By Oliver Herzfeld

February 12, 2014

In its February 2014 edition, the National Enquirer’s front page story claimed playwright David Bar Katz was Hoffman’s gay lover, that he had seen Hoffman freebase cocaine the night before Hoffman’s death, and that he had seen Hoffman use heroin on a number of other occasions. Bar Katz has denied all of the Enquirer’s assertions and responded with a defamation lawsuit seeking $5 million in compensatory damages and another $45 million in punitive damages. Closely tracking the legal standard, the complaint demands such remedies because “[t]he statements were of a kind tending to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number of the community.” Is that really true? Of course, false statements claiming Bar Katz had seen Hoffman freebase cocaine on a number of occasions including the night before Hoffman’s death and, impliedly, failed to take action to help Hoffman could reasonably be seen to harm Bar Katz’s reputation. But what about the claim that Bar Katz was Hoffman’s gay lover? They may be legal, but are defamation claims based on false accusations of being gay ethical? By analogy, what if Bruno Mars, M.I.A. or DJ Khaled sued to counter false claims that they are African-American? What if Jason Biggs, Andrew Schulz or “Weird Al” Yankovic sued to counter false claims that they are Jewish?

The problem with all such claims is that they reinforce immoral biases. In other words, the premise of Bar Katz’s claim is that a substantial percentage of the members of our society consider being gay to be disreputable and being straight to be reputable. Bar Katz is essentially saying that the Enquirer caused him to lose his privileged status in society of being regarded a straight man and, as a result, he is entitled to $50 million in combined damages to remedy his loss of such privileged status. To be clear, claims of employment, housing and other types of illegal discrimination against people believed to be members of protected classes should be vigorously pursued. But when it comes to defamation lawsuits based on false claims involving race, religion and sexual orientation, the proper question is just because you have a legal right to do something, does it mean it is the right thing to do?

Update 2/13/2014: David Bar Katz’s attorney, Judd Burstein, asked me to post the following:

I am David Bar Katz’s attorney. I want to make clear that the error here was mine, borne of the fact that I drafted the complaint in an emergency environment, and was not careful in my wording. I never intended to suggest that David or I believe that calling someone gay is defamatory. Nothing could be further from the truth. My point was that it is defamatory to allege that someone is having an extra-marital affair, be it straight or gay. At the time David sent me Oliver’s article, I had already drafted an amended complaint making this point clear. It would have been filed today but for the snowstorm. Your readers should also know that, thankfully, the law in New York has been evolving to the point where at least one appellate court has held that an allegation of homosexuality is not defamatory. I am sure that people were appropriately offended by David’s complaint as I drafted it, and I apologize for my error. Judd Burstein