An influential Christian nationalist lobbying group in Idaho said it did not defame a north Idaho drag queen by saying he exposed his genitalia during a performance in Coeur d’Alene in 2022.
Attorneys for both sides asked an Ada County Judge late Wednesday afternoon to rule himself whether the Idaho Family Policy Center should be held liable for its statements.
That drag performer, Eric Posey, sued the group last year after its president and another staff member made the accusations in a newsletter and on a podcast appearance.
The Coeur d’Alene city prosecutor’s office said in a statement shortly after the performance that unedited video evidence showed no public exposure and it declined to press charges.
“For what it’s worth, Idaho Family Policy Center has reviewed the unedited footage and can confirm it portrays public exposure of the performer’s genitals,” Conzatti wrote in a newsletter to his followers on Sept. 8, 2022.
That message included a blurred photo of Posey, urging his followers to “Protect the Children from Drag Shows” by signing a petition for state lawmakers to ban such public performances.
“Let me be clear: these creeps are using our children as pawns for their perverse sexual desires,” Conzatti wrote.
A few weeks after issuing the newsletter, the IFPC’s former podcast host, Josh Bales, said during an episode on the topic “...his genitals actually came out of his underwear at one point.”
Separately, Summer Bushnell, a far-right blogger in north Idaho, also made similar statements and a jury found her liable for defamation last year, awarding Posey more than $1.1 million in damages.
During Wednesday’s hearing in Boise, Conzatti’s lawyer, David Claiborne, said his client made these statements “in the context of seeking legislative change” and that he didn’t intend to hurt Posey.
Conzatti collaborated with another former staffer, Branden Durst, after his initial statements to recreate an edited version of Posey’s performance, zooming in on his crotch, slowing the playback speed and increasing the brightness of the video.
It was “momentary, but it did happen,” Claiborne said, comparing it to a quarterback barely putting the tip of the football across the goal line for a touchdown.
“[Public exposure is] a long way from showing an incidental, perhaps, bulge that you couldn’t see from anywhere other than if you took a snapshot of that particular second, zoom in and highlight it,” replied 4th District Court Judge Patrick Miller. “I don’t see how you could say that’s public.”
It’s public because it happened in public, Claiborne said.
Posey is also asking Miller to let a jury award him punitive damages in the case, which means he needs to show IFPC’s actions were malicious.
“We didn’t know who he was,” said Claiborne. “There has to be an intent or desire to specifically harm a person.
“You are certainly and knowingly implying to the public by the totality of what you’re putting out there in a newsletter and a petition that that person is a bad person and that person is a deviant and a danger to children,” Miller said
“How is that not a reasonable conclusion that people are going to draw from that,” he said, calling the circumstances “marketing gold” for the group to advance its political agenda.
Miller said he thinks he’ll issue a written decision on whether to side with the plaintiffs or defendants over the next month.
If he finds in Posey’s favor, the drag queen’s attorneys asked for a jury trial to determine damages.
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