New York Court Reminds Native American Tribe That Suing For Libel Isn't An Option For Government Agencies

from the what-you're-allowed-to-do-vs.-what-you'd-like-to-do dept

We give government agencies a whole lot of power. That's the way the government works: we, the people, allow agencies to perform their duties with minimal interference and, in exchange, we theoretically benefit from these services we pay for indirectly.

To perform their duties, agencies need a bit of runway. Discretion is theirs alone. We can hope to force external change, but internally, agencies operate without direct oversight from the people funding them. And when it comes to litigation, government agencies can usually dodge lawsuits, thanks to multiple levels of immunity. Qualified immunity shields public servants from accountability. Absolute immunity shields pretty much everything else.

But there's a flipside, one we don't see all that often. The government can dodge a lot of accountability, thanks to its immunity stacks. On the other hand, it can't easily engage in litigation against the citizens signing its paychecks, thanks to Constitutional, judicial, and legislative protections.

The government can only do so much when it feels besmirched. And it definitely can't do this sort of thing. Government officials can sue in their personal capacity. But they can't sue as a cohesive whole. That's the uptake from a short decision entered against a Native American tribe that decided to sue TV producers over some fictional stuff that happened in a fictional TV show. (via the Volokh Conspiracy)

The Cayuga Nation -- a federally recognized Native American tribe that possesses land in New York, Oklahoma, and Ontario, Canada -- sued over its depiction in the Showtime series, Billions. In one episode, the Cayuga tribe was depicted as engaging in an illegal land deal -- one that involved bribery and blackmail.

The tribe sued, claiming it had been defamed. But the court [PDF] handling the case points out the tribe is a governmental agency and, therefore, cannot engage in libel lawsuits. The First Amendment forbids this sort of government action, even if the government agency pursuing the claim operates outside of the federal government's purview.

Contrary to Cayuga Nation's contention, First Amendment principles are applicable to cases involving libel claims arising from fictional works of entertainment (see e.g. Gravano v Take-Two Interactive Software, Inc., 142 AD3d 776 [1st Dept 2016], affd 31 NY3d 988 [2018]; Batra v Wolf, 2008 NY Slip Op 30821[U] [Sup Ct, NY County, Mar. 14, 2008]). Supreme Court reasonably rejected plaintiffs' conclusory contention that the episode referred to plaintiff Halftown individually, and the episode can reasonably be said to concern how the Cayuga Nation "governs," as it depicts the Nation's involvement in a land deal and its decision to support a particular character in connection with a mobile voting program that he seeks to implement. 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.

Unique or not, the tribe is a government agency. And, as such, they cannot engage in civil libel litigation without undercutting long-held tenets of free speech. Any close relation between real persons and fictional depictions on TV shows is a non-issue. Billions is understood to be a fictional show. That it uses characters and entities existent in the real world is not a legitimate basis for a lawsuit by a government agency. After all, Billions -- like every other TV show and motion picture -- expressly notes that any relation to real world entities is strictly coincidental. That that tribe would feel offended by this depiction makes human sense, but it doesn't make legal sense.

First and foremost, government agencies cannot be libeled. Or, even if they've been libeled, they can't sue. That dates back to the Supreme Court's Sullivan decision:

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."

If the federal government can't sue, neither can federally recognized government entities like this one. The Cayuga Nation may be offended by this episode of Billions. But that's all it can be. It can't be litigious. It has no legal basis to sue, even considering its status as a semi-autonomous nation under federal law. If this government is unhappy about its portrayal in mass media, it has plenty of PR options at its disposal. What it doesn't have is the right to engage in litigation.

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Filed Under: 1st amendment, billions, cayuga nation, defamation, fiction, governments, native american, new york


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  • identicon
    Anonymous Coward, 9 Mar 2021 @ 7:57pm

    After all, Billions -- like every other TV show and motion picture -- expressly notes that any relation to real world entities is strictly coincidental.

    Your previous sentence says "it uses characters and entities existent in the real world", which is kind of the opposite of "coincidental", isn't it? Some bullshit fine-print disclaimer shouldn't have any effect on such cases, and it doesn't appear to have. But it's not like they just tossed a bag of Scrabble letters on the ground and got the name "CAYUGA" for their fictional tribe.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Mar 2021 @ 2:46am

    Move the suit to international court.

    reply to this | link to this | view in chronology ]

    • icon
      Ben (profile), 10 Mar 2021 @ 4:29am

      Re:

      Which one would be interested in such a case?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 10 Mar 2021 @ 5:46am

        Re: Re:

        idk, how many are there?
        I thought that was were sovereign nations go to resolve their grievances.

        reply to this | link to this | view in chronology ]

        • icon
          crade (profile), 10 Mar 2021 @ 6:20am

          Re: Re: Re:

          In the U.S. they are considered "domestic dependent nations" and officially subject to the U.S. gov and under the U.S. legal system. Doesn't sound like enough to meet the criteria for international law of being "fully independent and determining its own affairs" to be actually considered sovereign

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 10 Mar 2021 @ 6:37am

            Re: Re: Re: Re:

            Then I guess Native Americans are being denied due process.

            reply to this | link to this | view in chronology ]

            • icon
              BruJr (profile), 10 Mar 2021 @ 8:28am

              Re: Due Process

              Not sure what this means. Due process (as described in the Bill of Rights) is an INDIVIDUAL right, not a organizational one.

              Considering the suit is "Cayuga Nations vs.", the judge is pointing out that because the particular organization (Cayuga Nation) is, in fact, a federally recognized governmental organization, it is not entitled to "due process," as you phrase it, in the particular case of a libel suit.

              If an individual of the Cayuga Nation were to attempt their own suit, then that person would be entitled to due process, but might have a harder time making the case, unless their actual name (or many distinguishing points of similarity) were used in conjunction with false/fictional activities that cause damage of reputation

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 10 Mar 2021 @ 10:31am

                Re: Re: Due Process

                Native Americans are neither a nation nor an individual and therefore they can treated poorly with no recourse available. Sounds about right.

                reply to this | link to this | view in chronology ]

                • icon
                  bhull242 (profile), 10 Mar 2021 @ 3:54pm

                  Re: Re: Re: Due Process

                  No, individual Native Americans are, in fact, individuals, so they can still sue for libel or other things. This includes individuals who are part of tribal leadership, at least in their individual capacities, as well as any tribal corporations or NGOs (I think). Additionally, they could try to initiate a class-action lawsuit where the class members are members of some particular tribe or something. On top of that, for legal actions that don’t conflict with the Constitution’s restrictions on government agencies (like enforcing a contract), the tribe acting as a single unit can initiate legal action in a local, state, or federal court against someone who wronged them. They can even sue a government agency in international court (hypothetically at least).

                  What this decision says is that the tribe, as a governing body or agency, can’t sue for libel or similar causes of action in an American court (local, state, or federal), nor can they sue an individual, corporation, or non-governmental organization in international court. This is because they are the governing body for a dependent nation, which cannot sue just anyone for any cause of action in international court.

                  Also, I don’t think that anyone can sue anyone for libel at all in international court. You also can’t sue in international court over disputes about what a particular nation’s laws do or don’t allow within their borders; it’s meant for disputes between nations or against a nation that breaks a treaty or contract. So even if the tribe as a government agency could sue in international court, I don’t see a cause of action they could sue over that that court would have jurisdiction over. Also, even if they could sue and even prevail in international court over this, that wouldn’t matter because of the SPEECH Act.

                  Finally, tribes are nations with regards to sovereign immunity, which protects them from most lawsuits or criminal charges, as well as with regards to governing its members and property and entering agreements with other tribes (I think). They are dependent nations with regards to international law. Individual Native Americans, of course, are not nations; they are individuals, and they can sue or be sued in that capacity just like anyone else.

                  reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 10 Mar 2021 @ 8:31am

              Re: Re: Re: Re: Re:

              No, they are being teated in the same way all government in the US is treated. Same right, same restriction.

              reply to this | link to this | view in chronology ]

  • identicon
    Annonymouse, 10 Mar 2021 @ 6:26am

    Going full Layering up smells like someone is extraordinarily sensitive and doesn't want anyone looking at them.

    All this calls for MsStreisand to get to work.

    Just what shenanigans are they actually up to, well besides contraband smokes, booze and firearms?

    reply to this | link to this | view in chronology ]

  • identicon
    Anon, 10 Mar 2021 @ 8:13am

    You mean... ?

    You mean the CIA can't sue the Hollywood studios that produce stuff like The Bourne Identity for libel for suggesting the CIA runs lethal off-the-books programs? I'm shocked!

    Still waiting for the tribe to sue over news reports that the natives run a billion dollar smuggling operation taking untaxed cigarettes into Canada.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    icon
    Monica (profile), 10 Mar 2021 @ 8:40am

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  • icon
    Philosopherott (profile), 10 Mar 2021 @ 11:29am

    QI

    So members of the tribe, acting in an official capacity for the tribe, would be granted Qualified Immunity if they say detained a member of the production crew because there is no case on record of that particular tribe detaining anyone for that particular reason?

    reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 10 Mar 2021 @ 4:08pm

      Re: QI

      Hypothetically? Possibly. I’m pretty sure absolute immunity would apply to members officially acting as lawmakers, prosecutors, or judges in those capacities.

      reply to this | link to this | view in chronology ]


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