NJ court rules ‘gay’ is not defamatory

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A U. S. District Court judge in New Jersey ruled last week that falsely accusing someone of being gay no longer constitutes defamation.

Photographer Peter Murphy filed suit against shock jocks Craig Carton and Ray Rossi, who host the “Jersey Guys” show on WKXW 101.5 FM in Trenton, N.J., after the pair insinuated on-air that he was gay.

Judge Joel A. Pisano ruled against Murphy, however, citing the growing acceptance of the LGBT community and specifically referencing the 2006 New Jersey Supreme Court decision in “Lewis v. Harris,” in which the court found that same-sex couples are entitled to the same rights as heterosexual married couples.

“Given the decision in ‘Lewis’ and the recognized evolution of the societal landscape, it appears unlikely that the New Jersey Supreme Court would legitimize discrimination against gays and lesbians by concluding that referring to someone as homosexual ‘tends to so harm the reputation of that person as to lower him in the estimation of the community as to deter third persons from associating or dealing with him,’” Pisano wrote, quoting the former precedent set in the 2001 “Gray v. Press Communications,” in which television personality Sally Star Gray won a defamation suit against another radio show on 101.5 FM for calling her a “lesbian cowgirl.”

Murphy’s claim originated several years ago after he took a photo of the radio hosts for New Jersey Monthly magazine, which had chosen the pair for a “Best of 2006” award. Murphy’s photo showed Carton and Rossi back-to-back, apparently naked except for a sign with the station’s name covering them.

The radio hosts posted the photo on their Web site and invited listeners to modify the picture with their own entertaining additions.

Murphy took issue with the revisions on his photo, however, and his attorney filed a cease-and-desist order, claiming copyright infringement. The station removed the altered pictures, but Carton and Rossi discussed the issue on the air shortly after, suggesting Murphy was gay and also calling him a “man not to be trusted” and an individual with whom “a person should avoid doing business.”

Pisano called the accusations about Murphy’s orientation “nothing more than rhetorical hyperbole, name calling or verbal abuse” that is common on the radio show, which he said is known as one with a “controversial and humorous character.”

Murphy’s attorney, Michael Kassak of the Cherry Hill firm White & Williams, did not return a call for comment. Jen Colletta can be reached at [email protected].