Richard Simmons is nodding in new court papers to the recent announcement by President Donald Trump that transgender individuals will not be allowed to serve in the United States military. Facing an attempt by American Media to kill his lawsuit over a false National Enquirer story about a sex change, the fitness guru says Trump’s transgender ban shows there isn’t societal acceptance of trans people.
Simmons filed his defamation suit in May after a series of articles he characterizes as “cruel and malicious” suggested he was transitioning from a male to a female.
In response, American Media has brought an anti-SLAPP motion that argues that false statements about someone’s gender transition can’t rise to defamation because such statements don’t impute anything that’s shameful or odious. The publisher contends that Simmons can’t make the case his reputation has been besmirched because we’re living in modern times and because Simmons has long had a reputation for gender ambiguity.
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On Thursday, Simmons filed his response.
“It is unclear why — if society (and AMI purportedly with it) so embraces the transgender community — that AMI would characterize its Articles as ‘exposing’ Mr. Simmons or use the word ‘bizarre’ to characterize his alleged new life as a trans woman,” states the opposition brief. “Surely, if AMI’s readers rejected prejudice against trans people, such phrasing would not help sell magazines or promote internet clicks. AMI cannot at once cynically and deliberately publish falsehoods about Simmons that it touted to the world as ‘shocking’ and ‘bizarre,’ intentionally pandering to prejudice, and then righteously pretend that such prejudice does not exist.”
Neville Johnson, attorney for Simmons, has a much different take on recent developments in First Amendment law than the ones at Davis Wright Tremaine representing American Media.
For example, the publisher of National Enquirer pointed in its anti-SLAPP motion to a 2012 Supreme Court decision striking down the Stolen Valor Act, a federal law criminalizing false statements about having a military medal. The point was that even false statements must be allowed without punishment absent harm.
But Johnson points to Justice Stephen Breyer’s concurring opinion that emphasized this decision wasn’t disturbing defamation or invasion of privacy doctrine. He also leans on other Supreme Court precedent (Time, Inc. v. Firestone) for support that reputational injury isn’t a prerequisite to a defamation claim. The attorney asserts that personal humiliation and mental anguish are sufficient.
Given that reading of the law, Simmons is discussing in court how an accusation that someone is transgender remains damaging and is actionable even if only a minority of the community regards it as so.
“AMI erroneously asserts that because many progressive people would not discriminate against trans individuals (even if some others nonetheless would), even knowingly false assertions, cast in the most salacious terms, cannot be defamatory,” writes Johnson. “But this claim by AMI that ‘the views of the enlightened’ govern the defamation analysis have long been rejected in American jurisprudence.”
Simmons’ lawyer runs through examples. He even finds a past court decision where false statement of transsexuality was deemed actionable.
He also holds false imputations of race apart.
“Defamation based on racial identity is the sole existing exemplar of prejudice against a particular group becoming so clearly marginalized by societal consensus that it is deemed no longer subject to the law of defamation,” states the brief. “But this took a very long time. From the entrenchment of slavery in the original Constitution, through the decision in Dred Scott v. Sanford, a bloody Civil War, the Emancipation Proclamation, the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments, the ‘separate but equal decision’ in Plessy v. Fergusson, the overruling of Plessy in Brown v. Board of Education, the Civil Rights Movement, the passage of the Civil Rights Act of 1964, through the election of Barack Obama, an African-American President of the United States, courts after centuries may justly say that racism is so marginalized in America that a false imputation that one is a member of a racial minority may no longer be deemed defamatory.”
Then again, the brief (read here in full) was likely written before Trump made comments this week about white supremacists and counterprotesters in Charlottesville.
