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 ; 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.