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

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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.

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