Digital Media and Data Privacy Law Blog

According to a recent story in the Raleigh News & Observer, a former Republican mayor of Raleigh, and current candidate for chairman of the North Carolina Republican Party, Tom Fetzer, has sued a Wilmington radio station and disc jockey for defamation because the disc jockey forwarded an email to others that "insinuat[ed] that Fetzer is gay."  Fetzer's civil complaint can be read here.

As has been widely reported, there is a North Carolina Court of Appeals decision that would appear to make Fetzer's claim a legal long shot.  In Donovan v. Fiumara, 442 S.E.2d 524 (N.C. Ct. App. 1994), the plaintiffs brought a sander claim against the defendant for stating to others that the plaintiffs were "gay and bisexual."  The trial court had granted the defendant's motion to dismiss, and the Court of Appeals agreed that the purported comments did not fit into any of the three categories of slander per se.  It did not impeach the plaintiffs in their trade or business, it did not allege they had a "loathsome disease," and it did not impute to them the commission of a crime.

Much of the court's opinion was spent analyzing the final category, since, as plaintiffs asserted, North Carolina has an anti-sodomy law.  The court held, however, that the law banned all kinds of activity not particular to gay people, and so calling someone "gay" "is not tantamount to charging that individual with the commission of a crime."    Thus, as a matter of law, implying someone is "gay," as the News & Observer says Fetzer is claiming here, does not support a claim of slander per se.

In Donovan, because the plaintiffs had not alleged special damages, slander per quod was not an option.  Fetzer's complaint, by contrast, does include an alternative claim for libel per quod, based on the diminished value of Fetzer's professional reputation.

It is worth noting that Fetzer's complaint does not actually allege what the defamatory statement or statements were, though in public statements concerning the lawsuit Fetzer has made clear the basis for his claim. It will be interesting to track the progress of both Fetzer's lawsuit and his candidacy for state party chair to see whether his success or lack of success in the political arena affects his conduct in the legal arena.