The Suit Against KISS Rock Star Gene Simmons:
Is Suggesting That A Woman Is Unchaste Still Defamatory?

Last week, a New York trial court judge made headlines when she allowed a slander suit against KISS rocker Gene Simmons to go forward. Plaintiff Georgeann Walsh Ward claims that during a VH1 "rockumentary," Simmons (and the documentarians) made her sound like a "sex-addicted nymphomaniac." (The suit also names Simmons's company, as well as Viacom.)

Ward admits that she was in a three-year romantic relationship with Simmons that she says was monogamous, and which preceded her equally monogamous relationship with her now-husband. And she claims that Simmons's comments about his admittedly prolific sex life - he claimed to have had sexual encounters with 4,600 women -- falsely suggested she was unchaste or promiscuous, when VH1 juxtaposed these comments with photographs of her.

According to the complaint, Simmons commented, "There wasn't a girl that was off limits, and I enjoyed every one of them," and boasted, "I was a 24-hour whore. All I ever thought about was sex." In addition, the narrator of the documentary comments - with Ward's photo showing - that as the band moved on, its members were "no longer bagging every groupie in sight."

Should the judge have let this suit - by a girlfriend who says she was misportrayed as a groupie -- go forward?

I will argue that the answer is no; it ought to have been dismissed.

The Suit's Basic Problems: Failure to Fulfill the Elements of a Slander Claim

There are some basic problems with the suit: For one thing, in New York, slander is defined as a false statement of fact, of and concerning the plaintiff, that causes damage to the plaintiff. Yet it appears that Simmons primarily spoke about his own prolific sex life. If he portrayed anyone as a sex-addicted nymphomaniac, it was himself.

Second, what exactly was the "statement" that was made when Ward's photographs were shown? Arguably, the showing of a photograph does not send a specific enough message to satisfy a slander claim's "statement" requirement.

Third, if there was an implicit "statement" made about Ward, by the display of the photos, wasn't it just that she'd slept with Simmons? And if that was the statement, wasn't that more or less tantamount to Ward's own admission that the two had a romantic relationship - which presumably would have been plain to anyone at the time, and would have been taken to imply a sexual relationship?

After all, when one dates a rock star with numerous groupies, I think it's safe to assume that - groupie or not - you are sleeping together. Rock stars are not famous for dallying with virgins or prudes.

But beyond these basic problems with Ward's claim, lie two deeper and more interesting issues, which I will now discuss.

A Fine Line Between Opinion and Medical Diagnosis

The first larger issue the Ward/Simmons case raises, is where to draw the fine line between opinion and medical diagnosis.

Ward's attorney, Martha McBrayer, was wise to style the claim as one concerning a false claim of sex addiction/nymphomania - rather than simply one that suggested falsely that Ward had slept with more people, more carelessly, than in fact she had.

The introduction of medical terms may open the door to a dramatic battle of the experts in court. Ward could, if the judge permits it, call upon M.D.s and Ph.Ds, to, in effect, defend her virtue. On the flip side, Simmons may try to find highly-qualified persons to impugn Ward's sexual habits -- something modern psychiatrists and psychologists will hardly be wont to do.

On a more basic level, using medical terminology makes whatever was "said" - and again, it seems no clear statement was made - about Ward by the juxtaposition of Simmons's comments, and Ward's photos seem more factual, and less a matter of opinion. That matters, for legal purposes, because, again, a slander claim must be based on a false statement of fact. Opinion is not only outside the realm of libel and slander law, it's also constitutionally protected; under the First Amendment, it's really true that everyone has a right to their own opinion - and, more to the point, a right to voice that opinion without ending up in court.

Courts will deem allegedly defamatory statements to be opinion in two situations. First, they can be deemed "opinion" in the sense that they lack factual content: Calling someone "flirtatious" may be this kind of fact-free statement; a claim of flirtatiousness, especially in a business context, might be damaging, but this quality is so much in the eye of the beholder, a court might well deem it too fact-free to litigate

Second, statements can be what the law refers to as "opinion based on disclosed fact." This category is trickier, because a statement that might otherwise be deemed factual, can become opinion if it is shown to be a conclusion drawn from prior factual statements.

The classic example of opinion based on disclosed fact goes something like this: "John drank every night this month. That alone convinces me he's an alcoholic."

Now, "John's an alcoholic," standing alone, would be the kind of medical/psychological fact that could lead to the kind of battle of the experts I've described above. While some people may be in a middle region, some definitely are alcoholics and some definitely are not. So arguably, this statement could be litigated.

So why does the libel or slander claim, based on that statement, disappear when the speaker makes clear his only factual basis for concluding John is an alcoholic, is that he drank every night this month? The answer, in a nutshell, is that the reader or listener can judge for him- or herself.

Remember, if it's not true that John drank every night that month, he can bring a case based on that false and probably damaging statement; we're talking now about the situation where that statement is true, and John - conceding he did drink every night that month - wants to sue about the separate claim that "he's an alcoholic." But that claim was simply the speaker or writer's opinion based on information he knew to be true: in other words, an opinion based on disclosed facts.

That's his opinion - and the listener or reader, who knows the same facts he does and knows these facts are the only basis for his opinion, can have a different opinion. He might respond, for instance, "Oh, come on. I drank every night for a month when I was getting divorced, and I'm no alcoholic. You're being too hard on John."

Is Promiscuity Still A Slur? And Do Positive Public Portrayals of Groupies Make a Difference?

The second larger issue the Ward/Simmons case raises is whether a false allegation of unchastity should even be considered defamatory - that is, damaging to the plaintiff's reputation - in this day and age, especially when the allegation is as unspecific as the one Ward says the Simmons documentary made about her.

Even the judge who unwisely let the Simmons case go forward acknowledged that sexual mores have moved on, but the law has not. Instead, it has stayed rooted in 1950's beliefs about "good girls," "bad girls," and the centrality of a woman's "reputation" - meaning her reputation for being, or not being, sexual.

Now, mainstream movies like "Almost Famous" and "The Banger Sisters" glamorize the groupie lifestyle. In "Almost Famous," the beloved Kate Hudson character's sexual favors are even traded away by the blasé guitarist with whom she travels. Yet the movie's perspective is to sympathize with, not to judge, her. Indeed, the protagonist - who represents the character of writer Cameron Crowe - is pretty clearly in love with Hudson's character, groupie or not.

Similarly, in "The Banger Sisters," Susan Sarandon plays a woman - perhaps a woman not so far removed from the now-fifty-three-year-old Ward - trying to live down her rock-fan past. Again, she's portrayed sympathetically - and her daughters, it turns out, think her past is way cool.

Obviously, popular movies, though a fair barometer of our zeitgeist, don't reflect everyone's opinion. But they do show that if the goal of defamation law is to punish false factual statements that generally damage reputation, rather than just damaging it in the eyes of some, then that goal isn't very well served with respect to a claim of former groupie status.

Also, catering to those subgroups within society who do look down upon groupies, in a defamation suit, may lead to a slippery slope. A claim that a devout Mormon drank a double espresso may be quite damaging within a Mormon community, but that doesn't make the claim slander fit for a legal case.

Remember, the person who feels slandered has the right to trumpet their disagreement with the characterization far and wide; the question is whether they also have the right to go to court over it. Do we really want our courts to devote their time to parsing the girlfriend/groupie distinction - especially when it is not the case that anyone has lost a job or a relationship as a result of the "groupie" claim?

Finally, in some circles, it seems apparent chastity may itself be deemed suspect - or, at least, the cause of mockery. Based on the media coverage of former Supreme Court nominee Harriet Miers, it seemed she suffered from the appearance of being chaste, or at least not provably unchaste - she is unmarried, with no children.

Part of the mockery came from insinuations that Miers might be a lesbian, and that, if so, that would be a bad thing. But part of it simply seemed to suggest that if she didn't actively date (and thus wasn't sexually active), then she somehow wasn't normal.

The irony of such insinuations, when made against Miers, was that the very same kind of buzz surrounded the Supreme Court nomination of David Souter - who is not only a Justice, but in my view, a standout on the current Court. Souter's possible chastity has hardly made him any less "normal" in his ability to be an excellent justice.

It may be unrealistic to hope that, as a society, we'll stop judging, or at least gossiping about, each other's sexuality. But we can stop bringing the gossip into court.