321 F.Supp.2d 130 (2004) | Cited 4 times | D. Massachusetts | May 28, 2004



This is a diversity action for defamation arising out of thepublication of a book by defendants. The book allegedly portrayedplaintiff James Albright ("Albright") as a homosexual by mis-captioning aphotograph of a gay individual with Albright's name. To find that thephotograph makes any kind of statement regarding Albright's sexualityrequires the Court to pile inference upon innuendo, innuendo uponstereotype. And even if the Court were to do so, plaintiffs' argumentwould still fail. In 2004, a statement implying that an individual is ahomosexual is hardly capable of a defamatory meaning.

Plaintiffs are James Albright, who served as Madonna's bodyguard andalso had a personal relationship with the singer, and Amrak Productions,Inc. ("Amrak"), who employed Albright as a bodyguard. Plaintiffs assertclaims against all defendants for defamation (Counts I-VI), violations ofMass. Gen. Laws c. 214 § 3A (Count VII), invasion of privacy (Count VIII), negligence (CountIX), negligent infliction of emotional distress (Count XII), andintentional infliction of emotional distress (Count XIII). Plaintiffsalso assert claims for violation of Mass. Gen. Laws c. 93A againstMichael 0'Mara Books Limited ("MOM"), St. Martin's Press, Inc. ("St.Martin's"), and Newsgroup Newspapers, Ltd ("News Group") (Count XI).

This Court may well be the first to have the opportunity to assessplaintiffs' claims in the light of recent decisions giving legal force tohomosexuals' ongoing quest for equal rights. In this day and age, recentrulings by the Supreme Court and the Supreme Judicial Court ofMassachusetts, undermine any suggestion that a statement implying that anindividual is a homosexual is defamatory. In fact, a finding that such astatement is defamatory requires this Court to legitimize the prejudiceand bigotry that for too long have plagued the homosexual community.

Defendants Andrew Morton ("Norton"), MOM, and Michael 0'Mara ("O'Mara")have moved this Court to dismiss all claims against them [docket # 10].For the reasons stated below, defendants' motion to dismiss is GRANTED.The remaining defendants have jointly moved with plaintiffs tovoluntarily dismiss the counts against them [docket entry # 26]. For thesame reasons articulated below, this motion is also GRANTED. II. FACTS

The facts according to plaintiffs' Complaint are as follows:

Plaintiff Amrak Productions, Inc ("Amrak") employed Albright as aprofessional bodyguard. Albright has been involved in the personal andprofessional security business for over ten years. From January to Julyof 1992, Albright served as a bodyguard to the singer Madonna. Betweensometime in 1992 and sometime in 1994, Albright and Madonna becameromantically involved.

In December 2000, MOM approached Amrak to discuss Albright'sparticipation in MOM's biography of Madonna. MOM subsequently purchasedfrom Albright the rights to certain information regarding Madonna. MOMthen sold the information purchased from Albright to St. Martin's, wholater published it in the book entitled Madonna (hereinafter "theBook"). The Book was released in the United States on or about November6, 2001, and thereafter, distributed abroad.

According to the Complaint, the Book contains a photograph of JoseGuitierez ("Guitierez"), a former employee of Madonna's, walking withher. The caption underneath the photograph incorrectly states "JimAlbright (with Madonna in 1993) told Morton he felt `overwhelming love'for her."1 According to plaintiffs' Complaint, Guitierez is an outspokenhomosexual and "clearly represents his homosexual ideology in what manywould refer to as sometimes graphic and offensive detail." Guitierezappeared in the television documentary of Madonna's life entitled Truth orDare and also appeared with Madonna on two worldwide tours. Plaintiffsallege that during Guitierez's appearances with Madonna, he oftenappeared on stage dressed as a woman and engaged in acts on stage that"some would find homosexual, sexually graphic, lewd, lascivious,offensive, and possibly illegal."

On or about November 12, 2001, defendant Time, Inc. published the samephotograph included in the Book in its publication "People Weekly," alongwith an article excerpting the Book. "People Weekly" is distributedinternationally. The publication also falsely identified Albright as theman in the photograph. On or about March 17, 2002, defendant Newsgrouppublished the photograph with the erroneous caption in its publication"News of the World. "News of the World" is distributedinternationally.2 Plaintiffs only challenge the caption allegedly imputing homosexualityto Albright. They do not object to any other information in thepublications, including personal information about Albright's affair withMadonna — their sexual encounters, their marriage plans, and Albright'saffair with a "girl at a club" that ended their relationship.


A. Standard for Motion to Dismiss

In adjudicating a motion to dismiss under Fed.R.Civ.P. 12(b)(6), theCourt must accept all allegations in the complaint as true and allreasonable inferences must be drawn in favor of the plaintiffs. SeeRockwell v. Cape Cod Hosp., 26 F.3d 254, 255 (1st Cir. 1994). Thecomplaint should be dismissed only if "it is clear that no relief couldbe granted under any set of facts that could be proved consistent withthe allegations." Hishon v. King & Spaldinq, 467 U.S. 69, 73 (1984).

B. Defamation Claims

To maintain an action for defamation of a non-public figure, aplaintiff must allege facts to show that (1) a defendant made a falsestatement "of and concerning" the plaintiff; (2) the statement coulddamage the plaintiff's reputation in the community; (3) the defendant wasat fault in making the statement; and (4) the statement caused economicharm or is actionable without proof of economic loss. See Ravnikar v.Bogojavlensky, 438 Mass. 627, 629-30 (2003); Reilly v. Associated Press& Others, 59 Mass. App. Ct. 764, 769 (2003), cert denied, 441 Mass. 1103(January 29, 2004).

The parties have focused on the second factor — whether the statementcould damage Albright's reputation in the community. This involves twotypes of statements: In the first category are statements that aredefamatory on their face, known as defamatory per se, and as to which theplaintiff need not prove damages,3 damages are presumed to flow fromthe statements themselves. In the second category are statementsallegedly capable of communicating a defamatory idea when certainextrinsic facts are known or when the words are given meaning notordinarily attributed to them. Fowler V. Harper & Fleming James, Jr. &Oscar S. Gray, The Law of Torts § 5.9 (2d ed. 1986). While their papersare not always clear, plaintiffs seem to be alleging both sorts ofdefamation. In either case, their claim founders.

The threshold question — whether the statement is susceptible toa defamatory meaning in either case — is a question of law for the Court. See Foley v. Lowell Sun Publ'n Co.,404 Mass. 9, 10 (1989).

Words may be libelous unless they `cannot reasonably be understood in a defamatory sense, or, to express in another way, unless they are incapable of a defamatory meaning. The test is whether, in the circumstances, the writing discredits the plaintiff in the minds of any considerable and respectable class of the community.Smith v. Suburban Rest., Inc., 374 Mass. 528, 529 (1978 (quoting Muchnickv. Post Publ'g Co., 332 Mass. 304, 305-06 (1955)); see also King v. GlobeNewspaper Co., 400 Mass. 705, 718(1987). Only if a publication issusceptible to both a defamatory and non-defamatory meaning does itpresent a question of fact for a jury. King, 400 Mass, at 718. The"statement" alleged here does not present an issue of fact for the jury.

1. Does the Photograph and Caption State that Albright is a Homosexual?

What statement, if any, is made by the photograph and its caption?4In assessing whether the statement is capable of a defamatory meaning,the Court must "examine the statement in its totality in the context inwhich it was uttered or published. The court must consider all the wordsused, not just merely a particular phrase or sentence." Myer v. BostonMagazine Co., 380 Mass. 336, 341-42 (1980)(quoting Information ControlCorp. v. Genesis One Computer Corp., 611 F.2d 781, 784 (9th Cir. 1980)). "Statements alleged to be libelous must be interpreted reasonably."King, 400 Mass. at 711-12.

The photograph portrays Madonna walking in between two men. The manmisidentifled as Albright, Guitierez, stands to her right, dressed inblack pants, a black and white shirt, black leather jacket, tintedglasses, a string necklace with a pendant, and an earring. Nothing in thephotograph suggests that he is gay. Plaintiffs' claim is that readerswill ascribe homosexuality to Guitierez because of his outside activitiesand then identify Albright as Guitierez because of the photograph'scaption.

Plaintiffs' claim is illogical. To conclude that that message will beconveyed requires the following inferential leaps: that the "community"(1) was sufficiently aware of Madonna and her circle to know that the manin the photograph was gay, even though nothing in the photographcommunicates that fact; (2) that the same community was not aware enoughto know that the man was Guitierez, not Albright.

In any event, even if the Court were to assume that the community wasfamiliar with the sexual preference of Guitierez, but, at the same time,did not know that the individual portrayed was Guitierez, not Albright,the context in which the photograph appears, namely a book or articlethat details Madonna's relationship with Albright, would immediatelysuggest otherwise. See Myer, 380 Mass. at 341-42. The Book dedicates anentire chapter to the Madonna-Albright affair. The author describes theirsexual encounters, their desire to marry, the names they picked for theirchildren, Albright's ex-girlfriend, the "fling" that Albright had with a"girl at a club" that ended his relationship with Madonna, and variousother details that shed light on Albright's heterosexuality.

Indeed, quite apart from the book, the photograph's caption itselfportrays Albright as a heterosexual. The caption in "People Weekly" statesthat Albright felt "overwhelming love" for Madonna.5 The caption inthe Book is even more explicit — that Albright was Madonna's "secretlover," that the two had a "stormy three-year relationship," that they"planned to marry," and that they had "chosen names for their children."In the context of the chapter and the caption itself, it is inconceivablethat the audience would assume that Albright was gay.

Therefore, I reject plaintiffs' interpretation of the mis-labeledphotograph as "unreasonably strained." King, 400 Mass. at 711-12.6 Noreasonable view of the photograph and text would suggest that Albright isgay. It, therefore, cannot be construed as defamatory at all. 2. Is a Statement That an Individual is a Homosexual Capable of a Defamatory Meaning?

Even if I were to find that the photograph and caption somehow state orimply that Albright is a homosexual, I could not find that such astatement is capable of a defamatory meaning. Looking at any"considerable and respectable class of the community" in this day andage, I cannot conclude that identifying someone as a homosexualdiscredits him, that the statement fits within the category of defamationper se. See Smith, 374 Mass, at 529.

While courts outside this jurisdiction are split on whether a statementwrongfully identifying someone as homosexual is defamatory per se, theirdecisions rely on statutes criminalizing same sex sexual acts (statuteswhich may well be unconstitutional), and fail to incorporate more recentdecisions recognizing homosexuals' equal rights.7 First, the large majority of the courts that have found an accusationof homosexuality to be defamatory per se emphasized the fact that such astatement imputed criminal conduct. See Plumey, 122 F.3d 308; Nazeri,860 S.W.2d 303; Head, 596 S.W.2d 209. This rationale is extinguished bythe Supreme Court's recent ruling in Lawrence v. Texas, 539 U.S. 558(2003), finding a Texas statute criminalizing same sex sexual conductunconstitutional under the Due Process Clause because individuals have aright to privacy to engage in sexual acts in their homes. The SupremeCourt overruled Bowers v. Hardwick, 478 U.S. 186 (1986), and concludedthat continuing that precedent "demeans the lives of homosexual persons."Lawrence, 123 S.Ct. at 2482. Continuing to characterize theidentification of someone as a homosexual defamation per se has the sameeffect.

Plaintiffs argue that sodomy is still considered a violation of Mass.Gen. Laws c. 272 § 35,8 criminalizing unnatural and lasciviousacts. The statute, however, is inapplicable to private, consensual, conduct between adults. See Commonwealth v.Balthazar, 366 Mass. 298, 302 (1974). Nor does an accusation ofhomosexuality necessarily implicate the act of sodomy. See Donovan 442S.E.2d at 575-76.

Second, I reject the offensive implication of plaintiffs' argumentthat, even without the implicit accusation of a crime, portions of thecommunity "feel [homosexuals] are less reputable than heterosexuals," asplaintiffs allege in this Complaint. Plaintiffs cite various statestatutes to illustrate societal contempt for homosexuals, includinglegislation against gay marriage and court decisions specifically denyingsame-sex marriage. Defendants counter with examples of Massachusettsstatutes prohibiting discrimination on the basis of sexual orientation.See, e.g., Mass. Gen. Laws c. 151B § 4 (outlawing sexual orientationdiscrimination in employment, housing, credit, and services); Mass. Gen.Law. c. 265 § 39 (providing penalties for hate crimes based on sexualorientation).

Plaintiffs' arguments are especially unavailing in light of the SupremeJudicial Court's recent decision in Goodrich v. Department of PublicHealth, 440 Mass. 309 (November 18, 2003), finding limitations onsame sex couples' ability to marry unconstitutional. See also In ReOpinions of the Justices to the Senate, 802 N.E.2d 565 (Mass. February 3, 2004).9 The Courtrecognized that "[m]any people hold deep-seated religious, moral, andethical convictions that . . . homosexual conduct is immoral." Goodrich,440 Mass. at 312. However, the Court emphasized "[t]he Constitutioncannot control such prejudices but neither can it tolerate them. Privatebiases may be outside the reach of the law, but the law cannot, directlyor indirectly, give them effect." See Goodrich, 440 Mass. at 341-42(quoting Palmore v. Sidoti, 466 U.S. 429, 433 (1984)(construingFourteenth Amendment)). In its subsequent advisory opinion, the Courtwent on to state that it would not allow homosexual couples to endure"second-class" status, finding that the differences between the terms"civil marriage" and "civil union" were not innocuous but rather intendedto relegate same-sex couples to lesser status. 802 N.E.2d at 570.

While the Court's language acknowledges that a segment of the communityviews homosexuals as immoral, it also concludes that courts should not,directly or indirectly, give effect to these prejudices. If this Courtwere to agree that calling someone a homosexual is defamatory per se — itwould, in effect, validate that sentiment and legitimize relegatinghomosexuals to second-class status. Perhaps the best way to understand the inappropriateness of plaintiffs'position is to put it in two very different contexts. First, I willcompare it to statements falsely linking a plaintiff to racial, ethnic orreligious groups, which plainly would not qualify as defamation per setoday. Second, I will compare it to false statements linking a plaintiffto groups that have always been considered defamatory.

Thus, if Albright claimed that he was a white person wrongfully labeledAfrican-American, the statement would not be defamation per se, even ifsegments of the community still held profoundly racist attitudes. In the1900's, such statements were regularly deemed defamatory in a number ofdecisions that seem anachronistic, if not offensive, to modern eyes.10For example, in Bowen v. Independent Publishing Company, 96 S.E.2d 564(S.C. 1957), the Supreme Court of South Carolina found that it waslibelous per se to include a white person's name in connection with anews item under the heading "Negro News," because of the continuedexistence of social prejudice against African Americans. Citing casesstretching back to 1791, the Court concluded that neither the abolitionof slavery, nor changes in the "legal and political status of the coloredrace" warranted a departure from South Carolina precedent. Id. at 565.What the Court was doing, in effect, as one commentator noted, was "assumingwithout question that the plaintiff's community was a `considerable andrespectable' one whose values are worthy of the law's attention,respect, and support," and in doing so, "validate[d] racist views."Lyrissa Barnett Lidsky, Defamation, Reputation, and the Myth ofCommunity, 71 Wash. L. Rev. 1, 30 (January 1996). Recent opinionsexpressly reject the premises of the earlier law. See Thomason v.Times-Journal, Inc., 379 S.E.2d 551 (Ga. Ct. App. 1989) (refusing toconcede that plaintiff may have suffered from social prejudice of otherswhere plaintiff sued over the publication of a false obituary that gave afuneral home listing that catered to a primarily "black clientel[sic]").

What has not changed in the case law is the conclusion that thecategory "defamation per se" should be reserved for statements linking anindividual to the category of persons "deserving of social approbation"like a "thief, murderer, prostitute, etc." See Hayes v. Smith,832 P.2d 1022, 1025 (Colo. Ct. App. 1991).11 To suggest thathomosexuals should be put into this classification is nothing short ofoutrageous. Finally, plaintiffs briefly argue that Albright suffered damage to hisbusiness, either suggesting a form of defamation per se or implying thatthe statement is defamatory because of his particular situation. Thatallegation does not advance the argument. Albright has not alleged thathe lost any specific professional opportunities because of the statementsmade, nor received any professional criticisms. Without some specificclaim of actual harm, he is doing nothing more than trading in the samekinds of stereotypes that recent case law and good sense disparage.12

C. Amrak's Libel Claim

Plaintiff Amrak asserts a cause of action for libel in addition toAlbright, claiming its business' goodwill interest was harmed by thealleged defamatory statements regarding Albright. As the Court has foundthat the statement does not provide a basis for a defamation claim, thisclaim fails as well. In addition, "one who is not himself libeled cannotrecover even though he has been injured by the libel published concerninganother." Gilbert Shoe Co. v. Rumpf Pub. Co., 112 F. Supp. 228, 229 (D.Mass. 1953); see also Eyal v. Helen Broad. Corp., 411 Mass. 426, 433(1991). D. Derivative Claims

1. Commercial Use

Mass. Gen. Laws c. 214 § 3A provides, inter alia, that "[a]ny personwhose name, portrait or picture is used within the commonwealth foradvertising purposes or for the purposes of trade without his writtenconsent . . . may recover damages for any injuries sustained by reason ofsuch use." The statute protects an individual's interest in preventing"the commercial value of one's name, portrait, or picture appropriated[for] the benefit of another." Tropeano v. Atlantic Monthly Co.,379 Mass. 745, 749 (1980). However, the value of one's name or picture"is not appropriated `when it is published for purposes other than takingadvantage of his reputation, prestige, or other value associated withhim, for purposes of publicity.'" Id. at 749 (quoting Restatement(Second) of Torts § 652(c), comment d (1977)). "`The fact that thedefendant is engaged in the business of publication, for example of anewspaper, out of which he makes or seeks to make a profit, is not enoughto make the incidental publication a commercial use of the name orlikeness'". Id. (quoting Nelson v. Maine Times, 373 A.2d 1221 (Me.1977)); Tropeano, 379 Mass, at 749 (dismissing commercial use claimbecause plaintiff's photograph was published as part of commentary, notas means of soliciting sales or in association with an advertisement). Albright asserts that defendants profited directly from the use of hisname in connection with the picture because it helped sell books and getpublicity for the Book in various magazines and news articles. Albright'sargument falls squarely under the example of a newspaper that seeks tomake a profit but merely incidentally uses a plaintiff's name orlikeness. See id.; Morrell v. Forbes, Inc., 603 F. Supp. 1305 (D. Mass.1985)(finding publication of plaintiff's photograph in connection withmagazine's story on organized crime did not constitute appropriation foradvertising or commercial purposes); Kleinerman v. Hodge, 1996 WL 1186891(Mass. Super. 1996)(finding incidental use where newspaper publishedplaintiff's photograph in connection with article printed for the generalinterest it would evoke). Albright relies on the fact that he was paidfor his story to show its commercial value, but this fact does nottransform the use into the type of advertising use that the statuteprevents.

2. False Light Invasion of Privacy

Albright also asserts a claim for putting him in a "false light," aspecies of invasion of privacy. The tort of false light is not recognizedin Massachusetts. See Elm Medical Lab., Inc. v. RKO General, Inc,403 Mass. 779, 787 (1989) abrogated on sep. grounds in United TruckLeasing Corp. v. Geltman, 406 Mass. 811 (1990). Plaintiffs ask this Court to recognize the cause ofaction in this case because public policy dictates that plaintiffs shouldbe able to recover when false information is widely published. This casedoes not warrant that expansion.

Mass. Gen. Laws c. 214 § IB does provide a cause of action for invasionof privacy. The statute provides "[a] person shall have a right againstunreasonable, substantial or serious interference with his privacy." Thestatute has been interpreted to prevent the revelation of an individual'sprivate information. See Tower v. Hirschhorn, 397 Mass. 581,586-87(1986)(disclosure without patients' consent of confidential medicalinformation would be sufficient to warrant finding of invasion ofprivacy); Bratt v. Int'l Business Mach. Corp., 392 Mass. 508(1984)(disclosure of private information regarding employees couldconstitute invasion of privacy). However, Albright's claim sounds indefamation, not invasion of privacy, because he objects to the making ofa false statement, not the revelation of private information. See Rileyv. Harr, 292 F.3d 282, 298 (1st Cir. 2002)(analyzing claim for disclosureof private fact under New Hampshire law and finding that court mustassume fact is true, otherwise it would not amount to disclosure of afact). To the extent that the Book reveals substantial privateinformation regarding Albright's personal relationships, there is noissue. Albright voluntarily sold that information. What Albright is objecting to is the one photograph that allegedly falsely impliesthat he is gay. Albright's arguments under this claim clearly refer tohis defamation claim, which I have already found insufficient.13

3. Emotional Distress

To maintain a claim for intentional infliction of emotional distress, aplaintiff must show (I) that the defendant intended to inflict emotionaldistress, or knew or should have known that emotional distress was thelikely result of his conduct, (2) the defendant's conduct was extreme andoutrageous, (3) the actions of the defendant were the cause ofplaintiff's distress, and (4) the emotional distress suffered by plaintiffwas severe. Agis v. Howard Johnson Co., 371 Mass. 140, 144-45 (1976).Without a claim for defamation, Albright clearly has not alleged conductthat was "`beyond all possible bounds of decency' and was `utterlyintolerable in a civilized community.'" Id.

In order to state a claim for negligent infliction of emotionaldistress, the plaintiff must allege (1) negligence; (2) emotionaldistress; (3) causation; (4) harm manifested by objective symptomology;and (5) that a reasonable person would have suffered emotional distressunder the circumstances. Sullivan v. Boston Gas Co., 414 Mass. 129(1993). Without a viable defamation claim, it would be difficult to find that a reasonableperson would have suffered emotional distress under the circumstances. Inaddition, Albright has not alleged any "objective symptomology" tosupport his emotional distress claim; he merely asserts that defendants'actions "caused Plaintiff harm without limitation severe emotionaldistress." Therefore, Albright's emotional distress claim must fail.

4. Negligence

If the publication of the photograph and caption were ultimately foundto be defamatory, plaintiffs could assert a claim for negligence on thebasis that a "reasonably prudent editor would have realized the`substantial danger to reputation' that the treatment of the photographwould have posed to the plaintiff." Morrell, 603 F. Supp. at 1307.However, plaintiffs have failed to state a claim for defamation.Plaintiffs argue that defendants can still be found negligent for theincorrect use of Albright's name and the resulting emotional distresseven without a defamation claim. However, plaintiffs fail to articulatethe duty defendants owed to them. Thus, this claim also fails.

5. Chapter 93A

Mass. Gen. Laws c. 93A § 2(a) makes unlawful "[u]nfair methods ofcompetition and unfair or deceptive acts or practices in the conduct ofany trade or commerce." In order to prevail on a Chapter 93A claim, plaintiffs must show that defendants' actions:"(1) fall within `the penumbra of some common-law statutory, or otherestablished concept of unfairness'; (2)[are] `immoral, unethical,oppressive, or unscrupulous'; and (3) `caused substantial injury'" SerpaCorp. v. McWane, Inc., 199 F.3d 6, 15 (1st Cir. 1999).

Defendants argue that plaintiffs' 93A claim fails because Albright wasnot in trade or commerce with the defendants. Albright contends that acommercial relationship did exist because the parties engaged in abusiness transaction whereby defendants purchased Albright's story. Evenif this Court finds that the parties were engaged in commerce,plaintiffs' 93A claim fails because "where allegedly defamatory statementsdo not support a cause of action for defamation, they also do not supporta cause of action under G.L. c. 93A." D ulgarian v. Stone, 420 Mass. 843,853 (1995).


For the foregoing reasons, defendants' motion to dismiss is herebyGRANTED.


1. The Complaint quotes this language from the photograph's caption.This caption appeared with the photograph published in "People Weekly,"which also ran an article excerpting the Book. However, in the copy ofthe Book submitted to the Court by defendants, the caption reads: Madonna attends ex-lover Prince's concert with her secret lover and one-time bodyguard Jimmy Albright (left). Albright, who bears an uncanny resemblance to Carlos Leon, the father of Madonna's daughter, enjoyed a stormy three-year relationship with the star. They planned to marry, and had even chosen names for their children.

2. Defendants have submitted a copy of the Book and the "PeopleWeekly" magazine article for the Court's consideration. This Court canconsider these materials because they are essential to plaintiffs'complaint. See Fudge v. Penthouse International, LTD, 840 F.2d 1012,(1988)(finding proper district court's consideration of article in motionto dismiss libel action even though article was submitted by defendantand not attached to the complaint).

3. Massachusetts recognizes four types of statements as defamatory perse: statements that constitute libel; statements that charge theplaintiff with a crime; statements that allege that the plaintiff has acertain disease and statements that may prejudice the plaintiff'sprofession or business. See Ravnikar, 438 Mass, at 630. If a statementcomes within one of these four exceptions, the plaintiff may recovernoneconomic losses, such as emotional injury and damage to reputation. Anundamaged plaintiff may recover nominal damages. Id.

4. Plaintiffs have not made any argument that the photograph atissue, without the printed caption, makes any independent statement.

5. The article in "People Weekly" contains similar details regardingthe couple, Albright's past girlfriend, and the fling Albright had thateventually ended his relationship with Madonna.

6. While the existence of a defamatory innuendo is a question of factfor a jury to consider, Reilly, 59 Mass. App. Ct. at 775, plaintiffs'proposed interpretation of the photograph is too strained to evenconstitute a reasonable innuendo.

7. See Plumey v. Landmark Chevrolet, Inc, 122 F.3d 308, 311 (5th Cir.1997)(finding remark that plaintiff was a "faggot" was slander per seunder Texas law because imputed crime of sodomy); Miles v. Nat'lEnquirer, Inc, 38 F. Supp.2d 1226, 1228-29 (D. Colo. 1999)(holding"merely accusing one of being a homosexual is not defamatory per se," butaccusation of pedophile and sex offender raised statement to defamatoryper se); Murphy v. Pizarrio, 1995 WL 565990, *3 (S.D.N.Y. 1995)(findingpublished statement imputing homosexuality to another is defamatory per seunder New York law); Nazeri v. Missouri Valley College, 860 S.W.2d 303,312 (Mo. 1993) (finding false allegation of homosexuality defamatorybecause homosexuality still viewed with disfavor, deviant sexualintercourse is misdemeanor in Missouri, and allegation imputesunchastity); Donovan v. Fiumara, 442 S.E.2d 572, 575-76 (N.C. Ct. App.1994)(holding reference to plaintiff as "gay" or "bisexual" was notslander per se; statement did not allege plaintiff had "loathsomedisease" or impute commission of crime); Boehm v. American Bankers Ins.Group, Inc, 557 So.2d 91, 94-95 (Fla. Dist. Ct. App. 1990)(statement byemployer implying that employee was homosexual did not show malice (orslander per se) to overcome employer's claim of privilege); Head v.Newton, 596 S.W.2d 209 (Tex.Civ.App. 1980)(finding plaintiff made primafacie showing of slander sufficient to maintain venue where defendantstated she believed plaintiff was homosexual or "queer" because statementimputed crime of sodomy); Schomer v. Smidt, 170 Cal.Rptr. 662, (Cal.Dist. Ct. App. 1980)(finding false imputation of homosexual act slanderper se because equaled accusation of unchastity where defendant's allegedsexual activity was between unmarried individuals); Moricoli v.Schwartz, 361 N.E.2d 74, 76 (Ill. App. Ct. 1977)("fag" was not slanderper se but was basis for defamation action).

8. M.G.L. c. 272 § 35 States: Whoever commits any unnatural and lascivious act with another person shall be punished by a fine of not less than one hundred nor more than one thousand dollars or by imprisonment in the state prison for not more than five years or in jail or the house of correction for not more than two and one half years.

9. While this decision was issued in 2004, and the Book was publishedin 2001, it represents the culmination of decisional and statutory lawthat have been evolving in that direction for some time. The principlesit encloses flow from earlier decisions and enactments.

10. See, e.g., Stulz v. Cousins, 242 F. 794 (6th Cir. 1917); Morrisv. State, 160 S.W. 387 (Ark. 1913); Jones v. R.L. Polk & Co., 67 So. 577(Ala. 1915); May v. Shreveport Traction Co., 53 So. 671 (La. 1910);Mopsikov v. Cook, 95 S.E. 426 (Va. 1918); Spencer v. Looney, 82 S.E. 745(Va. 1914).

11. As the court in Hayes said: "A court should not classifyhomosexuals with those miscreants who have engaged in actions thatdeserve the reprobation and scorn which is implicitly a part of theslander/libel per se classification." 832 P.2d at 1025. The Hayes courtconcluded that the only way to warrant a per se classification is if thatclassification should "without equivocation, expose the plaintiff topublic hatred or contempt." Id. It found that the record in 1991 inColorado was mixed. It is not remotely mixed in 2004.

12. In other situations, such an argument may be appropriate. Forinstance, if an individual was in a business that forbade participationby homosexual individuals, such as the military or the clergy, such anallegation could immediately affect their livelihood. The personalsecurity profession, however, is not such a business.

13. Defendants claim that Albright also asserts a cause of actionfor intrusion. This action is not clearly stated in the complaint andplaintiffs do not address it in their opposition to defendants' motion todismiss.

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