Is False Imputation of Homosexuality Still Slander Per Se in Texas?

Under the common law of slander, a plaintiff ordinarily has to prove that a defendant's statement about the plaintiff caused him monetary loss in order to maintain a legal claim of defamation, but common law courts considered some statements to be so inherently damaging that harm to reputation with financial consequences would be presumed without proof.  Such an action is called slander per se. Traditionally, stating or implying that somebody was homosexual was on the slander per se list.  Changes in society have led some courts to remove homosexuality from the list, and to require a plaintiff to prove that he suffered actual pecuniary loss from being falsely called gay before he could maintain an action for damages, but New York courts have not yet taken that step and, perhaps not surprisingly, neither have the courts of Texas.

Now there is an appellant knocking on the door of the Texas Supreme Court seeking a reconsideration of Texas law on the point.  In Van Meter v. Morris, 2011 WL 6225370 (Dec. 14, 2011), the Texas Court of Appeals in Waco affirmed a trial verdict for Bennie Dale Morris, who sued restaurant owner Phong Van Meter for making repeated and loud statements in her restaurant in the presence of customers that those within hearing could construe as imputing a homosexual relationship betwee Morris and his good friend Glen Warren.  Although Morris presented evidence of both emotional distress and possible losses to his business stemming from Van Meter's comments, the court of appeals found that "the record contains sufficient evidence establishing that Van Meter's statements were per se slanderous," which would mean legally sanctionable without any evidence of emotional distress or monetary loss.

Van Meter filed a petition for review with the Texas Supreme Court on January 27, 2012.

In reviewing the Texas law on slander, Justice Al Scoggins wrote for the court of appeals panel, "To be considered slander per se, the statement must (1) impute the commission of a crime; (2) impute contraction of a loathsome disease; (3) cause injury to a person's office, business, profession, or calling; or (4) impute sexual misconduct.  Whether the words are capable of the defamatory meaning the plaintiff attributes to them is a question of law for the court."

After a bench trial (no jury), the Johnson County trial court concluded that Morris had proved his defamation claim and awarded him $5,000 in mental anguish damages.  Evidently the trial court did not find sufficient evidence to support an award of money for loss of business.  The trial judge also issued an injunction against Van Meter from "making or publishing defamatory, libelous, and slanderous statements to the detriment of Plaintiff and his reputation in the community, including but not limited to statements which would convey or insinuate that the Plaintiff and Glen Milford Warren are homosexual partners or lovers."  Throughout the proceeding, Morris has maintained that he is not gay and that he and Warren are just good friends, a point also affirmed by Warren.

The court of appeals pointed out that in reviewing the verdict from a bench trial, the role of the court is to determine whether there was sufficient evidence to support the trial court's conclusions.  In this case, the court found sufficient evidence on the following conclusions by the trial court: "(1) Van Meter made derogatory and degrading false statements about Morris to others; (2) the statements caused Morris a high degree of stress, which Warren and Hammons testified probably caused Morris to have a stroke, and injury to his business and reputation; and (3) the statements were made negligently with regard to the truth and were intended to expose Morris to public hatred, contempt, ridicule, or financial injury; and (4) Morris sustained $5,000 in mental-anguish damages as a result of Van Meter's extreme and outrageous comments."  Witnesses Warren and Hammons were not qualified as medical experts, so their opinion testimony that Morris's stroke was due to the statements by Van Meter should have been ignored by the court.

Then proceeding to embody what appears to be a misunderstanding about common-law nomenclature, the court said, "As a result, we further conclude that the record contains sufficient evidence establishing that Van Meter's statements were per se slanderous, especially considering that the record supports the trial court's findings that Morris's business sustained losses and Morris's reputation was harmed as a result of Van meter's statements."  This is a bit nonsensical, actually, since if there was sufficient evidence to show that the statements at issue caused losses to Morris's business, then there would be no need to rely on the slander per se theory, as the requirement of showing actual financial injury attributable to the contested statements would have been satisfied without any presumptions.

Justice Scoggins never explains why making teasing statements to a recently divorced man, such as "where is your girlfriend?" or "where is your boyfriend" when his buddy Glen Warren wasn't present with him at the restaurant, should be considered slander per se under Texas law.  The court rests on the testimony by Morris and others that they construed the statements to imply that Morris and Warren were gay lovers.  As to why this should be presumed to harm Morris's reputation, there is no explanation.  And the testimony about loss of business was not backed up by anything specific, mere assertions without documentation. 

In short, now a trial judge and three appellate judges have gone on record, in 2011, as finding that the macho code of Texas is so firm that it can be presumed that a person's reputation and business will be harmed if somebody teases him in public with insinuations that he has a "boyfriend."

It's time for the Texas Supreme Court to clarify the situation.  Past Texas decisions upheld liability for per se slander in homosexuality cases, presumably because homosexual conduct violates the Texas Penal Code.  However, in 2003 the U.S. Supreme Court ruled in Lawrence v. Texas that the Texas Homosexual Conduct Law could not be used to prosecute private consensual adult homosexual conduct.  Since then, an openly-lesbian community leader was elected mayor of Houston, one of the nation's ten largest cities and the virtual headquarters of the American oil industry.  While it is true that the Texas legislature, in the grip of Republicans since 2003 (and with a Republican governor, Rick Perry, since then as well), has refused to revise the Penal Code to eliminate the unconstitutional applications of the Homosexual Conduct Law, and has never approved a law banning anti-gay discrimination in the state, some municipalities (but not Waco) have taken that step.  In other words, the legal framework of Texas has changed since the prior decisions, and the question whether the presumption of harm from an imputation of homosexuality (note that Van Meter never said outright that Morris was gay or homosexual) continues to be sufficient to ground a per se slander claim is ripe for reconsideration.