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Putting Art in Handcuffs

Aug 3, 2012
Amber M. Burroff

Should Warner Bros. Take the Hit for the Aurora Shooting Based on the Violence Depicted in The Dark Knight Rises?

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Disclaimer: My heart goes out to the victims of the horrific shooting in Aurora. I sincerely hope that they find peace and a sense of justice as they push through these difficult times. The opinions expressed in this piece are not intended in anyway to diminish the great losses that they have suffered. It is a purely legal and intellectual analysis of one of the potential claims arising out of the incident.

Tragedy In Search of Monetary Justice

Torrence Brown, Jr. appears to be one of the first victims in the Aurora shooting to lawyer up in pursuit of various defendants he alleges are culpable for this tragic event. Brown did not suffer any physical injuries during the shootings, but one of his best friends, A.J. Boik, was shot in the chest and later died. The basis for Brown’s claim is that he is now suffering from extreme emotional trauma as a result of the incident. Brown has retained Donald Karpel as his attorney.

The lawsuit, which I presume has yet to be filed since I could not locate any complaint, will include three defendants. Notably, suspect James Holmes has been excluded from the list (I’m guessing because the chances of monetary recovery are slim). To the surprise of many, one of those defendants will be Warner Bros., the studio that was behind the “The Dark Knight Rises” (it also owns DC Comics; Batman is a DC Comics character). Karpel has stated that the film is especially violent, and based on evidence in the case, Holmes was fixated, perhaps obsessed with Batman characters.

Liability lawsuits are a common reaction to acts of senseless violence and often stem from the victims’ and their families’ understandable desire to lay blame at the feet of anyone and everyone that might be responsible for their loss. Although money could never replace their loved ones, a crippling judgment against a culpable party brings a sense of justice and closure to the victims. It may also serve to deter the liable party from future harmful behavior that could give rise to a similar incident. It is likely that Brown’s pursuit of WB serves the latter purpose. It’s not that WB deserves to be punished for the Aurora shooting in the same way that Holmes should be punished (some would argue the death penalty). Rather, if WB is held liable for this incident, it and other media companies will be deterred from creating content that may give rise to a similar event. However, except in the most egregious circumstances, legal attempts to place blame on the media entities for inciting the violent acts of criminals rarely succeed. This is because the media is cloaked with the protection of the First Amendment.

Violence in the Media – A Reflection Of or a Projection Onto Society?

The “evil and violent propaganda” of a liberal Hollywood has been the subject of much controversy over the years. It shouldn’t come as a surprise that media products are often cited as a source of blame for societal violence. On the other hand, many people view the situation a little differently. As a commenter on Brown’s potential lawsuit brazenly put it: “That’s like suing a spoon cause your fat.” Well that’s an interesting point. If we all stopped buying tickets to violent films, the studios would eventually stop making them. Remember the quote from Field of Dreams – “If you build it, he will come”? Well I’d say in the entertainment world it’s more like “If you come, they will build it.” Studios like WB are feeding us more of what we willingly and eagerly consume. Why? Because even in the wake of the tragic attack, The Dark Knight Rises is still making history at the box office. If you extend the logic behind blaming WB for the Aurora shooting to its furthest point – we the consumers are ultimately responsible as well. If we fail to recognize our own culpability for perpetuating a culture so immersed in and increasingly tolerant of violence, we may end up living in our very own Gotham City. And although Christian Bale has emerged as a would-be hero out of all of this – I can assure you that Batman is not going to come to our rescue.

Warner Bros. - Been There, Done That

Okay, now that you’ve allowed me to wax philosophical, let’s take a closer look at the legal reasons that WB is not likely to be found liable for the Aurora shooting. Intriguingly, this is not the first time WB has been involved in defending such an action. The film “Natural Born Killers,” directed by Oliver Stone, was about a pair of lovers, whose murderous spree was egged on by the media. Amid a flurry of crimes that were described as having copycat elements, Patsy Byers, a Louisiana store clerk, was shot and paralyzed by a couple that said they had been influenced by the film. Ironically, Stone has said that the intent behind Natural Born Killers was to create a satire about the way the American culture and its media crave violence.

Byers filed suit against Stone and WB. The Louisiana Court of Appeals reversed the trial court’s decision dismissing the case for failure to state a cause of action. The rationale behind the decision was that Byers had properly plead that WB and Stone were liable for producing a film which they intended would cause or incite persons such as the shooters (via subliminal suggestion or glorification of violent acts) to begin a crime spree shortly after repeatedly viewing the film. Thus, under the Byers test, any song, book or film can face tort liability as long as there is a conclusory pleading because there is no threshold analysis of the content of the film (the speech) to determine whether the First Amendment should apply to bar the cause of action. Eventually the case was dismissed in Louisiana on First Amendment grounds but not before Time Warner spent years in the legal system.

While it’s important to note that the Byers test deviates from the practice followed by other courts (to analyze the applicability of the First Amendment at the outset of the case) for WB, Byers is likely to play some role in its decision to defend or settle the case. Having the haunt of the Byers prolonged litigation over its head may push it to settle an otherwise meritorious case early on.

Brown is Unlikely to Clear the Constitutional Obstacle to Suit Against WB

Turning now to the merits of Brown’s potential lawsuit against WB – such analysis requires a bit of hypothesis on my part as to the claims that Brown is likely to bring. A survey of similar cases leads me to believe that the most likely causes of action are negligence, products liability, and aiding and abetting. But before a court gets to the analysis of the underlying claims, it will determine whether constitutional concerns bar WB’s liability altogether. Only where speech becomes an integral part of the crime, is a First Amendment defense foreclosed. The First Amendment exception generally enlisted for tort liability suits against filmmakers is the “intention to incite imminent lawless activity.” The standard set forth by the United States Supreme Court in Brandenburg v. Ohio for this exception is a two part test. The speech must be: 1) directed to incite or produce imminent lawless action, and 2) likely to incite or produce such action.

In McCollum v. CBS, Inc., the plaintiffs, parents of a teenager who committed suicide, sought to hold CBS Records and the singer Ozzy Osbourne liable for the suicide of their son. At the time their son shot and killed himself, he was allegedly listening to Osbourne’s music. The California Court of Appeal refused to apply the First Amendment exception. The court stated that “merely because art may invoke a mood of depression, as it figuratively depicts the darker side of human nature, does not mean that it constitutes a direct ‘incitement to imminent violence.’”

With respect to Brown’s case, it should be noted that Holmes only watched about 30 minutes of The Dark Knight Rises. Further, his murderous scheme was in the works long before he sat down in that theatre. Perhaps Brown intends to sue WB for the influence that the entire Batman series had on Holmes’ actions. Looking at the content of the Batman series, although the films contain explicit scenes of violence, the films culminate in the triumph of good over evil. Thus, it appears that the intent of the films is to depict the gruesome nature of violent acts and criminals solely for the purpose of giving its audience hope that such atrocities can and will be overcome. Brown will face a serious challenge in convincing the court that WB’s intent with these films was to incite or produce the lawless action that is ultimately overpowered in its films.

Do the Circumstances Demand an Idiosyncratic Result?

Such a result is not entirely out of the question, just extraordinarily unlikely. My survey of analogous cases turned up only one instance of similar circumstances where the court held that the First Amendment did not apply to protect the media from liability for criminal acts. In the late 1990s, the family of victims of a contract killer sued Paladin Press, publisher of “Hit Man: A Technical Manual for Independent Contractors.” In Paladin, the defendant stipulated to a set of facts establishing aiding and abetting of murder as a matter of law, moving the speech outside the protective orbit of the First Amendment. The court stated that “the First Amendment is quite irrelevant if the intent of the actor and the objective meaning of the words used are so close in time and purpose to a substantive evil as to become part of the ultimate crime itself.”

Unfortunately for Brown, Paladin is distinguishable on many levels. The declared purpose of Hit Man itself was to facilitate murder. It is far beyond any stretch of the imagination that The Dark Knight, or any of the Batman films were intended to facilitate murder, nor do the films contain information that would be particularly helpful in the commission of such a crime. Further, Hit Man not only boldly glamourized the crime of murder and the “profession” of murder, it went into excruciating detail as it dispassionately instructs on its commission. Though arguably the Batman series could be seen to glamourize the lives of some of the murderers in the films, ultimately, these villians are struck down. Finally, the court held that “if there is a publication that could be found to have no other use than to facilitate unlawful conduct, then [Hit Man] would be it, so devoid is the book of any political, social, entertainment, or other legitimate discourse.” Again, to the contrary, the box office suggests that The Dark Knight Rises, as well as the rest of the series, has significant entertainment, political, and social value to us law-abiding citizens.

Further, the Paladin court went so far as to address the particular scenario at issue in Brown’s potential case. The court explained that unlike the unique circumstances it was facing, for almost any broadcast, book, movie, or song that one can imagine, an inference of unlawful motive from the description or depiction of particular criminal conduct therein would almost never be reasonable. “In the ‘copycat’ context, it will presumably never be the case that the broadcaster or publisher actually intends, through its description or depiction, 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-a-vis the use intended, not, as here, used precisely as intended.”

It appears that even Paladin won’t help Brown get past the constitutional threshold in his case against WB. Unless a court is inclined to follow Byers, it looks like Brown’s case is unlikely to survive a motion to dismiss. Further, even if a court were to deviate substantially from other courts that have decided similar cases and hold that the Brandenburg exception applies, Brown’s claims will fail regardless.

Brown is Unlikely to Prevail on Various Tort Theories Against WB

While a defendant may be held liable in tort for actively aiding or encouraging a wrongdoer, it is essential that the defendant's own conduct was tortious. This means that WB must have proceeded tortiously — i.e., with intent to commit a tort or with negligence in order to be held liable for aiding and abetting Holmes. For the reasons stated by the Paladin court, it is unlikely that Brown can demonstrate that WB possessed the requisite unlawful intent in releasing any of the films in the Batman series.

A negligence claim is likely to fail for lack of duty and/or lack of causation. Several courts in similar cases have determined that the defendants did not owe a duty of care to protect the decedents as a matter of law. Because duty is an essential element of any negligence cause of action, Brown’s claim will fail. Additionally, such a claim would fail for a lack of causation. The idiosyncratic nature of Holme’s reaction to WB’s media would likely compel a court to hold that Holme’s unilateral action constitutes a superseding cause, thus making it likely that Brown cannot establish the third element of a prima facie tort case: proximate causation. The court in Sanders v. Acclaim Entertainment, a case arising out of the Columbine shootings, found that the intentional violent acts of Eric Harris and Dylan Klebold at Columbine High School “were the superseding cause of Mr. Sanders’ death” and thus the defendants “were not a proximate cause of Mr. Sanders’ injuries.” Such an outcome is the likely result of Brown’s negligence claim.

Finally, a products liability cause of action is likely to fail on the grounds that films are not “products” for purposes of strict liability. As the judge in Sanders v. Acclaim Entertainment opined, “intangible thoughts, ideas, and expressive content are not ‘products’ as contemplated by the strict liability doctrine.”

Will Justice Be Served?

Perhaps Brown’s attorney will devise an inventive cause of action that could provide a mechanism for recovery against WB. However, if the existing case law on point is any indication of his chances for recovery, the prospects are looking pretty grim. The silver lining may be that the great weight of culpability is left to rest on the shoulders of the monster that is truly responsible for this grotesque act of violence – Holmes himself.

Amber Burroff is a litigation associate at Greenberg Glusker with a focus in entertainment and media. Amber also specializes in business litigation and bankruptcy matters.

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