Bigotry, Community and the (In)Visibility of Moral Exclusion: Homosexuality and the Capacity to Defame

Abstract

Should an imputation that a person is homosexual be capable of being defamatory? The question raises significant and largely unexplored issues concerning the way in which defamation laws deal with (or should deal with) bigotry, and the notions of community that underpin the reasoning in the judgments. This article seeks to address these issues by examining the ways in which imputations of homosexuality have been dealt with by the common law courts; by drawing out the implications of the reasoning in the case law; and by identifying some issues which remain unresolved or uncertain after the New South Wales Supreme Court recently addressed the issue in Rivkin v Amalgamated Television Services. The author argues that the moral exclusion which has characterised homosexuality cases potentially remains unchanged. Whilst Rivkin is a step in the right direction, there needs to be a more careful approach to the issues if defamation law is to comprehend bigotry adequately and deal with it appropriately.

Keywords: defamation, libel, homosexuality, imputations, inclusion, rivkin, bigotry

JEL Classification: K19, K39