BY:Neil J. Rosini, Michael I. Rudell
A caption to a photograph in a book identified a man as Madonna’s ex-lover and one-time bodyguard, Jimmy Albright. But, instead of actually depicting Mr. Albright, the photo erroneously depicted one of Madonna’s dancers, whom Mr. Albright’s complaint characterizes as an “outspoken homosexual” who “often dressed as a woman” and engaged in “homosexual, sexually graphic, lewd, lascivious, offensive and possibly illegal” conduct. The United States Court of Appeals for the First Circuit recently concluded that the caption did not defame Mr. Albright.1
Unlike the District Court decision2, the Court of Appeals did not reach the issue of whether an accusation of homosexuality can still be regarded as defamation per se. Instead, the Court relied solely on the content of the caption in the context of the book and decided that no defamation possibly could have occurred given the facts of the case.
The “tell-all” book, Madonna by Andrew Morton, dedicated an entire chapter to the Madonna-Albright affair. It described Madonna as Albright’s “long-term girlfriend” stating that he served as Madonna’s bodyguard from January to July 1992, when he became “romantically involved” with her and remained so through 1994. His “hot and heavy” affair with Madonna, their sexual encounters, and his “fling” with a “girl at a club” also were noted.
The book contains 48 pages of photographs. The one in issue shows Madonna, accompanied by two men, one of whom wore “black pants, a black and white shirt, a black leather jacket, tinted sunglasses, a string necklace, and an earring.” The caption said: “Madonna attends ex-lover Prince’s concert with her secret lover and one-time bodyguard Jimmy Albright (left). Albright . . . enjoyed a stormy three-year relationship with the star. They planned to marry, and had even chosen names for their children.” People Magazine and News of the World also published the photograph similarly captioned.
In fact, the man in the photo was Jose Guitierez, a dancer employed in Madonna’s troupe and an alleged “homosexual individual.”
Mr. Albright brought suit against the author of the book; its United States and United Kingdom publishers; Time, Inc. (publisher of People); and News Group Newspapers, Ltd. (publisher of News of the World) for defamation, invasion of privacy, negligence, negligent and intentional infliction of emotional distress; as well as violations of statutory prohibitions on unfair trade practices and unauthorized commercial use of a name or likeness under Massachusetts law.
The District Court found that the bodyguard failed to state a defamation claim and the First Circuit agreed. The decision first observed that the bodyguard needed to establish that the defendants were at fault for publishing a false and defamatory statement that either caused economic loss or was actionable without proof of economic loss, that is, as defamation per se. (The District Court clarified the distinction: statements that are defamatory per se injure reputation on their face and the plaintiff need not prove damages, which are presumed to flow from the statements themselves. Statements that are not defamatory per se only are “capable of communicating a defamatory idea when certain extrinsic facts are known or when the words are given meaning not ordinarily attributed to them,” and they require proof of economic loss to be actionable. Albright’s papers seemed to allege both sorts of defamation, said the court.)
As the Court of Appeals observed, to be defamatory, a statement ”would tend to hold the plaintiff up to scorn, hatred, ridicule or contempt in the minds of any considerable and respectable segment in the community.” And to be actionable defamation, a statement “must be interpreted reasonably” to lead a “reasonable reader” to “conclude that it conveyed a defamatory meaning.” Context matters; the statement must be viewed in the totality of the context in which it was uttered or published. Thus on a motion to dismiss, the allegedly defamatory caption had to be interpreted in light of the entire book.
The caption in this case, which made no reference to homosexuality, was found to be “not reasonably susceptible of a defamatory meaning” because there was nothing in Guitierez’s appearance and nothing in the caption to indicate Albright was homosexual. The Court observed that in order to draw such an inference, a reader would have to “follow Madonna and her cohort closely enough to recognize Guitierez as a gay man, but not closely enough that to know Guitierez’s name or what Albright looks like.” The Court concluded that few readers, if any, would satisfy both conditions.
Apart from the caption itself, the Court relied on the text of the book, which “further deflates any argument that the photo conveys a defamatory meaning” with its many references to Albright’s heterosexual conduct. As a result, “no reasonable reader could conclude that Albright is homosexual.”
Following the lead of the District Court, the Court of Appeals dismissed not only the defamation claim but also the bodyguard’s derivative claims, finding all of them without merit and noting in particular that a false light invasion of privacy claim is not recognized in Massachusetts. (False light invasion of privacy would not be cognizable in New York, either. See, e.g., Messenger v. Gruner & Jahr Printing and Publishing, 94 N.Y.2d 436, 442-443 (2000).)
In addition to finding that the photograph and its caption did not impute homosexuality, the District Court also had dismissed the bodyguard’s case on a second ground: even if there were an imputation of homosexuality, it could not be interpreted as defamation per se because to do so would require the court “to legitimize the prejudice and bigotry that for too long have plagued the homosexual community.” The lower court cited two cases in particular to support that an imputation of homosexuality could not be considered defamation per se: the Massachusetts Supreme Judicial Court’s decision in Goodridge v. Department of Public Health3 (invalidating limitations to civil marriage for same-sex couples under state equal protection principles) and Lawrence v. Texas,4 a U.S. Supreme Court decision (invalidating a state statute criminalizing same-sex sexual conduct).
The lower court compared the bodyguard’s position to “statements falsely linking a plaintiff to racial, ethnic or religious groups, which plainly would not qualify as defamation per se today.” And in the view of the District Court, even to suggest that homosexuals be placed in the same defamation per se classification as “thie[ves], murderer[s], prostitute[s], etc.” was “nothing short of outrageous.”
The First Circuit, however, did not find it necessary to proceed beyond the threshold question of defamatory meaning, given its finding that the photograph and caption made no imputation of homosexuality. The decision accordingly did not reach the question of whether that imputation could constitute defamation per se.
The only New York case cited by the District Court to address the issue was Murphy v. Pizarrio, 1995 WL 565990, at *3 (S.D.N.Y. 1995). Murphy held that a published statement imputing homosexuality to another is defamatory per se under New York law, citing Appellate Division decisions from the 1980s. The Supreme Court’s decision in Lawrence, legislative and judicial developments in Massachusetts and elsewhere, and changing social attitudes worldwide, likely would be taken into account if the issue came before a New York court today.
1 Amrak Productions, Inc. and James Albright v. Andrew Morton et al., 410 F. 3d (1st Cir. 2005). Amrak was Albright’s “corporate agent.”
2 James Albright and Amrak Productions, Inc. v. Andrew Morton et al., 321 F. Supp. 2d 130 (D.C. Mass. 2004).
3 440 Mass. 309 (2003).
4 539 U.S. 558 (2003). The District Court observed that while other jurisdictions were split on whether a statement wrongfully identifying someone as homosexual is defamatory per se, the large majority of the courts that found an accusation of homosexuality to be defamatory emphasized that such statements imputed criminal conduct – a rationale extinguished by the Supreme Court’s ruling in Lawrence. 321 F. Supp. 2d at 137.