The Volokh Conspiracy

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Free Speech

Can Indian Tribes Sue for Libel?

American government agencies (federal, state, and local) can't sue for libel, the Supreme Court has held; but what about foreign countries, or Indian tribes?


[UPDATE, Oct. 18, 2021: The tribe lost its case before a N.Y. appellate court earlier this year, on the no-libel-against-government-lawsuits theory.]

In New York Times Co. v. Sullivan (1964), the Supreme Court famously held that public officials can only win libel cases if they can show that the defendants knew the statements about the officials were false (or at least were likely false). But the Court also held that government entities can't win libel cases at all, even when the defendant was deliberately lying: "For good reason, 'no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence.'" "[P]ersonal criticism" of government officials may sometimes be "potential libel," but "impersonal" "criticism of government" cannot be. And the Court relied on a 1923 Illinois Supreme Court case, which reasoned (responding to a libel lawsuit brought by the City of Chicago),

[S]ince the people are sovereign, and since the magistrates are servants of the people, the magistrates can do wrong, and the people have a fundamental right to criticize them and to expose their inefficiency and corruption so that they may be displaced. It is one of the fundamental principles, therefore, of the American system of government, that the people have the right to discuss their government without fear of being called to account in the courts for their expressions of opinion.

Lower court cases indeed apply this to lots of American government entities, and they have also applied it to foreign governments (even though that doesn't involve Americans discussing "their" government). Thus, for instance, in Sharon v. Time, Inc. (S.D.N.Y. 1984), the court allowed a libel case by Ariel Sharon (who had been the Israeli Foreign Minister) to proceed, but distinguished claims by foreign governments in much the same way that claims by American public officials are distinguished from claims by American governments:

Time's claim that this action is the equivalent of a suit for seditious libel is similarly untenable. A vast difference exists between a government's effort to punish speech critical of official policy or acts, where even truth was no defense, and an official's effort to clear his name of an allegation that he acted contrary to official policy and human decency, in a situation in which he must prove both falsity and actual malice. The statement which plaintiff claims is offensive names him personally, without attributing his alleged discussion about revenge to his government.

Likewise, in Air Zimbabwe v. Chicago Tribune Co. (2000), a California trial court held that Air Zimbabwe, "as a government entity, is precluded under the First Amendment from pursuing a defamation claim."

But in Cayuga Nation v. Showtime Networks, Inc., the Cayuga Nation is arguing that these cases related to American and foreign governments doesn't apply to tribes:

The Cayuga Nation is a sovereign Indian nation that is recognized by both the United States and the State of New York and is governed by the five-member Cayuga Nation Council which, based on the Nation's sovereign status, enjoys a direct government-to-government relationship with the federal government. Because of this sovereignty and self-governance, Defendants contend the Nation is prohibited from asserting a defamation claim. In support of this contention, they liken the Nation to other types of "government entities," both within and without the territory of the United States, who have been precluded from asserting defamation claims. While none of those cases deal with an Indian nation, Defendants would have this Court apply them by way of analogy: namely, an Indian nation is like the State of Louisiana, the Southampton Fire District, or a Zimbabwe-owned airline and, so, it too should be barred. But "[t]he condition of Indians in relation to the United States is perhaps unlike that of any two people in existence … marked by peculiar and cardinal distinctions that exist nowhere else," Cherokee Nation v. Georgia, 30 U.S. 1, 16 (1831), and that singular understanding has prevailed in the United States throughout our entire history. As such, none of these cases carry over by way of analogy or as a matter of law. Nor do they as a matter of policy.

Tempered by First Amendment concerns, the government cannot sue citizens for defamation because such lawsuits raise "the possibility that a good-faith critic of the government will be penalized for his criticism[.]" New York Times v. Sullivan, 376 U.S. 254, 292 (1964); see Karaduman v. Newsday, 51 N.Y.2d 531, 545 (1980) ("[T]he threat of being put to the defense of a lawsuit may be as chilling to the exercise of First Amendment freedoms as fear of the outcome of the lawsuit itself." (alterations omitted) (citations omitted)). Nobody before this Court disputes that "every citizen has the right to criticise an inefficient or corrupt government without fear of civil as well as criminal prosecution." But Defendants' statements here did not come about as the result of a political movement, protest, or any other moving force of social upheaval—and certainly not as the result of media critical of an inefficient or corrupt government. Quite the opposite, they are entirely gratuitous. Viewed in this light, the Nation's lawsuit to defend its good name can hardly be seen as an effort to stamp out free speech.

Declining to extend the "government entity" proscription to Indian nations does not require disavowing the precedents Defendants cite, nor would this Court be doing so. Indian nations are simply not akin to the entities in the cited precedents, fact-or-policy wise: indeed, "[t]he very term 'nation,' so generally applied to them, means 'a people distinct from others.'" Worcester v. Georgia, 31 U.S. 515, 559 (1832). To find that they are would not only overlook our country's history, but actively repudiate it. Accordingly, the Nation should be permitted to proceed as a party in these proceedings.

I think the Nation's argument doesn't do much to distinguish the precedents involving foreign nations. At the same time, there are only a few such precedents. It would be nice if this case added to them.

On the other hand, it seems likely that the court won't reach this thorny issue, because there's an alternative basis for resolving the defendant's motion to dismiss—and, indeed, the court would have to reach this issue in any event, because another plaintiff in the case is an individual Cayuga Nation official, Clint Halftown. The alleged libel involves an episode of the TV fictional show Billions in which fictional Cayuga Nation officials (one of whom shares Halftown's last name) are portrayed as engaged in sleazy and likely corrupt behavior, and even apart from the cases having to do with libel of governments, libel lawsuits over fictional portrayals are very hard to win.

Indeed, the Cayuga Nation's main precedent on this point, Batra v. Wolf (a 2008 New York trial court case), helps show that: The Nation's brief describes the case as "denying motion to dismiss libel-in-fiction claim arising out of television series Law & Order," but the Batra court denied that motion only because the Law & Order episode was evidently based on a well-known factual story that had been in the news not long before. "Only when the immediate context of the allegedly defamatory statement convinces the reader of the statement's literal truth—when, that is, it ceases to be merely imaginable or plausible and begins to be believed—do damages to reputation, and thus liability, become possible." That seems unlikely to be so for the Billions episode, it seems to me, though we should hear from the court on that in several months.