I. Sex and Violence in Entertainment Law
A. Entertainment and the First Amendment
1. What is included as speech under the 1st Amendment?
a. Movies, books, tv, shows, stage play, and video games
i. Joseph Burstyn, Inc. v. Wilson- expression of motion pictures is included within free speech. Entertainment is the type of speech that falls under protection of 1st Amendment. A state may not ban a film on the basis of a censor’s conclusion that it is “sacrilegious”.
1. Importance of motion pictures as an organ of public opinion is not lessened by fact that they are designed to entertain as well as inform.
2. Prior restraints will have a chilling effect
b. Extension to any kind of speech
i. principle that debate on public issues should be uninhibited, robust, wide-open. Look for ACTUAL MALICE STANDARD- (knowingly false or reckless disregard of the truth. No need to verify with absolute certainty.)
1. Time Inv. v. Hill- time made move of the Hill’s family ordeal of being held hostage in their home, but depicted them subject to sexual harassment and physical brutality. Needed to prove actual malice for suit by private individual for defamation.
ii. ONLY advocacy that is directed to inciting or producing IMMINENT LAWLESS ACTION and that is LIKELY TO INCITE OR PRODUCE SUCH ACTION can be made illegal
1. Rice v. Paladdin
2. Brandenburg v. Ohio- constitutional protection afforded to speech of leader of Ohio branch of Klu Klux Klan. It would violate the 1st Amendment to punish pure advocacy of illegal force.
2. Regulation that is permissible- is it entertainment, newsworthy or commercial speech? Cass Sunstein high/low speech
3. Obscenity and Pornography
a. Miller Test- (kinds of works gov can constitutionally restrict as sexually obscene)
i.whether the average person, applying contemporary community standards, would find that the work taken as a whole, appeals to the prurient interest
ii.whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by state law
iii.and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
b. Having to satisfy all 3 requirements limits government regulation of movies to those that constitute Hard Core Pornography.
i. Considerations include:
1. intrusiveness
2. right to be left alone
3. protection of children including the time of day
B. Entertaining Sex
1. Music can be obscene
a. Skywalker Records Inc. v. Navarro
i. Application of Miller Test to music to determine if song was obscene.
ii. The recording appealed to the prurient interest (lyrics and songs are full of references to female and male body parts, sex acts, sounds of sex. Clear intent of the song was to lure hearers into sexual activity
iii. Recording is patently offensive to contemporary standards (offensive because of the graphic nature of the lyrics that place viewer in the scene of the sexual act, not the fact that they describe or reference sexual acts; lyrics contain dirty words and depictions of female abuse and violence; no obligations for listeners to buy ear plugs to avoid hearing it
iv. work as a whole lacks serious literary, artistic, social value (expression by words can be legally obscene even if there are no accompanying pictorial depictions; sexual lyrics do not have any redeeming social value.)
2. Even fully consenting adults do NOT have a constitutional right to watch movies that passed the Miller obscenity test. Paris Adult Theatres I v. Slaton
3. Virtual Child Sex – does NOT involve real people and not under definition of obscenity
a. Aschroft v. Free Speech Coalition- gov argues speech prohibited by the CPPA is indistinguishable from child pornography. Court found that the statute is unconstitutional as being overly inclusive .
i. 1st Amendment, under Miller, requires that redeeming value of work be judged by considering the work as a whole. Where the scene is part of a narrative, the work itself doesn’t become obscene even if the scene in isolation is offense.
ii. Rule: 1st Amendment establishes that a work that contains depictions of images of sexual activity cant be subject to severe punishment w/o first inquiring into the artistic value of the work.
iii. MERE TENDENCY OF SPEECH TO ENCOURAGE UNLAWFUL ACTS is not sufficient reason for banning it. government cannot premise legislation on the desirability of controlling a person’s private thoughts.
1. need a stronger connection to show that work does more than encourage pedophiles to engage in illegal conduct. Government cannot suppress lawful speech (virtual images) as the means to suppress unlawful speech (child pornography).
4. Indecency Test
a. FCC v. Pacifica Communications- FCC act forbid obscene, indecent, or profane language on radio. Carlin has a broadcast show where he used profane language and when a listener heard it, he complained to the FCC because it was on during the daytime when young kids could hear the contents of the show’s profane language.
i. Indecency Test- language or material that in “context” depicts or describes in terms patently offensive as measured by contemporary community broadcast standards for the broadcast medium sexual or excretory words or activities. – out of FCC Act.
ii.Court upheld FCC determination that Carlin’s language violated the terms of the Communications Act. Broadcasting requires different treatment under the 1st Amendment bc of the practical problems faced in protecting children from programs carried directly into their home.
iii.patently offensive speech that is presented over the airwaves confronts individuals not only in public, but also in the privacy of their home, where the individual’s right to be left alone outweighs the 1st Amendment right of an intruder.
iv.different standard for print vs tv and radio
b. Howard Stern Case- FCC limited the Stern show time frame after midnight to protect children ages 12-17
i. Rule: new generic standard for indecent broadcasting- language or material that depicts or describes, in terms patently offensive as measured by contemporary standards for the broadcast medium, sexual or excretory activities or organs.
ii.Court upheld the FCC indecency standard but struck down the shortened safe harbor time.
C. Entertaining Violence
1. Brandenburg v. Ohio- imminence test: speech can be regulated where
a. States may only regulate speech which is DIRECTED to incite of produce IMMINENT lawless action and is LIKELY TO INCITE or produce such action.
2. Rule Extension- to determine whether speech is considered to be inciteful, it must exhort, urge, entreat, or overtly advocate or encourage unlawful or violent activity on the part of viewers. Natural Born Killers
a. D after watching movie drove to New Orleans and committed several killings along the way. Court held that the movie doesn’t purport to order or command anyone to perform concrete action immediately or at any specified time. Viewers are not directed or urged to commit any type of imminent lawless action.
3. Rice v. Palladin Enterprises, Inc. test- using violence to aid and abet crime with deliberate intent to bring about the crime and stealing the reading to action.
a. Publisher’s aided and abetted the murders at issue through the quintessential speech act of providing a step-by-step instruction for murder that
lar set of facts or circumstances and either a) voluntarily injects themselves into the public or b) are drawn into the public controversy for a limited range of issues.
1. 3 part test: 1) person isolates and defines public controversy; 2) person thrust him/herself into the controversy to become a factor in its ultimate resolution and 3) find false statement to be germane to the person’s participation in the controversy.
c. Private figures- no application of the “actual malice” standard.
i.applicable standard is NEGLIGENCE as defined by state law
ii.private individuals are much less able than public figures to publicly rebut libelous assertions about them.
iii.private figures don’t voluntarily expose themselves to risk of damaged reputation.
iv. MUST PROVE ACTUAL MALICE if trying to obtain punitive damages
v. public figures do not automatically become public figures by becoming involved in or associated with a matter that attracts public attention.
1. Dresbach- 14 year old boy didn’t gain any special access to channels of communication and didn’t thrust himself into the controversy surrounding the murder of his parents by his brother when he was 14.
C. Defamation in Entertainment
1. Davis v. Constantin Costa, Universal Studios, and MCA, Inc.
a. Docudramas are not viewed by the public as fact based, thus minor fictionalizations cant be considered evidence or support for the requirement of actual malice.
b. 1st Amendment protects such dramatizations and doesn’t demand literal truth in every episode depicted.
c. Davis was a commander in the military who was portrayed in a movie to have known of and approved of the killing of an American boy by Chilean soldiers. Davis is a public figure and actual malice standard applied. Court didn’t find actual malice because the production company relied on the book about the story. Cannot prove actual malice by asserting that a publisher didn’t contact the subject of his/her work. Publisher is only guilty of actual malice if he knew that his publication was false, entertained serious doubts as to its truth, or had other reasons to doubt the accuracy of the source of the published information.
2. Opinions are not actionable because we are all entitled to our opinions.
3. Libel in fiction cases
a. Springer
D. Infliction of Emotional Distress
1. Elements: (REALLY FOR PRIVATE FIGURES) in defamation suits
a. D’s conduct is intentional or reckless and
b. D’s conduct is extreme and outrageous and
c. results in severe emotional distress
2. Constitutionalization of Emotional Distress
a. Hustler Magazine v. Falwell- Larry Flynt wrote a parody about public figure, Jerry Falwell. Parody included a disclaimer noting that it was false and it discussed his first time during a sexual rendezvous with his mom
i. Rule: in the world of debate about public affairs, such debate is protected by the 1st Amendment even when a speaker or writer is motivated by hatred or ill will.
1. public figures and officials CANNOT recover for tort of emotional distress by reason of publication w/o showing of actual malice.
