There have been a number of tragic incidents during the past few years in which mentally unstable teenagers have carried guns into school and shot teachers and fellow students. These schoolyard killings have generated an intense debate about the problem of violence in our society. Some social commentators have attributed teenage violence to the widespread availability of firearms, while others blame parental neglect, lack of discipline in the schools, or the declining influence of religion and morality in contemporary culture. However, another source of concern is the popular media, which stands accused of purveying sex and violence on a massive scale to impressionable American youths. Recently, victims of teenage violence have enlisted trial lawyers in their fight against sex and violence in the popular media.
This Article examines the doctrinal and constitutional barriers that must be overcome by those who wish to recover from media defendants on a products liability theory. Part I provides an overview of cases. They are divided into two major categories: (1) claims arising from a publication's information content and (2) claims arising from a publication's point of view or idea content. This latter category can be further subdivided into cases where media defendants allegedly facilitate the commission of a crime, cases where publishers allegedly induce others to imitate violent acts that are portrayed in material disseminated to the public, and cases where they allegedly inspire readers or viewers to commit violent or illegal acts.
Part II identifies existing doctrinal barriers to product liability claims against media defendants. For example, plaintiffs who base their claims on a product liability theory will have to persuade the courts that books, movies, video games and other information media are products which are placed in the stream of commerce by their producers. Plaintiffs must also argue that commercial transactions which enable material to reach the consuming public should be characterized as sales. Furthermore, plaintiffs must prove the existence of a defect which makes the "product" unreasonably dangerous to users or consumers. In addition, regardless of whether plaintiffs rely on negligence or strict liability principles, they must prove that the actions of the publisher or the condition of the product have caused the plaintiffs' injuries. Finally, plaintiffs will have to overcome the argument that the actions of listeners, viewers, or third parties were not sufficient to break the chain of causation.
Part III is concerned with whether media defendants should be allowed to invoke the protection of the First Amendment in order to shield them against product liability suits by injured parties. The first issue is whether the material disseminated by the media qualifies as speech or expression. Assuming that it does, the next issue is whether such material is protected speech or whether it falls into a category of unprotected speech, such as obscenity or incitement to violence. This Article concludes that both violent and sexually explicit portrayals are legitimate forms of expression and are, therefore, entitled to full constitutional protection.
Part IV evaluates three liability standards. The first would subject media publishers to strict liability in tort and deny them First Amendment protection for sexually explicit expression or expression that inspires violence or other illegal conduct. The second liability standard would also foreclose media defendants from claiming First Amendment protection, but would also require plaintiffs to prove that a publisher was negligent. The third liability standard, which is similar to the current state of the law, would essentially prohibit tort actions against media publishers on the basis of content.
The Article concludes by endorsing this last alternative. There are three reasons for taking this position. First, a rule that prohibits tort actions against media defendants would promote artistic expression and media coverage of mature or controversial subjects. Second, such a rule would discourage special interest groups from using the tort system as a vehicle to further their own social agendas. Third, removing media publishers from the pool of potential defendants will encourage moral leaders to place the blame where it really belongs—on those who do the actual killing—and not allow it to be shifted elsewhere.
Richard C. Ausness, The Application of Product Liability Principles to Publishers of Violent or Sexually Explicit Material, 52 Fla. L. Rev. 603 (2000).