scream-ing for a solution regulating hollywood violence an analysis of legal and legislative remedies
jonathan seiden
i overview
this comment analyzes violent images depicted in film and their
effects on children it looks at how the government entertainment
industry and public have responded to the growing concern about
hollywood violence and examines the legal arguments legislative
proposals and self-regulation strategies that have been suggested in
the aftermath of the columbine massacre in littleton colorado although there is heightened concern about the proliferation of
violent forms of entertainment there is no consensus among the
public government and hollywood on what specific remedial actions
to take the first amendment makes it difficult to draft a law that
would place meaningful restrictions on violent entertainment how-
ever many politicians feel that even if they cannot successfully legis-
late they can pressure the entertainment industry to monitor itself this comment concludes that the main objective of any regulation
should be to protect an artist's freedom of speech while at the same
time monitoring to whom the speech is targeted section ii of this comment looks at recent criticisms directed to-
ward the entertainment industry for the increase of gratuitous vio-
lence in films and at the argument that this increase has resulted in
real-world violence section iii overviews social-scientific data that
reveals how children are often susceptible to violent images in films
and are more prone to violence after viewing violent material sec-
tion iv analyzes mimicry cases traditionally courts deny plaintiffs
relief when they sue members of the entertainment industry for neg-
ligence recently however state courts have awarded plaintiffs relief
against members of the entertainment industry under certain cir-
cumstances section iv argues that tort liability is an inappropriate
response to violent entertainment because it violates first amend-
ment principles finally section v examines the film industry's mar-
keting practices possible legislative and self-regulation strategies that
could serve to monitor the marketing of violent entertainment to
children and the first amendment issues surrounding these at-
tempts overall the comment argues that the entertainment industry
1010
regulating hollywood 170levce
must scrutinize its own product and work with the government to
prevent hollywood from marketing its violent wares to children ii the problem
in the aftermath of the school shootings at columbine high
school in littleton colorado hollywood has come under igorous
attack and criticism for violent images depicted in movies and televi-
sion -
sift through teen movies of the past ten years and you could cre-
ate a hindsight game plan for littleton peruse heathers 1989 in
which a charming sociopath engineers the death of jocks and prin-
cesses study carefully as one of the columbine murderers report-
edly did natural born killers 1994 in which two crazy kids cut a car-
nage swath through the southwest as the media ferociously dog their
trail sample the basketball diaries 1995 in which druggy high
schooler leonardo dicaprio daydreams of strutting into his home-
room in a long black coat and gunning down his hated teacher and
half the kids 2
while movies might not have the power to incite imminent lawless
action ' m ost people would agree that ' t he entertainment media
play a powerful role in the formation of values ' especially the values
of very young children 4
films engage and entertain audiences through compelling stories but they also teach children about their surrounding culture both in
positive and negative ways 5 in the last few years the entertainment see eg richard corliss bang you're drad time may 3 1999 at 49 49 noting that after
the school shootings in litleton many americans wanted to place the blane on popular ct-
ture and the entertainment industry andrew essex 1i 717e line of fire in littltton's wal ho -
lytwood suffers aftershoks--and criticism ent wkly may 7 1999 at 8 8 'as attention turns
toward who's responsible the entertainment industry-in a mixture of genuine concern and
craven self-interest--is making an unprecedented effort to look accountable ' john leland &
corie brown a lower body count newsweek aug 23 1999 at 46 discussing generally how
littleton has framed the public and the entertainment industry's reactions toard violence in
the media benjamin svetkey d c to la 'drop dad f r wlk' jjune 4 1999 at 45 45 'in
the aftermath of the littleton massacre our nation's capital and its entertainment capital-
once more-than friendly bedfellows--are locked in mortal combat over the future ofiolence in
tv and film can't these two superpowersjust get along 2 corliss supra note 1 at 49 3 see brandenburg v ohio 395 u s 444 447 1969 under the brandeburg standard speech directed to inciting or producing imminent lawless action and likely to incite or
produce such action does not enjoy first amendment protection 4 laura b schneider comment llhming television 1ialente ma be harmnful to children but
the first amendment may foil congresional attempts to leglate against it 49 u mwv tt l re' 477 479 1994 quoting anastasia toufexis our violent kids a rise in brutal cnrs b the young
shakes the soul ofsocie tmte june 12 1989 at 52 5 a comedic take on the influence of movies occurs in the film south pah btxr longr and uncut in this movie the town's parents blame a canadian film for their children's vulgar
attitude-specifically their increased use of curse words somehow this turns into a ar be-
tween the united states and canada see ed tahaney omigod thtq ftl d kinny n y daily
may 2001 journal of constitutional law
industry has been marred by a few tragic incidents when children
modeled negligent behavior depicted in films 6 for example in oc-
tober 1993 two teenagers imitating a bizarre male bonding scene from the disney football movie the program laid down in the middle
of a highway and were struck by a pickup truck unlike the movie where the football heroes survive the dangerous stunt one boy was
instantly killed and the other was critically injured 8 disney subse-
quently excised the scene from the film in response to its critics many films have also been criticized for influencing copycat murders '0 and in the last few years a proliferation of law suits has
been filed against various members of hollywood for example in
march 1995 sarah edmondson an oklahoma teen and her boy-
friend benjamin darras both eighteen years-old went on a cross-
state crime spree paralyzing one person and murdering another be-
fore embarking on their rampage edmondson and darras had re-
peatedly watched oliver stone's natural born killers a film about a
couple who find fame on a brutally depicted murder spree in 1998 the shooting victim's family filed suit against time warner enter-
tainment company and oliver stone alleging that edmondson and
darras went upon a crime spree culminating in the shooting and
permanent injury to patsy ann byers as a result of seeing and becom-
ing inspired by the movie natural born killers produced directed and
distributed by the hollywood defendants '
2
similarly in 1997 fourteen-year-old michael carneal shot three
classmates and wounded five others after a daily voluntary student
prayer session in a high school in west paducah kentucky the
news online edition at http vwww mostnewyork com 1999-06-29 new_yorknow movies a-33302 asp june 29 1999 6 see mike quinlan &jim persels it's not my fault the devil made me do it attempting to in-
pose tort liability on publishers producers and artists for injuries allegedly inspired by media speech 18 s ill u l j 417 419 1994 see id at419 id an immediate public outcry went up blaming the producers of the movie for reckless
irresponsibility for including the scene without also showing possible consequences of such an
act id 9 id but see michael decourcy hinds not like the aovie a dare leads to death n y tmi es oct 19 1993 at al noting that touchstone pictures defended the scene and argued that the
film clearly depicts this adolescent action as an irresponsible and dangerous stunt by a trou-
bled and heavily intoxicated individual and in no way advocates or encourages this type of be-
havior 10 copycat murders or mimicry occurs when young people are inspired to commit vio-
lent acts by what they see on the large screen see deborah prothrow-stith m d deadly
consequences 42 1991 we are a suggestible species we learn how to behave from each
other when we see one of our species act their act becomes a model for us to emulate in this
way we sometimes make the unthinkable thinkable the undoable doable seejosh young devil's advocate ent wkly aug 6 1999 at 26 30 edmondson told po-
lice it was as if darras was fantasizing from the movie alteration in original byers v edmondson 712 so 2d 681 684 la ct app 1998 quoting plaintiffs
amended petition for damages is seejames v meow media inc 90 f supp 2d 798 800 w d ky 2000 vol 3 3
regulating hollywood 170lf' &ce
families of the three victims filed suit alleging that carneal -as un-
duly influenced by the film the basketball diaries in a fantasy se-
quence from the film a character played by leonardo dicaprio
barges into a classroom in a long black cloak and riddles his teacher
and classmates with bullets ' an adolescent psychiatrist concluded
that cameal was profoundly influenced by violent pornographic
media including the basketball diaries and that the media's depic-
tion of violence as a means of resolving conflict and a national cul-
ture which tends to glorify violence further condone d his think-
ing 15
another tragic incident occurred in england when two eleven-
year-old boys murdered two-year-old james bulger in a w -ay that mim-
icked specific scenes from the film child's play 3 the children rented
the film at a local video store '6
because of the media attention that these incidents have received it is not surprising that concern about mimicry has increased in the
last few years 1 the entertainment industry has been accused of
marketing violent movies such as scream and natural born killers to
young audiences and also glorifying the violence depicted in movie
trailers and advertisements 8 defenders of hollyvood however are
quick to dismiss these copycat incidents as rare anomalies ' and ar-
gue that since millions of people watch violent films and television
and do not go out and murder neighbors feigned violence has no
causal relation to actual violence 2 although hollywood has braved the criticism of its product in the
14 seenickjohnson violence in sdc-l movies about at lup scifinosics aboulcon mosies scifimovies library weekly aa0 1600a hun last visited apr 10 2001 - james 90 f supp 2d at 800 quoting plaintiff's complaint see david b kopel massaging te aedium anaeing and responding to midta 1'7iotae 117th-
out harmingthernstamendment 4 kan j l & pub pol'y 17 17 n 3 1995 in the film chucky a baby doll comes alive and its face is splashed with blue paint minicking tile movie the two
boys put blue paint on james bulger's face the film also includes a kidnapping and bulger
was abducted before being killed the climax of the film shows two boys mtitilating and killing
the doll on a train similarly james bulger was mutilated bludgeoned and left on a railroad
track to be run over id see also the widev thal caused the alurder n y gut dltn dec 1993 at
3 1 laura brill the first amendment and the power of sugation protatmig wigegnt spealrrs in
cases of imitative harm 94 colum l rev 984 989-90 1994 citing leonard m marks & rob-
ert p mulvey spur to crime suits over violent al proliferate nat'l lj mar 2 1992 at 25 18 se eg gregg easterbrook wlnic and learn newv repltbul may 17 1999 at 22 24 not-
ing that the theater sections of newspapers contain an ever-higher percentage of mnovie ads in
which the stars are prominently holding guns iq but see prothrow-stih supra note 10 at 42 -researchers have established that copy-cat
events are not an anomaly statistically-speaking they are rare but predictable occurrences 2 easterbrook supra note 18 at 24 easterbrook notes that novelist martin ainis dismissed
hollywood's responsibility for the child's play 3 incident in the new t-r 1agasne anis
wrote that he had rented and watched child's play 3 and that it had not made him want to kill
anyone easterbrook criticizes amis' narrow observation but anis isn't homicidal or unbal-
anced for those on the psychological borderline dse calculus is different it 1013may 2001 journal of constitutional la w
past 2 1 the image of all those teenage corpses in colorado has given
the issue a heightened sense of seriousness and urgency ' accord-
ing to a newsweek poll conducted shortly after the massacre in
littleton seventy-eight percent of people polled said that violence in
the media deserved some or a lot of the blame for the school shoot-
ings 2 further eighty percent of adults believe that there is a con-
nection between violence in entertainment and violent conduct in
the wake of littleton the question most americans are now asking is not whether a romanticized and sanitized vision of violence the en-
tertainment media presents to our kids is in fact harmful but what we
as a national family are going to do about it 25
in response to the public's outcry many political figures have also
spoken out against the glorification of violence in hollywood t he
entertainment industry must do its part there is still too much vio-
lence on our nation's screens large and small declared president
clinton in his may 15 1999 radio address 26 it here are still too
many vulnerable children who are steeped in this culture of violence becoming increasingly desensitized to it and to its consequences 7
in fact as a direct result of the littleton tragedy president clinton
asked the federal trade commission to study the marketing prac-
tices of the major media conglomerates to determine the extent to
which they target the sales of ultra-violent products to children 28
violent images in film also became a major topic of the presiden-
tial election during the 2000 presidential campaign both george
w bush and al gore berated the entertainment industry and called
on hollywood to take responsibility for the violent imagery depicted
in film similarly senators john mccain and joseph lieberman
joined together and introduced legislation to create a national com-
mission to examine the factors including films video games and
music that are suspected of contributing to the youth violence cri-
ses s2 according to the senators the entertainment industry has
failed to respond to the growing chorus of concerns about the harm-
21 see senatorjoseph lieberman the dance of denials new democrat july 1999 at 15 15 explaining hollywood's denial of responsibility in the face of criticism hollywood's stan-
dards plummet advocacy groups and political leaders alternately express outrage or appeal for
restraint industry leaders claim there is no evidence that their products have negative effects more violent and prurient products get sold and little changes except for the profit margins 22 id noting that littleton has momentarily halted this fruitless dance 23 leland & brown supra note 1 at 46 this was a higher percentage of people than blamed
the increased availability of guns-seventy percent id 24 david e rosenbaum studios to curb marketing of r-rated iins to youth n y times sept 27 2000 at a21 25 lieberman supra note 21 at 15 26 president william clinton radio address may 15 1999 27 id 28 fed trade comm'n marketing violent entertainment to children a review of
self-regulation and industry practices in the motion picture music recording &
electronic game industries i 2000 hereinafter iftc report 2 lieberman supra note 21 at 16 vol 3 3
regulating hollywood violvce
ful influence of the entertainment media's romanticized and sani-
tized vision of violence about its part in the toxic mix that is turning
too many of our kids into killers -o further mccain stated that the
various entertainment industries should declare a cease-fire in the
marketing of ultra-violent products to children ' in response to the
school shootings congress has initiated a slew of post-littleton pro-
posals aimed at toning down violence in movies 3
because of the harsh criticism directed toward hollyvood many
industry leaders are gradually accepting a greater sense of responsi-
bility33 and are now scrutinizing their own product closer than they
had done before ' we who create entertainment must honestly ac-
knowledge and urgently address the responsibility we all have to
eliminate excessive or gratuitous or unpunished violence one vet-
eran screenwriter said at a conference entitled guns don't kill people
writers do 5 at the conference a playwright added we in hollywood
are dr frankenstein we have created a monster i'm not saying
it's all our fault but in the equation of lethal violence in schools i
say we are a factor ss one of the main concerns is the amount of
needless violence in movies as one industry leader suggested i'm
against gratuitous violence the violence where there is no remorse violence that is made to look like fun filmed in slow-motion lighted
beautifully and adorned with glib lines and uncaring heroes 7 in re-
sponse to the concern over gratuitous violence disney decided to
tone down and sanitiz e the violence in at least one of its own
movies 4
so senators john mccain & joseph lieberman the no-shiw summit n y ti tes may 12 1999 at a25 31 id see svetkey supra note 1 at 45 these proposals have included legislation making it illegal
to film violent images on public property as well as making it a federal crime to sell a ticket for
an r-rated film to a minor i&
33 leland & brown supra note 1 at 46 the head of one studio stated that the colorado
shootings made him more sensitive to an emerging responsibility 'not that i believe violent
entertainment causes street violence but there is a validity to the idea that it is a contributing
factor along with guns id alteration in original essex supra note 1 at 8 sony noting the newfound sensitivity after the litteton shoot-
ings and the recent lawsuits against time warner over copycat murders decided to postpone
alington road a film about a conspiracy theorist who blows up buildings id similarly mgm
home entertainment announced that it would temporarily recall tapes of the bawhxeball dianes perhaps the first politically motivated video recall in modem times id claudia puig hol xood examines its soul ivoricd about censorship usa tod a june 7 1999 at di quoting sy gomberg id quoting william mastrosimone id at the conference the writers discussed the pumped-up volume- of iolence screenuriter steven desouza die hard die hard 2 stated every picture i ha e done has come
out more violent than what i wrote i have sat at the screening of one of mn moies and
been stunned at the level of mayhem that somebody put on the screen id 8 leland & brown supra note 1 at 46 quoting director wes craven discussing the re-
worked scream 3 but see gregg easterbrook supra note 18 at 23 claiming that disnycy is actu-
ally one of the leading promoters of violent images in american culture may 2001 journal of constrifional law
but other industry leaders and critics are adamant against blam-
ing youth violence on hollywood and popular culture 39 sumner
redstone chairman of viacom international inc expressed this
view at a conference of cable-tv professionals 'i'm outraged by a
lot of what we hear blaming the media for what's going on ' he ar-
gued 'i don't think we have anything to be ashamed of 0 wes cra-
ven the director of the scream trilogy denied that his movies could
influence children to recreate actual real-world violence indeed
many producers and directors argue that movies do not urge viewers
to commit violent behavior but only reflect the violence already in so-
ciety as critic kristen baldwin stated w hile graphic images can affect us-desensitize us even-they do not cannot create dangerous urges in people who don't already have those
urges inside them a well-adjusted kid who watches natural born killers
over and over is not suddenly going to feel the need to commit a
murderous act movies simply don't have that much power 12
other artists are concerned about the threat of censorship lurking
behind the public outcry over violent entertainment many screen-
writers and directors argue that any legislation or industry self-
regulation would tread on an artist's right to free speech t here is
always a real danger in the government trying to make artistic deci-
sions which could lead to censorship said a veteran screenwriter i wouldn't know how to respond to a code or a consensus as to
what's responsible and what isn't acceptable that is only for me to
answer in my mind claimed one director in addition some critics
argue that politicians unfairly focus on violent entertainment to grab
headlines instead of focusing on more serious issues ' one critic
charged that politicians stake out the moral high ground confident
that the first amendment will protect them from having to actually
write legislation that would be likely to alienate the entertainment
industry some use the issue as a smokescreen to avoid having to
39 see carl m cannon honey i warped the kids motherjones july-aug 1993 at 17 assess-
ing the standard hollywood argument that the media does not cause violence but merely re-
flects it 40 leland & brown supra note 1 at 46 41 director films don't inspire violence the columbian vancouver wa nov 2 1999 at a5 revealing that according to craven the producers of scream 3 had considered making the film
without any blood partly due to criticism of violent films in the wake of school shootings across
the country 42 kristen baldwin there's no iv7 ent wkly may 7 1999 at 9 9 see also benj watten-
berg is america's pop culture getting a bad rap insight on the news dec 18 1995 at 18 18 i do not like much violence in drama but market tests show lots of americans do shake-
speare understood the popular lust for blood and so did sophocles in whose plays characters
tear each other's eyes out on stage 43 rick lyman the 2000 campaign the entertainment issue n y times sept 18 2000 at
a17 quoting budd schulberg 44 puig supra note 35 quoting brian helgeland director of payback 45 lyman supra note 43 noting an industry executive's remark that politicians attack the
easy issue because the hard issue doesn't make for such big headlines for them 1016 vol 3 3
regulating hollywood l7olvc1e
confront gun control 46 lastly the motion picture association of
america also disputes the claimed impact of violent entertainment on
real-world violence pointing to a recent drop in the crime rate '
i1 the impact of violence in entertainment medla the violence to which american children are exposed in the
name of entertainment is affecting their values and behavior ac-
cording to the american medical association the american academy
of pediatrics the american psychological association and the
american academy of child and adolescent psychiatry ' there have
been over 3 000 studies assessing the effects of violent entertain-
ment 9 and a majority of the investigations into the impact of media
violence on children find that there is a high correlation between ex-
posure to media violence and aggressive and at times violent behav-
ior 5 researchers have also concluded that a child's exposure to vio-
lent entertainment leads to an exaggerated perception of the amount
of actual violence in society 5' the studies however are less conclu-
sive regarding causation most researchers and investigators agree
that exposure to media violence alone does not cause a child to
commit a violent act and that it is not the sole or even necessarily
the most important factor contributing to youth aggression anti-
social attitudes and violence 2
although all television and film viewers are inundated ith daily
doses of violent media experts say that children are the most likely to
richard rhodes hollow claims about fantas y liolew n y times sept 17 2000 at a19 see christopher stem ftc finds hollu'ood aims violence at kids was1 post sept 11 2000 at al quoting jack valenti president of the motion picture association of aunerica as
stating if movies are causing moral decay then crime ought to be going up but crime is going
down 4 jeanie davis should parents iom about iokwee in movies musw gamnes lycos health at
http webmd lycos com content article 1728 6 1 2 3 6 sept 12 2000 9 cannon supra note 39 at 18 according to university of klsas professor adetha c hus-
ton chairwoman of the american psychological association's task force on television and so-
ciety there is more published research on this topic than on almost any other social issue of
our time ilftc report supra note 28 app a at 1 2000 citing l rowell huesmnn ct al the
effects of media irolence on the development of antisocial behavior in handbook of rtsso j l
behavior 181 david stoff et al eds 1997 noting however that although the research on
this topic is extensive the majority of studies focus on the effects of television similarls fe
principal commissions and review boards have looked at the range of studies regarding media
violence and a ll five reviews note the existence of a significant empirical association between
exposure to television violence and aggressive behavior among youthful vieers - id at 8-9 ci-
tation omitted see also davis supra note 48 emphasizing that of the thousands of studies as-
sessing a link between violent behavior and violent entertainment all but 18 haw shown an
association between exposure to media violence and violent behavior twvehe of the 18 were
funded by the entertainment industry 51 see ftc report supra note 28 app a at i citing sisel bok nlmyiie w vioxll'we s
pubuc entertainment 61-81 1998 52 id citing huesmann et al supra note 50 at 183 may 2001 journal of constitiional law
be influenced by it 53 huesmann and eron identified three psycho-
logical processes through which exposure to violent entertainment
could lead a child to behave aggressively observational learning atti-
tude change and scripts 5 4 a discussion of each follows a observational learning
observational learning occurs when children act aggressively
while imitating violent actions depicted in films and television pro-
grams children learn to behave aggressively by watching others use
violence to their advantage and then imitate what they have seen this process is called modeling 5 and the child's play and natural
born killers copycat murders are two real-world examples of observa-
tional learning a majority of experimental investigations under-
taken in the laboratory report that exposure to violent programming
leads children to act more aggressively 6 for example one study in-
dicated that children who watched films of adults hitting inflatable
bobo dolls acted more aggressively toward the bobo dolls and their
playmates than did children who did not see the film 7
social scientists have also concluded that watching violent movies
and television increases a child's appetite to expose himself to the
see diane brady the power of 'cowabunga does tv violence influence behavior maclean's dec 7 1992 at 50 noting that the most susceptible viewers are young people who were raised
in families where there was frequent physical violence prothrow-stith supra note 10 at 34 the mass media lie about the physical and the emotional realities of violence on film or
videotape violence begins and ends in a moment 'bang bang you're dead ' then the death is
over this sense of action-without-consequences replicates and reinforces the dangerous 'magi-
cal' way many children think ftc report supra note 28 app a at 2 citing l rowell huesmann & leonard d eron the development of aggression in children of different cultures psychological processes and exposure to
violence in television and the aggressive child 1 14-16 l rowell huesmann & leonard d eron eds 1986 11 prothrow-stith supra note 10 at 44 56 ftc report supra note 28 app a at 4 citing huesmann et al supra note 50 at 184 haejung paik & george comstock the effects of television violence on antisocial behavior a meta-
analysis 21 comm res 516 518-19 536-38 1994 russell g geen television and aggression recent developments in research and theory in media children and the family 151 152 dolf
zillmann et al eds 1994 57 see ftc report supra note 28 app a at 4 citing barrie gunter the question of media
violence in media effecrs advances in theoryand research 170-71 jennings bryant & dolf
zillmann eds 1994 note however that there are many criticisms of experimental studies
monitoring aggressive behavior at issue is the applicability of these results to more realis-
tic settings id moreover the experimental setting for teenagers and young adults departs
from the everyday in the perceptions of the subjects in the brevity of the television exposure in
the absence of the possibility of retaliation for aggression in the exclusion of competing and
countervailing communications and in the criterion of immediacy of the measure of effects id citing haejung paik & george comstock television and the american child 241 1991 others argue that youthful subjects will respond to what the researcher wants them to
do seejonathan l freedman viewing television violence does not make people more aggressive 22
hofstra l rev 833 841 1994 providing a detailed critique of the notion that research
shows violent television causes aggressive behavior 1018 vol 3 3
regulating hollyvood 17olence
risk of violence this is known as the self-socialization effect imi-
tative violence is the most frequent actualization of this effect b attitude change
the more violent films and television programs a child w -atches the more accepting the child becomes of aggressive behavior many
social scientists argue that violent films and television programs de-
sensitize viewers and create mean world syndrome in which the im-
age of a dangerous and violent world is cultivated among young view-
ers as one doctor explained v iolence in media is perpetrated
by heroes as an acceptable means of conflict resolution it's our
clint eastwoods and arnold schwarzeneggers not the bad guys who
are wasting people so what's happening is children are being ex-
posed to violent behavior as an acceptable means of conflict resolu-
tion 6
longitudinal studies which track and survey sample subjects at
different points in their life time are used to measure and investigate
the relation between early exposure to violent entertainment and
subsequent aggressive tendencies lefkowitz eron and huesmann
conducted one of the most extensive longitudinal studies measuring
attitudinal change for twenty-two years they closely scrutinized the
viewing habits of a selected group of children in upstate new york the researchers reported that children with a preference for violent
programs at age eight were more likely to exhibit aggressive behavior
at age 19 also preference for violent television viewing at age eight
was a predictor of serious crimes engaged in by subjects when they
were 30 years old 6'
another study conducted by donnerstein and linz analyzed the
effects that horror movies and slasher films had on young men male students were divided up into four groups one group w'atched
no movies a second group watched nonviolent x-rated movies a
third group watched teenage sexual innuendo movies and a fourth
group watched the films texas chainsaw massacre friday the 13' part ii see edward donnerstein et al the mass media and youth aggresion in 2 co- 'n on
violence & youth amemcan psychol as'n violence and yorn pyciiolog's
response 17 1994 ' ftc report supra note 28 app a at 6 citing george gerbner ct al grozenig up with
television the cultivation perspective in media ffecrs advnnces ln theor a' d reslarii supra note 57 at 30 davis supra note 48 quoting michael rich m d m p h professor of pediatrics at har-
vard medical school 61 ftc report supra note 28 app a at 5 but see rhodes supra note 46 ' the correla-
tion between a preference for violent television at age eight and aggressiveness at age eight-
een only turned up in one of three measures of aggression tie assessment of students by the
peers it didn't show up in students' reports about themselves or in psychological testing see edward donnerstein & daniel linz mass maldia sexual 17vo tee and mate itruv cur-
rent theory and research 29 am beha ' scientist 601 1986 may 2001 journal of constitutional law
maniac and toolbox murders the young men were then placed on a
mock jury panel and asked a series of question designed to measure
their empathy for an alleged female rape victim the fourth group
measured lowest in empathy for the specific victim in the experiment
and for rape victims in general based on those results donnerstein
and linz concluded that depictions of violence and not sex desensi-
tized people 63
c scripts
social behavior is controlled to a great extent by strategies or scripts that people store in memory and use as behavioral guides
when they confront particular situations the notel study analyzed
how children's scripts were impacted by the exposure to violent me-
dia when television was first introduced into their community in
1973 notel a town in western canada was wired for the first time to
receive television signals for the next two years researchers from
the university of british columbia observed first and second grade
students in notel and compared them to children in two nearby
communities that previously had access to television they measured
aggression by observing children's interactions in the schoolyard as
well as through teacher and peer ratings according to the research-
ers rates of physical aggression and violence increased by 160 in
notel but did not change significantly among children in the nearby
communities 65 the researchers concluded that viewing televised vio-
lence elevated the level of aggression in the children from notel among some researchers t he canadian investigation is consid-
ered the best controlled study of its type and provides some of the
most persuasive evidence in support of the hypothesis that violent
media content stimulates aggressive behavior in children 6
despite these assertions however some experts contend that the
link between violent media and actual violence is unproven and over-
stated 67 first they point out that no direct causal link between ex-
posure to mock violence in the media and subsequent violent behav-
ior has ever been demonstrated ' second they argue that the
research studies that have influenced national policy and public opin-
ion are riddled with contradictions as well as with methodological
6 see id at 609-10 64 see brandon s centenrall television and violence the scale of the problem and where to go
from here 267jama 3059 3060 1992 researchers withheld the tre identity of the town call-
ing it instead notel 66 id ftc report supra note 28 app a at 7 adding however that other results from the
study indicate a more equivocal causal link between media violence and aggressive behavior see e g brady supra note 53 at 50 discussing the view that the causal link between media
violence and real-world aggression is not clear-cut rhodes supra note 46 emphasis added 1020 vol 3 3
regulating hollywood vioilvce
and data problems that should preclude the finding of any correla-
don between media violence and actual violence '
despite the criticism there appears to be general agreement
among social scientists that the impact of media violence explains at
least a small portion of the total variation in aggressive behavior by
youths 7 as huesmann points out 'what is important for the
investigation of the role of media violence is that no one should ex-
pect the learning of aggression from exposure to media violence to
explain more than a small percentage of the individual variation in
aggressive behavior ' 7'
in 1992 the american psychological association commission on
youth and violence examined hollywood's response to this volumi-
nous research 7- the researchers reported that hollywood executives screenwriters producers and directors wvidely ignored the evidence
of the effects of film and television violence on children the com-
mission argued this evidence has for decades been actively ignored denied attacked and even misrepresented in presentations to the
american public 75 consequently the commission concluded that
in america there is an education gap about the dangers of violent
media because of the tendency to ignore television and film's docu-
mented contribution to the problems of violence ' overall the
commission determined that the industry is ignoring verifiable evi-
dence that violent images depicted on screen can affect behavioral
patterns of young children iv first amendment mimicry and
the braadenbutrg standard
as concern over hollywood violence intensifies some members of
the public have brought the battle into the courtroom seeking judi-
cial remedies against individual members of the entertainment indus-
try 75 courts traditionally barred these tort claims and protected art-
9 see id see ftc report supra note 28 app a at 9 71 d2 quoting huesmann et al supra note 50 at 183 see david s barry screen violence and anmrica's childrea1 spectrum j of si rt gov'i summer 1993 at 37 39 discussing the apa study that as conducted by edaird donnerstein leonard eron and ron slaby id at 42 quoting the apa study see also prothro-srtt 1 supra note 10 at 40 'tele-vi
sion executives have used all their energy and resources to prove that teieison-iuewing does
not teach children to behave violently 74 barry supra note 72 at 42 75 plaintitf mostly allege negligence and other tort claims if the first unendinent did not
traditionally bar these negligence claims states would pernit recoeri to victims iho could
prove that the defendant owed a duty to the public or to the specific pluntiff the dcfendust
breached the duty by disseminating a form of entertainment that would cause u s iful audi-
ence response the depiction actually caused such a response and the response resulted in fore-
seeable harm to the plaintiffs sce brill supra note 17 at 986 may 2001 journal of constffutional law
ists' speech under the first amendment in recent years however the number of mimicry cases to reach the courts has grown consid-
erably 77 and judges have not been as quick to dismiss the civil ac-
tions 7 the question remains however whether lawsuits against the
entertainment industry best serve the public interest of protecting
children from excessive hollywood violence this comment argues
that allowing mimicry cases to proceed to trial creates a legal di-
lemma because an artist's freedom of speech will be jeopardized if
plaintiffs are able to recover generous damages against the enter-
tainment industry 79
a the brandenburg standard
most courts deciding first amendment issues in mimicry cases
apply the rigid incitement standard of brandenburg v ohio and bar
76 u s const amend i congress shall make no law abridging the freedom of speech or of the press the free speech clause is incorporated against the states through the due
process clause of the fourteenth amendment see de jonge v oregon 299 u s 353 364 1937 77 in recent years there have been lawsuits over the films natural born killers and the basket-
baldiaries see e g byers v edmondson 712 so 2d 681 la ct app 1998 the natural born
killers case james v meow media inc 90 f supp 2d 798 w d ky 2000 further in rice v paladin enters inc 128 f 3d 233 4th cir 1997 cert denied 523 u s 1074 1998 thie hit
man case the relatives of murdered victims sued the publisher of an instruction book hit
man a technical manual for independent contractors which allegedly assisted the murderer in
soliciting preparing and committing the murders 78 in the last few years courts have refused to block civil actions brought by the victims'
families in the hit man case the court of appeals for the fourth circuit held that paladin en-
terprises was not protected by the first amendment in its publication of the hit man after the
book allegedly assisted a reader in soliciting preparing and committing three murders see
rice 128 f 3d at 267 the district court's ruling in favor of the publisher was reversed and the
case was remanded for trial see id the trial however never occurred because the parties set-
tied similarly in the natural born killers case the louisiana first circuit court of appeals re-
fused to dismiss the lawsuit against oliver stone see byers 712 so 2d at 684 the court held
that based on the allegations of the petition which we must accept as true for purposes of a
peremptory exception raising the objection of no cause of action the warner defendants are
liable as a result of their misfeasance in that they produced and released a film containing vio-
lent imagery which was intended to cause its viewers to imitate the violent imagery id at 687 further the court held that discovery should take place to determine whether this intent ex-
isted see id at 691 in another case that received heightened media attention a michigan
court found that warner brothers as owners producers and distributors of the jenny jones show negligently caused the death of scott amedure the program invited jonathan schmitz to the
program so scott amedure could reveal his secret crush on him schmitz fatally shot
amedure four days after the program was taped warner brothers had to pay the family mem-
bers of amedure twenty-five million dollars see jury awards $25 million in yenny jones' lawsuit chi tmib may 7 1999 at 1 see also carolina a fornos comment inspiring the audience to kill should the enter-
tainment industry be held liable for intentional acts of violence committed by viewers lis-
teners or readers 46 loy l rev 441 441 2000 society as a whole and the legal system in
particular faces a crisis should a plaintiff be permitted to state a valid cause of action against
the various entertainment industries for inspiring viewers readers or listeners to commit inten-
tional acts of violence despite the right to freedom of speech 80 395 u s 444 1969 vol 3 3
regulating hollywood 17oleyce
recovery in brandenburg the defendant was convicted under an
ohio criminal statute for leading an organizer's meeting for the
klu klux klan ' at this meeting the defendant made derogatory
statements toward african-americans and jews and also claimed that
revenge might be taken if whites continued to be treated unfirly the supreme court reversed the conviction finding the ohio statute
that brandenburg was convicted under unconstitutional because it
outlawed mere advocacy of violence without regard to whether the
speech was likely to incite imminent lawless action in brandenburg the supreme court created the modern test for
the protection of speech with a tendency to lead to violence un-
der the brandenburg test speech is unlawful when advocacy is directed
to inciting or producing imminent lawless action and is likely to in-
cite or produce such action the brandenburg test significantly increased protection under the
first amendment no longer could draft resisters union activists or
political dissidents be convicted because their rhetoric criticized the
government and called people together most importantly unlike
the clear and present danger test the brandenburg test did not
solely depend upon the danger of the environment s1 id at 446 the persons in attendance were members of the kkk who carried firearms
and burned a large wooden cross see id at 445 see it at 446 noting that defendant had said wle're not a revengent sic organizatlon but if our president our congress our supreme court continues sic to suppress the white caucasian race it's possible that there might have to be some revengeance sic taken 93 see id at 448 this particular formulation of brandenburgtype speech was first used in hesm r indiana 414 u s 105 109 1973 see david crump carnoujlaged indnnnt fmlomn of sp -t'h commum-
cative torts and the borderland of the brandenburg tes4 29 ga l rev 1 4 1994 crump notes
that before brandenburg the supreme court had looked primarily to the gravity and probability
of this kind of danger in cases involving draft resisters labor activists and suspected conunu-
nists but in the brandenburgopinion it also focused upon the quality and context of the utter-
ance see id see brandenburg 395 u s at 447 holding that the 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 action and is likely to incite or produce such action 86 see crump supra note 84 at 12-13 87 early efforts to treat the problem of speech inciting violence were based upon the 'clear
and present danger test outlined in sdendi v united stales 249 u s 47 1919 in that case the defendant was charged with violating the espionage act by causing insubordination in the
military and obstructing recruiting see id at 48-49 the defendant had circulated a handbill criticizing politicians and the press and urging citizens to exercise 'our right to assert our op-
position to the draft id at 51 thejury convicted schenck and the supreme court upheld
the conviction justice holmes wrote the opinion and argued that itihe question in rwry case
is whether the words used are used in such circumstances and are of such a nature as to create a
clear and present danger that they will bring about the substantive evils that congress hs a
right to prevent t at 52 the overall effect of the clear and present danger test -as that it
denied protection to outrageously harmful utterances with little communicatihe va lue 88 crump supra note 84 at 13 a speaker can be held responsible for his own utterances but not for the countless possibilities that violence may ensue when the words are interpreted
by unknown persons at an indefinite time in the future may 2001 journal of cons trtutional la w
thus under the brandenburg standard the only way courts can
hold individual members of the entertainment industry negligent for
inspiring a real-world activity would be if such a film urged or incited
the viewer to imitate the activity while scenes from the basketball
diaries and natural born killers depict violent acts that in fact have
been imitated by children and teenagers none of them in any way exhort urge entreat solicit or overtly advocate or encourage un-
lawful or violent activity on the part of viewers 89 therefore the
brandenburg standard should bar defendants' liability in mimicry
90
cases b mimicry cases applying brandenburg
one example of a mimicry case rejected under the brandenburg
standard is olivia n v nbc 9 in which the california appellate court
denied recovery for a nine-year-old rape victim assaulted with a bottle
by teenagers imitating a scene from the film born innocent9 in her
complaint against nbc the plaintiff alleged that the movie was the
proximate cause of her attack however when the plaintiffs counsel
stated in his opening statement that he would only prove negligence
and not incitement as the brandenburg standard required the trial
court dismissed the case and the plaintiff appealed 93 the california
court of appeals affirmed the trial court and declared that fictional
89 yakubowicz v paramount pictures corp 536 n e 2d 1067 1071 mass 1989 denying
liability for the wrongful death of a sixteen-year old boy who was murdered by another teenager
who had just seen and allegedly was imitating the gang violence in the movie the warriors 90 one case that suggests a lower standard than brandenburg when children are involved is
walt disney prods v shannon 276 s e 2d 580 ga 1981 in that ease the plaintiff was injured
after he tried to imitate a stunt depicted on the mickey mouse club to create a sound effect the
child put a piece of lead into a balloon the balloon burst shooting the lead into the plaintiff's
eye and partially blinding him after this accident the plaintiff brought a tort suit against walt
disney productions although the georgia supreme court refused to grant relief it did not
rest its decision on brandenburg instead it ruled that the schenck formulation of the clear and
present danger doctrine provided the appropriate analytical framework for resolving the case see id at 582 this is a very important distinction because unlike the brandenburg standard the
schenck clear and present danger test contains no intent requirement and a weaker requirement
of temporal proximity therefore it is less speech-protective than the incitement standard of
brandenburg see also brill supra note 17 at 1005 the court's desire to apply schenck's standard
rather than brandenburg's when speech is directed at very young audiences may be an effort
to accommodate non-speech-related interests of private parties in general or of children in par-
ticular 91 178 cal rptr 888 cal ct app 1981 see quinlan & persels supra note 6 at 422 describing the facts of olivia n on septem-
ber 10 1974 nbc broadcast the movie born innocent one scene in the film showed a young
girl being artificially raped with a toilet plunger by a gang of other girls before the assailants
attacked olivia n they had viewed and discussed the rape scene thus the plaintiffs alleged
that the movie was the proximate cause of her attack see id 93 olivia n 178 cal rptr at 890 n 1 noting that plaintiff's counsel specifically said that there will be no evidence that nbc ever told anybody or incited anyone to go out and rape a
girl with an artificial instrument or in any other way see also quinlan & persels supra note 6 at 422 1024 vol 3 3
regulating hollywood violence
materials such as the film born innocent are accorded protection un-
der the first amendment ' the court noted the obvious chilling
effects that tort actions would have on broadcasters if mere negli-
gence were enough to subject them to liability for imitative conduct the court reasoned that such deterrence would lead to self-
censorship which in turn would dampen the vigor and limit the va-
riety of public debate 9 5
similarly in yakubowicz v paramount pictures corp the father of a
sixteen-year-old boy sued paramount pictures the producer of the
film the warriors for wrongful death after a person who had just seen
the film knifed his son to deathy7 before stabbing the victim the at-
tacker had uttered one of the lines from the film the father ar-
gued that paramount was negligent in producing the film and that
paramount had produced distributed and advertised the film in
such a way as to induce film viewers to commit violence in imitation
of the violence in the film ' the trial court granted summary judg-
ment for the defendants and the plaintiff appealed the massachu-
setts supreme court affirmed holding that although the defendants owed a duty of reasonable care to members of the public including
the plaintiff's decedent 'o3 the film did not exhort urge entreat so-
licit or overtly advocate or encourage unlawful or violent activity on
the part of viewers '' as the court noted speech does not lose its
first amendment protection merely because it has a 'tendency to
lead to violence ' ' these two cases exemplify how the brandenburg
standard traditionally bars tort liability and protects first amendment
principles '03
see o ivia n 178 cal rptr at 891 9 5 i& at 892 the fear of damage awards may be markedly more inhibiting than die fear
of prosecution under a criminal statute quoting new york times co v sullim 376 u s 254 277 1964 see also quinlan & persels supra note 6 at 423 & n 29 discussing this aspect
of oivia n 536 n e 2d 1067 mass 1989 97 see brill supra note 17 at 997 noting that the ibniors contained many scenes of gang
violence and was also widely believed to be responsible for two other murders in caflifornia 8 see id citing yakubozuz 536 n e 2d at 1070 99 yakubowiz 536 n e 2d at 1068 this is the same argument made in the natural bon kill-
ers case seebyers v edmondson 712 so 2d 681 684 la ct app 1998 100 yakubowitz 536 n e 2d at 1071 101 ld
1 id citing hess v indiana 414 u s 105 109 1973 103 a few other mimicry cases that follow the brandenburg standard are noteuorthty in dc-
filippo v nbc 446 a2d 1036 rli 1982 involving a teenager who hanged himself after
watching a mock hanging ofjohnny carson on an episode oftie tonight show the parents of
the thirteen-year-old unsuccessfully sued nbc arguing that the network was negligent in
broadcasting the stunt the rhode island supreme court affirmed the lower court and
granted summaxyjudgment holding that first amendment protections barred the suit id at
1042 in its decision the court noted the obvious chilling effects that tort actions would la e
on broadcasters' free speech if they were found liable for imitative conduct see ci at 1041-42 in mccollum v cbs inc 249 cal rptr 187 cal ct app 1988 plaintiffs sued ozzy
ozbourne and cbs records after their nineteen-year-old son shot himself in tie head after re-
may 2001 journal of constftutional law
since littleton however courts are not as quick to dismiss mim-
icry cases 10 one example is the natural born killers case byers v edmondson '°5 in byers the louisiana court of appeals refused to
dismiss the negligence action against time warner and oliver stone plaintiffs accused stone and time warner of negligently producing
and distributing natural born killers a film which they should have
known would cause or incite persons to copy the murders glorified
on screen '06 the court stated that if the plaintiffs could prove its al-
legation that warner brothers and stone intended to urge viewers to
imitate the criminal conduct of the main characters in the film the risk of harm to a person such as the victim would be immi-
nently foreseeable justifying the imposition of a duty to refrain
from creating such a film ' in may 1998 stone and time warner
entertainment requested that louisiana's highest court and the u s supreme court review the ruling but both denied certiorari ' the
result of the courts' denial was that discovery in the case continued since the plaintiff must prove at trial that stone and time warner in-
tended to incite violence through natural born killers the plaintiff re-
quested to see documents relating to the film including production
notes private journals and unused footage shot by stone '
the byers decision relied heavily on rice v paladin enters ' a
fourth circuit decision that also caught the attention of the public
and raised concern among the entertainment industry ' in that
peatedly listening to ozbourne's song suicide solution the song contained the lyrics where
to hide suicide is the only way out don't you know what it's really about why try why try get the gun and try it shoot shoot shoot id at 190-91 the court found that the song was
not intended to bring about the imminent suicide of listeners see id at 193 therefore the
speech was protected under the brandenburg standard 104 see fornos supra note 79 at 446 the crisis which the legal system faces is not that
the entertainment industries are being sued under tort law but rather that courts no longer
seem to automatically dismiss these claims on the ground that they are barred by the first
amendment's right to free speech 105 712 so 2d 681 la ct app 1998 cnn legal analyst greta van susteren emphasized
the importance and high-profile nature of this case both hollywood and first amendment
activists are nervously monitoring this civil action since it promises to transfer the battle over
movie violence from the op-ed pages into the courtroom where any decision could set a land-
mark precedent seeyoung supra note 11 at 30 106 byers 712 so 2d at 684 107 id at 688 108 see byers v edmondson 712 so 2d 681 la ct app 1998 writ denied 726 so 2d 29 la 1998 cert denied time warner entertainment co v byers 119 s ct 1143 1999 09 seeyoung supra note 11 at 30 in fact stone's own words may come back to haunt him in a new york times interview in april 1996 stone said the most pacifistic people in the
world said they came out of this movie and wanted to kill somebody peter m nichols with
video 'cut 'needn't be the director's final word n y times apr 14 1996 § 2 at 15 110 128 f 3d 233 4th cir 1997 m see e g martin garbus deliberate intent a lawyer tells the true story of murder by the book 222 n y l j 2 1999 criticizing the holding in rice see also byers 712 so 2d at 690 noting
that paladin was joined by a spate of media amici including the major networks that recog-
nized that even a potential cause of action against paladin will have far-reaching chilling effects
on the rights of free speech and press vol 3 3
regulating hollywood 17ole nce
case the court held that the publisher of hit man an instruction
book for would-be-assassins could be held civilly liable for the deaths
of victims killed by a third person who followed the book's steps in
order to commit a murder according to the court hit man should
not be afforded first amendment protection because it so overtly
promotes murder in concrete nonabstract terms 3
are these two cases setting new legal precedent that the enter-
tainment industry should be concerned about as one legal analyst
explained there's a climate of wanting to teach hollywood a lesson
on violence t he courts are one place that's happening ' hol-
lywood however should not worry about courts becoming more ac-
tive in monitoring and censoring violence in films rice was a rare case because the publisher stipulated in almost tauntin defiance
that it intended to assist murderers and other criminals ' and ac-
cording to the byers opinion recognizing a cause of action against
paladin did not subject filmmakers to liability whenever someone
copied conduct depicted in their movies r the court stated that in the copycat context it will presumably never be the case that the
broadcaster or publisher actually intends through its description or de-
piction to assist another or others in the commission of violent crime rather the information for the dissemination of which liability is sought
to be imposed will actually have been misused vis-i-vis the use intended not as in rice used precisely as intended it would be difficult to over-
state the significance of this difference insofar as the potential liability to
which the media might be exposed by our decision herein is con-
cerned further the byers court did not reject the brandenburg standard
that has traditionally barred plaintiff victories in mimicry cases rather it noted that courts almost always refuse to hold members of
the entertainment industry liable for injuries sustained from imitat-
ing actions depicted in films but emphasized that many of these
dismissals came after the filing of a motion for summaryjudgment or
even after a trial on the merits and thus after the parties had the
1 riee 128 f 3d at 233 see also byes 712 so 2d at 690 discussing the hit man case gar-
bus supra note 111 noting that the case settled right before jury selection and that 'paladin
press's reported settlement paid to the families of three murdered people is the first payment of
its kind in american legal histor 11 byers 712 so 2d at 690 the unique text of hit man alone boldly proselytizing and
glamorizing the crime of murder and the 'profession' of murder as it dispassionately instructs
on its commission is more than sufficient to create a triable issue of fact as to paladin's intent
in publishing and selling the manual further paladin admits that it intended and knew that
its book would be used in the commission of murder see iu 1 young supra note 11 at 30 alteration in original quoting cnn legal analyst greta van
susteren 1 byers 712 so 2d at 691 in fact neither the extensive briefing by the parties and the nu-
merous amici in this case nor the exhaustive research which the court itself has undertaken has revealed even a single case that we regard as factually analogous to this case l 116 seeid 117 d may 2001 journal of constitutional law
opportunity to conduct discovery pertinent to the alleged facts ' 8
therefore the byers court's ruling was consistent with the precedent
of other mimicry cases lastly the byers court indicated that oliver stone and warner
brothers were not precluded from invoking the first amendment
guarantee of free speech to bar byers' claim after discovery had taken
place 119 in fact oliver stone and time warner sought summary
judgment to end the case in january 2001 after three years of discov-
ery ' in an affidavit filed with the motion stone stated that his film
was not intended to incite violence but was a satire to encourage the
audience to think critically about society's contradictory relationship
to violence 2' stone's attorney said at the heart of this summary
judgment motion are first amendment issues that could affect
filmmakers writers artists and the entire creative community in the
country '
22
the natural born killers case is controversial because as much as
the public would like to protect its children from gratuitous screen
violence using the courts to punish hollywood through mimicry law-
suits is problematic if courts permit negligence actions to proceed
against individual members of the entertainment industry then free-
dom of speech will be chilled because t he fear of damage
awards may be markedly more inhibiting than the fear of prosecu-
tion under a criminal statute ' 23 imposing liability on the entertain-
ment industry would therefore lead to self-censorship ' 24 self-
censorship would result because producers artists directors and
other creators within the entertainment industry would fear that im-
ages depicted in their films might lead to mimicry they would cen-
sor these ideas and images in response to potential damage liability liability imposed on a simple negligence theory would render movie
producers and directors significantly more inhibited in the selection
of controversial materials ' free expression is not given full protec-
tion if it depends on the vote of ajury allowingjudges and juries to
118 id at 688 119 see id at 691 120 see janet shprintz oliver stone time warner eye end to 'killers' case yahoo at
http dailynews yahoo com h nm 200101 i 1 re filmkillers dc 1 html jan 11 2001 id quoting oliver stone i2 d 123 olivia n v nbc 178 cal rptr 888 892 cal ct app 1981 quoting new york times
co v sullivan 376 u s 254 277 1981 1 see id at 892-93 noting that the imposition of tort liability on television broadcasters
would dampen the vigor and limit the variety of public debate and effectively could reduce
the u s adult population to viewing only what is fit for children defilippo v nbc 446 a 2d
1036 1041-42 r i 1982 noting that permitting plaintiffs to recover in mimicry case would
invariably lead to broadcaster self-censorship and limit viewers' access to diverse programming 1 olivia n 178 cal rptr at 892 t he pall of fear and timidity imposed upon those who
would give voice to public criticism is an atmosphere in which the first amendment freedoms
cannot survive quoting newyork times co v sullivan 376 u s 254 278 1964 vol 3 3
regulating holl 1 o1od iolence
decide whether a media defendant is liable for damages would be to
sanction a system of defacto censorship ' - moreover self-censorship
will not only violate the entertainment industry's right to make its
own creative decisions it will also violate the paramount rights of the
viewers to suitable access to 'social esthetic moral and other ideas
and experiences ' 'o' therefore imposing negligence liability would
deprive both filmmakers and viewers of freedom of choice i n a free and democratic society it is unacceptable 'to impose a
duty upon performing artists to limit and restrict their creativity in
order to avoid the dissemination of ideas in artistic speech which may
adversely affect emotionally troubled individuals ' imposing such
a duty would limit artistic expression to only the broadest standard
of taste and acceptance and the lowest level of offense provocation and controversy ' unfortunately some people notably young chil-
dren react violently to movies that depict gratuitous violence it is
typically impossible 'to predict what particular expression will cause
such a reaction and under what circumstances ' 'n therefore al-
though there is concern about children's exposure to hollywood vio-
lence censoring movie violence through trials and damage awards
violates an artist's freedom of speech v regulating hollywood ftc revrelntions
after the school shootings in littleton president clinton commis-
sioned a federal trade commission report ftc report on the
marketing of violent movies music and video games to children and
teenagers 13' on september 11 2000 after investigating the market-
ing practices of the major media conglomerates the ftc concluded
that hollywood targets sales of ultra-violent products to children 2
according to the ftc report the film industry aggressively markets
'- quinlan & persels supra note 6 at 433 se also va bd of educ v b-mette 319 u s 624 638 1943 one's right to free speech a free press and other fundamental rights
mayot be submitted to vote they depend on the outcome of no elections defdiippo 446 a 2d at 1041 quoting cbs inc v democratic nat'l comm 412 u s 94 102 1973 schneider supra note 4 at 494 quoting mccollum v cbs inc 249 cal rptr 187 197 cal ct app 1988 129 id
id quoting bill v superior cl of san francisco 187 cal rptr 625 629 cal ct app 1982 1 see ftc report supra note 28 at i see also stern supra note 47 -'he columbine killings
put the spotlight on a spate of deadly killings in schools and raised questions over whether vio-
lent films were contributing to this increase in ijolence neus reports suggested that the
bols responsible for the columbine killings were immersed in a violent subculture see ftc report supra note 28 at i in commissioning the report t he president raised
two specific questions do the industries promote products they themselves acknowledge ar-
rant parental caution in venues where children make up a substantial percentage of the audi-
ence and are these advertisements intended to attract children and teenagers the report
concluded that the answers to these questions are plainly 'yes ' id 1029may 2001 journal of constitutional la o w
violent movies to children even when its own ratings board labels the
films inappropriate for young children without adult supervision 1
the report stated that it he practice of pervasive and aggressive
marketing of violent movies to children undermines the credibil-
ity of the industries' ratings and labels such marketing also frus-
trates parents' attempts to make informed decisions about their chil-
dren's exposure to violent content 1
the ftc report was extremely critical of the film industries' mar-
keting and advertising techniques first the report criticized the
amount of violence depicted in movie trailers that are seen before
feature films ' the report cited numerous examples of trailers ap-
proved for all audiences that contained violence '56 for example in
the trailer for i know what you did last summer there were references
to a decapitation as well as a person being gutted with a hook '37
similarly the trailer for scream 2 depicted several violently graphic
images including a woman being pursued by a knife-wielding masked
killer s the report also noted that despite a self-regulating policy
established by the national association of theater owners 3 9 the stu-
dios routinely placed trailers for r-rated movies at pg-13 and pc-
rated films for example r-rated trailers including the general's
daughter and south park bigger longer and uncut regularly preceded
star wars episode 1 the phantom menace which was rated second the ftc report criticized the film industry's self-
regulatory system because it did not monitor advertisement place-
ment or marketing directed at children ' 4' in studying the motion
picture industry's marketing techniques the ftc analyzed the pro-
motion of forty-four violent r-rated films and twenty violent pg-13-
rated films distributed by nine major studios from 1995-1999 '
thirty-five of the forty-four r-rated films analyzed by the ftc eighty
133 see i& at iii individual companies routinely market to children the very products that
have the industries' own parental warnings or ratings with age restrictions due to their violent
content '34 id at i see also david e rosenbaum panel documents how violent fare is aimed at youth n y times sept 12 2000 at al rosenbaum notes that for years the entertainment industry
has repeatedly denied that their companies deliberately direct advertisements toward children they have often claimed that it is impossible in modem communications to keep promotions
of products for young adults away from the eyes and ears of children id see frc report supra note 28 at 9 13 id at 9 137 id 138 id 39 under the policy films rated pg and higher could exhibit trailers for films within one
rating of the feature presentation id at 16 140 id at 16-17 141 see ftc report supra note 28 at 11 2id at 5 the ftc analyzed media plans which indicated where television radio print and internet advertising were placed and described the target audiences the studios intended
to reach id vol 3 3
regulating hollywood violence
percent targeted children under seventeen '43 further promotional
reports for twenty-eight of the forty-four films sixty-four percent contained express statements that the film's target audience in-
cluded children under seventeen ' records indicated that studios
routinely recruit teenagers and children as young as ten years to
evaluate story concepts commercials trailers and rough cuts for r-
rated movies '4 for example before hollywood pictures released
judge dred an r-rated film about urban crime the studio tested the
film before a focus group that included more than one hundred
youths aged thirteen to sixteen similarly mgm united artists
tested advertising for the r-rated film disturbing behavior by showing
two thirty-second commercials to more than four hundred twelve- to
twenty-year-olds and columbia tristar's research staff sampled one
hundred children ages nine to eleven to evaluate concepts for the
slasher sequel i still know wat you did last summer ' third the ftc report revealed that the movie studios marketed
their r-rated films by buying advertising spots during television pro-
grams that specifically appealed to young viewers according to the
report t he studios repeatedly advertised films rated r for violence
on television programs that were the highest rated among teens or
where teens comprised the largest percentage of the audience ' in
fact mtv the music network with a core teen demographic was
found to be the largest cable advertising outlet for r-rated films '
studio marketing materials also indicate that the film industry
reached young audiences with advertisements that ran during after
school viewing hours as well as on weekends the times when chil-
dren predominately watch television 112
the ftc report stated that the cartoon network and nickelo-
deon heavily advertised pg-13 movies which caution that violent ma-
terial may be inappropriate for young children particularly during
the afternoons and during saturday morning cartoons for exam-
ple universal studios attempted to market the film the mummy to
143 idl at 13 14 id at 13-14 ' id at 14 6 see doreen carvajal how the studios used children to test-mara vioknt film n y times sept 27 2000 at al noting that the company's research and surveys indicated that oung
male teenagers were the most enthusiastic about the film 147 see id noting that children were asked to rate the advertising commercials scene by
scene including one scene in which a girl's head as bashed into a mirror and another where
a needle was forced toward a clamped eye 1 see id
14 see ftc report supra note 28 at 14 50 id the most popular programs for studios to market their films included buffy the 1vam-
pire slayer wivvfrmo wcw wrestling and xm - wa nior prncess id at 15 151 id at 15 w d 153 seejeu at 15 n ay 2001 journal of constitutional la w
young teenagers by advertising it on television shows that appealed to
young viewers such as pokimon mighty morphin power rangers and spi-
derman ' columbia pictures attempted to advertise its ultra-violent
the fifth element on nickelodeon but mtv networks which oversees
nickelodeon refused to allow an advertisement because it considered
the movie inappropriate for nickelodeon viewers who are mostly
under 12 ' ' 15 the studio unsuccessfully appealed the ban arguing in
part that the violence would be suspect to 'the children of today
who are more sophisticated 56 the marketing of these pg-13 films
is further broadened through toy tie-ins which may attract children as
young as four years old 7
the studios also attract children to their films through promo-
tional activities intended to generate film interest 8 the ftc report
found that one of the more popular methods to attract teens to r-
rated movies was to distribute free merchandise such as t-shirts and
posters at places where teens congregate '59 one marketing plan for
an r-rated film revealed that o ur goal was to find the elusive teen target audience and make sure
everyone between the ages of 12-18 was exposed to the film to do so we
went beyond the media partners by enlisting young hip teen street
teams to distribute items at strategic teen hangouts such as malls teen
clothing stores sporting events driver's ed classes arcades and numer-
ous other locations overall the ftc report concluded that despite warning labels the entertainment industry aggressively markets its violent products
to young children 6
'
despite its criticism toward hollywood marketing practices the
ftc decided not to pursue legal charges against the major film stu-
dios for deceptive or unfair advertising practices 62 traditionally laws against deceptive advertising have been used to punish compa-
nies making false product claims to bring a successful case the ftc
would have to prove that the film industry intended to mislead con-
sumers to their detriment or that the advertisement caused injury
that was not reasonably avoidable 6 3 in this case ftc attorneys de-
termined that the first amendment would bar effective legislation of 4 see carvajal supra note 146 m id 15 id quoting columbia pictures 157 see id 158 f'c report supra note 28 at 17 119 id 160 id quoting anonymous film-marketing plan 161 see id at 13-15 162 see christopher stem ftc says it won't sue hollywooa wash post nov 22 2000 at al 163 seejube shiver & fave fiore heat on holl wood as ftc ponders curbs on violence la times sept 12 2000 at al quoting william c macleod a washington antitrust lawyer and former
head of the ftc's bureau of consumer protection 1032 vol 3 3
regulating hollywood 1iolence
marketing campaigns ' the ftc acknowledged that if it took legal
action against major film studios the agency would be forced to ex-
plain which movies are appropriate for children and which are not the first amendment bars this type of censorship robert pitofsky the commission's chairman expressed concern about government
bureaucrats picking apart a film's content i don't want the federal
trade commission to be the thought police t the report how-
ever urged the entertainment industry to strengthen its attempts at
self-regulation 6
nonetheless pitofsky did warn that if the industry did not expand
self-regulation the ftc would take action under existing laws or en-
courage congress to pass new ones ' these actions could include
introducing mandatory rating or labeling systems limiting advertise-
ments for violent films to restricted venues that are not likely to at-
tract children and requiring the entertainment industry to regularly
report to the ftc on its marketing practices not unlike the report-
ing requirement the tobacco industry has faced since 1967 ac-
cording to pitofsky legal action would be a sanction of last resort if
the industry did not clean up its act and ftc officials noted that any
legislation would be crafted in a way that did not violate a company's
right to free speech 0
but many scholars believe that the first amendment bars effective
legislation of marketing practices and thus hinders the ftc and poli-
ticians from making such idle threats historically the first amend-
ment has been interpreted broadly protecting individuals from gov-
ernment restrictions on artistic freedoms of expression including
films 1 in limited circumstances however the government may
regulate the content of that speech under the strict scrutiny test the
supreme court has carved out content-based exceptions to the first
164 see stern supra note 162 in a letter addressed to john mccain frc chairman robert
pitofsky said that bringing a case against hollywood would 'place the agency in a position that
raises serious questions under the first amendment ld 6 see i 1 rosenbaum supra note 134 se also stern supra note 162 quoting jack valenti who
stated that chairman pitofsky's letter plainly states that any attempt to charge the movie indus-
try with deceptive advertising of r-rated films would be fatally infected with serious constitu-
tional problems 167 seestern supra note 162 quoting lee peeler the ftc's associate director for advertising
practices as saying self-regulation 'would do more and do it quicker than government law en-
forcement actions 168 see shiver & fiore supra note 163 169 see stern supra note 162 1-0 seeshiver & fiore supra note 163 171 ftc report supra note 28 app c at 1 10 n 3 citing scmad v borough of ml ephraim 452 u s 61 65 1981 in striking douo an ordinance prohibiting live nude dancing the
schad court declared that e ntertainment as well as political and ideological speech is pro-
tected motion pictures programs broadcast b ' radio and television and live entertainment such
as musical and dramatic works fall within the first amendment guarantee schad 452 u s at
65 emphasis added may 20011
journal of constitutional law
amendment t he government must prove that i the regulation
serves a compelling governmental interest ii the means chosen to
achieve that interest are narrowly tailored and iii it has chosen the
'least restrictive means' of accomplishing the government's objec-
tive 72
by contrast the first amendment provides less protection for
commercial speech ' s commercial speech is defined as expression
related solely to the economic interests of the speaker and its audi-
ence 74 it often does no more than propose a commercial transac-
tion 75 such as television advertisements for commercial products '76
under the central hudson test 77 the government may restrict com-
mercial speech that is neither misleading nor related to unlawful ac-
tivity only if it asserts an interest that is substantial and proves that
the restriction directly advances and is no more excessive than neces-
sary to serve that interest 7' in forming legislation the government
does not have to employ the least restrictive means available but it
must at least narrowly tailor the regulation to the asserted interest '7 thus the success of legislation restricting the marketing of violent
entertainment will depend largely on whether courts treat advertise-
ments and marketing plans for movies as commercial or non-
commercial speech some critics argue that movie trailers and television spots should
be deemed commercial speech because they are merely advertising
products that have been placed in the stream of commerce for
17 see ftc report supra note 28 app c at 5 15 n 39 citing arkansas writers' project v ragland 481 u s 221 231 1987 although content-based regulations are considered pre-
sumptively invalid the court has upheld restrictions when speech is obscene as well as when
speech is deemed harmful to minors nonetheless the government's interest in protecting
children does not always outweigh first amendment considerations ftc report supra note
28 app c at 6 for example the supreme court recenty struck down a regulation requiring
cable operators to either scramble sexually explicit channels or limit programming to late-night
hours because it infringed on adults' first amendment rights see united states v playboy
entm't group inc 120 s ct 1878 2000 173 central hudson gas & elec corp v public serv comm'n 447 u s 557 562 1979 o ur decisions have recognized the 'commonsense' distinction between speech proposing a
commercial transaction which occurs in an area traditionally subject to government regulation and other varieties of speech quoting ohralik v ohio state bar ass'n 436 u s 447 455-56 1978 174 central hudson gas &elec corp 447 u s at 561 '75 virginia st bd of pharmacy v virginia citizens consumer council 425 u s 748 762 1976 pittsburgh press co v pittsburgh comm'n on human relations 413 u s 376 385 1973 176 see ftc report supra note 28 app c at 3 the supreme court has upheld limits on
commercial speech such as restrictions on targeted direct mail solicitations by lawyers to fami-lies of accident or disaster victims and bans on solicitations by commercial enterprises on public
university premises id at 3 14 nn 20-21 citing florida bar v went for it inc 515 u s 618 1995 board of trustees of sunyv fox 492 u s 469 1989 7 see central hudson gas &elec corp 447 u s at 562 178 see id at 564 179 seegreater new orleans broad ass'n v united states 527 u s 173 188 1999 vol 3 3
regulating hollyiwood 1iole ce
profit ' 0 in contrast members of the entertainment industry con-
tend that film advertisements should be considered non-commercial
speech and therefore are protected from undue government restric-
tions they argue that movie advertisements are non-commercial
speech because they promote products that are themselves entitled to
full protection and because they usually incorporate parts of the
filmmaker's artistic expression therefore constituting a subset of the
content of the non-commercial expression ' 8' the supreme court
has not ruled whether film advertisements are commercial or non-
commercial speech and existing federal and state court opinions are
not uniform if congress proposed a bill limiting the violent content of film ad-
vertisements and trailers marketed to children or a bill that restricted
advertisements for these products to certain media venues that did
not attract children the level of first amendment scrutiny would de-
pend on whether the speech was classified as commercial or non-
commercial speech the government would first have to prove by
using scientific psychological or empirical evidence that either
there is a compelling non-commercial speech or substantial commercial speech reason to protect children from viewving violent
entertainment or advertisements promoting such films second the
government would have to prove that its regulation either is nar-
rowly tailored to achieve non-commercial speech or directly ad-
vances commercial speech that interest third the government
would have to argue that such restrictions are either the least restric-
tive means of accomplishing non-commercial speech or a reason-
able fit with commercial speech the government's objectives '
regardless of which standard is eventually applied the legislature
and the courts will find it very difficult to formulate a clear regulation
that could effectively monitor that to which a child is exposed ques-
tions would arise regarding the precise meaning of violence and it
would be hard to draw a line between the types of hollywood vio-
lence to which a child may and may not be exposed there are many
films that are violent but also socially valuable like saving private ryan
and gloy to which children should be exposed one could imagine
ftc lawyers watching films and counting the type range and con-
tent of violent depictions surely a movie featuring murder suicide gang violence and knife fighting is violent but does anybody want
'80 ftc report supra note 28 app c at 3 181 id 182 id the ftc report notes however that one state court has held that a moie adwrtist-
ment goes beyond proposal of a commercial transaction and encompasses the ideas expressed
in the motion picture which it promotes thus it is afforded the same first amendment protec
tions as the motion picture id quoting leuis v columbia pictures indus 23 media l rep 1052 cal ct app 4th dist nov 8 1994 183 seeftc report supra note 28 app c at 8 may 2001 journal of constitutional law
the ftc to ban the broadcast of romeo andjuliet 8 further the re-
strictions should not be so overbroad as to affect adults the su-
preme court has repeatedly emphasized that regardless of the gov-
ernment's interest in protecting children it may 'not reduce the
adult population to only what is fit for children ' 15 as sena-
torjohn mccain explained the notion of letting unelected bureau-
crats at the ftc commission decide what can be broadcast and
when it can be broadcast is objectionable to most free people ' 8 6
therefore self-regulation is probably the best recourse for the enter-
tainment industry but unlike in years past the industry must now
take proactive measures to develop regulations that will be effective
in protecting children the film industry must now decide what appropriate actions to
take to curtail the marketing of violent movies to children 87 in sep-
tember 2000 in response to the ftc report the major film studios
announced a new twelve-point plan for marketing r-rated movies this plan prohibits r-rated movies from being advertised along with
g-rated pictures or video releases '88 it also bans children under sev-
enteen from focus groups for r-rated films unless an adult accompa-
nies them '8 9 advertisements for movies have also started to carry de-
tailed advisories about their ratings system some studios have gone
even further warner brothers and 20th century fox announced
that they would no longer advertise r-rated films on any television
program for which thirty-five percent or more of the audience is un-
der the age of seventeen and disney implemented a policy not to ad-
vertise r-rated films on any of its networks before 9 p m ' each stu-
184 david e rosenbaum violence on the screen unlovely and invulnerable n y times sept 24 2000 § 4 week in review at 4 1k8 ftc report supra note 28 app c at 6 quoting reno v aclu 521 u s 844 875 1997 186 rosenbaum supra note 184 187 see jerry beck ftc blasts kids marketing kidscreen at http wvw kidscreen com articles 200011 ks3o3o8 asp nov 2000 according to beck ira meyer president of epm
communications explained hollywood is now asking 'ok i know we need to do something but realistically what do
we do ' there are some things we can do relatively simply and there are a lot that are
more difficult when you're trying to reach a general audience that kids may in fact tune into-is that different from targeting kids directly is that going to satisfy the fcc
or parent groups or anybody else these are difficult issues that are only beginning to
be explored now id 188 see rosenbaum supra note 24 quoting jack valenti president of the motion picture as-
sociation of america who explained that each studio had set a goal of not inappropriately spe-
cifically targeting children in its advertising of films rated r for violence i89 see carvajal supra note 146 jack valenti admitted that the ftc report had prompted
studios to take a fresh new look at the way we market films disney was the first studio to an-
nounce that it would no longer test r-rated films to focus groups with members under seven-
teen see id 190 see rick lyman overhaul of r-rated movies gets a c rating confusing n y times nov 1 2000 at a18 1036 vol 3 3
regulating hollyw1ood iolence
dio has also appointed a compliance official responsible for monitor-
ing its marketing practices '9 ' these steps are voluntary however and
the entertainment industry has not set up any type of enforcement
mechanism '9 therefore the entertainment industry should appoint
an independent group to monitor the self-regulation techniques however the leaders of the film industry reject the notion that
they stop marketing all r-rated movies to children it he motion
picture studios believe that it is appropriate to target advertising
for r-rated films to children under 17 and to target advertising for
pg-13-rated films to children under 13 on the grounds that these rat-
ings are merely cautionary warnings to parents according to jack
valenti president of the motion picture association of america some movies with an r rating because of violent scenes like saving
private ryan are not only acceptable but worthwhile for some chil-
dren 1
overall the film industry must work together and use common
sense in its marketing practices it must be conscious of its power to
influence young minds and it must act more responsibly in the depic-
tions it is marketing to young children however even with more
self-regulation it will ultimately be up to parents to protect children
from what they feel is questionable material parents play an impor-
tant role in monitoring what films their children watch any action
against the entertainment industry is just one piece of the puzzle 'it all falls back on the judgment of parents we can't legislate the
lack of parenting ' '9 5
191 see id '9- see rosenbaum supra note 24 193 ftc report supra note 28 app c at 11-12 noting also the industry's argument that
filmmakers have the right to draw as much attention to their work as possible even the atten-
tion of children who are allowed to see the films in the company of their parents 194 rosenbaum supra note 24 195 seestern supra note 162 quoting parent erik braun may 2001