DOCUMENT: Celebrity

Not That There's Anything Wrong With It

Author says Stern-Birkhead gay sex claim can't be defamatory

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Not That There's Anything Wrong With It

DECEMBER 30--Even if she was wrong when reporting that Howard K. Stern and Larry Birkhead had a sexual encounter, the author of a book about Anna Nicole Smith contends that the claim is not defamatory because 'engaging in a homosexual tryst, even if videotaped, does not reflect poorly on someone and in the 21st Century it most certainly is not a 'criminal lewd act.''

This 'not-that-there's-anything-wrong-with-it' defense is included in a new federal court declaration filed by TV journalist Rita Cosby, whose 2007 book 'Blonde Ambition' triggered a defamation lawsuit brought by Stern, Smith's lawyer and confidante. In her book, Cosby reported that Stern and Birkhead, father to Smith's daughter Dannielynn, engaged in sexual relations, and that a videotape of the two men having sex existed and was viewed by Smith, who died last February.

In a December 19 U.S. District Court declaration, an excerpt of which you'll find here, Cosby argues that 'the fact that Howard and Larry videotaped a sexual encounter does not make the acts any more negative.' Additionally, 'In recent history, numerous stars had sex videotapes leaked to the Internet, including Pamela Anderson, Paris Hilton, Rob Lowe and others. A possible sex videotape was hardly something that would raise an eyebrow in the milieu of Anna and Howard's life.'

The declaration was filed in support of a motion to dismiss Stern's lawsuit, which seeks $60 million in damages from Cosby and her publisher, Hachette Book Group.

Other documents filed in the case reveal that Cosby, 44, was paid $405,000 for 'Blonde Ambition,' which sold poorly, and that Hachette editors acknowledged in affidavits that the book was not fact-checked by the publishing house and that the 'author is responsible for the truth of the contents of the book.' (5 pages)