Additional remedies for defamation if the defamer has chosen a target based on race, religion, gender, etc. ?

This is the theory of Halftown vs. Bowman, filed last week in New York District Court. The plaintiffs are officials of the Cayuga Nation Indian tribe: the seemingly 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 (although apparently not a member of the tribe). They accuse Charles Bowman of defaming them through various accusations of brutality and other wrongdoing, and that seems like a fairly normal official defamation complaint (which of course could prevail if the plaintiffs prove the statements are knowingly or recklessly false and defamatory).

But Halftown is also suing Bowman for violation of New York Civil Rights Law § 79-n, which provides civil remedies against

[a]any person who intentionally selects a person or property to harm or causes damage to the property of another or causes the bodily injury or death of another or summons a police officer or peace officer without reason to suspect an offense criminal law, other criminal conduct, or imminent threat to person or property,

wholly or largely due to belief or perception regarding race, color, national origin, ancestry, sex, religion, religious practice, age [60 or above]disability or sexual orientation of a person ….

Their theory is that libel is “prejudice” (a not implausible reading of the law); and if they are correct, then the law would allow additional remedies beyond what would generally be available in defamation cases:

  1. The law allows the court to award “reasonable attorneys’ fees” to successful plaintiffs, which they would not normally get in defamation cases.
  2. The law permits injunctions “compelling and restraining any other breach, without requiring proof that a person was, in fact, injured or damaged thereby”. Some New York courts allow defamation injunctions anyway, but others are skeptical of them; the presence of the law could cause a court to grant an injunction.
  3. The law allows the Attorney General to bring a lawsuit to enjoin violations, although to my knowledge no such action has been filed here.

It will be interesting to see whether the court would allow the Special Request § 79-n to proceed. If so, I expect this to be raised in many cases, whenever the complainant might claim that he was specifically targeted because he was a man (I think that would happen in many #TheyLied claims about allegations of sexual misconduct), or because he was (say) a Scientology leader or an evangelical Christian pastor, or because people are after him because he’s black or white or Jewish or Palestinian or whatever.

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

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