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Media Violence, Proximate Cause & the First Amendment

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Media Violence, Proximate Cause & the First Amendment NORTHERN KENTUCKY LAW REVIEW Volume 27 Symposium Issue Number 1 MEDIA VIOLENCE, PROXIMATE CAUSE & THE FIRST AMENDMENT INTRODUCTION Media Violence Tort Cases: Problems of Causation and the First Amendment ................................. David J. Franklvn ARTICLES Should the Brandenburgv. Ohio Incitement Test Apply in Media Violence Cases? ...... .. ..... .... ..... .... ..... Rodney A. Smolla Shot by the Messenger: Rethinking Media Liability for Violence Induced by Extremely Violent Publications and Broadcasts ................. L. Lin Wood 47 Corey Fleming Hirokawa Hit Man's Miss Hit ..................................... Bruce W Sanford 69 Bruce D. Brown Taming Terrorists But Not "Natural Born Killers".... ................... Elizabeth Wilborn Malloy 81 Expansion of Tort Law at the Expense of the First Amendment: Has the Jones Court Gone Too Far? Stay Tuned to Find Out ................................ Richard M Goehler 112 Jill Meyer- Vollman NOTES Rice v. Paladin: Freedom of Speech Takes a Hit With "Deep Pocket" Censorship ............................ Robin R. McCraw 128 Davidson v. Time Warner: Freedom of Speech... But Watch What You Say! The Question of Civil Liability for Negligence in the Mass Media .............. J. Robert Linneman 163 MEDIA VIOLENCE TORT CASES: PROBLEMS OF CAUSATION AND THE FIRST AMENDMENT Symposium Introduction by David J. Franklynl We live in a violent age. The most recent rash of school shootings are but one example of the extent to which our culture has become accustomed to senseless - and to some extent random - violent acts. We find ourselves asking: who beyond the individual perpetrator is responsible for these acts? Victims of violent crimes, and families of victims, increasingly point the finger at members of the media - book publishers, television executives, movie producers and the like - and seek to place legal responsibility and liability squarely on their shoulders. When this sort of claim is made, our traditional tort system is put under great pressure. On November 20, 1999, the Northern Kentucky Law Review held a symposium to address the issue of whether media-producing entities should be subject to tort liability for violent acts committed by media consumers. Several notable experts in the field participated in the symposium, including Rodney A. Smolla,2 Bruce W. Sanford,3 Richard M. Goehler,4 Elizabeth Wilborn Malloy, 5 L. Lin Wood6 and Jill Meyer-Vollman. 7 This special edition of the Northern Kentucky Law Review includes articles by each of these speakers (occasionally co-authored with other writers) and by two student authors, Robin R. McCraw, and J. Robert Linneman. In their articles and essays, the authors discuss the potential tort liability of media defendants for violent acts committed by media consumers in the context of several litigated cases, including: (1) a Kentucky case in which victims of a 1. Associate Professor of Law, Salmon P. Chase College of Law, Northern Kentucky University; J.D., 1990, University of Michigan School of Law; B.A., 1983, Evangel College. 2. George E. Allen Professor of Law at the University of Richmond, T.C. Williams School of Law. 3. Partner, Baker & Hostetler, Washington, D.C.; J.D., New York University School of Law, New York, New York; B.A., Hamilton College. 4. Partner, Chairman of the Litigation Department, Frost & Jacobs LLP, Cincinnati, Ohio. Mr. Goehler is one of the founding members of the firm's First Amendment and Media Law Practice Group. 5. Associate Professor, University of Cincinnati College of Law; J.D., 1991 Duke Law School; B.A., 1988, College of William and Mary. 6. Partner, Wood & Grant, Atlanta, GA., J.D., Walter F. George School of Law, Macon, Georgia (1977); B.A., Mercer University, Macon, Georgia (1974). 7. Associate and member of the Media Law Practice Group, Frost & Jacobs, LLP, Cincinnati, Ohio. ii NOR THERN KENTUCKY LAW RE VIE W [Vol. 27:1 school killing spree by a teenager allegedly obsessed with a video game sue the manufacturer of the game; 8 (2) a Michigan case in which the family of a gay man murdered by a fellow guest on the "Jenny Jones" television program sue Ms. Jones' production company for allegedly inciting the violent acts of the guest;9 (3) a Louisiana case in which the victims of a convenience store shooting sue producers of the film Natural Born Killers, alleging the spree occurred in part because the murderer viewed the violent film;10 (4) an Oregon case wherein abortion protesters were ordered to pay $109 million in damages to the relatives of murdered doctors for putting the names and addresses of four doctors on two "wanted"-style posters and on a web site; I and (5) a suit by murder victims against the publishers of a "hit man" instructional manual for allegedly inciting the murder. 12 In all of these cases, courts have grappled with the age-old question of cause - legal cause. That is, to what extent can it fairly be said that a particular act of violence was caused by the media defendant on trial? Causation questions are never easy, and they are not easy here. But traditionally we have confined tort liability to actors whose conduct has caused the plaintiffs harm in some close or especially connected way. This sort of close connection is not always evident in cases alleging media influence. Our symposium writers discuss the causation issue in some detail, including the extent to which foreseeability or some other standard should delineate the scope of a media defendant's legal duty to protect the public from harm caused by third parties. The symposium participants also address freedom of speech and freedom of press issues. As several symposium participants point out, even if a particular producer or publisher can be said to have proximately caused a plaintiffs harm, courts must still grapple with the question of whether the media defendant's activities were protected speech under the First Amendment. Our symposium writers take us through the relevant analyses, offering different approaches as to how First Amendment issues should be resolved in media violence cases. In this 8. See infra, Rodney A. Smolla, Should the Brandenburg v.Ohio Incitement Test Apply In Media Violence Tort Cases, 27 N. KY. L. REV. I, 2 (2000). 9 See infra Richard D. Goehler & Jill Meyer-Vollrnan, Expansion of Tort Law at the Expense of the First Amendment: Has the Jones Court Gone Too Far? Stay tuned to Find Out, 27 N. KY. L. REV. 112 (2000). 10. See infra, Rodney A. Smolla, Should the Brandenburg v. Ohio Incitement Test Apply In Media Violence Tort Cases, 27 N. KY. L. REV. 1,4 (2000). II. Id. at 7. 12. See Id.: See also Robin R. McCraw, Rice v. Paladin: Freedom of Speech Takes a Hit With "Deep Pocket" Censorship, 27 N. KY. L. REV. 128 (2000). 2000) SHOULD BRANDENBURG APPLY iii connection, several symposium authors discuss whether the traditional Brandenburgl3 test should apply in media violence cases at all, or whether courts should fashion a new test, one which specifically applies for such cases. We hope you find this special symposium edition informative and stimulating. Thank you for your continued support of the Northern Kentucky Law Review. David J. Franklyn 13. See Brandenburg v. Ohio, 395 U.S. 444 (1969). SHOULD THE BRANDENBURG V. OHIO INCITEMENT TEST APPLY IN MEDIA VIOLENCE TORT CASES? by Rodney A. Smollal I. INTRODUCTION A. Five Hypothetical Cases Imagine that you are a newly-installed justice of a state supreme court. An array of cases come before you in your first term posing, in a variety of contexts, questions concerning the extent to which tort liability may be imposed to compensate victims for injuries or death allegedly caused by presentation of violent material in the media. Here are the cases: I. The manufacturers of a violent video game are sued for wrongful death by the families of victims of school children murdered in a killing spree at a high school. The plaintiffs allege that the teen-aged boy who committed the killings had become fixated on the video game, and perpetrated the crime under its influence. The suit alleges that the manufacturers of the video game acted callously and recklessly in marketing the violent game to children, knowing that some children would be particularly susceptible to the influences of the game and would be impelled to commit acts of violence as a result of it. II. The producers of a television show with a "surprise" format, in which guests typically are confronted on the air by persons in their lives who reveal a secret that is shocking or embarrassing, are sued for a murder allegedly precipitated by one of the show's programs. The producers are sued for wrongful death by the family of a person murdered in the aftermath of a program in which the victim, a gay man, revealed on the air that he had a secret crush on the murderer, who claimed to be heterosexual. Several days after the secret crush was revealed during the taping of the program, the person who was the object of the secret admirer's desires, apparently chagrined or outraged at the revelation, sought out the secret admirer and murdered him. The suit claims that the television producers created this dangerous situation fraught with high risks of psychological or physical injury and should be responsible for the tragic consequences that ensued. III. The producers of a movie thriller depicting criminals who engage in a rampage of robbery and murder are sued by the victims of real criminals I. George E. Allen Professor of Law at the University of Richmond, T.C. Williams School of Law. NORTHERN KENTUCKY LAW REVIEW [Vol. 27:1 who, after watching the movie scores of times, allegedly went out and engaged in a robbing and shooting spree emulating the actions of the characters in the film.
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