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.

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

Private Prison Company Sues Netflix Over Use Of Logo In 'Messiah'

from the prison-for-prophet dept

When we last talked about the Geo Group, a company making hundreds of millions of dollars running private prisons, one of its executives was attempting to improve the company's reputation by constantly removing all the dirty from the Wikipedia page about the company. In trying to do this, of course, the company actually amplified the controversies listed on Wikipedia and, having been caught trying to scrub the internet of its own sins, found itself in headlines as a result. At present, the Wikipedia page still lists those controversies, but more on that in a moment.

Because the latest bit of news from Geo Group is that it is suing Netflix over the use of its logo in a fictional prison in Messiah.

The GEO Group, which operates private prisons and detention centers, filed a lawsuit on Wednesday alleging that it had been defamed in two episodes of the Netflix series “Messiah.”

The series depicts a mysterious figure who gains a following by performing miracles in the desert. In the third and fourth episodes, the character is detained at an immigration facility in Texas, which is identified with GEO Group logos.

The suit claims that the show depicts the facility in a defamatory light. The inmates do not have beds, are kept in overcrowded conditions and surrounded by chain-link fences.

In addition to the claim of defamation, the suit also claims that the Netflix shows use of Geo Group's logos in two of its episodes constitutes trademark infringement. If all of this seems somewhat familiar, it's because it's quite similar to the spat between the infamous Pinkerton Consluting & Investigations company and Take Two Interactive over the latter's Red Dead Redemption 2 game, which portrayed the Pinkertons fictionally in a way that jives with its historical reputation. While in that case the lawsuit was filed by the content producer seeking declaratory judgement that its use of all names and trademarks was protected free speech, it's still the case that Pinkerton ran away from its threats. I would imagine Geo Group will need to do so as well, as this sort of fictional representation is indeed protected on First Amendment grounds.

As for the defamation claim, well, we're back to those controversies from the Wikipedia page. Those list overcrowding of its prisons, poor conditions that led to multiple prison riots, and specifically some claims of poor conditions for immigrants awaiting deportation. You know, basically the sort of portrayal the suit itself alleges in Messiah.

“Unlike in ‘Messiah,’ GEO does not house people in overcrowded rooms with chainlink cages at its Facilities, but provides beds, bedding, air conditioning, indoor and outdoor recreational spaces, soccer fields, classrooms, libraries, and other amenities that rebut ‘Messiah’’s defamatory falsehoods,” the complaint states.

The suit includes colorful photographs of libraries, classrooms and recreation facilities at GEO detention centers.

Except that it has a reputation for all of the issues above, no matter how many pretty pictures the company includes in its filing. And trademark and defamation laws, whatever teeth they might have, can't pierce the First Amendment's protections on artistic representation in a work of fiction.

Netflix tends to be fairly good about fighting back on these sorts of things. Hopefully they'll do so in this case as well.

Filed Under: censorship, defamation, detention centers, fiction, private prisons, trademark
Companies: geo group, netflix

Author Tries To Trademark The Word 'Dark' For All Of Literary Fiction

from the um-no dept

For whatever reason, while we see a ton of instances of someone trying to trademark a word or phrase that is absolutely generic and not a source identifier, often it seems some of the most ridiculous instances come from the literary world. Why authors have such a hard time with this is perhaps not entirely mysterious. Steeped in an industry with a tradition of strong views on copyright protections, I suppose it's a short leap that those in that industry would assume trademark works the same way. After all, journalists make this mistake all the time, so why not authors?

Still, witnessing my book-writing brethren make a run at trademarking words like "how" or "cocky" is more than slightly frustrating. And now we can add the word "dark" to the mix, as author Christine Feehan has applied for a trademark on that word for use in books and fiction.

Christine Feehan is the author of several bestselling series, including one simply called "Dark" -- in her trademark application with the USPTO, she has applied for the exclusive right to use the word "Dark" (in "standard characters without claim to any particular font style, size, or color") in "Series of fiction works, namely, novels and books."

Literally thousands of books have the word "dark" in their titles, including several series such as Phillip Pullman's His Dark Materials and Stephen King's Dark Tower books.

Yeah, they literally do. And not just books, either. Hell, His Dark Materials has an HBO adaptation showing right now (and it's great). The idea of locking up a generic single word such as "dark" for all of fictional literature is one of those things that should obviously not be allowed to occur. But for the legal argument as to why this isn't a thing is because a word like "dark" very obviously doesn't denote the source of a good. For one, it isn't unique. For two, the word is and has been used in literature since roughly the time that man created literature.

Now, before we all start wringing our hands here, it's nearly certain that this trademark will never be approved.

Feehan's application has not yet been assigned to an examiner. It was filed on her behalf by Greg Mavronicolas, a New York based attorney from the Mavronicolas Law Group PLLC.

Dark days are most likely ahead for Feehan, as this is one application that should be tossed in the trash.

Filed Under: christine feehan, dark, fiction, trademark

Get The Working Futures Anthology For Just 99¢ Until Monday!

from the black-friday dept

Get the Kindle edition of Working Futures for just 99¢ »

It's now been a month since we released Working Futures, our anthology of 14 speculative fiction stories about the future of work. And since 'tis now the season for sales, we're dropping the price on the Kindle ebook to just 99¢ until Monday, down from the regular price of $2.99. So if you haven't yet gotten your copy, now's the time!

And for those of you doing some holiday shopping, remember that a paperback edition is also available and there's still time to get a copy before Christmas. And to learn more about the anthology and the process behind it, check out the episodes of our podcast in which we're joined by some of the authors.

One more thing — if you've read the book or even just a few of the stories, please leave us a rating and a review on Amazon!

The ebook sale only lasts until Monday, so get your copy before it's too late!

Filed Under: black friday, deals, fiction, sci-fi, working futures

Appeals Court Bounces Defamation Suit Against American Hustle Over Microwave Scene

from the rad dept

Nearly two years ago, we wrote about a bonkers lawsuit against the makers of the film American Hustle, brought by a journalist who used to make remarks about what microwaves do to the food we eat. The lawsuit was essentially over Jennifer Lawrence's character, who had been built up in the film as a complete know-nothing whack-job, misinterpreting a historical article by Paul Brodeur in the film. This kind of thing is not remotely actionable, and such portrayals are not only protected against the libel and defamation claims Brodeur made by that pesky First Amendment thing we have, but in the context of the film there was simply zero chance of Brodeur suffering any harm from an insane character's misunderstanding of his article's position. I took the time to write about it because the idea of someone suing over this is hilarious, but the court forced to listen to this insanity couldn't take the same snarky position I did.

So instead, when a California appeals court tossed the lawsuit entirely, it had to keep a straight face to explain its reasoning.

On Monday, California appeals court justice Elizabeth Grimes came to the conclusion that Brodeur's defamation complaint is unlikely to be successful and must be stricken as an impingement of producers' First Amendment rights.

Judge Grimes' opinion patiently lays out its reasoning, citing that Brodeurs' views on whether nutrition is removed by microwaving food was not actually all that clear at the time the film was produced, that this question was indeed a matter of public interest during the time of the film's setting, oh, and also the whole film is a farce and the character is crazy-pants, so why are you bringing this before the court to begin with?

"American Hustle is, after all, a farce. The stage was set at the beginning of the film. (‘Some of this actually happened,’ is the line that appears on screen to start things off, and it sets the tone perfectly.”) The character who utters the allegedly defamatory statement is portrayed throughout the movie as 'slightly unhinged' and 'a font of misinformation,' and Irving and Rosalyn both refer to the microwave oven as the 'science oven.' We doubt any audience member would perceive any of Rosalyn’s dialogue as assertions of objective fact."

Except maybe Paul Brodeur? Regardless, even in this unholy era we live in, in which anyone can sue anyone for anything, with a particularly lenient nod towards libel and publicity laws, this entire lawsuit was every bit as farcical as the film it had sued over. Free speech does matter, after all, and it may matter most in protecting art.

Filed Under: american hustle, defamation, fiction, first amendment, free speech, jennifer laurence, paul brodeur

Creepypasta Feels Compelled To State That Its Stories Are Fiction & It's Not A Satanic Cult; Thanks Everyone...

from the we're-a-tech-blog,-not-a-crazy-satanic-cult dept

I won't say I told you so, but...you know what, screw it, I told you so. I told you the horror story out of Waukesha, Wisconsin, where two girls attacked a friend, nearly killing her, invoking the name of Slender Man, the creation of one user on internet site Creepypasta, would result in yet another moral panic iteration. Truth be told, it wasn't a difficult prediction to make and I certainly wasn't going out on a limb. This kind of thing is sadly as predictable as the weather in San Diego, but not nearly as pleasant. Already the focus is being cast exactly where it shouldn't, even by police officials.

"This should be a wake-up call for all parents," Russell P. Jack, Waukesha's police chief, said in a statement Monday. "Parents are strongly encouraged to restrict and monitor their children's Internet usage."

That's an absolute joke. Not that I disagree with the Chief's statement, it just has no relevance to this particular case and it casts everyone's eye towards a scary internet when the obvious truth is that there may not be a more clear example of disturbed children than this one. That results in gems of sentiment such as this tweet.

@diannaw1976 - @OfficialCPWikia take this sight down your breeding killers

The internet, specifically Creepypasta, were essentially bystanders to these disturbed young girls. Something was going to set them off and Creepypasta just happened to be the ones this time. Meanwhile, this very loose and stupid talk about taking Creepypasta down entirely has caused the site to put forward this post, including this section of the statement.

ALL WORKS PRESENTED ON THIS WIKI AND OTHER SITES (INCLUDING SLENDERMAN, JEFF THE KILLER, BEN, SONIC.EXE, ETC) ARE FICTIONAL STORIES AND CHARACTERS

There's also this:

We are a literature site, not a crazy satanic cult.

Congratulations, general public and major media outlets, you've brought the rest of us to a place where a website that tells ghost stories has to put out a disclaimer that their stories of the supernatural are fictional. The very fact that this has to be written is the latest indictment on a scapegoat-seeking public that is far more interested in feeling better by blaming an innocent third-party than actually tackling the problem with which they're presented or the reality in which they must endure. Instead of simply confronting real evil, or real mental illness, or real murder and real crime, let's all just heap our outrage onto a website, because the internet is scary and calling for censorship without thinking it through is just so tantalizingly easy.

So way to go, all of you blaming a website for the very real attempted-murder of a child committed by two children. By attacking a site dedicated to ghost tales, you're the horror story now.

Filed Under: creepypasta, fiction, moral panics, murder, slender man, slenderman

David Cameron Says Snooper's Charter Is Necessary Because Fictional Crime Dramas He Watches Prove It

from the did-he-really-just-say-that? dept

You may recall the stories from the past couple years about the so-called "snooper's charter" in the UK -- a system to further legalize the government's ability to spy on pretty much all communications. It was setting up basically a total surveillance system, even beyond what we've since learned is already being done today. Thankfully, that plan was killed off by Deputy Prime Minister Nick Clegg.

However, Prime Minister David Cameron is back to pushing for the snooper's charter -- and his reasoning is as stupid as it is unbelievable. Apparently, he thinks it's necessary because the fictional crime dramas he watches on TV show why it's necessary. I am not joking, even though I wish I was:

In the most serious crimes [such as] child abduction communications data... is absolutely vital. I love watching, as I probably should stop telling people, crime dramas on the television. There's hardly a crime drama where a crime is solved without using the data of a mobile communications device.

What we have to explain to people is that... if we don't modernise the practice and the law, over time we will have the communications data to solve these horrible crimes on a shrinking proportion of the total use of devices and that is a real problem for keeping people safe.

Yes, he just said that. Because fictional characters on crime drama TV shows make use of data, that's somehow proof that it's necessary. Perhaps someone can send Cameron a copy of Enemy of the State or any other fictional work showing how the government can abuse such information. Or, better yet, let's have our side stick with reality, and we can just point to real historical events of governments abusing such information.

Filed Under: crime dramas, david cameron, fiction, privacy, snooper's charter, surveillance

Fiction By Timothy Geigner, Now Available At The Techdirt Insider Shop

from the rtb dept

As some of you may know, in addition to posts and comments for Techdirt, Tim Geigner aka Dark Helmet also writes novels. Today we're happy to announce that all three of his "conspiracy fiction" titles are now available as PDF ebooks in the Techdirt Insider Shop. These new editions feature brand new cover art and are all available on a pay-what-you-want basis, so head on over and download these three novels today:

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Digilife »
David Barker is a child psychologist. A United States defense software contractor commissions him to help with one of their programs, the first true digital consciousness. The program has taken hostages in the company’s underground lab and the company sends David into the lab with a handpicked team of specialists: a mathematician, a computer engineer, a cultural anthropologist, and representatives from the military. Their task is to regain control over this new being and convince her to let her hostages go. But from the moment they set foot in the underground lab, David realizes that the company’s claims of control over this digital being have been flights of fancy and their mission to reason with the first digital consciousness becomes a struggle to survive.

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Echelon »
Payton "Doc" Connor is an investigator at the Center for UFO Studies in Chicago, a real-life private agency that investigates the paranormal. He has a reputation for dissecting reports the agency receives and proving them to be hoaxes. Shortly before the agency sends him on a routine investigation to New Mexico, the Agency assigns him as mentor to a new investigator, Chanel Falasco. During the trip to the desert, they are contacted by a contemporary "Deep Throat", who confesses his part in a national conspiracy that includes Freemasonry, the Illuminati, and a cult born of Nazis that escaped the Nuremburg Trials with the help of wealthy industrialists. The confessor wants to use them and CUFOS to expose the group he works for before their ultimate goals are realized through an illegal surveillance network referred to only as Echelon.

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Midwasteland »
It is the near future in a post-apocalyptic Chicago and Anton Donovan is an anomaly. That is, though he appears to be human in every respect, he is actually a mutated version of a human. There are several differences between anomalies and humans, but the most compelling of these is the anomaly’s ability to manipulate radiation that has been left behind by a long ago waged nuclear war. The humans fear this power and they have instituted a testing process to find and euthanize anomaly children in their cities. The result of this is that anomalies only live in freedom outside of human civilization. Because of a series of personal tragedies suffered at the hands of one of these anomaly enclaves, Anton joins the human military. They think that he is going to help them hunt down his own kind, but instead he is going to use his unique situation to push both sides towards a peace, even as both humans and enclaves alike prepare to wage a worldwide war.

Filed Under: ebooks, fiction, insider shop

A Speculative Example Of CISPA's Potential For Abuse

from the just-barely-fiction dept

In all the talk about how CISPA represents a threat to privacy and civil liberties, it's easy to get lost in the legislative semantics and to lose track of the very real dangers the bill presents. It's not as though CISPA is going to be signed and the next day everyone's going to wake up having always been at war with Eastasia, but the bill is a significant step in the erosion of key privacy rights that stem from the 4th Amendment—the sort of rights citizens are supposed to be vigilant about giving up to the government, even if it doesn't mean their lives are going to change overnight. At the same time, it's not a purely philosophical issue: CISPA or a similarly problematic bill can and will be abused if it becomes law.

Over at Lifehacker, Adam Dachis spoke to law professer Derek Bambauer and used their conversation as the basis for a piece of speculative fiction from the point of view of someone who falls victim to CISPA abuse. It's a well-executed concept that steers clear of sensationalism and presents a realistic example of how CISPA would grant the government new powers in areas far beyond cybersecurity, and how innocents might get swept up by those powers. The fictional narrator, who struggles through an ethically challenging college assignment on child pornography laws, has his name dragged through the mud after the school turned its computer logs over to the feds as part of a hacking investigation and his search history landed him under scrutiny. This nicely demonstrates one of the big problems with CISPA: the affirmative search permissions it would grant, which allow the government to dig through cybersecurity data for evidence of other crimes.

The story's message can't really be conveyed in snippets, but here's a brief excerpt:

As I continued my research I found more and more instances of laws with vaguely-defined terms that were designed to be tough on crime. No one bothered to oppose them in fear of being painted weak, or as a lover of terrorism and sexual deviancy. As a result, innocent people ended up in jail as collateral damage. The law had chosen to try and assuage our fears by sacrificing our freedoms as payment. But even worse, it didn't seem to be working. When you cast a wide net, you not only catch too many fish but so many that you can't find the fish you're actually looking for. People who broke the law weren't getting caught because the resources previously utilized to catch them were diverted to finding offenders before they actually offended. It's a nice thought to think we can preemptively prevent a crime, but it just doesn't work.

Whether it's Chinese hackers or child pornography, it's vital that hot-button panics don't override evidence and common sense in crafting legislation. Even more importantly, people should only allow the government to bypass their rights under extremely limited circumstances, if at all. There's a famous quote about liberty and security, but I don't want to Google it lest I end up on a watch-list somewhere...

Filed Under: cispa, cybersecurity, derek bambauer, fiction, privacy