The Volokh Conspiracy
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Indian Tribes Can't Sue for Libel, Just as Other Government Entities Can't
From Cayuga Nation v. Showtime Networks Inc., decided yesterday by the New York intermediate appellate court (Judges Barbara R. Kapnick, Troy K. Webber, Angela M. Mazzarelli & Jeffrey K. Oing):
Plaintiffs allege that in an episode of the television series Billions they were falsely portrayed as having been involved in an illegal casino land deal, bribery of a public official, and blackmail. To the extent asserted by plaintiff Cayuga Nation, their claims were correctly dismissed on the ground that a governmental entity cannot maintain a libel claim. Contrary to Cayuga Nation's contention, First Amendment principles are applicable to cases involving libel claims arising from fictional works of entertainment…. While plaintiffs argue that Native American tribes are a unique kind of government entity, they do not explain how that uniqueness bears on the libel analysis at issue.
The claims asserted by plaintiff Halftown were also correctly dismissed. Supreme Court correctly found that the allegedly defamatory matter in the episode was not "of and concerning" Halftown, that is, the fictional character Jane Halftown was not "so closely akin" to plaintiff that a viewer "would have no difficulty linking the two." The facts that the fictional character Jane Halftown and plaintiff Halftown are both Cayuga, have the same surname, and hold the same or similar positions within the Cayuga tribe do not alter that conclusion[, … especially] given plaintiffs' failure to allege that plaintiff Halftown was involved in negotiating real estate deals or in electoral issues.
Here's what I wrote about the trial court decision:
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)….
