Editor's note: On Oct. 9, the Louisiana Supreme Court declined to review the appeals court's decision.
Attorneys for the producers and director of the movie Natural Born Killers recently petitioned Louisiana's high court to review a lower court ruling that they say is the first "American court [decision] to hold that the creators of a fictional story can be sued for the deviant criminal acts of alleged imitators or copycats."
Patsy Byers, a clerk shot by a young man and woman robbing a convenience store, sued Time Warner, Inc., and Oliver Stone in July 1995, alleging they were responsible for her paralyzing injuries (she later died of other causes). Her lawsuit claimed that she was shot because the young couple was enamored with the movie Natural Born Killers and its glamorization of violent behavior.
The young man and woman were allegedly emulating the violent Mickey and Mallory, the movie's protagonists, when they went on their crime spree. According to the attorney for Byers' estate, Time Warner and Stone should be liable for "intentionally, recklessly, or negligently including in the video subliminal images which either directly advocated violent activity or which would cause viewers to repeatedly view the video and thereby become more susceptible to its advocacy of violent activity."
Time Warner argued that imposing monetary damages on the producers would violate the First Amendment.
A trial judge dismissed the claim against the film producers and director in January 1997, ruling that the "law simply does not recognize [such] a cause of action." However, in May 1998, a Louisiana appeals court reversed in Byers v. Edmonson, ruling that the trial court should not have dismissed the case and that plaintiffs presented sufficient allegations to avoid dismissal on First Amendment grounds.
Byers' allegations, which the appeals court said it had to accept as true at the early procedural stage of the lawsuit, are that the movie falls into a category of speech—speech that directly incites and will likely lead to imminent lawless action—that is unprotected by the First Amendment.
In 1969, the U.S. Supreme Court ruled in Brandenburg v. Ohio that government cannot "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."
In reaching its decision, the Louisiana appeals court relied on Rice v. Paladin Enterprises, Inc., in which the U.S. Court of Appeals for the 4th Circuit ruled that the First Amendment did not bar a wrongful death action against the publishers of an instructional book entitled Hit Man: A Technical Manual for Independent Contractors.
In their appeal to the Louisiana Supreme Court, attorneys for the Warner defendants, note that "no court in America has ever held a filmmaker or film distributor liable for injuries allegedly resulting from imitation of a film." They argue that "the specter of such boundless liability would cause those who create movies, music, books, and other creative works to avoid controversial or provocative subjects."
The Motion Picture Association of America, Inc., joined by more than a dozen other groups, has weighed in with a friend-of-the-court brief, arguing that the appeals court decision will chill free expression and lead to self-censorship in the entertainment industry. Their brief states that "for almost three decades, state and federal courts throughout the country have consistently protected core expressive speech in film against liability for alleged 'copycat' crimes committed by others."
Both the Warner defendants and their supporters take great pains to distinguish the Hit Man case from the case at hand. Attorneys for the film producers characterize the Hit Man case as "wholly inapplicable" to Byers v. Edmonson.
However, at least two free-speech experts argue that the Louisiana case is a logical, albeit unfortunate and disturbing, extension of the Paladin Press decision. These experts say the Louisiana appeals court decision in Byers shows how harmful the earlier case was to First Amendment free-speech principles.
Paul McMasters, First Amendment ombudsman for The Freedom Forum, said: "The plaintiffs' attorneys in the Hit Man manual case argued that their exception was narrow and would do no collateral damage to other works and free-expression principles. This Natural Born Killers case in Louisiana proves otherwise."
Robert O'Neil, founder of the Thomas Jefferson Center for the Protection of Free Expression, agrees. "The Natural Born Killers case in Louisiana is very worrisome," he said, "because we argued that if the Hit Man concept prevailed, there was no logical reason why it could not be extended to works of fiction.
"I hate to say 'I told you so,' but this is exactly the use of the Paladin precedent that we feared from the outset," O'Neil says.
The Louisiana Supreme Court will decide whether to hear the appeal in the Byers case this fall.