Why You Probably Won’t See Grammer vs. Grammer on the Civil Docket

During a Hollywood breakup, inevitably the bitter dumpee will publicly air some dirty laundry about the heartless dumper. And by now, most of us are probably bored of the endless parade of allegations ofdalliances with the nannyobsessions with child pornography, andmind-bending racist rants (I mean, those are so overdone, right?). But every once in a while, you get a really interesting, fresh take on the mid-breakup PR takedown. For example, what if the dumpee stronglyinsinuates that the dumper is secretly into cross-dressing? Can that dumper sue the loose-lipped dumpee for defamation? Well, let’s take a look at an example.

The Real Housewives of Beverly Hills is a lovely show that documents the lives of several caring, down-to-earth, and respectful women….oh wait, wrong show. The real Real Housewives of Beverly Hills documents the dramatic lives of six well-to-do women who love their ritzy lifestyles and seem to constantly get into screaming matches with each other about absolutely nothing. (Um. Or so I hear…) One of the show’s stars, Camille Grammer (a.k.a. Kelsey Grammer’s bitter soon-to-be ex-wife), has been the instigator of many of those screaming matches. Yet, evidently not content with stirring things up in only one medium, the erstwhile Mrs. Frasier Crane went for bonus headlines during an appearance last week on theHoward Stern Show.

When Howard Stern asked Camille whether Kelsey starred in the cross-dressing Broadway show La Cage aux Folles because he is gay, Camille quickly replied, “That’s for another reason.” Howard Stern and his sidekick Robin Quivers then pressed Camille about whether Kelsey was secretly into cross-dressing. In response, a laughing Camille not-so-coyly stated, “I didn’t say it. I’m not talking about that.” While Camille did not exactly say that Kelsey likes to play dress up with women’s clothes, she never denied it or indicated that she was joking around. Instead, she strongly implied that cross-dressing was one of Kelsey’s private extracurricular activities. Before going any further, but not before hinting that Kelsey has worn her panties in the past, Camille decided to change the subject for fear she would be “smacked with a lawsuit.”

Kelsey does not seem to be all that rattled by Camille’s antics. But, this being a legal blog and all, what we want to know is: can Kelsey sue his estranged wife for defamation?

Probably not.

In the first place, in order to give rise to a defamation claim, a statement must be defamatory — that is, it must be something injurious to one’s personal or professional reputation. Of course, no court (to my knowledge) has ruled on the specific question of whether claims of cross-dressing actually harm one’s reputation. But I suspect that, even if allegations of cross-dressing may have met this standard in an era of more traditional values, these days, a person’s alleged fondness for frilly skivvies just wouldn’t cut it — especially when the would-be plaintiff’s current job is to cross-dress on stage in front of thousands and thousands of theatergoers. In fact, I’m sure that most people would love to cross-dress if doing so would help them make millions of dollars! If it weren’t for the divorce context, we might have simply understood Camille as explaining that Kelsey is just very happy in and well-suited for his current job.

(Of course, I’m sure Kelsey — a “fervent conservative, recovering cocaine addict, and paranormal enthusiast who just might run for office” — might disagree. For that matter, so would his Republican base.)

Another hurdle for Kelsey: the statement has to actually be false. We have no way of knowing whether Kelsey does, in fact, cross-dress when he is away from the Broadway stage. Only Kelsey and Camille and his fiancée (and his past wives and girlfriends) know what goes on behind closed doors. Nonetheless, if the statement is true, then it is definitely not defamation.

Now, I finally get to address that oh-so-exciting topic of defamation of a public figure, which Iconveniently left out of my last blog post. To put it simply, because the law presumes that the public has some interest in learning about public figures, celebrities have to fight an uphill battle to win a defamation lawsuit (which the telephoto lens “journalists” at Us Weekly, theStar, the Sun, the National Enquirer, and every other publication squeezed between the candy bars in your local grocery checkout aisle use to spread all manner of “news,” gossip, innuendos, and sometimes flat-out vicious falsehoods with virtual legal impunity). We lawyers call this the New York Times rule, so named after a seminal 1964 Supreme Court decision: a person is liable for defamation of a public figure only if he or she makes the statement with actual malice.

Of course, “actual malice” can’t just mean actual “malice,” because if it did, you wouldn’t need to read my blogs to explain the concept or hire me to litigate it. (Too bad for Kelsey: if all he had to prove was that Camille’s public statements were a direct result of her hostility towards him, he might have a better case. Perhaps Camille is not only angry about the divorce, but is also upset that Kelsey borrowed some of her clothes without asking her for permission? Of course, this is merely speculation. Hilarious, non-factual, non-defamatory speculation.) Instead, Kelsey has to show that Camille made the statements knowing they were false or with reckless disregard for the truth. This is a pretty high standard to meet, and since we cannot be certain as to whether Kelsey likes wearing girlie things or if Camille is trying to spread false rumors — maybe she’s just drawing conclusions about where that missing nightie disappeared to? — the best we can say is that Kelsey would have a tough case to make in the courthouse.

Now, Kelsey might have a better go of it with the comparatively obscure legal theory beloved by celebrities and their lawyers all over — public disclosure of private facts. Unlike defamation, this tort — legal claim, not delicious cake — does not require that the statement at issue be false. To the contrary, the whole point of the “public disclosure” claim is that someone is revealing something that is truthful, but private. Generally speaking, the published material must “not be of legitimate concern to the public” and its disclosure must be “highly offensive to a reasonable person.” Such a claim would save Kelsey from having to make the case on falsehood or malice. But it would require him to (1) concede that, yes, he does enjoy cross-dressing; and (2) insist that he is very offended that anyone else knows about it — position #1, of course, probably alienating Kelsey’s conservative base, and position #2 probably alienating his Broadway base.

And of course, any legal theory requires spending months publicly litigating the very sensitive allegations that were evidently offensive/embarrassing enough to warrant a lawsuit in the first place, rather than allowing the 24-hour news cycle to do its work and the story to just fade away. For that reason, if no other, don’t expect to see Kelsey storming into the downtown courthouse with a complaint in hand any time soon.

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