Abstract

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  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. The plaintiffs claim that the producers intended their film to cause persons to want to engage in such violent criminal behavior, and knew that some viewers, after watching the film, would probably commit such violent atrocities.

IV. Individuals and organizations responsible for posting web pages on the internet that allegedly threaten abortion providers are sued by doctors who perform abortion services. The suit claims that the defendants, through the use of old-west "wanted" style posters, have placed on the internet the doctors' names, business locations, residential addresses, social security numbers, vehicle license plates, phone numbers, and other identifying information, for the purpose of inciting and assisting acts of violence against those abortion providers.

V. The publisher of a manual containing explicit instructions on how to go into the business of murder-for-hire is sued for wrongful death by the families of murder victims killed by a paid assassin who allegedly purchased the murder manual and followed its instructions to murder three people. The plaintiffs allege that the publishers of the manual knew and intended that the manual would be used, upon receipt, by criminals and would-be criminals to plan and execute the crime of murder-for-hire.

As a state supreme court justice, you must address the perplexing tort and First Amendment issues posed by these cases. You discern in your state, and across the nation, a growing sense of dismay over our increasingly violent culture. You know that many people blame the ubiquitous depiction of violence in the media for the violence in the nation, and you realize that these suits are emblematic of a growing public conviction that the media should be held legally responsible for acts of violence that appear to have been caused, at least to some degree, by speech portraying, advocating, or assisting in violence. While there are some precedents to guide you, the decisional law contains many gaps and uncertainties. You are searching for a coherent jurisprudence. What questions must you face, and how would you begin to organize your thoughts in facing them?

Each of these hypothetical cases have analogs in recent legal disputes, and when your law clerk brings them to your attention, you will quite naturally look to those disputes for whatever illumination or insight they might provide. ...

Document Type

Article

Publication Date

2000

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