that Mr. Simmons claims to be an avid supporter of the LGBTQ community while at the same time alleges that he was defamed by The Enquirer report that he had transitioned into a female.
The Enquirer also said it stood by its story, which was based on credible sources who were in Mr. Simmons inner circle.
Keosian sided with the Enquirer, and greenlighted them to request legal fees.
In what he called an issue of first impression, the judge wrote that being misidentified as transgender is not libelous per se because such an identification does not expose any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation. While, as a practical matter, the characteristic may be held in contempt by a portion of the population, the court will not validate those prejudices by legally recognizing them.
He continued, The court does not mean to imply in its holding that the difficulties and bigotry facing transgender people is minimal or nonexistent. To the contrary, the court has reviewed the evidence submitted by Simmons regarding the deplorable statistics relating to transgender people.
Nonetheless, Keosian concluded that his decision is consistent with holdings that misidentifying one s race, medical condition, or sexual orientation is not libelous per se simply because there exist a portion of the population that expresses prejudice towards those groups.
As a judicial holding, it s a victory for the transgender community. But it still seems unfair that Richard Simmons must literally pay for it.
Contact Jenna Greene at firstname.lastname@example.org. On Twitter @jgreenejenna.