Consumer reviews and journalism; sex, gender, and sexual orientation are intertwined concepts

Steve Lehto reports on a case in an Oregon state supreme court ruling against a defendant in a libel suit against an online reviewer of a piano store from a possible rival.

At issue was a provision in state law that defamation claims against an established media entity must meet a higher standard than a claim against a private citizen, especially claiming to be an 'journalist'.

This contradicts apparently with federal practice.  The case also invokes the idea of the 'opinion rule' in defamation law. 

But the case could have implications if tech companies in the future did not want to allow individuals to express opinions with the same services allowed to established professional journalists.  That idea has also been relevant in the EU over their copyright directive.

Suits against individuals posting to review sites (like Yelp!) have been a recurring issue in the past, but this one had a different twist.  Right now Section 230 would protect the sites that host the reviews.

There is another story today of concern. Vox runs a story June 21, 2022, 'new Supreme Court decision has ominous implications for LGBTQ discrimination' by Ian Millhiser. The case is Marietta Memorial Hospital v. DaVita. The question is whether a private insurer can refuse to cover dialysis when it is a 'conduct marker' for having end stage renal disease (a issue which arose in my own life indirectly in the 1970s, but that’s a long story). By analogy, a private entity could discriminate against people who engage in anal intercourse (likely male homosexuals) when now sexual orientation is a protected class under federal law.

In fact, National Law Review, in an article June 16, 2020 “Supreme Court Holds that Sexual Orientation and Gender Identity Are Protected by Title VII”, as it describes the SCOTUS case “Bostock, Zarda v. Altitude Express, and Stephens v. Harris Funeral Homes.”   Gorsuch, with his textualism, actually wrote a favorable opinion from the LGBTQ viewpoint. That is, 'sex' is included in the definitions of sexual orientation and gender identity, even if those two categories are different from one another (they are) because they make use of the existence of 'assigned biological sex at birth.'  

Now, it may well be my personal feeling that some school systems or educators have gone off the rails with an 'anything goes' attitude toward gender identity in lower grades (you know, the “LibsofTikTok” stories on Twitter, and the scowl expressed in red state 'don't say gay' laws for lower grades), but the basic recognition that people may have separate gender identities and sexual orientations that are in a minority with respect to sex at birth and that these identities seem immutable (with hidden biology, like maternal epigenetics) is now recognized under federal law.  (Non-binary may be acceptable under this notion as a gender identity, I presume.)    

There is a problem, or danger, I think, if we depend on the idea of protected class to reign in on criminal law.  The recent SCOTUS opinion on abortion has been called into question in its criticism of the previous presumption of the 'right to privacy' as a fundamental right when stopping sodomy laws (Lawrence v Texas) and laws against recognizing same-sex marriage (Obergefell), under substantive due process.  It is possible to use protected class theory instead.  But the DaVita opinion might block using that, too.

Personally, I don’t like depending on the idea of 'protected class' to justify behavior (because it will have its obvious limits if public safety is sufficiently endangered – psychopathy might be immutable too – we get into what John Fish specialized in with undergrad studies at Harvard, which he says is 'mind, brain and behavior').  The speculative downstream public health complications lurk in the background if you try to involve public health concerns if sodomy comes up again.  Even more relevant is my distaste the idea of building personal identity (and demanding that others bond with you on the basis of such identity) on the notion of shared (intersectional group) oppression rather than something positive (the whole problem with Leftist identity politics these days).  But 'there you have it'.

It's noteworthy that, while “don’t ask don’t tell” was repealed in 2011, the UCMJ a “sodomy law”, article 125, remains on the books. But it seems to apply only to “forcible” sodomy (without legal consent). .

(Posted: Saturday, July 9, 2022 at 2:30 PM EDT by John W. Boushka)