Chapter 15
Negligence and Incitement: When Media Expose Others to Physical Danger
Copyright © 1997 Sandra Davidson(Last update: 1997)
Sandra Davidson,
Associate Professor of Journalism
University of Missouri-Columbia School of Journalism
120 Ness Hall
Columbia, Missouri 65211
Telephone: (573) 884-4821
Facsimile: (573) 884-5400
Negligence
"Negligence" is a well-known ground for lawsuits. More and more, courts are subjecting the media to negligence suits, making the media pay when they expose others to risk of bodily harm.
The key to liability in negligence cases is "foreseeability." If an individual engages in conduct that could foreseeably create harm, and if that harm occurs, the individual may be liable for negligence. Foreseeability refers to what a "reasonably prudent person" would "reasonably" foresee under similar circumstances.1 "Ordinary care" is the standard one must meet in order to avoid liability.2
Current Cases
Several recent cases ask the question whether media acted responsibly. For instance, in March 1995, Jonathan Schmitz appeared as a guest on the "Jenny Jones" show to meet a person who had a secret crush on him. He assumed the secret admirer would be a woman, but the admirer was a 32-year-old man, Scott Amedure. Three days later, Schmitz shot Amedure to death.3
The dead man's family has filed a $25-million wrongful-death suit against Schmitz, the TV show, its owner, and its producer, Warner Brothers.4
The judge in the case ruled against the defense's motion to dismiss.5
Oliver Stone's 1994 movie, Natural Born Killers, has been blamed for a dozen or so "copy cat" murders in the United States and Europe.6 On March 8, 1995, Patricia Byers, at work in a Louisiana convenience store, was paralyzed by a bullet fired into her neck by a woman who allegedly watched Stone's movie over and over and ingested LSD before starting a crime spree with her male companion.7 Byers filed a $20 million suit for negligence against the young woman and also against Stone and Warner Brothers8 for "distributing a film which they knew or should have known would cause and inspire people to commit crimes. . . ."9
On January 23, 1997, a Tangipahoa Parish judge dismissed the case on First Amendment grounds.10
Paladin Press came under fire as the result of a 1993 contract killing. The killer followed the 27 steps outlined in a $10 book by "Rex Feral" entitled Hit Man: A Technical Manual for Independent Contractors.11 Surviving family members sued the book publisher, Paladin Enterprises, Inc., seeking an unspecified amount of money.
In July 1996, the judge heard arguments on the defendants' summary judgment motion. The defendants' stipulation said, in part:
Defendants concede, for purposes of this motion, and for no other purposes, that . . . in publishing, marketing, advertising and distributing Hit Man . . ., defendants intended and had knowledge that their publications would be used, upon receipt, by criminals and would-be criminals to plan and execute the crime of murder for hire, in the manner set forth in the publications.12
Nevertheless, on September 6, 1996, the trial granted the defendant's motion for summary judgment. The court rejected the plaintiff's arguments for liability based on theories that included aiding and abetting, incitement and negligence.13 The court did not engage in foreseeability analysis, however.
Clearly the court did not relish its action:
The Court read Hit Man in its entirety. Its content is enough to engender nausea in many readers. This Court, quite candidly, personally finds the book to be reprehensible and devoid of any significant redeeming social value. Nevertheless, however loathsome one characterizes the publication, Hit Man simply does not fall within the parameters of any of the recognized exceptions to the general First Amendment principles of freedom of speech.14
In May 1993, a Rhode Island woman came home to find her mentally ill husband, Bruce Clift, threatening suicide. He had turned on a gas jet, and then he started firing guns. Police surrounded the home, and the wife left. While an experienced police officer attempted to dissuade Clift from killing himself, reporters gathered outside the home. Then Clift received a phone call from a broadcast reporter who had not asked police if she could call. She taped an interview with Clift and told him she would broadcast it. At 6:04, the reporter appeared on a newscast, live from the scene. She told viewers, "It's obvious we're dealing with a very troubled man. . . . What you're about to hear is a man who is angry at the world and could be on the verge of suicide. It's an interview you'll see only on Channel 12."15 During the interview, the reporter asked Clift, "[W]hat would you say to your wife . . .?" He responded, "Only that I love her. . . . I apologize 'cause I know it's my fault. . . ."16 At 6:07, Clift killed himself. Police rushed in and found his body. His television sets were playing Channel 12.17
Clift's wife sued the television station, claiming her husband's death was the result of the reporter's negligence. The trial judge granted the defendant station's motion to dismiss,18 but the Supreme Court of Rhode Island reinstated the suit. Relying on a medical doctor's affidavit, the court decided, "There were facts . . . that suggest the decedent's suicide resulted from an uncontrollable impulse that was brought about by a delirium or insanity caused by Narragansett's negligence."19
Negligence: Missouri Beginnings
These suits are but a few of the latest attempts to hold the press responsible for the misdeeds of third-party tortfeasors.
The first major negligence suit against the media for the bodily harm or risk of bodily harm by a third party started in Columbia, Missouri. As Sandra Hyde walked down the main street of Columbia after midnight in August 1980, a man with a red beard and red hair, driving a red Mustang, pulled alongside her. He opened his door, leveled a sawed-off shotgun at her, and ordered her to get in. She did. He then demanded, "You will do what I want you to do or I will blow your brains out." As he drove around a corner, Hyde jumped out of the car and ran to safety in a nearby disco.
Hyde reported the incident to the police. Of course, she gave her name and address--a couple of facts which her assailant didn't have until a Tribune reporter got a copy of the report from the police and the newspaper published her name and address the next day. Then, according to Hyde, the man started terrorizing her, stalking her at her home and workplace and making phone calls to give her messages such as, "I'm glad you're not dead yet, I have plans for you before you die," and, "I wanted to refresh your memory of who I am before I kill you tonight."20
Hyde brought suit, alleging negligence by the city in disclosing her name and address and negligence by the newspaper in printing her name and address.21 The defendants countered that the information disclosed was a public record under Missouri's Sunshine Law.22 The trial court ruled in favor of the defendants, accepting the public-record defense.23 However, on appeal, the Court of Appeals for the Western District of Missouri ruled that Sandra Hyde did indeed have valid grounds to sue for negligence.
The court of appeals concluded,
"[I]t was reasonably foreseeable that the publication of the name and address of the victim, while the assailant was still at large, was a temptation to [the assailant] to inflict an intentional harm upon the victim--a foreseeable risk the . . . defendants had a duty to prevent."24
In flatly rejecting the "Sunshine Law" defense, the court used the following reductio ad absurdum argument:
To construe the Sunshine Law to open all criminal investigation information to anyone with a request ... courts constitutional violations of the right of privacy of a witness or other citizen unwittingly drawn into the criminal investigation process. . . . Such a construction leads to the absurdity . . . that an assailant unknown as such to the authorities, from whom the victim has escaped, need simply walk into the police station, demand name and address or other personal information--without possibility of lawful refusal, so as to intimidate the victim as a witness or commit other injury.25
To avoid what the court called an "absurd" conclusion, it held that "the name and address of a victim of crime who can identify an assailant not yet in custody is not a public record under the Sunshine Law."26
In 1983, the United States Supreme Court let the Hyde case stand.27 In doing so, the Court sent the message that newspapers could be found liable for printing a news story that exposed a specific victim to an unreasonable, foreseeable risk of harm--even though the defendant arguably was using public records.
Negligence Cases From Other Jurisdictions
A California appeals court cited Hyde when it let a woman sue the Los Angeles Times after the paper reported her name in connection with her discovery of the dead, nude body of her roommate who had been beaten, raped, and strangled. The reporter, a summer intern, had gotten the name through the coroner's office. Again, the court did not accept the public-record defense.28
Ads can also pose problems, as Soldier of Fortune magazine can attest. Much sued, the magazine had managed to slip through the legal net of negligence--until January 1993. The United States Supreme Court decided then not to hear the case of Braun v. Soldier of Fortune,29 thus letting stand an award of $4,375,000 to brothers Michael and Ian Braun for the murder of their father.
The magazine, which caters to lovers of adventure, weaponry, and the military, printed this ad in June 1985: "GUN FOR HIRE: 37-year-old professional mercenary desires jobs. Vietnam veteran. Discrete [sic] and very private. Bodyguard, courier and other special skills. All jobs considered."30 Michael Savage, the aptly named man from Knoxville, Tennessee, who placed the ad, then received a call from Richard Braun's business partner. On August 26, 1985, Savage and two other men waited in ambush in Atlanta, Georgia, as Braun and his 16-year-old son Michael drove down the driveway of their home. Using a MAC 11 automatic pistol, the hit-squad fired a bullet into the son's thigh and wounded Braun, who rolled out of the car. As Braun lay on the ground, one of the assassins pumped two fatal bullets into Braun's head.
During the ensuing wrongful-death trial against Soldier of Fortune, the sons maintained the magazine had been negligent in publishing the ad. The ad created an unreasonable risk that someone might hire Savage for violent criminal activity, the sons argued. Savage testified that he had no intention of soliciting anything but legitimate work, but most of the 30 to 40 responses per week to the ad sought his services for murder, assault, or kidnapping. The sons introduced evidence of prior links between the magazine's personal ads and other violent crimes.31
The jury brought back a verdict of $2,375,000 in actual damages, and $10,000,000 in punitive damages. The trial court cut the punitive damages to $2,000,000.32 In August 1992, the United States Court of Appeals for the Eleventh Circuit upheld the judgment. The court of appeals approved of the trial court's instruction to the jury that the magazine could be found liable if--"on its face"--"the ad in question contains a clearly identifiable unreasonable risk, that the offer in the ad is one to commit a serious violent crime, including murder."33 Note that the court said that the risk had to be "clearly identifiable," not that the person who was at risk (the victim) had to be clearly identifiable or that the assailant had to be clearly identifiable.34
Soldier of Fortune attempted to cloak itself in the First Amendment.35 Indeed, the trial judge had stressed the importance of First Amendment considerations when he instructed the jury.36 So did the Eleventh Circuit Court of Appeals in its opinion.37 The argument failed.38
In the Soldier of Fortune case, as usual, the courts had to balance interests. Here, First Amendment freedom of the press gave way to a perceived interest in protecting the public from ads that pose an unreasonable risk of violence.
Although the guidelines are far from precise, the brunt of the Braun message is clear: The pen may be "mightier than the sword," but if the pen invites the sword, then the press better beware.
When the printed word has been part of a chain of events leading to physical harm or even death, plaintiffs have sometimes asked courts to treat the printed word like any other commercial product and to hold publishers liable under a theory of strict liability. With only two exceptions, such attempts have failed. In the first exception, courts have held the publishers of faulty aeronautical charts liable for the disasters they have caused. Cases include Brocklesby v. United States39 and Fluor Corp. v. Jeppesen & Co.,40 In the second, courts have assigned liability when the printed word appeared as a warranty. Good Housekeeping lost Hanberry v. Hearst Corp.41 because of an endorsement; the magazine sealed its fate with its "Good Housekeeping" seal. And a radio broadcaster's co-sponsorship of cheap drinks at a bar led to liability for a drunken-driving accident in Riley v. Triplex Communications, Inc.42 Otherwise, attempts to treat the printed contents of magazines, newspapers, or books as products have failed. Losing cases include Way v. Boy Scouts of America.43 A 12-year-old boy named Rocky died when he and some friends were playing with a rifle that discharged. They had been reading an issue of Boys' Life, a magazine published by the Boy Scouts of America, which included a 16-page advertising supplement on shooting sports and how to earn merit badges for shooting. Rocky's mother sued, claiming the supplement caused her son's death. Her theories were negligence in publishing the supplement and strict liability for a defective product, namely, the magazine with its supplement.44
The appellate court rejected her negligence claim, concluding that Rocky's "experimentation" with the rifle was not a reasonably foreseeable consequence of the supplement. Weighing three factors of negligence--risk, foreseeability, and likelihood of injury--against the social utility of the conduct,45 the court said:
Given the pervasiveness of firearms in society, we conclude that encouragement of safe and responsible use of firearms by minors in conjunction with Boy Scout and other supervised activities is of significant social utility. Also included in our consideration of the social utility of publishing the supplement is our recognition of the pervasiveness of advertising in society and the important role it plays. ... The weight we attach to the social utility of advertising in this case is further strengthened by the fact that the supplement provided useful information about lawful products.46
Turning to the question of strict liability, the appellate court noted that the Texas Supreme Court had adopted the strict liability theory of the Restatement (Second) of Torts § 402A. This section states:
(1) one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his [or her] property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his [or her] property. . . .47
The appeals court noted that to have a cause of action for products liability, one must first have a "product" falling within the definition of the Restatement (Second) of Torts.48 But in this case, the court said, the dead boy's mother was not claiming that the physical condition of the magazine itself was dangerous but that its "ideas and information" encouraged children to engage in dangerous activities.
Ideas and information are "intangible characteristics, not tangible properties," according to the court. Drawing a distinction between "tangible and intangible aspects of a publication," the court quoted this passage from a federal case: "A book containing Shakespeare's sonnets consists of two parts, the material and the print therein, and the ideas and expression thereof. The first may be a product, but the second is not. Products liability law is geared to the tangible world."49 The court concluded that the "ideas, thoughts, words, and information conveyed" by Boys' Life and its supplement did not constitute a product.50
The publisher of a textbook giving medical advice prevailed in Jones v. J.B. Lippincott Co.,51 despite injury resulting to a reader. The publisher of a science textbook prevailed in Walter v. Bauer.52 And the publisher of tire-dimension standards prevailed in Beasock v. Dioguardi Enterprises,53 despite faulty advice that led to an exploding tire and death.
Beasock logic says that a company is only responsible for the product it places in the stream of commerce, namely its publications, and that "the publications themselves did not produce the injuries and thus cannot serve as the basis for the imposition of liability. . . ."54 (But by this logic, aeronautical charts per se did not cause the deaths in airplane crashes.)
On the other hand, a lack of endorsement offers protection for media. A toxic-shock victim lost because of a lack of endorsement by a magazine in Walter v. Seventeen Magazine.55 Lack of endorsement likewise protected a magazine in Yuhas v. Mudge,56 after a minor suffered injury from fireworks bought through a magazine ad. A travel guide's publisher won because the guide made no endorsement in Birmingham v. Fodor's Travel Publications, Inc.57
Other cases and theories under which defendants won include the following: The publisher of a mushroom encyclopedia prevailed in Winter v. G.P. Putnam's Sons58 because of no duty to check accuracy. A book dealer who sold a cookbook that used a poisonous plant as an ingredient in a recipe prevailed because of no implied warranty in Cardozo v. True.59 The publisher of a metalsmith book prevailed because of no duty to warn in Lewin v. McCreight.60 The publisher of a tool-making book prevailed because of no duty to warn in Alm v. Van Nostrand Reinhold Co.61 A newspaper that published a dandruff remedy prevailed over "negligent misrepresentation" charges in MacKown v. Illinois Publishing & Printing Co.62 A publisher of an encyclopedia on chemicals likewise prevailed over "misrepresentation" charges in Demuth Development Corp. v. Merck & Co., Inc.63 And a movie producer prevailed over "failure to protect" charges in Bill v. Superior Court of the City and County of San Francisco.64
Incitement
Negligence and strict liability are not the only theories used against the media for the infliction of bodily harm or death on others. Plaintiffs also have employed the Brandenburg v. Ohio65 incitement theory. In Brandenburg, a Ku Klux Klan leader was convicted of violating a state statute prohibiting advocacy of "the duty, necessity, or propriety of sabotage, violence or unlawful methods of terrorism as a means of accomplishing industrial or political reform."66 The Court enunciated the test to be used in determining whether advocacy language could be proscribed:
[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless actions and is likely to incite or produce such action.67
This test can be viewed as having two parts, with a subjective requirement that advocacy be "directed to inciting or producing imminent lawless actions" and an objective requirement that the advocacy be "likely to incite or produce such action." Or the Brandenburg test can be viewed as having three parts, requiring (1) intent, (2) imminence, and (3) likelihood. But the "incitement" standard under Brandenburg is an extremely difficult standard to satisfy. As the United States Court of Appeals for the Sixth Circuit correctly observed, "without actual incitement, First Amendment considerations argue against . . . liability. . . ."68
Courts have emphatically rejected bodily injury cases in which plaintiffs have attempted to invoke "incitement," as the following cases demonstrate.69
A magazine publisher prevailed in an incitement suit in Herceg v. Hustler Magazine70 after a youth, who read an article on "autoerotic asphyxia," hanged himself. Likewise, a book publisher prevailed in an incitement suit in Smith v. Linn,71 which resulted when a woman died of cardiac arrest after following a liquid protein diet. The manufacturer of the parlor game "Dungeons & Dragons" also prevailed in a suit in Watters v. TSR, Inc.,72 after a youth committed suicide.
Television networks prevailed in Zamora v. Columbia Broadcasting System73 over a claim that a youth who shot an elderly neighbor had become "completely subliminally intoxicated" by television. The "Johnny Carson Show" won dismissal in DeFilippo v. National Broadcasting Co.74 over the death of a boy who attempted to duplicate a hanging "stunt." An attempt to replicate a "Mickey Mouse Club" demonstration that led to an injury likewise resulted in a dismissal in Walt Disney Productions, Inc. v. Shannon.75 Pepsico was not held liable in Sakon v. Pepsico, Inc.,76 for the injuries suffered by a youngster who imitated a stunt featured in one of Pepsico's TV commercials for Mountain Dew.
Movie producers prevailed in Olivia N. v. NBC,77 which stemmed from a copy-cat sexual assault. Rock stars and their record companies prevailed in suits claiming that their music led to suicides in the cases of Waller v. Osbourne78 and McCollum v. CBS.79 Also, the late Tupac Shakur and Time-Warner prevailed over charges that his "gangsta rap" incited a youth to shoot a Texas trooper.80
The bottom line: While incitement has not proved much of a danger, journalists and others engaged in mass communication encounter a foreseeable risk of financial harm to themselves if they disregard the doctrine of negligence as applied to journalists. The language in Hyde states clearly the test journalists must remember:
It is the likelihood of injury to another that gives rise to the duty to exercise due care. The test of negligence liability is foreseeability: that the actor knows or has reason to foresee that the act involves an unreasonable risk of injury to another but fails to protect against that hazard.81
1. Gallick v. Baltimore & Ohio Railroad Co., 372 U.S. 108, 118 (quoting instructions to the jury).
2. Id. at n.6; Inman v. Baltimore & Ohio Railroad Co., 361 U.S. 138, 146 n. 2 (1959).
3. See, e.g., Ann Leslie, "In the TV Ratings War, Weirdos Are Winners," Daily Mail, Oct. 31, 1995, p. 20; Alexandra Marks, "Talk Television Goes on Trial," The Christian Science Monitor, Oct. 11, 1995, p. 12. See also, Dick Feagler, "Some TV Talk Shows Can Be Deadly Serious," The Plain Dealer (Cleveland), March 15, 1995, p. 2A.
4. "`Jenny Jones' Lawsuit Will Stand, Judge Rules," Chicago Tribune, North Sports Final Edition, Feb. 29, 1996, p.2; "Talk Show's Top Brass to Stand Trial," The Commercial Appeal (Memphis), Final Edition, Feb. 29, 1996, p. 11A. See also, Ron French, "`Jenny Jones' Case Changing the Tone of TV Talk Shows," USA Today, Final Edition, Feb. 28, 1996, p. 6A.
5."Michigan Judge Allows Lawsuit over `Jenny Jones' Killing," 10 IAC Newsletter Database (Liability Week), March 4, 1996. Apparently, such "ambushes" are fairly common. See, e.g., Laura Myers, "New Study Says Talk Show Hosts `Ambush' Guests 16 Times an Hour," The Detroit News, InsideNews, Nov. 17, 1995.
6.For instance, a Georgia teenager allegedly killed an elderly man and then proclaimed on TV, "I'm a natural born killer"; a 14-year-old Texas boy allegedly watched the movie and then decapitated a 13-year-old girl; and a Utah teenager put on glasses and shaved his head to look like one of the characters in Natural Born Killers, then allegedly killed his sister and stepmother. Dante Ramos, "Screening Violence," The Times Picayune, Aug. 6, 1996, p. A1. See also, Adam Sandler, "Grisham vs. Stone: `Killer' Opponents," Variety, June 17, 1996, p. 11. All of the incidents are covered in Michael Shnayerson, "Natural Born Opponents," Vanity Fair, July 1996, p. 100.
Among other movies allegedly inspiring copy-cat deaths are: The Money Train (1995); Child's Play 3 (1993); and The Deer Hunter (1981). Id.; Jonathan Freedland, "Is Oliver Stone Responsible for the Consequences of this Film?" The Guardian, June 19, 1996, p. T12.
7. Elizabeth Gleick, "A Time to Sue; John Grisham Wants Oliver Stone to Pay for Movie-Inspired Mayhem," Time Magazine, June 17, 1996, p. 90; Manny Gamallo, "Effects of Film Argued; Famous Names Enter Edmondson Case," The Tulsa World, Final Home Edition, June 13, 1996, p. A1. See also, Dante Ramos, op. cit.
8. "Grisham Firmly Backs $20M Suit vs. Oliver Stone," The Boston Herald, July 10, 1996, p. 17; Manny Gamallo, op. cit.. See also, Tony Gallagher, "Stone's $20M Lawsuit over copycat; Woman Paralyzed in Robbery Sues Director of Natural Born Killers," Daily Mail (London), June 13, 1996, p. 29.
The young woman who allegedly shot Patsy Byers is Sarah Edmondson, the daughter of an Oklahoma district judge, the niece of the Oklahoma attorney general, the granddaughter of a congressman, and the great niece of a governor who was also a congressman. Michael Shnayerson, op. cit. at p. 100. Patsy Byers' attorney, Joe Simpson, thought that the resources of Edmondson's family alone were sufficient to warrant a suit, but then he found out about the Oliver Stone connection through criminal court proceedings arising from the crime spree. Under a fluke in the Louisiana negligence law in effect at the time of the shooting, Stone could be liable for up to 50 percent of any damage awards Byers might win. Id. at 105.
For a fairly lengthy article, including pictures, on the Natural Born Killers negligence suit and the shootings that led to it, see Michael Shnayerson, op. cit.
9. Adam Sandler, op. cit.
10. John Gibeaut, "Deadly Insiration," 83 ABA Journal 62 (June 1997).
11. Kevin Simpson, "Contract murder: By the man or by the book?" The Denver Post, 2d Edition, Feb. 1, 1996, p. B1.
12. Rice v. Paladin Enterprises, 940 F. Supp. 836, 839 (S.D. Md. 1996).
13. Id. at 839, 841.
14. Id. at 149.
15. Clift v. Narragansett Television, No. 94-594-Appeal (R.I., Dec. 23, 1996); 1996 R.I. Lexis 297, Lexis pagination *1-*4.
16. 16. Id. at *4. She also asked him, among other questions, "Are you scared?" and "Are you sick?" Id.
17. Id. at *4-*5.
18. Id. at *5-*6.
19. Id. at *21.
20. Hyde v. City of Columbia, 637 S.W.2d 251, 253-55 (Mo. App. 1982), cert. denied, 459 U.S. 1226 (1983).
21. Id. at 255-56.
22. Id. at 254, 258.
23. Id. at 254.
24. Id. at 273.
25. Id. at 263.
26. Id.
27. 459 U.S. 1226 (1983). For commentary on the case, see Douglas O. Linder, "When Names Are Not News, They're Negligence: Media Liability for Personal Injuries Resulting from the Publication of Accurate Information," 52 U.M.K.C. L. Rev. 421 (1984).
28. Times Mirror Co. v. The Superior Court of San Diego County, 198 Cal. App. 3d 1420, 244 Cal. Rptr. 16 (1988).
29. Braun v. Soldier of Fortune Magazine, Inc., 968 F.2d 1110 (11th Cir. 1992), cert. denied, 113 S. Ct. 1028 (1993).
30. 968 F.2d at 1112.
31. Id.
32. Id. at 1113.
33. Id. at 1114-15, 1118-19.
34. On the positive side for advertisers, the court of appeals said:
[W]hile Defendants owe a duty of reasonable care to the public, the magazine publisher does not have a duty to investigate every ad it publishes. Defendants owe no duty to the Plaintiffs for publishing an ad if the ad's language on its face would not convey to the reader that it created an unreasonable risk that the advertiser was available to commit such violent crimes as murder.
Id. at 1119.
35. Id. at 1116.
36. The judge said: "You should view the facts and these instructions with particular care in this case, in view of the First Amendment to the Constitution, which protects the free flow of truthful and legitimate information even when it is of a commercial rather than a political nature." Id. at 1113.
37. The appellate court said, for instance: "This case poses a greater risk than one finds in ordinary commercial speech cases that a state's regulatory regime or tort law will impermissibly chill publishers from printing commercial speech that enjoys First Amendment protection." Id. at 1117.
38. The appellate court concluded that the negligence standard used by the trial court "satisfied the First Amendment's interests in protecting the commercial and core speech at issue in this case." Id. at 1118.
39. 767 F.2d 1288 (9th Cir.1985).
40. 170 Cal. App. 3d 468, 216 Cal. Rptr. 68 (1985).
41. 276 Cal. App. 2d 680; 81 Cal. Rptr. 519 (1969).
42. 874 S.W.2d 333 (Tex. App. 1994).
43. 856 S.W.2d 230 (Tex. App. 1993).
44.
45. Id. at 234.
46. Id. at 236 (citation omitted).
47. The passage continues:
...if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his [or her] product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
Restatement (Second) of Torts (1965), § 402A (quoted in 856 S.W.2d at 238).
Courts and scholars recognize the pervasiveness of this section of the Restatement (Second) of Torts. As professors Henderson and Twerski wrote:
Only rarely do provisions of the American Law Institute's Restatements of the Law rise to the dignity of holy writ. Even more rarely do individual comments to Restatement sections come to symbolize important, decisive developments that dominate judicial thinking. Nevertheless, section 402A of the Restatement (Second) of Torts is such a provision. Literally thousands upon thousands of products liability decisions in the past twenty-five years have explicitly referred to, and come to grips with, that section.
James A. Henderson, Jr., and Aaron D. Twerski, "A Proposed Revision of Section 402A of the Restatement (Second) of Torts," 77 Cornell L. Rev. 1512 (1992).
48. 856 S.W.2d at 238.
49. Winter v. G.P. Putnam's Sons, 938 F.2d 1033, 1034 (9th Cir. 1991) (quoted in 856 S.W.2d at 239). Winter involved plaintiffs who read The Encyclopedia of Mushrooms, gathered and ate poison mushrooms, and then sued. See infra notes 140-41 and accompanying text.
The court in Way also quoted Herceg v. Hustler Magazine: "The Court is aware of no court which has held that the content of a magazine or other publication is a product within the meaning of § 402A of the Second Restatement of Torts. Rather, they have held to the contrary." 565 F. Supp. 802, 803 (S.D. Tex. 1983) (quoted in 856 S.W.2d at 239).
50. 856 S.W.2d at 239.
For discussion of Way and related cases, see "Special Report: Products Liability Claims Against Publishers: Can Information Be a Defective Product?" BNA Product Liability Daily, Nov. 29, 1993.
51. 694 F. Supp. 1216 (D. Md. 1988).
52. 109 Misc. 2d 189, 439 N.Y.S.2d 821 (1981).
53. 130 Misc. 2d 25, 494 N.Y.S.2d 974 (1985).
54. 130 Misc. 2d 29-30, 494 N.Y.S.2d 978.
55. 195 Cal. App. 3d 1119, 241 Cal. Rptr. 101 (1987).
56. 129 N.J. Super. 207, 322 A.2d 824 (1974).
57. 833 P.2d 70 (Hawaii 1992).
58. 938 F.2d 1033 (9th Cir. 1991).
59. 342 So. 2d 1043 (Fla. Ct. App. 1977).
60. 655 F. Supp. 282 (E.D. Mich. 1987).
61. 134 Ill. App. 3d 716, 480 N.E.2d 1263 (1985) (cited in 655 F. Supp. at 283-84.)
62. 289 Ill. App. 59, 6 N.E.2d 526 (Ill. App. 1937).
63. 432 F. Supp. 990 (E.D.N.Y. 1977).
64. 137 Cal App. 3d 1002, 187 Ca. Rptr. 625 (1982).
65. 395 U.S. 444 (1969).
66. Id. at 444-45. The proscription of "unlawful methods of terrorism" of course raises the question of whether there are lawful methods of terrorism.
67. Id. at 447.
68. Watters v. TSR, Inc., 904 F.2d 378, 383 (6th Cir. 1990).
Whipping up an excited mob led to a conviction for "inciting to riot" in New York. Police were about to shut off the power to a band playing at the end of a four-day "Resist to Exist Concert" in Manhattan. The defendant told the crowd to "Resist," which they did, surging forward to the stage and injuring police. Clearly his speech "was calculated to incite and produce imminent lawless action," the Appellate Division of the Supreme Court of New York said. New York v. Tolia, 214 A.D.2d 57, 65, 631 N.Y.S.2d 632, 636-37 (1995).
69. For an interesting article that explores incitement cases decided through early 1987, see Juliet Lushbough Dee, "Media Accountability for Real-Life Violence: A Case of Negligence or Free Speech?" 37 Journal of Communications 106 (Spring 1987). In summarizing her article, Dee says, "A review of the U.S. court decisions on cases in which a child or young adult was the victim of violence that was said to have been induced by the media--from films to television to rock music--suggests that the courts have in general hesitated to hold media organizations accountable for inciting the violent acts of individuals."
See also David Crump, "Camouflaged Incitement: Freedom of Speech, Communicative Torts, and the Borderland of the Brandenburg Test, 29 Georgia Law Review 1 (Fall 1994); Ilene R. Penn, "Right or Privilege: Indecent, Inciteful and Hateful Speech," 1 CommLaw Conspectus 126.
70. 814 F.2d 1017 (5th Cir. 1987).
71. 386 Pa. Super. 392, 563 A.2d 123 (1989).
72. 904 F.2d 378 (6th Cir. 1991).
73. 480 F. Supp. 199 (S.D. Fla. 1979).
74. 446 A.2d 1036 (R.I. 1982).
75. 247 Ga. 402, 276 S.E.2d 580 (1981). For commentary on the DeFilippo and Walt Disney Production cases, see Steven J. Weingarten, "Note, Tort Liability for Nonlibellous Negligent Statements: First Amendment Consideration," 93 Yale L.J. 744 (1984).
76. 553 So. 2d 163 (Fla. 1989). The Eleventh Circuit Court of Appeals certified this question of law: "Whether the law of the State of Florida recognizes a duty owed by a television advertiser to its targeted audience of young viewers when that advertiser has broadcast, without adequate warnings, a commercial depicting a dangerous activity in a manner likely to induce a young viewer to imitate the activity." Id. at 164.
77. 126 Cal. App. 3d 488; 178 Cal. Rptr. 888 (Cal. App. 1981).
78. 763 F. Supp. 1144 (D.C. Ga. 1991), aff'd, 958 F.2d 1084 (11th Cir. 1992), aff'd, 113 S. Ct. 325 (1992).
79. 202 Cal. App. 3d 989, 249 Cal Rptr. 187 (1988).
80. Davidson v. Time-Warner, Inc., No. V-94-6, slip op. (S.D. Tex. Mar. 28, 1997). For extended discussion, see Davidson, "Blood Money . . .," op. cit, at pp. 287-291.
81. Hyde v. City of Columbia, 637 S.W.2d at 271.
This doctrine would surely apply in newsgathering situations, such as in Waco with the coverage of the Branch Davidians, as well as applying to a journalist's finished product. If anything, this doctrine should apply with even more force to alleged newsgathering wrongs because newsgathering does not receive the same degree of First Amendment protection as speech itself. See, e.g., Houchins v. KQED, 438 U.S. 1 (1978); Saxbe v. Washington Post Co., 417 U.S. 843 (1974); Pell v. Procunier, 417 U.S. 817 (1974); Branzburg v. Hayes, 408 U.S. 665 (1972).