Editors note: This case, while a loss, was a departure from all previous law in the United States. The Judge, Nancy Gertner, a well known liberal activist, waited the day after the Massachusetts Gay Marriage Decision to schedule a hearing. She simply ignored all previous case law. Paul Martinek, editor in chief of Lawyers Weekly USA, is quoted in the media as saying Gertner is known as a liberal judge she was "obviously trying to make new law in this case." He believes that until an appeals court adopts her reasoning, "it's just one judge issuing an interesting, novel opinion, and other judges will look at it and decide for themselves whether or not they agree with it."

The decision made national headlines. Our attorneys have filed a notice of Appeal with the US Circuit Court of Appeals and are confident that they will win a new hearing for Mr. Albright.

Boston Globe Story:

Suit filed by ex-Madonna beau rejected
: Gay-marriage law used by judge in dismissal
By Shelley Murphy, Boston Globe
May 29, 2004

A federal judge yesterday dismissed a lawsuit filed by a former bodyguard and boyfriend of Madonna, rejecting his claim that a photograph in a book and two publications was defamatory because it misidentified him as a gay man.

US District Judge Nancy Gertner, relying in part on the Supreme Judicial Court's November ruling legalizing gay marriage, said that being identified as gay is not defamatory.

"In 2004, a statement implying that an individual is a homosexual is hardly capable of a defamatory meaning," she wrote. ". . . In fact, a finding that such a statement is defamatory requires this Court to legitimize the prejudice and bigotry that for too long have plagued the homosexual community."

James Albright, who had a two-year relationship with Madonna that began in the early 1990s, claimed his Boston-based security business suffered because of a caption under a photograph of Madonna with a gay man that wrongly identified Albright as that man.

In her 23-page opinion, Gertner said the SJC ruling and a recent ruling by the US Supreme Court striking down sodomy laws "undermine any suggestion that a statement implying that an individual is a homosexual is defamatory." [ Editors note: That is a factual question, to be left for a jury, not a judge to decide]

Gertner dismissed the $1 million lawsuit that Albright and Amrak Productions Inc., which had employed Albright as a bodyguard, filed in 2002 against Andrew Morton, Madonna's British biographer; Michael O'Mara; Michael O'Mara Books Ltd.; St. Martin's Press; Time Inc.; and Newsgroup Newspapers.

In his suit, Albright said that the photograph that ran in the biography "Madonna," in People Weekly in 2001, and in Newsgroup's international publication "News of the World" in 2002 was of Jose Guitierez, a former employee of the singer.

The suit alleged that Guitierez was an outspoken homosexual who "clearly represents his homosexual ideology in what many would refer to as sometimes graphic and offensive detail."

Guitierez appeared in the television documentary of Madonna's life, "Truth or Dare," and also appeared with Madonna on two worldwide tours.

Albright claimed in his suit that while appearing with Madonna, Guitierez often dressed as a woman and engaged in acts on stage that "some would find homosexual, sexually graphic, lewd, lascivious, offensive, and possibly illegal."

But Gertner wrote that in the photograph of Guitierez that misidentified him as Albright, he was dressed in black pants, a shirt, a black leather jacket, and was wearing tinted glasses, an earring, and a string necklace with a pendant. "Nothing in the photograph suggests that he is gay," she wrote.

The judge also noted that the book devotes an entire chapter to Albright's affair with Madonna, describing their sexual encounters, their desire to marry and have children, and Albright's "fling" with another woman that led to his breakup with Madonna.

The judge also said that even if the photograph suggested Albright were homosexual, it would not discredit him or be considered defamatory. [ Editors note: Factual question or legal question? again, should be be left for a jury, not a judge to decide]

As for Albright's claim that his business had suffered damage, Gertner said he had not alleged any specific professional opportunity that he had lost or professional criticism he had received because of the wrong caption.

"Without some specific claim of actual harm, he is doing nothing more than trading in the same kinds of stereotypes that recent case law [ Editors note: There is no case law that states being misidentified as homosexual is not defamatory, indeed in most jurisdictions such as that in New York, being called a homosexual is considered by case law to be defamatory per se] and good sense disparage," Gertner concluded.



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