A recent episode of the television animated comedy "South Park" mocked Tom Cruise -- suggesting that he is homosexual, and lying to hide that fact. Could Cruise bring a defamation suit against the show?

In the past, Cruise has sued those who have made the very same claim. Indeed, when Cruise was married to Nicole Kidman, the couple made a point of doing so: In 1997, Kidman told Ladies' Home Journal that when reports claimed their marriage was a sham, "[W]e are going to sue over it. It gets to a point where you have to protect your children." Now that Cruise is set to marry Katie Holmes, who's pregnant with his child, it seems unlikely that he will take a different view.

Could Cruise successfully sue "South Park"? And more broadly, should he continue his campaign of directly combating the claim that he's homosexual, or rethink the ethics of bringing such lawsuits?

The South Park Episode: Treading the Boundary of Parody and Satire

The relevant "South Park" episode -- entitled "Trapped in the Closet" -- self-consciously skirts the outermost edges of the First Amendment's protection for parody. A court would probably deem it constitutionally protected, but only barely.

Defamation requires a "statement of fact" -- and for this reason, most parody, because of its fictional nature, falls outside defamation law by definition. But this is the rare parody that, fairly read, does make a statement of fact.

In the episode, the animated version of Cruise literally goes into a closet, and won't come out. Other characters beg him to "come out of the closet," including the animated version of his ex-wife, Nicole Kidman. The Kidman character promises Cruise that if he comes out of the closet, neither she nor "Katie" will judge him. But the Cruise character claims he isn't "in the closet," even though he plainly is.

No one could miss that the episode's creators are taking a stance and making a statement -- that the real Cruise is gay and hiding it. The use of the euphemism "in the closet" -- used to refer to someone who is homosexual but who has not admitted his or her homosexuality to friends, family, or the public -- is transparent.

Interestingly, the episode itself indicates that its creators know well that they may be defaming Cruise, and they know of his litigious history. The joke disclaimer preceding the episode announces that "All characters and events on this show -- even those based on real persons -- are entirely fictional." At the end of the episode, the Cruise character threatens to bring a suit (not on the gay issue, but in defense of Scientology) "in England" -- which lacks a formal equivalent of the First Amendment. And all the credits at the end use the pseudonyms "John Smith" and "Jane Smith."

Since the episode does indeed make a "statement of fact," the parody exception to defamation law won't save "South Park." Thus, the creators' only weapon against a possible suit by Cruise is a First Amendment defense. Fortunately for them, the Supreme Court has interpreted the defense very broadly.

The Broad First Amendment Protection for Parody and Satire

In Campbell v. Acuff-Rose Music Inc., Justice Souter, writing for a unanimous Supreme Court, found that a 2 Live Crew song counted as parody. In so doing, Justice Souter quoted then-U.S. District Judge Pierre Leval as follows: "First Amendment protections do not apply only to those who speak clearly, whose jokes are funny, and whose parodies succeed."

On this logic, the First Amendment gives breathing room to creative works even when they fail in their goals. Thus, here, the "South Park" episode is protected even if its literalization of the "in the closet" metaphor won't make a single viewer chuckle.

The point is that it was at least trying to make people laugh. And probably, the very silliness of the literalization -- the fact that it was the least creative thing the creators possibly could have done -- did indeed amuse some viewers. "South Park's" appeal, after all, isn't its subtlety.

But does it make a different that Cruise's would be a defamation case? Judge Leval originally stated this principle in the trademark context.  And when Justice Souter applied this principle in the Campbell case, he did so in the copyright context

Courts, I believe, would probably invoke the same rule in the defamation context, too, for in the end the principle is about creating a healthy margin of error for First Amendment-protected speakers and writers, and that concern is present in all these different areas of law. This is consistent with the principle the Supreme Court has frequently espoused that the First Amendment is in a "preferred position" in the legal hierarchy -- meaning that laws or government actions that infringe on free speech not likely to be upheld.

In the defamation context, though, the rule's application -- though correct, as a matter of constitutional law -- may be especially unfortunate for the plaintiff.

It's one thing to co-opt part of a song, or use a trademark, in a parody: Without using part of the original, the parody won't work at all; no one will know what its target is.

But it's another thing to embed what would otherwise be a defamatory statement in a work of fiction: This is defamation in satire's clothing, and it's only in order to protect true satire that that the Constitution has been held to also protect this lesser creature.

Generally, courts don't want to get into the business of picking out nuggets of fact from an otherwise fictional account.

The upshot, though -- and courts know this, and accept this cost in the service of free speech -- is that parody and satire inevitably may become a refuge for rogues who seek to defame without liability. That seems to me to be just what's happening with respect to the "South Park" episode.

Should Plaintiffs Argue that Simply Being Considered Gay Is Defamatory?

 In sum, a Cruise-versus-"South Park" suit would almost certainly be dismissed on First Amendment grounds. Moreover, such a suit -- depending on the way it was framed -- might arguably be as ethically problematic, as it is legally problematic, at least for those who believe that bias against homosexuals is wrong.

Cruise has chosen, in the past, not only to challenge allegations that he cheated or lied to cover up his alleged homosexuality, but also to directly challenge allegations that he is gay. In 2001, Cruise's attorney Bert Fields was quoted saying to E! Online, that "[Cruise] is a great respecter of homosexual rights, but he's not gay, and he's ready to prove this in court. Tom is tired of it and it hurts his children. It's something that will be there forever. And damn it, he's going to stop it." (Emphasis added).

If Cruise is truly a great respecter of homosexual rights, then to comport with his own ethical beliefs, he should have been more careful in crafting his past suit.

Cruise already had a strong suit based on suggestions that he was an adulterer and a liar -- cheating on his wife and misrepresenting the character of their marriage to the public. Did he need to also directly take aim at the statement that he was gay?

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."

Should Courts Stop Deeming Claims of Homosexuality Defamatory?

Of course, not all the responsibility can be put on plaintiffs who choose to sue to combat claims that they are gay. Some must also lie on courts that continue to deem allegations of homosexuality defamatory.

Currently, polling shows that a large percentage of the country favors gay civil unions -- as opposed to "gay marriage -- which would grant gay couples many of the same rights as married couples. Meanwhile, highly popular television shows feature positive gay themes -- such as "Will and Grace," "Dawson's Creek," "Sex and the City," and "Queer Eye for the Straight Guy." In this day and age, then, it's worth considering whether labeling people as gay really defames them, such that their reputations are truly damaged.

Perhaps a straight person's being falsely considered gay should remain an eye-opener, and cease to be a tort. (Employment discrimination based on perceived sexual orientation, whether the perception is false or true, is -- and should be -- separately illegal in some jurisdictions.)

In my view, a "straight-person's privilege" isn't the kind the courts should be protecting. Indeed, a friend of mine who's a practicing First Amendment lawyer believes this so strongly, he won't, as a matter of professional ethics, argue a case for libel-by-claim-of-homosexuality in court. He'd rather be on the right side of history, and decline.

While Tom Cruise won't be able to successfully sue South Park for its satire, he may have the option to sue others who claim he is gay in the future. When he does have this opportunity, he may want to think twice -- and, at a minimum, rephrase his suit to focus on false claims that he is a liar, not false claims that he is gay.