Okay. First, I have no idea whether any of these hunks who won medals in Athens happen to be gay. I do know that Paul and Morgan Hamm have slept together. But, then, they are identical twins and it’s safe to assume that brothers have slept together, at least in the same nursery.

Even though I don’t know the sexual orientation of these athletes, I do know their photos have appeared on gay websites. Does that mean that they’re gay?

Obviously not.

But Outsports, a website that caters to gay and lesbian sports enthusiasts, reports that it is being sued by North Carolina resident Chris Harbinson, who states that he is not gay and was libeled when the site ran a photograph of him stretching prior to the 2004 Los Angeles Marathon, held March 7.

The image was one of 150 posted online in a photo gallery 15 days later. Harbinson is seeking more than $10,000, plus punitive damages and legal fees; documents state he faced “extreme embarrassment, public humiliation, mental agony and damage to his name and reputation.”

It’s further claimed that the use of Harbinson’s picture as a link on the Outsports home page took advantage of him for commercial purposes. Outsports removed the picture when served with a cease-and-desist order, but disputes all the allegations.

Just because one’s image appears on a website doesn’t give grounds to bring an action for libel, invasion of privacy, or any other action. Obviously, the site cannot alter the image of the person to somehow place the person in a false light. If Outsports, for example, digitized the photo to show him engaged in a sex act, that would be a different story. But Outsports, like other sites, uses photos that are in public domain, or for which it has a license to display.

In addition to photos, if there is accompanying text, it cannot imply false facts about the person. And today, arguably, even if a site did in fact imply the person is gay or straight, some courts would throw out such a claim on the grounds that one’s lawful sexual orientation is not objectionable to a reasonable person.

Absent these things, there is no basis for liability and Harbinson’s attorney should not have bothered to bring such a claim.

Over the years, the case law in this area has been numerous and unequivocal. Most cases have been against Larry Flynt. Persons who have had their photos appear in Hustler have sued, contending that they didn’t consent to having their photos in the magazine, and that they don’t endorse the editorial positions of the magazine

The photograph and narrative were not reasonably capable of implying either consent or endorsement.

In Faloona by Fredrickson v. Hustler Magazine, a woman and her kids consented to be photographed in the nude for two books on human sexuality. When Hustler published an excerpt of one book and a review of the other, both accompanied by photographs of the mother and her kids, they sued.

A federal appellate court ruled that, in reviewing the context, the court concluded that no reasonable person could consider the photographs as indicating plaintiffs’ approval of Hustler, or that they were willing to pose nude for Hustler. It was obvious that the photographs were reproductions from the books being reviewed or excerpted. No tie to Hustler was claimed or suggested.

Ironically, today the mother would have been charged with child pornography.

The Internet has created millions of publishers, all with the ability to post photos. When one goes out in public today, he or she has little or no expectation of privacy. Persons who participate and attend gay events know that there is a strong likelihood that persons taking photos will use them in right-wing propaganda. They do. Imagine what would happen if drag queens, dykes on bikes or leather-clad slaves sued every time their images appear in right-wing media.

Federal and state courts have held that photographers are free to take photos of anyone and in any place where the person has no legitimate expectation of privacy.

A few years ago, a man sued a gay publication when it published a photo of him attending a gay disco. The court found that he was in a public place and that his photo did not more than simply document a public event.

Cases like Harbinson’s should result in quick dismissals. California law not only allows courts to dismiss such cases quickly, but also to award legal fees and court costs to the prevailing party. That has worked here to discourage such cases.