On July 30, the Reporters Committee for Freedom of the Press and five media organizations asked a California appeals court to uphold a superior court ruling that dismissed a defamation lawsuit brought by celebrity fitness instructor Richard Simmons against American Media, Inc. (AMI) after it published an article that incorrectly stated that Simmons was transitioning from male to female.
In a brief submitted to California’s Second District Court of Appeal, the Reporters Committee argued that courts over time have narrowed what constitutes defamation per se — or language that has a natural tendency to injure reputation, such as calling someone a criminal — to evolve alongside social norms. As part of this evolution, the Reporters Committee argued, being falsely identified as transgender should not be considered defamation per se.
“[Construing defamation by social norms] ensures that defamation law keeps pace with social change, allowing people to freely discuss issues that matter to them and their contemporaries,” the brief states. “Just as courts in other jurisdictions have, over time, concluded that allegedly false statements that a person is a communist, African-American, or gay are not libel per se, this Court should reach the same conclusion with regard to gender identity.”
Reversing the superior court’s ruling could also have a chilling effect on journalists who report on transgender issues, the Reporters Committee argued.
“If misidentifying a person’s gender identity is held to be libel per se, a journalist may simply choose not to report a story addressing transgender issues at all or may choose to omit certain information from a story that may be important for readers,” the brief states. “When journalists self-censor in this way, it is the public that loses. Countless stories that would otherwise have informed the public are never written or published, and, therefore, never read.”
“It’s important that journalists are able to report on transgender people and issues without fear of facing a defamation lawsuit,” said Caitlin Vogus, a staff attorney for the Reporters Committee. “Our courts should uphold the trend of narrowing defamation laws to keep pace with social change and not fossilize a definition of what’s defamatory based on outdated norms.”