Violent media depictions can arguably incite violence in a number of ways. Examples include:

  • A book that provides a step-by-step guide to executing a murder in order to avoid detection;
  • A violent movie depicting murder/assassination; and
  • A person hears violent lyrics in a song, and does the very act that is described in the song.

A person who was injured by the act of violence could sue the creator of the work that incited the violence. However, success largely depends on the facts of each particular case. The mere fact that someone creates a movie, song, or book that depicts or encourages violence does not itself lend to liability.

The First Amendment provides Freedom of Speech protection for all works of art. Movies, books, and songs that use excessive violence are generally still protected, even if they have the result of depicting or encouraging violent behavior.

A person who is injured because of someone else’s work can sue, either claiming negligence or strict liability. If a victim is killed during an act of violence, the victim’s family members can sue for wrongful death.

Freedom of speech in the United States is guaranteed by the First Amendment to the U.S. Constitution. A common misperception is that the First Amendment bans the right of everyone and anyone to limit the speech of others. The First Amendment limits the ability of the U.S. federal government, as well as the governments of states, counties, and municipalities to censor speech.

As such, a person’s employer can still set standards for speech in the workplace. Newspapers and other media outlets set their own standards for what they will and will not publish. Additionally, there are some limitations on the freedom of speech that governments can put in place.

Some of the significant limitations are as follows:

  • Time, Place, and Manner Restrictions: In terms of public expression of opinion and large-scale demonstrations, governments can place reasonable restrictions on the time, place and manner in which individuals and groups can gather to engage in their protected political speech. These restrictions are allowed, because they serve the public’s competing interests in keeping traffic flowing, preserving property, and protecting the environment;
  • True Threats: For legal purposes, a true threat is a statement that is directed towards a specific person and is intended to frighten or intimidate them. True threats are not protected by the First Amendment, and a person who makes a true threat can be charged with a crime. State laws that make cross-burning a crime have been justified as the act is a form of true threat;
  • Libel and Slander: Libel is the publication of a statement about a person that is false, which causes harm to their reputation and damage. Libelous statements usually concern improper sexual conduct; associate someone with a vile disease; accuse the person of illegal behavior; hurt someone’s livelihood; and/or allege racial or religious bigotry. Slander is made orally, not in writing;
  • Obscenity: Mainstream media outlets delete or screen specific words that are considered to be obscene, such as the words used in George Carlin’s “seven dirty words” if they are included in broadcasts.
    • This is done in order to avoid FCC sanctions. Courts have also defined the “safe harbor” rule. It allows media outlets to broadcast indecent, but not obscene, material at night from 10 p.m. to 6 a.m., when children are not likely to be in the audience. The FCC has never published a list of specific words that are prohibited from the broadcasts during the time period from 6 a.m. to 10 p.m. However, broadcast networks still censor some or all of Carlin’s “seven dirty words;”
  • Child Pornography: Governments have laws in place which make it a crime to possess, produce, and/or distribute child pornography;
  • Adult Pornography: The USSCT has defined “obscenity” as a category of pornography that violates contemporary community standards, and has no serious literary, artistic, political, and/or scientific value. More specifically, the law does control how and where pornographic material can be made available. It is important to note that this designation does not include the mainstream media;
  • Fraud and Other Speech Incident to Criminal Conduct: A person can be subject to criminal prosecution by police authorities for crimes that involve making false representations for criminal purposes. These false representations are generally made in order to persuade a person out of their money, or other things of value. Another category of crime that could punish speech would be disturbing the peace; and
  • Fighting Words: So-called “fighting words” are words, or speech, that are specifically intended to incite imminent, lawless action on the part of those who hear them. The use of fighting words can be prohibited, as well as made illegal in criminal law.

Can I Sue For Negligence Or Strict Liability?

Under a negligence theory, the injured party must demonstrate that the person who created the work which incited violence:

  • Owed the victim a duty of care;
  • Breached that duty of care; and
  • Injuries resulted as a result of the breach of duty.

Because of the free speech protections provided by the First Amendment, it is considerably difficult to successfully assert a claim of negligence. This is because most courts have denied imposing a duty of care on:

  • Producers;
  • Artists;
  • Publishers; and
  • Authors to the audience of their work.

In order to prove that a person is liable for violence incited by their work under strict liability, the prosecution must prove the following elements:

  • There was a sale of a product;
  • The product was defective in some way;
  • The victim suffered injuries because of this defect; and
  • The injuries were actually caused by the defective product.

Generally speaking, a movie, book, or song is considered to be defective because there is no adequate warning about its potential to incite violence. However, similar to the negligence theory, it is not simple for a victim to recover under the strict liability theory. This is because the courts are historically hesitant to treat movies, books, and music as “products” for the purposes of this type of a claim.

Can I Sue For Wrongful Death?

Wrongful death lawsuits have three elements which must be proven in order to be successful:

  • The creator of the work owed a duty of care to its victim;
  • There was a breach of the duty of care; and
  • The breach was the sole cause of the death of the victim.

Similar to a negligence cause of action, it is considerably difficult to prove that the author of a book or creator of a movie or song owes its victim a duty of care. Additionally, courts generally do not find that, assuming there was a duty owed, the breach of duty was the sole cause of death to victims. This is because it is far more common that the perpetrator already has violent tendencies that were present prior to being exposed to the work that allegedly incited violence.

Do I Need A Lawyer For Liability For Violence Incited By A Movie, Song, Or Book?

If you have been injured, or if a loved one has been killed by violent acts that were incited by movies, books, or songs, you should speak to a knowledgeable personal injury attorney.

Your personal injury lawyer can help you understand your legal rights and options according to your state’s specific personal injury laws, and will also be able to represent you in court, as needed.