Extra Remedies for Libel if the Libeler Chose Target Based on Race, Religion, Sex, Etc.?

A lawsuit claims N.Y. law authorizes this; if it prevails, expect many more such claims in a wide range of libel cases.

That's the theory of Halftown v. Bowman, filed last week in New York trial court. The plaintiffs are public officials in the Cayuga Nation Indian tribe: the apparently controversial Clint Halftown is the Nation's federal representative, and a member of the tribal government, and Mark Lincoln is the tribe's Superintendent of Police (though apparently not a tribe member). They are accusing Charles Bowman of libeling them through various accusations of brutality and other misconduct, and that seems like a pretty normal public official libel claim (which of course could prevail if plaintiffs prove the statements are knowingly or recklessly false and defamatory).

But Halftown is also suing Bowman for violating N.Y. Civil Rights Law § 79-n, which provides for civil remedies against:

• "[a]ny person who intentionally selects a person or property for harm or causes damage to the property of another or causes physical injury or death to another or summons a police officer or peace officer without reason to suspect a violation of the penal law, any other criminal conduct, or an imminent threat to a person or property,"
• "in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age [60 or above], disability or sexual orientation of a person …."

Their theory is that libel is "harm" (a not implausible reading of the statute); and if they're right, then the statute would authorize some extra remedies beyond what would typically be available in libel cases:

1. The statute allows the court to award "reasonable attorneys' fees" to prevailing plaintiffs, something they wouldn't normally get in libel cases.
2. The statute allows for injunctions "enjoining and restraining any further violation, without requiring proof that any person has, in fact, been injured or damaged thereby." Some New York courts do in any event allow injunctions against libel, but others are skeptical about them; the presence of the statute might push a court towards granting an injunction.
3. The statute allows the Attorney General to sue to enjoin violations, though to my knowledge no such action has been filed here.

It will be interesting to see whether the court would allow the special § 79-n claim to go forward. If so, I expect it will be raised in many cases, whenever the plaintiff might claim that he was specially targeted because he was a man (I expect that would happen in many #TheyLied claims over sexual misconduct allegations), or because he was (say) a Scientology leader or an evangelical Christian pastor, or because people have it in for him based on his being black or white or Jewish or Palestinian or whatever else.

Thanks to the Media Law Resource Center MediaLawDaily for the pointer.

Comments

[ReaderY]

So under this theory, if you falsely accuse a member of a tribal government of misconduct, you are necessarily accusing that person because of tribal status, and thus get a hage crime penalty?

I have supported tribes in having governmental immunities notwithstanding the ethnic basis of tribal atatus, and also thought it unfair that if you are a tribe whose status isn’t fully recognized, auddenly anything you do to benefit members of your tribe gets classified as racist.

But it seems to me that at some point what’s sauce for the goose has to be saice for the gander. If tribes get governmental functions because of sovereignty, not race per se, then criticising tribal officials because of how they perform in those functions is criticising sovereignty and government, not race per se.

[John F. Carr]

Like the popular refusal to accept a difference between the country China and Chinese people in general when judging criticism of the former.

[Bored Lawyer]

But isn't that already taken care of by the public figure doctrine, which requires actual malice?

Second, where is it automatic? You still have to pick the target because of their race, etc.

And, of course, as in any libel case, truth is a complete defense, an opinion cannot be libel.

[Noscitur a sociis]

Second, where is it automatic? You still have to pick the target because of their race, etc.

But this complaint doesn't, as far as I can see, offer anything beyond the identity of the plaintiff to substantiate the allegation that the selection was made on the basis of race. Now of course it's possible that the court will simply grant a defendant's motion to dismiss that claim for precisely that reason; but if he's allowed to recover then I think ReaderY's position ahs some force.

[Bored Lawyer]

There is a difference between pleading and proving a claim, as you well know. Whether he has sufficiently plead racial motivation is questionable, but given that this is state court, the judge may well let it slide. But at trial he will need more than the fact that the target of the alleged libel was Native American.

[ReaderY]

Suppose the someone defames the Mayor of New York, and the Mayor sues for a hate tort for targeting New Yorkers. (Suppose that’s illegal.) Could you identify a case where the Mayor of New York would not automatically be a New Yorker, so that some sort of extra targeting would be needed?

In a tribe whose officials have to be members of the tribe, targeting them for defamation is always targeting native Americans.

[Bored Lawyer]

As I read the statute, he has to target the person for that characterisitic -- in your hypothetical, because he is a New Yorker. If he targets him because he thinks he is doing a lousy job as mayor, that would not fall within the statute.
That's what you keep missing -- it's the person's motivation, not the objective reality, that counts. In fact, as I noted below, it applies even if you are mistaken. If you harass someone you believe is of one race, and it turns out that in fact she is another, you are still on the hook.

[Gandydancer]

It goes w/o saying that this is an idiotic law, but you are pulling wild extrapolations out of your butt. There's nothing in the facts here that would indicates that the the plaintiffs will "necessarily" prevail or that the result would be "a hage crime penalty".

[Voize of Reazon]

Note that the statute isn't triggered by targeting a victim based on race, ancestry etc., but by targeting based on a belief or perception about their race, ancestry etc.
That could be a problem for the plaintiffs' third claim which reads

43. Defendant Bowman intentionally selected Mr. Halftown for harm based upon his race.
44. Defendant Bowman intentionally selected Mr. Halftown for harm based upon his color.
45. Defendant Bowman intentionally selected Mr. Halftown for harm based upon his national origin.

[Bored Lawyer]

Thus struck me as redundant. If he picked him out because he hates Native Americans, are there really three violations? In any event, he could not collect three times.

[Voize of Reazon]

He has to have picked him out because of a belief or perception about Native Americans - they are all criminals, or lazy, or something. The complaint doesn't allege this.

[Bored Lawyer]

I don't read the statute that way. I think "belief or perception" means that you believe the person is of a certain race, etc. If you harrased Rachel Dozal because you thought she was black, and it turns out she was really white, you don't get off the extra liability.

[Voize of Reazon]

Sounds reasonable, especially after I read the missing part of the statute

[...] regardless of whether
the belief or perception is correct

[John F. Carr]

Hustler arguably targeted Falwell on account of religion.

In the New York law I would read "harm" to be limited to the examples that follow. Otherwise you have the anomalous situation that the "selecting" clause is broader than the physical harm clause.

[Bored Lawyer]

I would not read it that way. "harm" seems to be different from "physical injury," otherwise why mention it?

[John F. Carr]

In your version, I think "or causes damage to the property of another or causes physical injury or death to another" would be redundant.

You could imagine a guy in a subway station deciding to push somebody onto the tracks and selecting an Asian woman because she is an Asian woman.

I would have written the law differently. I wonder if any of the drafters thought the answer to the instant question was obvious... and if so, what the obvious answer was. Not that that's supposed to matter, we pretend they are sages placing every word and comma with careful precision.

[Gandydancer]

As BL points out, the law clearly intends "harm" to NOT be "limited" to "the examples that follow", though they they arguably provide some hints as to what the limits might be. (Unconvincing arguments, usually, but arguers -- and sometimes courts -- make such, e.g., the purported limits on "otherwise objectionable" in Section 230.)

[Noscitur a sociis]

The link to the complaint doesn't seem to be working for me. And the MediaLawDaily link ends in November 2019.

[Eugene Volokh]

Sorry, link to the complaint fixed, thanks!

[Jimmy the Dane]

The left has now said "hate speech is not protected by the First Amendment" 1,499,010,772,101 times so it has finally become true.

[Bored Lawyer]

Not really. This is libel, which is already severely limited by both the First Amendment and the common law. I don't particularly like the law invoked here, but its use to stop so-called "hate speech" is a big stretch.

[TwelveInchPianist]

Tenuous connection to the OP, but it looks like the outcome of the push for federal hate crime laws is that racist killers do easier time than non-racist killers.

[Noscitur a sociis]

If they believe that spending 30 years in federal prison as a convicted murderer is "easy", they are in for a very unpleasant surprise.

[TwelveInchPianist]

Apparently federal time is easier than Georgia state time. Not something I can speak to personally, though.

[Bored Lawyer]

He was speaking relatively. And yes, the same amount of time in federal prison is less unpleasant than in state prison.

[Noscitur a sociis]

I assume these defendants believe that, since it's hard to see why else they would have agreed to this disposition. And I've never experienced either and don't plan to if I can help it, so I can't offer personal insight. But based on the former and current residents of both that I've spoken to in my career, that seems like at best a hasty generalization.

[Nick Gillespie's Jacket]

I don’t know this for a fact, but FWIW I’ve heard that in the federal system, a prisoner often (perhaps usually) is assigned to a prison far away from the state where they were convicted. So if a plea deal is eventually approved by the judge (or they are convicted and sentenced), they may very well end up in Kansas or Alaska (I doubt there’s a Federal prison in Alaska, but it’s fun to imagine).

[Nick Gillespie's Jacket]

I have no personal experience, but if you’ve ever watched the entertaining YouTube videos by convicted jewel thief and jewelry store armed robber Larry Lawton, he says that the federal penitentiary in Atlanta, Georgia was by far the worst and most dangerous prison he was ever in (and it sounds like he had been in a lot of them). He said it was particularly dangerous as a white guy, as (at the time) it was heavily populated and run by the black inmates/gangs. So if these two or three guys end up doing time in a Georgia federal prison, I can’t imagine their time there will be anything but terrifying.

[SKofNJ]

Isn't there a First Amendment problem with allowing heightened damages for libelous speech expressing a particular point of view?

[Bored Lawyer]

It's an open question, but arguably under Wisconsin v. Mitchell (508 U.S. 47 (1993) it would be allowed.

[Randal]

The heightened damages aren't related to the content of the speech. They're about intent. Intent is a pretty typical consideration in both civil and criminal cases.

[Drewski]

I mean, I don't see anything in the complaint indicating that the defamation, such as it is, is based on protected characteristics except some bare-bones, unsupported assertions. I don't see any statements that make special reference to race, national origin, or color. The claims do not reference specific statements, nor offer any support for why the statements should be read that way. The closest thing I see is that he's doing bad things "to his own people," which is factually mistaken but isn't exactly a condemnation of the people in question.

Along with this, many of the statements listed as defamatory are clearly not defamatory. "He's a tyrant," for example, is not a false factual statement. The rambling about hired mercenaries isn't something a reasonable reader would believe. The vague accusations about domestic terrorism, likewise, and is the sort of over-the-top Internet hyperbole federal courts have found to be safely enveloped within the First Amendment's protection.

The only statements I see that look clearly defamatory are the specific accusations of personal violence, assuming they're entirely untrue, and - again - I see no reason to think those statements are motivated by animus toward protected characteristics.

[Jason Cavanaugh]

For being "The Land of the Free," we sure seem to go out of our way to keep finding new ways to enhance legal consequences (civil and criminal) for a multitude of things.

[m4019597]

Any law based on Wrongthink should be struck down. Unfortunately, we have courts that suck and lawyers who have failed miserably.

[Randal]

Does that include thoughts like "I really want to kill my wife, but I'll plan it in such a way that it looks like an accident?"

[BravoCharlieDelta]

Is just holding the thought a crime?

[Bored Lawyer]

But there is no such crime in the U.S. What there is, is an enhancement for certain motivations for actual crimes.
Let's say I take a baseball bat and beat the living daylights out of someone, breaking 20 bones, and sending him to the hospital for months. That's aggravated assault in most jurisdictions, and will get me serious time.
Now there could be many different reasons motivating me to do that. The guy is sleeping with my wife. Or he owes me money and won't pay. Or he let's his dog crap on my lawn. Or, I hate blacks/gays/Jews/Republicans, and he is one, and that is why I did it.
Hate crimes laws say that the last motivation is worse than the first three, and I should get an enhanced sentence. Supreme Court said that's Constitutional in Wisconsin v. Mitchell.
Personally, I don't see why the fourth motivation should get a worse punishment. But that is the law in most places.

[m4019597]

Here, the punishment is for wrongthink.

Motives should only matter in convincing a jury the defendant committed the crime, along with means and opportunity.

Motives shouldn’t matter for punishment.

[floridalegal]

A natural extension of the theory behind hate crimes. If you're havings separate charges or for hate crimes, it's only the same in civil litigation.