COMMONWEALTH OF KENTUCKY
JEFFERSON DISTRICT COURT DIV 2
CASE 94-C-05221
ROBERT H. HEDGES ___________________ PLAINTIFF
V
_________________, ATTY at LAW______________ DEFENDANT
PUBLIC CHARACTER DAMAGE COMPLAINT
Comes the Plaintiff, ROBERT HEDGES and MAKES COMPLAINT as FOLLOWS:
The facts of the case are : Plaintiff Robert Hedges, was taking a "oral final exam" in Advanced Paralegal Research and Writing Class, # LA 103, on Wednesday, 5 May 1993, [or thereabouts] at the University of Louisville. This "oral final exam" was a class debate by each student reflecting his or her respective assigned position. Plaintiff was before the entire class making his ten minute presentation. Plaintiff's assigned position was as Police Officer Council, seeking a summary dismissal in a 42 1983 false arrest action.
Defendant, Associate Professor _________, during the debate, with no coherent context whatever, said to the Plaintiff Robert Hedges "OK you're GAY". The issue of GAY was nowhere a factor in this final assignment and arose nowhere else during that "oral final exam. Plaintiff Robert Hedges believes that an immediate truthful response in the negative would have broken the mood of the debated issue and such a digression from the topics of the assignment could possibly have effected the grade of to his detriment. Plaintiff did not lose focus of the topic of the debate, nor respond or react during that "oral final exam, " and continued with the assigned debate. Plaintiff cannot determine what effect Defendant Associate Professor _______s' statement had upon the class, or the focus of the debate topic then on trial. The grades were issued some weeks later. The statute of limitations on slander is one year. Plaintiff must take recourse within one year or lose the right the use of the court to adjudicate this slander. If the students in that class take that slanderous statement seriously, and apply it to Plaintiff Robert Hedges, even in the absence of intentional malice on their part, there is the potential for great damage in the life of Plaintiff Robert Hedges at some time in a future career. The purpose of this complaint is to alleviate that character damage.
A Brief reiteration of the facts of the case are :
1) The statement was made while Plaintiff was in front of the class.
2) The class was the listening attentively due to the importance of the final grade.
3) The statement was slanderous per se.
4) Character damage is presumed by law to result from slander per se.
5) No normal opportunity arose to again encounter this group of students to counter the slander.
[a]llegedly slanderous words are to be taken in the sense in which they would be understood by those who hear them, and they shouldn't be tortured into a charge of guilt nor explained into innocence, contrary to their obvious imports, if a crime is imputed the words are slanderous per se. Jones v Grief, 131 SW2d 487, (Ky 1939)
]a]llegedly libelous words used with reference to another are ordinarily construed in their plain and popular sense. Paducah Newspapers v Wise, 247 SW2d 989 , (Ky 1952) 343 US 942 denied
[a]llegedly defamatory words must be measured by their natural and probative effects on the minds of the average lay reader and not subjected to the critical analysis of the legal mind. Digest Pub Co v Perry Pub Co, 284 SW2d 832 at 834, (Ky 1956); Smith v Pure Oil, 128 SW2d 931 , (Ky 1939); Sweeny & Co v Brown, 60 SW2d 381 , (Ky 1933)
What does the word GAY mean in common usage, such as among the students who compose this class and their peers elsewhere ? [note1] The term GAY in common slang usage means Homosexual and is slanderous per se. What does the word homosexual mean to an educated individual ? Homosexuality is defined as a sexual preference [note2] and implies homoeroticism. [note3]
The law of the case is :
The law in Kentucky was not unclear before the decision in Comm v Wasson, 842 SW2d 487, (Ky 1992). The allegation of homosexuality would simply be slanderous per se due to Kentucky law defining this behavior as a crime.
Edwards v Steele, 36 SW2d 834 , (1931), Jones v Grief, 131 SW2d 487, (Ky 1939) allegation of a crime is slanderous per se - no special damage need be pled or proven
However, in the light of Comm v Wasson, 842 SW2d 487, (Ky 1992), there are new descriptions clarified. Wasson supra states that the constitutional right of privacy protects the homosexual. Therefore Wasson supra says that being homosexual involves a privacy right. Does this mean that the allegation of homosexuality would merely invade a privacy right. ? How does this mesh with the case of Brents v Morgan, 299 SW 967, (Ky 1927) ? The Court said in Brents supra that invasion of privacy results only in mental anguish which cannot be measured by pecuniary standard; truth is a complete defense to libel action; and there is no redress for invasion of privacy by oral publication. Therefore an individual who is really homosexual could not successfully sue a professor for making such a statement before a class. If Plaintiff Robert Hedges were a homosexual [which he is not], and the slander under scrutiny is determined to be an invasion of privacy by oral publication, no redress would be allowed, if the doctrine expressed in Brents supra is applicable based upon these facts in this case ? The homosexual minority is believed to be roughly 13% of the Louisville population, from which we may extrapolate statistically that roughly a comparable percentage of students will be homosexuals. Can any professor be allowed to make such a statement in any class against one of the minority above mentioned. ? We should note here that such statements are potentially a violation of 18 usc 245. which is "[t]he interference with the participation and enjoyment of a federally protected activity, specifically inclusive of college attendance "
There is another legal standard which does not depend upon Wasson supra or invasion of privacy standard however:
tatement subjecting one to hatred, ridicule, contempt, or disgrace or tending to induce an evil opinion of him in minds of right thinking people is actionable per se. Bell c CJ&T, 402 SW2d 84 , (Ky 1966); Digest Pub Co v Perry Pub Co, 284 SW2d 832 , (Ky 1956); Shields v Booles, 38 SW2d 677, (Ky 1931) [note4]
[d]eprive him of friendship, intercourse, and society. Need not imply a crime, impute a violation of law or involve moral turpitude or immoral conduct. Digest Pub Co v Perry Pub Co, 284 SW2d 832 , (Ky 1956)
[d]egrade, disgrace, hold him up to public hatred, contempt or scorn. Digest Pub Co v Perry Pub Co, 284 SW2d 832 , (Ky 1956)
[w]ords are actionable per se when they charge or impute commission of a crime involving moral turpitude, affliction with infectious disease, . . . or having a tendency to prejudice a person in his trade, calling or profession, Hill v Evans, 258 SW2d 917 , (Ky 1953); Shields v Booles, 38 SW2d 677 at 680, (Ky 1931)
[a] charge implying immorality or indecency is character damage which is presumed to have accrued from the wrong done. Shields v Booles, 38 SW2d 677 , (Ky 1931)
[R]eputation can scarcely be assessed except by what people say. Hearsay can be direct proof of such damage and of its effects, such hearsay is not received as the evidence of the truth of what was said, but of evidence of the fact that it had been said; injury to reputation and good will; DuoTherm Div Motor Wheel v Sheergrain, 504 SW2d 689, (Ky 1973)
Fordson Coal v Carter, 108 SW2d 1007, (Ky 1937) basis for action for libel is injury to reputation, hence publication is required - publication is communication to one person
Vanover v Wells, 94 SW2d 999 , (Ky 1936) allegations in presence of diverse persons that police were getting rid of all lewd women and woman tenant had to move was held actionable per se
Yeater v Mullins, 26 SW2d 757 , (Ky 1930) words alleging a theft are actionable slander per se, which presumes malice, which allows punitive damage - damages awarded
Justice v Wellman, 86 SW2d 132 , (Ky 1935); Mullins v Mutter, 151 SW2d 1047, (Ky 1941); word whore held actionable per se - remarks made in presence of others - damages awarded
We can easily recognize that such remarks are derogatory and offensive to some; We recognize that some believe that this behavior is immoral or indecent; We do not doubt that such charges will deprive the aggrieved party of friendship, intercourse, and society; We are aware that some believe that such behavior involves moral turpitude or immoral conduct; some believe these acts would degrade, disgrace, hold the aggrieved party up to public hatred, contempt or scorn; some see this as a charge implying immorality or indecency, character damage, injury to reputation and good will; some believe this is a statement subjecting the aggrieved party to hatred, ridicule, contempt, or disgrace or tending to induce an evil opinion of him in minds of right thinking people. [note4]
