By Yonatan S. Berkovits
One of the big stories in defamation law last year was the decision by the Third Department of the New York Appellate Division in Yonaty v. Mincolla. In Yonaty, the Third Department became the first New York state appellate court to hold that an imputation of homosexuality does not constitute defamation per se.
Ordinarily, a defamation plaintiff must allege special damages, i.e., that she has suffered “the loss of something having economic or pecuniary value[.]” But there are a few types of statements that New York courts have found to be so inherently harmful to a person’s reputation that they are defamatory per se. For statements in these narrow categories, the plaintiff is exempt from the requirement to plead and prove special damages. The plaintiff in Yonaty, Mark Yonaty, alleged that the defendant told a family friend of Yonaty’s girlfriend that Yonaty was gay. Yonaty claimed that when this statement was repeated to his girlfriend, she broke up with him, but he did not allege any economic injury. Nevertheless, the lower court denied the defendant’s motion for summary judgment, holding that “a statement imputing homosexuality is defamation per se[.]” On appeal, the Third Department reversed. Citing New York’s “well-defined public policy of protection and respect for the civil rights of people who are lesbian, gay or bisexual,” the appellate court held that “statements falsely describing a person” as gay “do not constitute slander per se.” The court explicitly “overrule[d] [its] own prior case to the contrary” and departed from the longstanding rule followed by the other departments of the Appellate Division.
New York’s highest court, the Court of Appeals, has never held that an imputation of homosexuality is per se defamatory. The only categories of statements that the Court of Appeals has ruled do not require a showing of special damages are “statements (i) charging plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that plaintiff has a loathsome disease; or (iv) imputing unchastity” to another person. Nevertheless, a long line of cases in New York’s four intermediate appellate courts, called Appellate Divisions, established the false imputation of homosexuality as a de facto fifth category of defamation per se. 
In the years leading up to Yonaty, the reasoning of these Appellate Division decisions, to the extent they provided reasoning at all, grew more and more outdated. For example, some decisions stated that homosexuality was a category of defamation per se because legal sanctions against homosexuals remained on the books. Negative public opinions of homosexuality were also cited as a justification for the rule. But in the present day, sex with a person of the same gender is no longer a crime anywhere in the United States, laws have been passed protecting homosexuals from discrimination, and other legal constraints have been lifted. Public opinion has changed rapidly, with more and more Americans supporting measures to provide full equality for gay people, such as legalizing same-sex marriage. Indeed, the New York legislature voted to allow same-sex marriage on June 24, 2011, just weeks after the lower court’s decision in Yonaty.
These changing societal attitudes have been noted by judges in the United States District Court for the Southern District of New York. When called upon to apply New York law, they have become increasingly skeptical of the idea that the imputation of homosexuality constitutes defamation per se. They have noted that “[g]iven welcome shifts in social perceptions of homosexuality there is good reason to question” the New York precedents.  But, for the most part, they have not felt empowered to contradict the weight of Appellate Division authority as to the state of New York law. For a while, it seemed that the farthest a judge in the Southern District would go would be to note society’s progress in recognizing civil rights for gays and lesbians and to declare that if “the degree of … widespread prejudice disappears, this Court welcomes the red flag that will attach” to its decisions.
Finally, in 2009, the pattern of deference was broken. In Stern v. Cosby, a case in which Davis Wright Tremaine represented one of the defendants, Judge Denny Chin held that an imputation of homosexuality in a non-fiction book was not per se defamatory. Judge Chin pointed out that federal courts applying state law are not bound by rulings of the state’s intermediate appellate courts. Accordingly, the court felt free to disregard the Appellate Division precedents and to base its ruling on its own belief about how the New York Court of Appeals would rule if faced with the issue today. In support of his prediction that the Court of Appeals would exclude the imputation of homosexuality from the defamation per se categories, Judge Chin cited the recent “veritable sea change in social attitudes about homosexuality[.]”.
In addition to Judge Chin’s holding in Stern and the criticism of other S.D.N.Y. judges, support for change came from a 2005 decision by a federal court in Massachusetts, Albright v. Morton, which held that to treat the imputation of homosexuality as per se defamatory would “legitimize relegating homosexuals to second-class status[.]” Albright attracted a great deal of attention because of its powerful affirmation of the civil rights of gays and lesbians, but it was only one in a string of cases across the country holding that the imputation of homosexuality is not defamatory per se. New York state courts also recognized society’s evolving views of homosexuality, but feeling bound by Appellate Division precedent, they did not act. As the lower court in Yonaty put it, “[w]hile the law may, at some point, change in response to evolving social attitudes regarding homosexuality, the existing law in New York, as expressed by the Appellate Divisions—which this court is bound to follow—is that imputation of homosexuality constitutes defamation per se[.]”
And so, the stage was set for the Third Department’s historic ruling. On May 31, 2012, the appellate court overturned the lower court’s decision in Yonaty, dismissing the plaintiff’s claim for slander. In its opinion, the Third Department made clear from the outset why the New York precedents could not stand: “the prior cases … are based on the flawed premise that it is shameful and disgraceful to be described as lesbian, gay or bisexual.” That premise, the court found, could not be squared with the reasoning of the United States Supreme Court in Lawrence v. Texas, the landmark case holding that laws criminalizing homosexual conduct violated the Due Process Clause of the Fourteenth Amendment. In Lawrence, the Supreme Court struck down anti-sodomy laws in part because it found that the criminalization of homosexual conduct justified, and even invited, discrimination. Further, the Third Department found that the public policy of New York promotes respect and protection for the civil rights of gays and lesbians. As evidence of this policy, the court pointed to the state’s statutory prohibition of discrimination on the basis of sexual orientation, as well as the recent passage of the Marriage Equality Act, legalizing same-sex marriage.
Finally, the Third Department noted that the last Appellate Division case to consider the question in depth, Matherson v. Marchello, was nearly 30 years old. Given the massive shift in public attitudes and the lifting of legal restrictions on homosexuals in the intervening decades, the court concluded: “it cannot be said that current public opinion supports a rule that would equate statements imputing homosexuality with accusations of serious criminal conduct or insinuations that an individual has a loathsome disease[.]” Because of its holding that an imputation of homosexuality cannot constitute slander per se, the Third Department ruled that Yonaty’s failure to plead special damages warranted the dismissal of his claim.
As of this writing, Yonaty remains the only New York appellate decision to remove the imputation of homosexuality from the defamation per se categories. But given recent trends, both in public opinion and statutory recognition of civil rights for homosexuals, it seems very likely that other Appellate Divisions, and eventually the Court of Appeals, will follow the Third Department’s lead should the issue be raised in future. It is also possible that, post-Yonaty, litigants will simply refrain from making an argument that an imputation of homosexuality is defamatory per se, recognizing that it is no longer viable. Indeed, the trend line may even be moving in the opposite direction. In one recent case, a plaintiff argued that accusing an employer of hating homosexuals and discriminating against them is itself defamation per se. While that argument was unsuccessful, the fact that it could plausibly be made demonstrates the progress that has been achieved. The Third Department’s decision in Yonaty made that progress into law, marking another step in society’s effort to free itself from the discriminatory attitudes of the past.
 97 A.D.3d 141 (N.Y. App. Div. 3d Dep’t 2012).
 Liberman v. Gelstein, 80 N.Y.2d 429, 434-35 (N.Y. 1992) (internal quotations and citations omitted).
 Yonaty v. Mincolla, 31 Misc.3d 1238 (A), *3 (N.Y. Sup. Ct. Broome Cty. June 8, 2011).
 Yonaty, 97 A.D.3d at 142.
 Liberman, 80 N.Y.2d at 435. While the last category has sometimes been described as “imputing unchastity to a woman[,]” e.g., id. (emphasis added), New York courts have now adopted a more egalitarian approach, treating the imputation of sexual promiscuity as per se defamatory regardless of the plaintiff’s gender. E.g., Rejent v. Liberation Pubs., Inc., 197 A.D.2d 240, 245 ( N.Y. App. Div. 1st Dep’t 1994 ) (“[T]he notion that…the imputation of sexual immorality to a woman is defamatory per se, but is not so with respect to a man, has no place in modern jurisprudence.”).
 E.g., Matherson v. Marchello, 100 A.D.2d 233, 242 (N.Y. App. Div. 2d Dep’t 1984); Dally v. Orange Cty. Pubs., 117 A.D.2d 577, 578 (N.Y. App. Div. 2d Dep’t 1986); Nacinovich v. Tullet & Tokyo Forex, 257 A.D.2d 523 (N.Y. App. Div. 1st Dep’t 1999). See also Tourge v. City of Albany, 285 A.D.2d 785, 785 (N.Y. App. Div. 3d Dep’t 2001) (stating in dicta that imputation of “homosexual behavior” is per se slanderous) (overruled by Yonaty, 97 A.D.3d at 142, 144).
 E.g., Matherson, 100 A.D.2d at 241 (noting legal sanctions against homosexuals “in areas ranging from immigration to military service”). See also Mazart v. State, 109 Misc.2d 1092, 1097 (N.Y. Court of Claims 1981) (imputation of homosexuality was libel per se because homosexual acts remained a crime in New York at the time the statements were published). But see Stein v. Trager, 26 Misc.2d 227, 228 (N.Y. Sup. Ct. Erie Cty. 1962) (calling plaintiff a homosexual was not per se slanderous because, while the act of sodomy was illegal, the state of being a homosexual was not).
 Matherson, 100 A.D.2d at 241 (citing a Gallup poll suggesting that the public, as of 1983, viewed homosexuality as immoral).
 Lawrence v. Texas, 539 U.S. 558 (2003).
 E.g., McKinney’s 2002 Session Laws of New York 225th Legislature Chapter 2 (2002), Sexual Orientation Non Discrimination Act, L. 2002, ch. 2.
 E.g., http://www.whitehouse.gov/sites/default/files/uploads/dadtcert.pdf (Presidential certification allowing for repeal of the U.S. military’s “Don’t Ask Don’t Tell” policy).
 http://publicreligion.org/newsroom/2012/03/march-rns-2012-news-release/ (poll results showing 52% of Americans favor allowing same-sex couples to marry); Edith Honan, “Maryland, Maine, Washington Approve Gay Marriage”, Reuters (Nov. 7, 2012). Available at http://www.reuters.com/article/2012/11/07/us-usa-campaign-gaymarriage-idUSBRE8A60MG20121107 (reporting that, in the 2012 election, three states enacted same-sex marriage by popular vote).
 Nicholas Confessore & Michael Barbaro, “New York Allows Same-Sex Marriage, Becoming Largest State to Pass Law”, New York Times (June 24, 2011). Available at http://www.nytimes.com/2011/06/25/nyregion/gay-marriage-approved-by-new-york-senate.html?pagewanted=all&_r=0. Ch. 95, § 2, 2011 McKinney’s N.Y. Laws at 749.
 Lewittes v. Cohen, 2004 WL 1171261, *3 (S.D.N.Y. 2004) (disposing of claims on statute of limitations grounds); Dellefave v. Access Temporaries, Inc., 2001 WL 25745, *4 n.1 (S.D.N.Y. 2001) (without deciding the issue, noting that the categorization of homosexuality as slander per se was “little more than an historical oddity” and stating that “the viability of this exception [to the requirement of pleading special damages] is now in question”).
 Gallo v. Alitalia Linee Aeree Italiane-Societa Per Azioni, 585 F.Supp.2d 520, 549-50 (S.D.N.Y. 2008) (holding imputation of homosexuality remains slanderous per se under New York law).
 Judge Chin noted that the last Appellate Division case to consider the question, Matherson v. Marchello, was from 1984, “and even then the court struggled with the decision.” Stern v. Cosby, 645 F.Supp.2d 258, 275 (S.D.N.Y. 2009).
 Id. at 273-76. Judge Chin ruled that, while the statements at issue were not defamatory per se on the basis of an imputation of homosexuality, they were per se libelous in that they accused the plaintiff of promiscuity and infidelity. Id. at 290. In the alternative, the court held that the statements, which accused a lawyer of violating standards of professionalism by having a sexual relationship with his client’s boyfriend, were defamatory per se because they disparaged the lawyer in his profession. Id. at 290-91.
 321 F.Supp.2d 130, 136-39 (D. Ma. 2004), aff’d sub nom Amrak Prods., Inc. v. Morton, 410 F.3d 69 (1st Cir. 2005).
 E.g., Greenly v. Sara Lee Corp., 2008 U.S. Dist. LEXIS 35472, *27 n.15 (E.D. Cal. April 30, 2008); Moricoli v. Schwartz, 361 N.E.2d 74, 76 (Ill. App. Ct. 1977); Donovan v. Fiumara, 442 S.E.2d 572, 577 (N.C. Ct. App. 1994).
 Yonaty, 31 Misc.3d 1238(A) at *3.
 Yonaty, 97 A.D.3d at 144.
 Id. at 146.
 In October 2012, a court in the state of Washington held that the imputation of homosexuality is not slander per se. Oddly, Yonaty was cited only in the dissent, for the proposition that such an imputation might, depending on the facts, still be susceptible of a defamatory meaning and thus constitute slander per quod. Davis v. Fred’s Appliance, Inc., 2012 Wash. App. LEXIS 2479 (Wash. Ct. App. Oct. 23, 2012).
 Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, 813 F.Supp.2d 489, 549-50 (S.D.N.Y. 2011).
 Ironically, in a different context, this progress might provide fodder for those who oppose civil rights for homosexuals. Yonaty’s finding that the mainstream of society no longer views homosexuals negatively could be used to undermine one of the rationales for applying heightened constitutional scrutiny to laws discriminating on the basis of sexual orientation. See Windsor v. United States, 699 F.3d 169, 181 (2d Cir. 2012), cert. granted, 133 S.Ct. 786 (Dec. 7, 2012) (No. 12–307) (applying intermediate scrutiny to Section 3 of the federal Defense of Marriage Act in part because “homosexuals as a group have historically endured persecution and discrimination”). But the Yonaty court was careful to note that prejudice and discrimination against gays and lesbians have “not been completely eradicated[.]” Yonaty, 97 A.D.3d at 146. Also, although the Second Circuit’s opinion in Windsor came down months after Yonaty, the court did not seem to think Yonaty had any bearing on its decision. In fact, the Third Department case was not even cited. And intermediate scrutiny has been applied to laws affecting other groups that historically have suffered discrimination, even as conditions were beginning to improve. E.g., Frontiero v. Richardson, 411 U.S. 677, 684-85 (1973) (applying intermediate scrutiny to statute governing provision of benefits to female service members because of the “long and unfortunate history of sex discrimination[,]” even though “the position of women in America has improved markedly in recent decades”).
 Yonaty is not the first case in which New York courts have adjusted defamation law in response to shifts in social attitudes. Compare Sydney v. MacFadden Newspaper Publ’g Corp., 242 N.Y. 208,213-14 (1926) (finding it libelous “to say a man is colored [sic] … [if] he happens to be a white man”), with Johnson v. Staten Island Advance Newspaper Inc., 13 Misc. 3d 1215(A), 2004 WL 4986754, at *6 (N.Y. City Civ. Ct. Richmond Cty. July 23, 2004) (ruling that, in 2004, it was not defamatory to incorrectly identify a person’s race, and that to hold otherwise would “institutionalize racism in [the court’s] jurisprudence”).