And thanks so much to Meg who missed class to pick me up. She is the greatest. And here is my journal competition entry. It sucks, but not for reasons which are likely to be immediately obvious to people who haven't subjected themselves to law school (i.e. citation) so I won't elaborate on them.

TABLE OF AUTHORITIES
Sanders v. Acclaim Entertainment, Inc., [2001-2002 Transfer Binder] Prod. Liab. Rep. (CCH) 57,944 (D. Colo. 200).

U.S. Const. amend. I.

Brandenburg v. Ohio, Russell L. Weaver & Arthur D. Hellman, The First Amendment 73 (2002).

Weirum v. RKO General, Inc., 539 P.2d 36, 40 (Cal. 1975).

DeFilippo v. National Broadcasting Co., Inc., 446 A.2d 1036 (R.I. 1982).

McCollum v. CBS, Inc., 249 Cal. App. 3d 989 (Cal. Ct. App. 1988).

Rice v. Paladin Enterprises, Inc., 25 Media L. Rep. (BNA) 2441 (4th Cir. Nov. 10, 1997).

Byers v. Edmondson, 712 So. 2d 681, 1998 La. App. LEXIS 1776, 29 Media L. Rep. 1982 (May 15, 1998).

James v. Meow Media, Inc., No. 00-5922, slip op. at 22-23 (6th Cir. Aug. 13, 2002).

145 Cong. Rec. H4407 (daily ed. July 23, 2001) (statement of Rep. Osborne).

Marjorie Heins et al., Violence and the Media: An Exploration of Cause, Effect, and the First Amendment (First Amendment Center 2001).

Carl F. Horowitz, Teenage Wasteland, Reason, Feb. 2004, at 50.

Clay Calvert & Robert R. Richards, New Millennium, Same Old Speech: Technology Changes, but the First Amendment Issues Don’t, 79 B. U. L. Rev. 959 (1999).

Juliet Dee, Basketball Diaries, Natural Born Killers and School Shootings: Should There be Limits on Speech Which Triggers Copycat Violence?, 77 Denv. U. L. Rev. 713 (2000).

Karen Abbott, Judge Says Nintendo, Others Didn’t Cause Harris and Klebold to Carry Out Killings, Rocky Mountain News, Mar. 5, 2002, available at http://www.rockymountainnews.com/drmn/columbine/article/0,1299,DRMN_106_1014458,00.html.

OBJECTIVE PORTION

On April 20 at about 11:20 in the morning Eric Harris and Dylan Klebold arrived at Columbine High School armed with guns and other “implements of destruction.” Sanders v. Acclaim Entertainment, Inc.,[2001-2002 Transfer Binder] Prod. Liab. Rep. (CCH) 57,944, 57,945 (D. Colo. 200). They proceeded to kill twelve students and a teacher, William Sanders (“Sanders”). Id. In the investigation following the attack, police allegedly uncovered that the two consumed large amounts of obscene, violent, and sexually violent video games and movies. Id. at 57,946.

The plaintiffs, the widow and stepchildren of Sanders, brought an action in diversity for wrongful death against a number of video game and movie producers. Id. The plaintiffs claimed that but for the actions of the defendants, in conjunction with the actions of Harris and Klebold, the killings would not have occurred. Id. Chief Judge Babcock dismissed their action under Federal Rule of Civil Procedure 12 (b)(6) for failing to state a claim upon which relief could be granted. Id. at 57,945.

The judge rejected the plaintiffs’ negligence claim on the grounds that the defendants owed no duty of care to the plaintiffs. Id. at 57,950. The judge also concluded that no reasonable jury could find that the defendants had caused the conduct that resulted in Sander’s death. Id. at 57,951. Finally, the judge concluded that the plaintiffs’ claims were blocked by the First Amendment. Id. at 57,954.

In finding that the defendants owed no duty of care to the plaintiffs, the judge considered four factors: (1) the foreseeability of the injury; (2) the social utility of the conduct of the defendants; (3) the burden of guarding against harm; and (4) the likely consequences of placing that burden on the defendants. Id. at 57,948. The judge found that any foreseeability of this specific injury was “speculative” at best. Id. He also noted that other courts have found no duty in similar circumstances. Id. The judge noted that a Kentucky court in a case involving very similar circumstances found that media defendants could not have foreseen this sort of attack resulting from their actions. Id. 57,948-49, (citing James v. Meow Media, Inc., 90 F.Supp.2d 798, 804, 806 (W.D.Ky. 2000)).

The judge found that the defendants’ conduct - creation of works of imagination - contributes significantly to the social welfare. Id. at 57,949. The fact that the plaintiffs characterized the material as “violent” did not lead the judge to discount the material’s social value. Id. The judge noted that violence is part of many stories throughout history. Id. The judge further questioned the notion that society would be better off if the sensitive were protected from violent images. Id. (citing American Amusement Mach. Ass’n v. Kendrick, 244 F.3d 572, 577 (7th Cir. 2001), cert. denied, 122 S.Ct. 462 (2001)).

The judge combined the final two factors, evaluating together the magnitude of the burden on guarding against injury and the consequences of placing the burden on the defendants. Id. at 57,950. The judge found that Colorado courts “repeatedly reject efforts to impose overly burdensome and impractical obligations on defendants, including the obligation to identify potential dangers.” Id. (citing Davenport v. Community Corrections, 962 P.2d 963, 969 (Colo. 1998)). The judge also found that the magnitude of the burden that would be imposed on the defendants were they to be found liable would be “daunting” and would “chill their rights of free expression.” Id.

Finding that all four factors weigh against imposing a duty on the defendants, the judge found no duty. Id.

Additionally, the judge found that no reasonable jury could find that the defendants caused the injury. Id. at 57,951. The judge found that the actions of Harris and Klebold formed a superseding cause that the defendants could not have anticipated. Id. The judge held that as a matter of law, causation was not present. Id.

The judge considered several First Amendment issues. The judge noted that courts protect video games under the First Amendment because they contain messages. Id. at 57,953. The fact that they are entertainment does not preclude them from carrying messages. Id.

The judge held that the defendants speech was not incitement under the Brandenburg test. Id. (citing Brandenburg v. Ohio, 395 U.S. 444 (1969)). Inciting speech is not protected. Id. The defendants’ speech, however, was not incitement because it was made without any intent that it would lead to illegal activitiy. Id. at 57,954. The defendants’ speech was also not “likely” to produce “imminent lawless action,” as the Brandenburg test requires. Id.

Finally, the judge found that the plaintiffs failed to develop a theory for restricting defendants’ speech to minors that would meet the Supreme Court requirement that such restriction be “narrowly tailored.” Id. The plaintiffs’ theory would restrict the defendants’ speech to all persons. Id.

SUBJECTIVE PORTION

This ruling in Sanders v. Acclaim Entertainment, Inc. is consistent with a reluctance on the part of the courts to find media defendants liable when viewers engage in violent acts allegedly as a result of consuming the media. The high-profile nature of the facts may mean that this ruling will further entrench this reluctance in the courts. A threat to this tendency could come from the realm of social science. However, social science shows no signs of coming to a consensus on the effects of media. Furthermore, serious questions exist as to whether psychological research can even be capable of determining the effects of media. Finally, even were we able to know the effects of media on behavior, we would be faced with the equally difficult question of determining whether restricting media to reduce violent behavior is a desirable option.

The decision in Sanders is in line with the requirement of courts that the defendant have the intent that the speech result in dangerous or criminal activity for the speech to be left unprotected by the First Amendment. Where speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” it is not protected by the First Amendment. Brandenburg v. Ohio, Russell L. Weaver & Arthur D. Hellman, The First Amendment 73, 75 (2002). Courts are unwilling to find that media can incite criminal action when the media does not “intend” a violent response and when that response is not “imminent” or “likely.” James v. Meow Media, Inc., No. 00-5922, slip op. at 22-23 (6th Cir. Aug. 13, 2002) (holding that media defendants’ speech is protected under Brandenburg and did not “incite” a school shooting). Cases where courts do find that media incited illegal activity are rare exceptions where the defendant intends the response and the response is highly foreseeable. Weirum v. RKO General, Inc., 539 P.2d 36, 40 (Cal. 1975) (finding that a radio station offering prizes at various locations could foresee that listeners would drive dangerously to arrive at those locations); Rice v. Paladin Enterprises, Inc., 25 Media L. Rep. (BNA) 2441, 2469 (4th Cir. Nov. 10, 1997) (holding that only in rare cases where media defendants intend for their materials to be used to assist a crime can they be found liable). The court’s finding in Sanders that the defendants are not liable because they did not intend and could not have foreseen the violence they allegedly caused is in keeping with this precedent.

If any further challenges to the line of cases finding media defendants not liable arise, their likelihood of success may be dampened by the high profile of the facts in this case. If anything could have overturned this series of cases it seems likely to be the national shock at the shootings at Columbine High School and the general atmosphere of concern around school violence that existed in the late 1990s after several high-profile incidents. Juliet Dee, Basketball Diaries, Natural Born Killers and School Shootings: Should There be Limits on Speech Which Triggers Copycat Violence?, 77 Denv. U. L. Rev. 713, 713 (2000) (listing high-profile incidents of school violence and noting national concern). However, it did not do so.

A challenge to the precedent of no liability for media defendants could emerge from social science, but is unlikely to do so for several reasons. Strong scientific evidence of a link between consuming violent media and violent activities could conceivably create a situation where courts would impose strict products liability on media defendants for the violent actions of consumers. However, this seems unlikely in the near future, given the present divides among social scientists as to whether media violence leads individuals to engage in real-life violence. See Marjorie Heins et al., Violence and the Media: An Exploration of Cause, Effect, and the First Amendment, 4 (First Amendment Center 2001) (noting the deep divisions in psychology as to why humans act violently). Furthermore, it is uncertain that psychologists could even formulate studies that would answer this question. See id. at 7-8 (pointing out the artificiality of the lab environment and the multitude of factors that confuse results in correlational studies).

Finally, even were social scientists to prove conclusively a link between the consumption of violent media and violent acts by the consumers, we would be left with perhaps an even more difficult question: do we want to restrict speech in order to prevent lawlessness? Killings incited by music, movies, or video games are certainly tragic, but does the prevention of a handful of murders really justify the restrictions on speech that might be necessary to prevent them? Might we not decide that free speech has such value to a democratic society that we are willing to accept the cost in blood?
posted by weiss @ 11:42 AM