The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Indian Tribes, Like Other Government Entities, Can't Sue for Libel; Lawsuit Over Billions Episode Thrown Out


Friday's decision by New York Judge Kathryn E. Freed in Cayuga Nation v. Showtime Networks Inc. involves a lawsuit over an episode of the Showtime TV series Billions. The show depicted possible bribery and blackmail by the leaders of a "Cayuga Iroquois" tribe, including a council member named "Jane Halftown." Plaintiffs, Cayuga Nation and tribal council member Clint Halftown, claim the show libeled them, but the court said no:

[1.] There can be no claim for libel of a government entity (as opposed to a government official); that's a lesser-known holding of New York Times v. Sullivan, and the court concluded that it applies to tribal governments as well.

[2.] Clint Halftown lost his defamation claim because the show would be perceived as fiction that doesn't make any claims about real people (even ones who share the same last name and job description as a character):

Here, there has been no demonstration that Jane's character is "of and concerning" plaintiff such that the description of Jane's fictional character "is so closely akin to [Mr. Halftown that a viewer of the episode who knew him] would have no difficulty linking the two." … Moreover, … a disclaimer is played during the credits of each episode of the series representing that "[t]he events and characters depicted in [the series] are fictitious" and that "[a]ny similarity to actual persons, living or dead, or to actual events, is purely coincidental." …

[3.] Plaintiffs lost their right of publicity claim: The New York right of publicity statute is "to be narrowly construed and 'strictly limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person.'"

Since the Cayuga Nation is clearly not a living person, the claim against it pursuant to section 51 must be dismissed. Additionally, since "works of fiction and satire do not fall within the narrow scope of the statutory phrases 'advertising' and 'trade'", the claim by both plaintiffs pursuant to section 51 must be dismissed. Hampton v Guare (1st Dept 1993)….

NEXT: What happens when a professor is unable to finish teaching a class due to COVID-19?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Certainly seems correct as to the tribe. But I think picking an uncommon surname that matches up with a real individual in the exact same position of the exact same tribe depicted in the show probably should be enough to get issue to a jury. What if they would’ve used the guy’s same first name too? Would that have been enough to get it to a jury? Or what about a different first name but same gender? So a John Halftown? If I pick some real-life mid-size company and write a show about the company, with the exact same name and location as real life, and the episode is about the COO embezzling company funds and spending it on blow and make prostitutes, and I use the character name Hank Mungus when the real COO is Hugh Mungus, is it really not foreseeable that viewers who know of that company will think it likely is based on a true story?

    1. That's a pretty big supposition. You're asking a quite large question there. The dimensions of this problem are surprisingly large.

      If you know what I mean.

    2. See law and order and other crime shows. Bastardizing names and copying so much that everyone knows exactly who the character is supposed to be is time honored tradition on TV.

      1. which is why the Trump episode of L&O SVU that was scheduled to run in 2017 still hasn't seen the light of day.

      2. Who the character is supposed to be! Supposed to!

        By changing the name, you are clearly signaling “I cannot prove this to be true, it is merely my unsupported opinion.”

        Opinions are not actionable.

        1. "Opinions are not actionable."

          Unless they are purported to be based on undisclosed facts.

    3. What if you make a movie about an ultra wealthy guy who opens a newspaper when young, with wide-eyed honesty, and tracks his downfall over decades into more and more sketchy and dishonest behavior, but you name him Charles Foster Kane instead of William Randolph Hearst?

      1. "With a million majority against him, and the church districts to go..."

        "This one?"

        "That one." [Points to alternate headline mockup "FRAUD AT POLLS!"]

        Yes, our current situation from both parties is nothing new, people.

    4. Nick, I think the big distinction here is that companies are people, while governments are not.

      The tribes want to be considered governments, and now get the consequences...

      1. Did you read either the post or the comment you're responding to? Or just the title?

        1. "I pick some real-life mid-size company and write a show about the company, with the exact same name and location as real life..."

          My point was that said " real-life mid-size company" might have 14th Amendment "personhood" rights that a governmental entity lacked.

    5. There was a movie with Arnold Schwarzeneggar (You know who I mean even if I don't know how to spell his name) were the bad guy was an evil corporation. They shot the whole thing and had it edited and ready to release to theaters when they discovered that (oops) the name of the fictional evil corporation in the movie was the same as an actual real corpororation. The spent millions of dollars redubbing the movie and using CGI to change the name of the fictional evil corporation.
      but it's OK to badmouth the Indians, because none of them has any money or political power... what are they going to do, not come to the football games?

      1. Ironically, that was the movie Eraser.

        1. Non-ironically, the real company seems to have disappeared: merged and absorbed by another corporation. Alas, poor Cyrix.

      2. A government arrogates to itself the privilege of imposing its will on others by force. Other legal persons — individuals, charities, businesses — do not have that privilege, but they get certain reciprocal privileges and rights.

        1. "A government arrogates to itself the privilege of imposing its will on others by force. Other legal persons — individuals, charities, businesses — do not have that privilege"

          Not true. Consider self-help eviction for trespassing on private land, for example, or private security operations. Or self-defense law, in general.

  2. Is "Halftown" actually a common name among the Cayuga?

  3. This reminds me of "Jake Baker" [United States of America v. Abraham Jacob Alkhabaz, 104 F.3d 1492 (1997)] -- who in an earlier era on a now-ancient technology (usenet) -- wrote a "snuff story" involving the rape, sodomy, torture, and murder of a U-Mich classmate, using her real name.

    The judge tosses the case and circuit upheld -- but what I never understood is why the woman couldn't sue him.

    1. "what I never understood is why the woman couldn’t sue him."

      Sue him for what? To sue someone, you have to claim that they've done something which the law does not allow. What would be the claim?

    2. It's generally not actionable to write a story using a character bearing someone's real name, if the story is clearly fictional. The right of publicity, as the court mentions here, generally doesn't extend to that, even if the story were commercially distributed (Baker's story was noncommercial) -- that's why unauthorized biographies, fictional works like Forrest Gump and the like, and more aren't actionable. See, e.g., Costanza v. Seinfeld (N.Y. App. Div. 2001). There is one contrary case I know of, see, Doe v. TCI Cablevision (Mo. 2003), but it's very much an outlier.

      Also, even purely made-up character names are usually shared by somebody. Allowing people to see because their names were used would require all fictional characters to be named something like Zaphod Beeblebrox (well, now it would have to be something else).

      1. What about Dent, Arthur Dent. Does anybody NOT fictionally on Her Majesty's Secret Service introduce themselves as lastname, firstname lastname?

      2. Publicity was the least of her issues -- it was emotional distress.
        He described kidnapping her from a real class they both attended, and I am being subtle in merely saying "rape, sodomy, torture, & murder" -- the end involves her being lit on fire as she's hanging from the ceiling.

        The girl freaked out, I can't say that I blame her, and this was the one time the Kampus Kangaroo Korts stayed out of it, giving it to (I believe directly) the FBI. And she doesn't have any legal recourse?

        1. " she doesn’t have any legal recourse?"

          What, exactly, is the legal recourse you believe she has or should have?

Please to post comments