2:46pm PT by Eriq Gardner
National Enquirer Argues False Stories About Celebrity Sex Changes Can't Be Defamatory
The lawsuit that Richard Simmons filed in May against the publisher of National Enquirer is living up to its potential to explore provocative terrain. On Friday, American Media made its bid to strike his complaint by challenging whether false statements about someone's gender transition can rise to being defamatory.
The fitness guru is suing over a series of "cruel and malicious" stories that falsely suggested he was transitioning from a male to a female, including reports of "shocking sex surgery," breast implants, hormone treatments and consultations on medical castration.
When we broke news about the lawsuit, we remarked that courts had come to mixed results about sexual orientation in the reputational context, but that no one had ever until Simmons brought a case over published reports of a sex change.
Simmons framed his suit as a stand for dignity and the right to have a gender identity, but in an anti-SLAPP motion submitted in Los Angeles Superior Court on Wednesday, American Media challenges whether he could have really incurred reputational injury.
"Simmons has not, and cannot, make such allegations here," write the media defendant's lawyers. "Statements that someone is transgender, or undergoing a gender transition, do not impute the kind of inherently shameful or odious characteristic that can support a defamation claim in modern times. Just as with false imputations of race or homosexuality, which once were considered defamatory, being referred to as 'transgender' cannot rationally be held by a court to impute negative characteristics."
American Media, through its attorneys at Davis Wright Tremaine, continue by doubting Simmons' ability to plead special damages.
Accordng to the motion (read here), "Indeed, Simmons cannot show the articles harmed him at all, given his pre-existing reputation for gender ambiguity, his well-publicized testing of the boundaries of gender classification, and his willingness to be depicted as a woman."
Because this is a motion under California's SLAPP statute designed to curtail impingements of First Amendment protected activity, L.A. Superior Court judge Gregory Keosian will probably have to decide this issue sooner rather than later.
The SLAPP statute will require American Media to show its articles were in furtherance of free speech in connection with a public issue — and while Simmons might make some bones about privacy, American Media is a good bet to overcome this hurdle. The celebrated podcast, Missing Richard Simmons, shows the public's fascination with him even if not every celebrity matter is a matter of public interest.
As a result, Simmons would then have to demonstrate a likelihood of prevailing.
American Media points to how Simmons' complaint asserts he "has a legal right to insist that he not be portrayed as someone he is not," and "to be portrayed in a manner that is truthful."
"This misstates the law," states the brief. "Plaintiff has no right to suppress speech about him, even false speech, if it is not harmful to his reputation."
American Media's attorneys point to everything from the Supreme Court's decision striking down the Stolen Valor Act (a federal law criminalizing false statements about having a military medal) to a recent California appellate decision involving the boxer Floyd Mayweather and the reasons he gave on social media for a break-up. In between, there's all sort of discussion about the evolving legal approach to those who falsely imply someone is gay, has a disease or is an African-American.
In short, the defense appears to be that there's nothing shameful about a sex change — and thus, National Enquirer can't get in trouble for writing about it. Never mind that the publication used the word "shocking" to describe the sex surgery.
Simmons' lawyer will respond before a hearing set for Aug. 30.