FindLaw columnist Julie Hilden asks the Tom Cruise Legal Question That Dares Not Speak Its Name, using the occasion of the recent South Park episode in which an animated, fictional Cruise quite literally finds himself "Trapped in the Closet" to wonder if the actor could (or even should) sue over the show's thinly veiled (OK, completely transparent) questions about his sexuality. Hilden raises this fascinating parallel argument about whether being accused of being gay should even be considered defamatory:
Imagine a white person in the Jim Crow South suing to counter rumors that he was hiding African-American ancestry, and the problem with such a claim becomes plain: The purpose of the claim is to restore the plaintiff to a prior, undeserved position of societal privilege, so he can avoid the maltreatment, racism — and if he is a racist himself, the shame — that he would otherwise suffer. The claim itself, then, rests on a malicious societal hierarchy.
The same is arguably true of a claim by a straight person that he has been falsely labeled as gay: Such a claim takes advantage of the courts so that one person can escape bias that others unfairly suffer.
It also caters to societal bias by saying, in effect, "Stop thinking less of me; I'm not really gay." But imagine, again, the parallel claim: "Stop thinking less of me, I'm not really African-American."
Even if someone decided to take this argument beyond the theoretical and accused Cruise of being African-American just to see if he'd sue (hey, South Park, want more free publicity?), we doubt they'd ever see a legal threat. After all, Cruise pals Will Smith and Jamie Foxx are doing pretty well for themselves, but the idea that he could wind up playing "Hotel Desk Clerk" like Eyes Wide Shut co-star Alan Cumming instead of the butch protagonist of the Mission:Impossible franchise keeps Scary Hollywood Lawyer Bert Fields number one on his speed dial.