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HOW A SEA CHANGE IN CIVIL LIABILITY THREATENS TO DROWN THE FIRST AMENDMENT:
A Review of Professor Robert M. O'Neil's The First Amendment and Civil Liability


By MARK S. ZAID


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Friday, Dec. 21, 2001

Robert M. O'Neil, The First Amendment and Civil Liability (Indiana University Press, 2001)

For most of the First Amendment's 210 years, it has served as an almost infallible armor shielding the media from most litigation challenges. Nevertheless, the concept of civil liability involving freedom of expression dates only to the 1920s. Moreover, libel law, in its modern form, was primarily defined by a line of Supreme Court decisions that began in 1964, with the landmark ruling in New York Times v. Sullivan. That case established the rule that a public official pursuing a defamation case that related to his official conduct must prove that the statement was made with actual malice - that is, with knowledge that it was false or with reckless disregard of whether it was false or not - in order to recover damages.

The deterioration of the First Amendment wall that had protected the media is the theme of University of Virginia Professor Robert M. O'Neil's astute new book The First Amendment and Civil Liability. A former law clerk to Justice William J. Brennan, Jr., who was the author of the New York Times decision, O'Neil was directly involved in some of the very cases addressed in the book through his role as director of The Thomas Jefferson Center for the Protection of Free Expression.

Landmark Anti-Media Rulings, Including One About a Hit Man's Manual

Many of the lawsuits O'Neil discusses are high-profile: the case involving Jenny Jones' planned segment on the revelation of a male-on-male secret crush; the litigation over Oprah Winfrey's decrying American beef as a dangerous food; and the lawsuit by veteran White House assistant Sidney Blumenthal against gossip columnist Matt Drudge over rumors (which turned out to be unsubstantiated) that Blumenthal had beaten his wife.

O'Neil identifies two cases in particular as exemplifying and solidifying the dramatic sea change in the legal landscape. In Rice v. Paladin Enterprises, a professional hitman murdered a man's paraplegic child and ex-wife so that the man could collect his deceased son's malpractice settlement. The brutal deed was carried out according to specific instructions in the book Hit Man: A Technical Manual for Independent Contractors.

The victims' family sued the publisher. Surprisingly, the publisher admitted (for pre-trial purposes) that the book was "intended" to be used as the hitman had used it. Despite this concession, however, the lawsuit was still dismissed - as many had expected - on First Amendment grounds. One decisive factor was the judge's assessment that "books do not kill; only people do." The Fourth Circuit Court of Appeals, however, reversed the dismissal.

The First Amendment, the appellate court wrote, had no room for a book with a "declared purpose ... to facilitate murder," and especially not one "marketed directly and even primarily to murderers and would-be criminals." To assure the media that it retained the protections of the First Amendment despite this ruling, the court sought to tailor its decision to the specific facts of the case. It had no desire to open a Pandora's box that would swallow the First Amendment.

Another Landmark Anti-Media Case Puts the Film Industry In Jeopardy

Yet, as O'Neil aptly notes, whatever initial reassurance the language of the Hit Man Manual case had provided, it was soon pushed aside by another surprise decision six months later. This time it was the film industry that lost its First Amendment shield.

Byers v. Edmondson alleged that a copy-cat killing was caused by the killer's obsession with Oliver Stone's film Natural Born Killers. It was initially dismissed, but then later reinstated at the appellate level where the court flatly rejected free speech claims. The appeals court ruled that a valid case existed if the family could prove that the film was intended to cause its viewers to imitate the violent imagery.

As a result of these two cases, in just a matter of months, as O'Neil explains, "the legal landscape had changed dramatically. The safe harbor that publishers, producers, and distributors had taken for granted for decades had suddenly vanished."

Continuing Uncertainty, Especially Where the Internet Is Concerned

Much of O'Neil's book deals with how the established media (TV, print, film) is losing ground in the courtroom. However, the experience of the newest media format - the Internet - has so far been quite different.

Use of the Internet has spawned some interesting questions of potential civil liability: Are Internet service providers responsible for the content posted on their sites? Is there a legal responsibility to reveal the identity of an anonymous author in response to a subpoena or otherwise?

Thanks to a congressional grant of broad immunity against libel and similar tort claims, through a surviving provision of the Communications Decency Act (most of which was invalidated by the Supreme Court in Reno v. ACLU), most courts have permitted the Internet shield to remain in place.

O'Neil does not predict the direction in which the law will evolve next - nor would it be reasonable to ask him to. After all, few could have predicted the past developments O'Neil chronicles.

Nor is it certain why these developments occurred. Was it the public's disenchantment with the entertainment and news media, the proliferation of victims advocacy groups, or the tactics of skilled attorneys that changed the landscape? Or perhaps, does some of the blame lie with the media itself? O'Neil cites ABC PrimeTime Live's use of subterfuge to obtain employment in a Food Lion store in order to use hidden cameras, which resulted in a ruling imposing liability on the network, as an example of a media wound that could be considered self-inflicted.

While O'Neil does not provide a precise explanation for these developments, he should be lauded for articulately explaining the process by which the current framework came into existence, and doing so in a clear way, without unnecessary legal jargon. One need not be a lawyer to understand and enjoy this book.

In the end, O'Neil's concern with the recent trend is quite evident; after all, he is primarily a First Amendment advocate, and anyone who is must be concerned with the current lay of the legal land. In repeatedly emphasizing how the line that separates First Amendment protection from liability has now become blurred, O'Neil poignantly reminds us its not just the obviously reprehensible works, such as the Hit Man Manual, that are now at risk.


Mark S. Zaid is a Washington, D.C. attorney who is Of Counsel to the law firm of Lobel, Novins & Lamont. Mr. Zaid specializes in national security, FOIA and First and Fifth Amendment cases. He is also the Executive Director of The James Madison Project (www.jamesmadisonproject.org), a non-profit organization that seeks to reduce secrecy and promote government accountability.

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