Select Page

Entertainment Law
University of Mississippi School of Law
Myers, Gary

Entertainment Law
University of Mississippi
Professor Myers
Fall 2010
I.           Sex and Violence in Entertainment
How the First Amendment Applies to the Entertainment Course
–          “Congress shall make no law…abridging the freedom of speech.”
–          Poses two questions:
Is the speech Protected or Unprotected?
a.      Joseph Burstyn, Inc. v. Wilson (1952) – movie in which girl is raped by man she thinks is a saint, while she’s drunk; sarcastic/sacrilegious; movie got permit, but the NY film board revoked the license. The movie appealed. 
·         Whether movies are within the ambit of protection of the First & Fourteenth Amendments
§ Originally, movies not thought to deserve protection because main purpose thought to be to make money
§ Ct. rejects the argument that movies aren’t meant to be protected because they are predominantly for profit bc Newspapers, radio, tv, books – all make profit, too
·         Because movies are significant forms for communicating ideas, designed to entertain and inform; should be within free speech and free press guaranty of 1st and 14th Amendments. Due Process Clause extends these benefits to the states
·         Thus,movies, books, tv shows, stage plays, and video games are all included as speech under the 1st Amendment.
Once we decide if something is protected, how do we analyze a regulation that is being imposed?
a.      Two different approaches:
–          Balancing Approach
o   Ex: defamation – NY Times v. Sullivan – Ct. said debate on public issues should be uninhibited, robust and wide-open, . . . may include attacks on government and public officials.
o   States defamation laws usually protect someone’s reputation from harm. Ct. had to balance between First Amendment interest (political, protected speech) with the state’s interest in protecting the official’s reputation
§ Interest in defamation is low; but speech interest is highest – need to be able to criticize public official if/when necessary – Ct. wants to give greater protection to speech, less protection for public officials; wanted to make it hard for public officials to sue for defamation (implemented actual malice standard – knowing or reckless false statement)
§ But balance shifts to favor private citizen in defamation case – private citizen doesn’t have to meet actual malice standard.
–          Categorical Approach
o   An entire category of speech is not protected – very narrow
o   Speech of Incitement is NOT protected
§ Brandenburg – relied on by authors, film makers, rap artists, etc.
§ Ex:  Can’t yell “fire” in crowded theater;
o   Obscene Speech NOT Protected: Miller test for obscenity:
§ Whether average person, applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest
§ Whether the work, in a patently offensive way, depicts or describes sexual conduct specifically defined by applicable state law
§ Whether work, as a whole, lacks serious literary, artistic, political, or scientific value
o   If it meets all three – unprotected speech; Very narrow category of subject matter – limits government regulation of movies to those that constitute hard core pornography
§ Considerations: intrusiveness, right to be left alone, protection of children (time of day, etc.)
·         Music as a Category of Speech
§ Skyywalker Records, Inc. v. Navarro- 2 Live Crew: As Nasty As They Wanna Be CD – regulated by Florida sheriffs – prohibited sale
§ Music as a category of unprotected speech – applying Miller test to the song: all 3 parts satisfied –
o   Frequency and graphic description of sexual lyrics appeals to prurient interest
o   Patently offensive? Yes, based on contemporary community standards
o   Lacks serious social value? Yes, obscene and sexually explitict lyrics don’t have any redeeming social value
§ Group said music just for entertainment; no justification for use of obscene words – thus, the “speech” was unprotected.
§ Ct. said FL statute not justified – prior restraint; can’t punish obscenity before cds were sold, even if it is later concluded that the content of the material is obscene. Subsequent punishment is ok, after finding by Ct. that material is obscene.
o   Strict rule: very few prior restraints are permitted – has a chilling effect on free speech
o   Ex: troop movements – disclosing material info prior to action is prohibited during war time; national security; 6th Amendment – few categories based on extreme situations – narrowly defined
·         Overbreadth:
§ Ashcroft v. Free Speech Coalition- CPPA (child pornography prevention act) prohibits the visual depiction of teenagers under 18 engaging in sexual activity
§ Case provides broad speech protection
§ Must judge work as a whole under Miller – not just explicit portions of it.
§ The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.
o   Virtual child pornography is not intrinsically related to sexual abuse of children.
§ When there is a well-intentioned law written in such a way that it encompasses lawful speech, then that overbreadth can be a basis for striking it down.
o   Here, the government could not suppress lawful speech (virtual images) as the means to suppress unlawful speech (child pornography)
·         Differences in Radio/TV Censorship – Indecency Test
§ FCC v. Pacifica Foundation – Live radio show – George Carlin’s “Filthy Words” monologue broadcast during the afternoon- FCC sanctioned for indecent, profane, and obscene broadcasts.
o   Pacifica had to get license from FCC – so FCC can regulate; and regulation of time are reasonable. (Ex: after 10 p.m.)
o   Indecent material can be regulated – only in radio/tv- unique medium – more intrusive – treated differently based on historical reasons
o   Is there govt privilege in having a license? – public airways = power, a scare resource.  
o   When it’s live, less ability to regulate, prevent. Damage can be done before even chance to act (ex: 2004 superbowl – Janet Jackson incident). And prior warnings aren’t necessarily effective, especially on the radio, where listener may be continuously tuning in and out.
§ Howard Stern Case – FCC limited the show to time frame after midnight
o   Indecency defined – new standard for indecent broadcasting:  “language or materials that depict or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs” new broadcast medium standard – national standard not part of Miller test – easier to find material indecent than obscene
o   Ex: note: if superbowl broadcast on ESPN instead of CBS (doesn’t hit public airways, goes through coaxial cable to your house instead of satellite and public airways) – wouldn’t be considered “indecent” under FCC – couldn’t be regulated
Regulation – to what extent can the speech be regulated?
1.      Content
a.      Sexual in nature
b.      Violent in nature
2.      Impact on Entertainment Field
Policy – what’s good law and policy (assuming Congress and the states have the power to regulate, how/should they use that power?)
Fleeting Expletives – supplement p. 4-9
–          When a public figure giving a speech says an expletive, should the news company be held responsible for those expletives? 
o   Broadcast television – delayed feed?
Media Liability
–          Diane Herceg and Andy V. v. Hustler Magazine – Hustler magazine article about how hanging could be a form of sexual pleasure (warning appeared 10 times); 14 year old hung himself and died – family brought suit against Hustler
·         Should the content of the magazine effect whether the magazine should be liable for the death that occurred?
o   No liability under Brandenburg – no incitement
§ Brandenburg: can only regulate speech which is directed to incite or produce imminent lawless action and is likely to incite or produce such action.
o   Article is protected under the First Amendment.
o   Hustler may also have argued that the magazine wasn’t supposed to be sold to anyone under 18.
–          Hit Man  – “how-to” manual on assassination – could potentially be a printed publication that falls within the Brandenburg category of incitement
·         Would tv or radio publication have greater potential of being an incitement? Possibly – because they reach more people.
–          Weirem – example

No evidence they acted with actual malice.
–          Character name changed, but person still identifiable.
–          The film was a docudrama made off the thesis of the book. And since docudramas aren’t viewed by the public as fact-based, minor fictionalizations can’t be considered evidence or support for actual malice.
–          Note: the level of doubt is higher for a document, bc the public considers them to be true.
b.      Milkovich v. Lorain Journal – SC rejected the view that any statement labeled as “opinion” was automatically protected by the First Amendment. In certain contexts, opinion statements could easily convey an implied and false factual assertion to the reader or listener.  Even though something might be labeled as an opinion, there may be a fact that is false, and there may be liability for defamation.
B.      Infliction of Emotional Distress
–          Relatively few cases in entertainment that deal with IIOED
–          Hustler Magazine v. Falwell – Hustler parodied Jerry Falwell in magazine about “first time”; Falwell sued, claiming defamation (rejected bc no factual statement, purely rhetorical hyperbole – and parody had a disclaimer noting it was false), IIOED – (jury found for Falwell)
·         SC said Falwell public figure.
·         To recover for IIOED by reason of publication, a public figure has to show that there was a false statement made w/actual malice, and show elements of IIOED.
§ Utterance intended to inflict distress – intentional or reckless conduct
§ Conduct was extreme and outrageous
§ Actual infliction of serious emotional distress.
·         SC said no IIOED, defamation, or invasion.
C.      Privacy: Intrusion on Solitude
·         Most commonly used tort claim in entertainment – invasion of privacy
·         Whether person should have zone of physical and/or information privacy kept out of the public eye
·         Four Privacy Torts:
o   Intrusion on seclusion/solitude
o   Public disclosure of private facts
o   False light
o   Right of publicity – appropriation of another’s name/likeness
1.      Intrusion on Solitude
a.      Ayeni – Fourth Amendment case – ct. decided that police authorities violate the right of residential privacy at the core of the Fourth Am. when they invite tv or newspaper people to accompany them in what would be a defensible intrusion by the law enforcement personnel themselves.
b.      Paparazzi cases  – Jackie O, Princess Di; zooming lenses, invading personal space of celebrities – public figures as well as private figures are protected from intrusion
–          Newsgathering: limited to public spaces (those seen from the road) – and for story to be considered “newsworthy” – reasonable members of the community must entertain a legitimate interest in the story.
c.       Shulman v. Group W. Productions – invasion of privacy – On Scene: Emergence Response videotaped Shulman’s rescue from car wreck, recorded her statements while in emergency helicopter, used in production of tv show.
–          P sued for publication of private facts – ct. rejected, said story was “newsworthy” and legit. public interest in story; Second claim for intrusion – could recover, bc reasonable expectation of privacy in the helicopter, expectation in conversations with medical rescuers,  reasonable person would be highly offended, invaded with camera man, microphone