The heteronormative observer -- the Concourt in Le Roux v Dey

Is it defamatory, and therefore illegal, to publish an image depicting a person who claims that he is heterosexual, as gay? This week the Constitutional Court apparently answered the above question in the negative.

The facts before the court were as follows: two schoolboys published a computer-created image in which the faces of the deputy principal (Dr Dey) and the principal of their school were superimposed on an image of two naked men sitting in what the court referred to as “a sexually suggestive posture”. Details of the naked bodies’ genitals were occluded by the super-imposition of the school’s crest over these areas. On the basis of these facts, Dey claimed that the publication of the images was defamatory, alternatively that his constitutional right to have his dignity respected and protected had been violated.

The Constitutional Court was heavily divided on the question whether the publication of the image in fact constituted defamation, with a slight majority of only six out of the 11 members of the court concluding that such publication was indeed defamatory.

In the majority judgment, the court reconfirmed the legal principle that all that a plaintiff in a defamation claim has to prove in order to succeed with the claim is that defamatory matter concerning him or her was published. (Once this has been established the defendant bears the onus to show absence of either wrongfulness or intention to defame.) As regards “publication”, the court held that the term means the “communication or making known to at least one person other than” the person who is claiming that he was defamed. The form of the publication can be anything from speech or print, including photographs or caricatures. When determining whether a statement is defamatory per se (as Dey alleged it was) the test is objective, meaning that the inquiry is “what meaning a reasonable observer would attribute to the picture in its proper context”.

The court then went on to describe the relevant picture as follows: “The vision created is one of two promiscuous men who allowed themselves to be photographed in what can only be described as a situation of sexual immorality, which would be embarrassing and disgraceful to the ordinary members of society.” Next, the court considered the context of publication: the picture was distributed among the teachers and learners of the school. In this context, Dey fulfilled the function of deputy principle — “a symbol of authority and discipline at the school”. A reasonable observer would associate the faces on the picture with the behaviour of the bodies in the picture. Although the picture amounted to a caricature, a caricature can still be defamatory.

The court then held that what “instinctively springs to mind is this: the whole purpose and effect of the association created by the picture is to tarnish the image of the two figures representing authority; to reduce that authority by belittling them and by rendering them the objects of contempt and disrespect; and to subject these two figures of authority to ridicule in the eyes of the observers who would predominantly be learners at the school. This means that the average person would regard the picture as defamatory of Dr Dey.”

The conclusion that the image was defamatory appears to be informed by the judgment that it was not the depiction of Dey and his colleague as gay per se that made the image defamatory. Rather, it was the way in which the image depicted them as engaging in promiscuous, indecent conduct (judged from the perspective of the “reasonable observer”) that caused the defamation per se.

But exactly how the reasonable observer can deduce from an image of two naked men sitting next to each other on a couch in a sexually suggestive position that they are promiscuous and therefore sexually immoral is not clear at all. The ordinary meaning of the word “promiscuous” is “sexually indiscriminate”, having “casual sexual relationships” with more than one person and often changing sexual partners. How all of this could ever be reasonably deduced from the image is not explained by the judgment of Brand, AJ at all. The sad fact is that one can only deduce promiscuity and sexual indecency from such an image when one has already made up one’s mind about the nature and morality of individuals who engage in same-sex sexual activity. The assumption here is simply this: men who appear to engage in same-sex sexual activity or who actually do engage in same-sex sexual activity are promiscuous and sexually immoral. This is a heteronormative assumption — an unjustifiable assumption born out of irrational prejudice.

While the court suggests that if the image was one depicting two bodies of the opposite sex engaging in the same kind of behaviour it would similarly attract a judgment that it was defamatory, it is hard to see that this would indeed be the case. The judgment of immorality and promiscuity is clearly based on the fact that it portrays same-sex activity. Say, for argument’s sake, that the image on which the faces were superimposed was one depicting two fully clothed male bodies engaging in a passionate kiss. Would the publication of that depiction amount to defamation? Or say, again for arguments sake, that the superimposition of the faces was on to an image of two fully clothed bodies of the opposite sex engaging in a passionate kiss, would the publication of such a depiction amount to defamation?

The answer to these questions, at least if one is to trust the court, lies in whether, “instinctively” the reasonable observer would conclude that “the whole purpose and effect of the association created by the picture is to tarnish the image of the two figures representing authority”. I have a suspicion that the depiction of Dey and his colleague in a non-promiscuous way, but still as engaging in homoerotic conduct (for example as kissing), would, given the context, still amount to defamation. Why? Because the “instinct” of the reasonable observer that is clearly relied upon here is the heterosexual, heteronormative observer. Moreover, the context, as the court quite clearly depicts it, is a heteronormative one — one in which the prerequisite for assuming the symbolic position of authority is that one is a good heterosexual subject. Where one is depicted as otherwise than that in such a given context the statement is defamatory, because it tarnishes the image of the figures representing authority.

The underlying assumption of Brand, AJ’s judgment is that in a heteronormative context, the depiction of heterosexuals as homosexuals is defamatory, because it automatically depicts them simultaneously as promiscuous and immoral. Although the judgment of the court indicates that merely falsely identifying someone as gay does not constitute grounds for legal action, the effect of the judgment of Brand, AJ is that it does, because in a conservative heteronormative context such a false identification inevitably tarnishes that person’s image.

It is difficult to square this with the Constitution’s prohibition of unfair discrimination on the basis of sexual orientation — a prohibition that problematises the hegemony of heteronormativity, rather than endorsing it. That is to say, the majority judgment unproblematically assumes the legitimacy of a heteronormative context and allows that context to judge whether defamation was committed or not. What if the depiction was one of two openly homosexual teachers (of whom it is known that they are not romantically involved) as engaging in a kiss, or for that matter engaging in the conduct in which the two bodies in this picture engaged? Would the “instinct” of the reasonable, heteronormative observer in the heteronormative context not in such a case be that there is no defamation because it merely depicts behaviour in which homosexuals (whether they are romantically involved or not) engage anyway? Or better still, that such a depiction was an innocent joke (an argument that was rejected in the present case)?

One of the things this judgment underscores is exactly how little we have done as a nation to challenge the conservative, heteronormative assumptions on which our moral and legal judgments continue to be based.