Amicus Curiae Brief — Time Warner Entertainment Co. v. Byers

No. 98-1091 |

IN THE

Supreme Court of the United States ae

OCTOBER TERM, 1998

TIME WARNER ENTERTAINMENT CO., L.P., ET AL.,

Petitioners,

v.

PATSY ANN BYERS, E7 AL.,

Respondents.

On Petition For Writ Of Certiorari To The

Court Of Appeal Of Louisiana, First Circuit

BRIEF OF AMICI CURIAE IN

SUPPORT OF THE PETITIONER

WALTER E. DELLINGER

(COUNSEL OF RECORD)

CRYSTAL NIX

O'MELVENY & MYERS LLP

555 13th Street, N.W.

Washington, D.C. 20004

(202) 383-5300

ROBERT C. VANDERET

O'MELVENY & MYERS LLP

400 South Hope Street

Los Angeles, CA 90071

(213) 430-6000

Counsel for Amici*

HENRY L. BAUMANN

STEVEN A. BOOKSHESTER

1771 N Street, N.W.

Washington, D.C. 20036

(202) 429-5430

Counsel for the National

Association of Broadcasters

DANIEL ROBBINS

15503 Ventura Boulevard

Encino, CA 91436

(818) 995-6600

Counsel for the Motion Picture

Association of America, Inc.

ANNE H. EGERTON

PATRICIA DUNCAN

3000 W. Alameda Avenue

Burbank, CA 91523

(818) 840-3508

Counsel for National

Broadcasting Company, Inc.

DANIEL L. BRENNER

NEAL M. GOLDBERG

1724 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 775-3664

Counsel for the National

Cable Television Association

* Amici listed on inside of cover ¢

Amici:

ABC, Inc.

American Booksellers Foundation for Free Expression

American Filming Marketing Association

American Society of Journalists and Authors

Association of American Publishers, Inc.

Authors Guild

California Broadcasters Association

CBS Broadcasting Inc.

Comic Book Lega! Defense Fund

Directors Guild of America, Inc.

Fox Broadcasting Company

Freedom to Read Foundation

Independent Producers Association

International Periodical Distributors Association

Los Angeles County Bar

Motion Picture Association of America, Inc.

National Association of Broadcasters

National Association of College Stores

National Broadcasting Company

National Cable Television Association

Periodical and Book Association of America

Producers Guild of America

The Publishers Marketing Association

Recording Industry Association of America, Inc.

Software and Information Industry Association

Video Software Dealers Association

Writers Guild of America, West, Inc.

i

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE o.0...ccccccecccsesccececsecesscecseeeeeees

SUMMARY OF ARGUMENT. ..........ccccccccccsesessecscsececeeceseese.

ROPE Saliciislissiiteictdactapsectecrachessemmnsabnplaeaisomenasee cco 3

I. SUMMARY DISPOSITION IS WARRANTED

BECAUSE THE COURT EGREGIOUSLY MISAPPLIED

SETTLED FEDERAL CONSTITUTIONAL LAW ccsccsoe 3

A. Plaintiffs’ Complaint Failed To Set Forth

The Necessary Allegations Required By

SP NINIIPEE denlatiichesenlecotsctssedeatddadisenctpocenecccicesmcs 4

|. The Complaint Must Allege Immediacy .... 5

2. The Complaint Must Allege An

Inducement To Particular And

Identifiable Viewers ............ccccccccccccoceees--. 10

B. Plaintiffs’ Complaint Failed To Allege That

Lawless Actions Was A Likely And

Foreseeable Outcome Of Defendants’

RINE diiherccssetaiantnseridenisaniticaisseicissndctenusene 1]

C. The Court Of Appeal Ignored The

Heightened Pleading Burden For Claims

Implicating The First Amendment ................... 14

Il. THIS COURT SHOULD SUMMARILY

REVERSE THE DECISION BELOW. ................... 16

A. Summary Reversal Is Consistent With The

Court’s Previous Application Of Rule 16.1 ..... 16

B. Summary Reversal Is Necessary To

Safeguard Important Constitutional Rights ..... 18

nano tad EATS: ae TON 20

il

TABLE OF AUTHORITIES

CASES

Brandenburg v. Ohio,

395 OS. B06 LUGODY crecscssesccecn eee

Catholic War Veterans of the United

States, Inc. v. City of New York,

576 F. Supp. 71 (S.D.N.Y. 1983) ccsscsccsssseeessses

Chappelle v. Greater Baton Rouge

Airport Dist.,

BSE UD. TSP UIGT 1) sececccsicntathinerincpcesnain

Cohen v. California,

BOS UB. TS LEFT | ) evversccvtsemvinsneetibennbibatemeniets

Craig v. Harney,

SIE UB FET CIDCT) cnvvnisnnsrinnvernmtjuintecnamanneen

Davidson v. Time Warner, Inc.,

No. V-94-006, 1997 WL 405907

(SDD. FOU. WERE Diy TRV E) scccresvecsevnittehanicavieeesin

Davis v. City of Portsmouth,

579 F. Supp. 1205 (E.D. Va. 1983),

aff'd, 742 F.2d 1448 (4th Cir. 1984) .o.eesccsssseee

Eaton v. City of Tulsa,

415. US, GT CEG FS) cccevicnicssoinevenmvesmnaabviasmtens

Gertz v. Robert Welch, Inc.,

416 UG. SES (USPS) cccccoveevcesccnvecvsenrviabeentedinal

Page(s)

passim

ill

Hess v. Indiana,

I I 4,7, 8,10

Jackson v. Nelson,

A Pe Pe Gee BDI ccececcesrscsecesorcuccccssecniecseteces 15

Kottle v. Northwest Kidney Crrs.,

146 F.3d 1056 (9th Cir. 1998), per.

for cert. filed, 67 U.S.L.W. 3364

(U.S. Nov. 17, 1998) (No. 98-810)... init 14

Lewis v. Columbia Pictures, Inc.,

No. E011948, 1994 WL 75866

CURE. CE, Aap. Nov. ©, 1996) on. ncecccccncccccoceccesoceevessecorees 12

Landmark Communications, Inc. v.

Virginia,

EP Pees TY CEP UUD ccvictiscicsnctidesesnsnsaroccucecoccereriseseccessceces 12

McCollum v. CBS,

249 Cal. Rptr. 187 (Ct. App. 1988) oc e. 8,12, 13

Miller v. Warner Bros., Inc.,

No. 96vs117599-F (Fulton Cty Ga.

EE RN AI NE 1]

Moore v. Arizona,

ESET gt IE 5 a 17

National Bank of N. Am. v. Associates of

Obstetrics & Female Surgery, Inc.,

a epesescncetdesoninaens 17

National Bowl-O-Mat Corp. v. Brunswick

Corp.,

264 F. Supp. 221 (D.N.J. 1967) ..........ccccccccsscsscesececeseseees 14

iv

National Org. for Women v. Scheidler,

SIO UES, Bee Cle verreensncestvinsinitisvninnrionsmniaglan 14

Noto v. United States,

Fe ee Ce Dy picensictinicicniniitiaceiabatianbicesihianstaoclpahadieatins 7

Olden v. Kentucky,

Ge hae EET CEO intcstnndomecissticabipitclecseiiinminedbieein 16

Pease v. Hansen,

a i Be ED iiartthcminseistcesestcitintanicnilaesinbinaaubentttan 17

Pennsylvania v. Bruder,

Be OE erteceenericbdiisbvaitcicvadieinlenapledabentietn 16

People v. Mighty,

535 N.Y.S.2d 944 (Rochester City

OR Se ehaienttatseiesaciasipesactionsconcsinsadcichartetellesamensibeehiniiekeaiion 12

Rice v. Paladin Enters., Inc.,

128 F.3d 233 (4th Cir. 1997, cert.

I, Be Gets Bae CEE cirsceeneterctnntniotrniccns 9, 10, 20

Ryan v. Scoggin,

Be Fl FO IR GR, FBG) crccccernearecciviitiinascsnninpianiomnite 15

State v. Blythe,

he ee te NS BES) cconcctansttebiciiataitnsitintltinennets 6

Sutton v. Eastern Viavi Co.,

Fe ce Fe CH Gee BOD ieiicicinietctsttecehcartionns 15

Waller v. Osborne,

763 F. Supp. 1144 (M.D. Ga. 1991),

aff'd, 958 F.2d 1084 (11th Cir. 1992) woo. eee eeeeeeeeeees 10

Watts v. United States,

Vv

SPO US, FOS CCID siiicichdbnk dace es 17

Whitney v. California,

oF Gt. +; TAAMAEE ERR Rak VOR aS Rca 5,6

Winters v. New York,

BAe es SET GRUP ininhctntcicncbenlatidarnieeibedasabai tect os 20

RULES

ie Gia CUEE. ituentstiindéedemehuuedineueee ines ee passim

OTHER AUTHORITIES

Thomas Irwin Emerson, The System of

Freedom of Expression (1970) .....ccccccccccccscssssssseceesecseeeeees 6

Charles Fried, The Oliver Wendell Holmes

Devise Lecture: Perfect Freedom,

Perfect Justice, 78 B.U. L. Rev. 717

POU crsclilehiecatasoiisttessteckcliguiers Mates ther ciaicpisctniiucltdinadaees 5,6

Kent Greenawalt, Speech and Crime,

Am. B. Found. Res. J. 645 (1980) .o..c.cccceccececceccecceeees 6,7

Arthur D. Hellman, Error Correction,

Lawmaking, and the Supreme Court's

Exercise of Discretionary Review, 44

Fs ee Meee PIU gc 16, 17

Merriam Webster's Collegiate Dictionary,

See TITIES ciinsdetidieonsabddiguneeiinicceacsodousantoeancedneatiten 9

E. Barrett Prettyman, Jr. & Lisa A.

Hook, The Control of Media-Related

Imitative Violence, 38 Fed. Comm.

ee ki. yg BORER! 1271 3 ee 6, 7, 13

Vi

Robert L. Stern et al., Supreme Court

PPM LODO) ccvsiissterstancnineticnniemusinnaiiaeianannite

Lawrence Tribe, American Constitutional

EP GE OE, TI ccicctscccorcinnintanlcedetliations

Warren, The Proposed New ‘National

Court of Appeals,’ 28 Rec. A.B. City

FOE ET GEO TET coscscidsncanvdininincintcistnnblaninnneciadinetiinteieie

Charles Alan Wright & Arthur R. Miller,

Federal Practice & Procedure (2d ed.

FD snccccusvscintaceinisanscaicianeniaidianonanaanienlcbadigviautclduiies

Vil

STATEMENT OF INTEREST

Amici curiae include the following organizations and

entities with a direct interest in the outcome of these

proceedings:

A. ABC, Inc., CBS Broadcasting Inc., Fox Broadcasting

Company, and National Broadcasting Company own and

operate television stations across the country and produce and

broadcast television shows and movies that are seen throughout

the United States, including Louisiana.

B. The American Booksellers Foundation for Free

Expression (“ABFFE”) was organized in 1990. The purpose of

ABFFE is to inform booksellers and other members of the book

industry about the dangers of censorship and to promote and

protect the free expression of ideas. particularly freedom in the

choice of reading materials.

C. The American Filming Marketing Association

(“AFMA”) is a non-profit organization whose members

produce and license the international rights to independent

English-language films. Comprised of 130 members, AFMA

members generate international revenues in excess of $1.6

billion annually.

D. The American Society of Journalists and Authors is

the national organization of independent non-fiction writers. Its

1000-plus members have an abiding interest in protecting the

First Amendment. Many of them also have a particular interest

in this case and believe that the magazine articles and books

that they write, sometimes detailing violent events, and often

optioned and produced as television or theatrical films, are put

at risk by the decision below.

E. The Association of American Publishers, Inc.

(“AAP”) is the national trade association of the U.S. book

publishing industry. AAP members include most of the major

commercial book publishers in the United States, as well as

smaller and non-profit publishers, university presses, and

Vill

scholarly societies. Defending freedom of expression is one of

the association’s top priorities.

F. The Author’s Guild, founded in 1912, is a national

for-profit association of more than 7,700 professional published

writers of all genres. The Guild counts journalists, historians,

biographers, and other writers of nonfiction and fiction as

members. Guild members have won many awards, including

the Pulitzer and Nobel Prizes and National Book awards. Their

works are valuable contributions to the creative and intellectual

fabric of our society. The Author’s Guild works to promote

the professional interests of authors in various areas, including

freedom of expression. The Author’s Guild views this case,

and all cases that threaten free expression, as bearing directly

on the ability of authors to carry on their business of writing as

a livelihood.

G. The California Broadcasters Association (“CBA”)

represents the 101 television and 629 radio stations of

California. For the past 50 years, the CBA has worked to

ensure the viability and strength of California’s free, over-the-

air broadcasting system. The Association acts as a technical

and educational resource for the industry, advocates on

legislative and regulatory matters, and organizes ongoing public

information campaigns. The CBA believes Californians are

best served by a broadcasting system that provides

programming free of government intervention reflecting local

interests and audience choice.

H. The Comic Book Legal Defense Fund (““CBLDF”) is

a non-profit organization dedicated to defending the First

Amendment rights of the American comic book industry.

CBLDF represents artists, publishers, and distributors, as well

as the broader community of specialty retailers and readers.

I. The Directors Guild of America, Inc. (“DGA”) is a

non-profit corporation duly organized and existing pursuant to

the laws of the State of California. DGA is the duly recognized

labor organization and exclusive representative for the purposes

of collective bargaining of, inter alia, directors, assistant

1X

directors, and unit production managers of theatrical and

television motion pictures.

J. The Freedom to Read Foundation is an organization

established in 1969 by the American Library Association to

promote and defend First Amendment rights, support the rights

of libraries to include in their collections and make available to

the public any work they may legally acquire, and help shape

legal precedent for the freedom to read on behalf of all citizens.

K. The Independent Producer’s Association is a non-

profit trade association representing independent (non-studio)

motion picture and television production companies. The

members of the IPA are actively involved in producing

entertainment programming for both the United States and the

world markets. During 1998, IPA member companies

produced more than 100 feature-length motion pictures.

L. The International Periodical Distributors Association

is the trade association for the principal national periodical

distributors engaged in the business of distributing or arranging

for the distribution of paperback books and periodicals to

wholesalers throughout the United States for ultimate

distribution to retailers and the public.

M. The Los Angeles County Bar was formed in 1878 and

incorporated as a mutual benefit non-profit corporation in 1953.

It is the largest local voluntary bar in the country, with 85

committees and sections, 22, 844 members, and annual revenue

and expenses of more than $10,000,000 and 108 employees. It

is dedicated to improving the administration of justice,

advancing the interest of the profession and serving the public

in law-related ways.

N. The Motion Picture Association of America, Inc.

(“MPAA”) is a not-for-profit trade association founded in 1922

to promote the interests of the motion picture industry in the

United States. The MPAA’s members include many of the

largest production companies and distributors of filmed

entertainment for theatrical, television and home video

xX

distribution. _MPAA members distribute motion pictures

throughout the United States, including Louisiana, and in some

80 countries around the world. MPAA promotes the interests

of the motion picture industry by serving as the advocate for the

major production companies and distributors of motion

pictures, television programs and home video.

O. The National Association of Broadcasters (“NAB”),

founded in 1922, is a non-profit trade association that serves

and represents television and radio stations and broadcast

networks. NAB acts to protect and enhance the ability of its

members to freely disseminate news, public affairs,

entertainment and other programming to the American people.

P. The National Association of College Stores

(“NACS”) is a trade association composed of approximately

3,000 college stores located throughout the United States.

NACS fears that, if the decision below stands, its members may

be subject to similar lawsuits for literary or non-fiction

materials sold by them.

Q. The National Cable Television Association is the

principal trade association of the cable television industry in the

United States, representing the interests of owners and

operators of cable television systems serving over 90 percent of

the nation’s cable households and over 100 cable program

networks.

R. The Periodical and Book Association of America, Inc.

is an association of magazine and paperback book publishers

who distribute their wares through independent national

distributors, wholesalers, and retailers, many of whom conduct

business over the Internet.

S. The Producers Guild of America (“PGA”) is a non-

profit organization that has been in existence since 1950. It

represents the interests of a substantial number of individual

producers as career professionals in the motion picture and

television industries. These are the career professionals who,

on an individual basis, initiate, coordinate, supervise and

Xi

control, either on their own behalf (entrepreneur producer), or

on behalf of an employer (employee producer), all aspects of

the motion picture and/or television production process,

creative, financial, technological or administrative, throughout

all phases from inception to completion, including

coordination, supervision and control of all other talents and

crafts, subject to the provisions of their collective bargaining

agreements and personal services contracts. The PGA bylaws

impose an obligation “to cooperate, when necessary, with other

groups or organizations having objectives or interests in

common with this corporation.”

T. The Publishers Marketing Association (“PMA”) is a

trade association representing more than 3,000 publishers

across the United States and Canada. Many of PMA’s

members are small, independent publishers who publish a

variety of works, including many controversial topics or

involving experimental approaches to writing, which more

mainstream publishers have not acquired. They are concerned

about the potential financial impact of the decision below as the

result of possibly having to defend baseless claims.

U. The Recording Industry Association of America, Inc.

(“RIAA”) is a trade association whose member companies

produce, manufacture and distrisue over 90% of the sound

recordings sold in the United States. The RIAA is committed

to protecting the free expression rights of its member

companies.

V. The Software and Information Industry Association

represents approximately 1,400 companies in the software and

information industries. The computer software companies are

leaders in the creation of enabling technologies for the

production and distribution of content, whereas the information

companies create, disseminate and facilitate the use of a wide

variety of content. The Association’s membership thrives in

great part because of the wide latitude of expression afforded

by the First Amendment of the United States Constitution. Any

X11

undue narrowing of this latitude would have a direct impact on

their activities.

W. The Video Software Dealers Association (“VSDA”)

is the trade association for the home video industry,

representing more than 3,500 member companies in North

America and 22 countries worldwide, including small

independently owned video retailers, large video chains and

other associated businesses that comprise the home video

industry. VSDA vigorously defends the constitutional and

legal rights of its members.

X. The Writers Guild of America, West, Inc. (“WGA”)

is a labor organization representing approximately 8,500

professional authors of stories and screenplays for theatrical

and television motion pictures and interactive technologies.

The WGA also represents news writers for radio and television.

Writers represented by the WGA perform writing services

throughout the United States. As an organization of

professional authors, the WGA has dedicated itself to the

protection of First Amendment freedom of expression

unfettered by intrusive government regulation. The WGA has a

significant interest in the vigorous and uniform enforcement of

First’ Amendment rights throughout the nation, and in

preventing non-meritorious and costly litigation that would

chill creative expression.

]

INTEREST OF AMICI CURIAE

This brief is submitted on behalf of a broad cross-section

of media-related organizations, including many of the largest

production companies and distributors of filmed entertainment.

broadcast, cable and print news organizations, publishing

companies, associations of working journalists and book

publishers, and businesses, non-profit organizations and guilds

involved in the dissemination of ideas.’ Amici have a

significant interest in this matter because they rely on First

Amendment protections to preserve the broadest possible scope

for creative and nonfiction content that may at times address

violent and disturbing issues. In particular, they believe that the

decision below not only violates established Supreme Court

precedent but impairs vital First Amendment freedoms in ways

that will have a chilling effect on a wide range of

constitutionally protected expression. Amici, therefore. submit

this brief in support of the petition for certiorari. Amici agree

with petitioner that plenary review is warranted in light of the

magnitude of the court’s errors, and the substantial burdens the

decision imposes on First Amendment freedoms. Because

amici also believe that summary disposition is appropriate in

view of the court’s manifest deviation from this Court’s

precedents, amici set forth, in the alternative. why the Court

should consider summary reversal under Supreme Court Rule

16.1.

SUMMARY OF ARGUMENT

The decision below that a plaintiff may survive a motion to

dismiss merely by alleging that the creators of a mass

' Written consent of both parties has been filed with the Clerk of the

Court. Counsel for amici authored the entire brief. and no party other

than amici has made a monetary contribution to the brief

* This provision provides that “[a}fter considering the document:

distributed under Rule 15, the Court will enter an appropriate order. The

order may be a summary disposition on the merits.”

2

distribution motion picture had a subjective intent to incite

viewers to violence grossly distorts the extremely narrow

exception to full First Amendment protection carved out in

Brandenburg v. Ohio, 395 U.S. 444 (1969). No court

heretofore has held that the mere subjective intent to incite

imminent lawless conduct is actionable. Instead, Brandenburg

consistently has been held to require direct advocacy, the

objective circumstances of which demonstrate both an intent to

incite imminent lawless conduct and a likelihood that such

conduct will immediately ensue. Plaintiffs’ complaint made no

attempt to meet this stringent standard and thus should have

been dismissed.

If left intact, the decision will have three pernicious effects

— each of which warrants summary reversal of the decision.

First, the decision significantly broadens the narrow exception

to full First Amendment protection established in Brandenburg

and erodes the heightened pleading burden litigants must meet

to state a claim implicating constitutionally protected

expression. Second, the decision undermines the primacy and

uniformity of federal constitutional law and creates perverse

incentives for litigants to “forum shop” in jurisdictions applying

laxer First Amendment standards. Finally, by requiring

plaintiffs merely to plead subjective intent, the decision opens

the door to a flood of “copy cat” lawsuits based upon facile

assertions of intent, which inevitably will prompt self-

censorship by content providers. These ramifications will be

felt not only by studios but also by a variety of providers of

both creative and non-fiction expression. Under the court of

appeal’s standard, a myriad of entities — from book publishers

to newspapers, literary and news magazines to web sites and

trade associations — would be exposed to onerous litigation and

potential tort liability for discussing or dramatizing violence.

This potential damage to fundamental First Amendment values

compels amici to support the petition for certiorari.

Even if the defendants’ rights could be vindicated by a

summary judgment or after a full trial, this possibility —

a ee ee ee ee

*

P

lessened by the erroneous test the court will be forced to apply

— is no reason to leave the decision undisturbed. Rule 16.]

provides for the efficient correction of “palpably clear cases of

constitutional error,” Eaton v. City of Tulsa, 415 U.S. 697, 707

(1974) (Rehnquist, J., dissenting), in order to preserve

important constitutional safeguards and the Court’s inherent

authority. Amici thus respectfully request that the Court grant

the petition and summarily reverse the decision below.

ARGUMENT

L SUMMARY DISPOSITION IS WARRANTED BECAUSE

THE COURT EGREGIOUSLY MISAPPLIED SETTLED

FEDERAL CONSTITUTIONAL LAW.

The decision of the Louisiana court of appeal is patently

erroneous. To survive a motion to dismiss, the court held, a

complaint need only allege a single claim: that the defendants

“intended to incite viewers of the film to begin, shortly after

viewing the film, crime sprees such as the one that led to the

shooting of Patsy Byers.” (Appendix To Petition For A Writ

Of Certiorari (“App.”) at 15a.) Once that allegation is accepted

as true, “the film “Natural Born Killers’ would fall into the

unprotected category of speech directed to inciting or producing

imminent lawless action and which is likely to incite or produce

such action.” (Jd.) This holding should be overturned.

In permitting the plaintiffs to proceed based only on a

conclusory allegation that the defendants had a subjective intent

to incite violence without satisfying the other requirements of

Brandenburg — that (1) defendants directly intended for viewers

to commit such violence at once; (2) the utterance was directed

at particular and identifiable viewers; and (3) immediate

violence was a foreseeable and _ likely consequence of

defendants’ expression — the court applied a weaker standard

than virtually every other court in the land.

In Brandenburg, the Supreme Court overturned the

conviction of a Ku Klux Klan leader under Ohio’s criminal

4

syndicalism statute because the statute was not limited to

advocacy “directed to inciting or producing imminent lawless

action and likely to incite or produce such action.” 395 U.S. at

447. In Hess v. Indiana, 414 U.S. 105 (1973), a majority of the

Burger Court clarified the narrow scope of Brandenburg’s

incitement to violence exception in reversing a criminal

conviction based on the defendant’s loud statement that “We'll

take the f-----g street later (or again)” as the police tried to

disperse antiwar demonstrators from a public street. The

defendant’s expression did not fall within Brandenburg, the

Court held, because the speech was “not directed to any person

or group of persons” and thus it “cannot be said that [the

speaker] was advocating, in the normal sense, any action.”

Hess, 414 at 108-09. Second, the expression was “at worst. . .

nothing more than advocacy of illegal action at some indefinite

future time” and thus was not directed at, and was unlikely to

cause, imminent lawless conduct. Jd. at 108. In the absence of

such a showing, the Court held, Hess’ statement could not be

construed as “intend[ing] to incite further lawless action on the

part of the crowd in the vicinity of the appellant and [as] likely

to produce such action.” Jd. In short, under Brandenburg and

Hess, for speech to be denied full First Amendment protection,

it must constitute a direct exhortation to an identifiable person

or persons to commit violent illegal action at or about the time

of the stated expression, with a clear likelihood that such

violence will quickly occur. This standard necessarily requires

an objective showing of both imminence and the likelihood of

immediate lawless action, notwithstanding a _ speaker’s

subjective intent. A complaint devoid of such allegations

cannot survive First Amendment challenge.

A. Plaintiffs’ Complaint Failed To Set Forth The

Necessary Allegations Required By Brandenburg.

While the court of appeal purported to apply Brandenburg,

it upheld a complaint that, on its face, did not satisfy a central

feature: “imminent” incitement to lawless action. The

complaint contained neither (1) an allegation of a close

eee nee ee

fan oe

5

temporal proximity between the speech in question and the

subsequent illegal act, nor (2) a claim that the speech was

directed at particular and identifiable viewers.

1. The Complaint Must Allege Immediacy.

Brandenburg’s imminence requirement is premised on the

view that advocacy is sanctionable only if the speaker

effectively “participates” in the violence by directing or

instigating it. As Justice Brandeis has stated: “There must be

reasonable ground to believe that the danger apprehended is

imminent. . . . [E]ven advocacy of violation, however

reprehensible morally, is not a justification for denying free

speech where the advocacy falls short of incitement and there is

nothing to indicate that the advocacy would be immediately

acted on.” Whitney v. California, 274 U.S. 357, 376 (1927)

(Brandeis, J., concurring).

The requirement of immediacy serves two crucial

purposes, both of which were undermined by the court of

appeal’s ruling. First, it provides an important mechanism for

distinguishing between, on the one hand, assertions of values

and facts that because of their expressive nature are part of the

deliberative process and thus entitled to full First Amendment

protection, and, on the other hand, utterances that, because of

their urgent, instrumental or concrete nature, are intended to

and deliberately provoke immediate violent response. In the

latter circumstance, the speaker’s expression blends conduct

and speech in such a way that both speaker and hearer

participate in concerted illegal activity outside the scope of

First Amendment protection, with the speaker in effect the

“aider and abettor” of the illicit actions carried out by the

hearer. Such expression — tantamount to “an instrumental

communication as part of a course of action” — may be

“constitutionally punished only when the communication is so

> Charles Fried, The Oliver Wendell Holmes Devise Lecture:

Perfect Freedom, Perfect Justice, 78 B.U. L. Rev. 717. 746 n.35 (1998).

6

close, direct, effective, and instantaneous in its impact that it is

part of the action.”* As one commentator has stated: “[W]hen

words are used to join a conspiracy, to give orders, or to supply

instructions in furtherance of some criminal scheme. . . . the

law has understood that the words are not being used to express

an idea or an attitude so much as they serve as signals and

actions.”°

The second purpose of Brandenburg’s immediacy

requirement is to separate expression that merely advocates

violent action from expression that is so imperative and

concrete as to deny listeners the opportunity for a reasoned

deliberative response; only the latter category, which by its

urgent nature overwhelms rationality, presents a credibie threat

to public order. See Whitney, 274 U.S. at 376 (Brandeis, J.,

concurring) (“If there be time to expose through discussion the

falsehood and fallacies, to avert the evil by the processes of

education, the remedy to be applied is more speech, not

enforced silence.”).°

* Kent Greenawalt, Speech and Crime, Am. B. Found. Res. J. 645,

751 (1980) (quoting Thomas Irwin Emerson, The System of Freedom of

Expression 404 (1970)).

* Fried, supra, at 717. For instance, modern penal law traditionally

has punished certain utterances without implicating First Amendment

values such as specific inducements, threats and orders to commit crimes;

agreements and conspiracies to commit crimes; offers to commit criminal

acts; and specific training in criminal acts. See Greenawalt, supra, at

742-47. As the lowa Supreme Court stated in response to defendants’

claim that their conviction for conspiring to fix prices violated

Brandenburg: “entering into an agreement to fix prices may hardly be

said to be speech, symbolic speech or expression under the ambit of

Amendment 1.” Greenawalt, supra, at 743 (quoting State v. Blyth, 226

N.W.2d 250, 265 (Iowa 1975)).

° See also E. Barrett Prettyman, Jr. & Lisa A. Hook, The Control Of

Media-Related Imitative Violence, 38 Fed. Comm. L.J. 317, 376 (1987)

(“Prettyman & Hook’) (“Where sufficient time exists for rebuttal and

(Cont. ...)

7

Brandenburg’s immediacy requirement thus serves as an

important gatekeeper of First Amendment freedoms, ensuring

that only advocacy that provokes immediate illegal acts is

subject to governmental sanction. This standard recognizes that

“the mere abstract teaching . . . of the moral proprietary or even

moral necessity for a resort to force and violence, is not the

same as preparing a group for violent action and steeling it to

such action.” Noto v. United States, 367 U.S. 290, 297-98

(1961).

In this case, plaintiffs’ conclusory allegation that

defendants intended viewers to commit crime sprees “shortly

after repeatedly viewing” the movie was insufficient on its face

to satisfy Brandenburg's immediacy test. This is clear both

from the case law and the facts alleged. Indeed, according to

the plaintiffs’ own recitation of the facts, the perpetrators did

not commit the crime in question until after “travelling cross-

country to Louisiana” — a joy ride that necessarily involved

considerable delay. (App. at 33a.) But, as indicated above, see

supra at 5-7, the immediacy requirement mandates virtually

contemporaneous lawless action. See Prettyman & Hook,

supra, at 377 (“Brandenburg requires the advocacy to be so

closely related to the harmful action that more speech could not

have prevented the harm.”). For instance, in Hess, the Court

accepted the state court’s view that the defendant’s use of the

word “later” meant that the taking of the street could be

performed not immediately but at some subsequent time. As

one commentator has noted, “if Hess really did mean to urge

illegal action, common sense tells us that ‘later’ must have

meant later during the day of the demonstration; so the opinion

seems to mean that in that setting at least, illegal action some

hours hence is not imminent.” Greenawalt, supra, at 651.

“Even if ‘imminent’ contains some degree of flexibility, the

consideration, the Supreme Court has long assumed that additional

speech will prevent the harm.”).

8

term connotes and is used by the Court to suggest a very short

time span between an incitement and the hoped-for action.” Jd.

Like “later,” “shortly after repeatedly viewing” does not

connote an immediate inducement to lawless action, as the

perpetrators’ delayed response confirms.

Moreover, plaintiffs’ attempt to add a new gloss on the

imminence test by focusing on the impact of repetition finds no

support in the case law. In essence, the complaint alleges that

defendants intended viewers to watch the movie repeatedly and

that this repetition provoked violent imitative crime from its

viewers. On this basis alone, the complaint should have been

dismissed. Advocacy that does not on its own provoke

immediate response without repeated viewing does not

constitute the kind of expression that is so concrete and

imperative as to pose an immediate threat of lawless action.

To the contrary, the very need for repetitive viewing implies

that the expression is too abstract to induce immediate action

and that there is sufficient delay between movie viewings and

deed to allow for considered response.

Plaintiffs’ further allegation that the perpetrators viewed

the movie “sometimes under the influence of mind-altering

drugs,” (App. at 33a), underscores the deficiency of their

pleading, since there was no allegation that the advocacy itself

— without the distortions caused by “mind-altering drugs” —

induced an immediate violent response. “Merely because art

may evoke 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.”” McCollum v. CBS,

249 Cal. Rptr. 187, 194 (Ct. App. 1988).

Plaintiffs’ claim that the movie “glorifi[ed] . . . violent

acts” by depicting criminals as “celebrities and heroes,” (App.

at 3a, 5a), also failed to meet Brandenburg’s objective

requirement of a direct inducement to lawless action since, by

definition, glorification is an indirect, non-instructive means of

a a ee

9

conveying a particular viewpoint. Indeed, the plain meaning of

“glorification” is to “bestow[] honor, praise or admiration” —

hardly the kind of direct, inducement to immediate lawless

action Brandenburg requires.

The court’s reliance on Rice v. Paladin Enterprises, Inc.,

128 F.3d 233 (4th Cir. 1997), cert. denied, 118 S. Ct. 1515

(1998), was misplaced. Paladin only confirms that plaintiffs’

claims are barred by the First Amendment. In Paladin, the

defendant had stipulated that “it actually intended to provide

assistance to murderers and would-be murderers which would

be used . . . ‘upon receipt’” of the defendant’s books “Hit Man:

A Technical Manual for Independent Contractors” and “How to

Make a Disposable Silencer.” 128 F.3d at 242. Because of the

stipulated instrumental nature of defendant’s “expression,” the

court held that it did not involve pure speech but fell within the

“speech-act doctrine [that had] long been invoked to sustain

convictions for aiding and abetting the commission of criminal

offenses.” Jd. at 244. The defendant’s books concededly

“aided and abetted the murders at issue through the

quintessential speech act of providing step-by-step instructions

for murder . . . so comprehensive and detailed... as if the

instructor were literally present with the would-be murderer.”

Id. at 249.

In this case, however, plaintiffs have not alleged, and

indeed cannot allege, that the defendants provided the sort of

detailed assistance and counseling in how to commit violence

present in Paladin. The fact that a film may “glamorize[] and

thereby indirectly promote[] such conduct,” id. at 266, does not _

bring it within © > “speech-act” doctrine. As the court in

Paladin itself noted, “‘{i]n only the rarest case, as here where

the publisher has stipulated in almost taunting defiance that it

intended to assist murderers and other criminals, will there be

evidence extraneous to the speech itself which would support a

” Merriam Webster's C. ollegiate Dictionary (10th ed. 1995).

10

finding of the requisite intent.” Jd. at 265. Plaintiffs’ complaint

clearly did not meet this standard.

2. The Complaint Must Allege An Inducement

To Particular And Identifiable Viewers.

Plaintiffs’ complaint also failed to satisfy the imminence

requirement because there was no allegation that the expression

was directed at particular viewers. Speech directed toward

everyone in general and no one in particular is not the sort of

incitement to imminent illegal action contemplated by

Brandenburg because the speaker, by definition, has no specific

hearers he or she is attempting to compel to action. See Hess v.

Indiana, 414 U.S. 105, 108 (1975). See also Lawrence Tribe,

American Constitutional Law 848 n.57 (2d ed. 1988).

Because plaintiffs could not credibly allege that a major

motion picture company intended to prompt any particular

viewer or every single viewer to leave the theater and

immediately attack someone in sight, the best they could do

was allege that “persons such as Edmonson and Darrus” were

intended to commit violence. But this group is too broad and

amorphous to be the intended subjects of a real and immediate

provocation to action. Since the movie was broadly released to

millions of viewers around the world — all unknown and

unidentifiable to defendants — there is no basis to establish the

link between utterer and viewer necessary to satisfy the strict

requirements of Brandenburg.

Courts across the county consistently have reached the

same conclusion. For instance, in Waller v. Osborne, 763 F.

Supp. 1144, 1150 (M.D. Ga. 1991), aff'd, 958 F.2d 1084 (11th

Cir. 1992), the court rejected a claim that a teenager committed

suicide after repeated exposure to the music of Ozzy Osbourne.

Despite the court’s belief that it was iikely “irresponsible and

callous for a musician with a large teenage following . . . to

portray suicide in any manner other than a tragic occurrence,”

the court held that “[t]here is no indication whatsoever that

defendants’ music was directed toward any particular person or

11

group of persons.” 763 F. Supp. at 1151. Likewise, in Catholic

War Veterans of the United Sates, Inc. v. City of New York, 576

F. Supp. 71 (S.D.N.Y. 1983), the court dismissed in part on

First Amendment grounds a complaint alleging in conclusory

terms that the constitutional and civil rights of plaintiffs would

be violated by the holding of a “Gay Pride Parade.” The court

found that the plaintiffs’ conclusory allegations that the parade

should be blocked “based on the possibility that an unidentified

handful of participants may engage in unlawful conduct” could

not survive First Amendment scrutiny, warranting dismissal of

the complaint. 576 F. Supp. at 76 (emphasis added).

In sum, because plaintiffs’ complaint failed to allege an

inducement to immediate lawless action to an identifiable set of

viewers, it could not overcome the insuperable First

Amendment bar to tort liability. In a virtually identical lawsuit,

a Georgia court reached this very conclusion, as did the trial

court in this case.* The court below should have done the same.

B. Plaintifis’ Complaint Failed To Allege That Lawless Action

Was A Likely And Foreseeable Outcome Of Defendants’

Expression.

In addition to its failure to apply faithfully Brandenburg’ s

imminence test, the court also ignored another fatal deficiency

in plaintiffs’ pleading: its omission of any allegation that

violence was the likely and foreseeable result of defendants’

expression. Brandenburg’s “likelihood” test requires an

objective showing that the likely outcome of particular

expression was lawless action; without such a likelihood, there

can be no immediate threat to public order sufficient to

withhold First Amendment protection. As this Court has

® See Miller vy. Warner Bros., Inc., No. 96vs117599-F (Fulton Cty.

Ga. Dec. 3, 1996) (“the lawsuit, as a matter of law, cannot meet the

requiremenis found in Brandenburg v. Ohio . . ., which protects

statements except direct incitement to imminent unlawful action.”)

(included at Appendix 1a).

a ae ee

12

recognized, the “degree of imminence [must be] extremely

high before utterances can be _ punished.” Landmark

Communications, Inc. v. Virginia, 435 U.S. 829, 845 (1978).

See also Craig v. Harney, 331 U.S. 367, 376 (1947) (“the

danger must not be remote or even probable; it must

immediately imperil”); Tribe, supra, at 848 n.57 (because there

was no evidence in Hess that the defendant’s remarks “were

likely to produce any imminent disorder . . . Brandenburg’s

second test was not met’).

In this case, plaintiffs’ complaint failed to include any

allegation that violence was a foreseeable and likely outcome of

defendants’ expression. See People v. Mighty, 535 N.Y.S.2d

944, 947 (Rochester City Ct. 1988) (dismissing information

charging defendant with inciting to riot because the activity

alleged did not create a “clear and present danger of riotous

conduct, or intended . . . riot”); Davidson v. Time Warner, Inc.,

No. V-94-006, 1997 WL 405907, at *21 (S.D. Tex. Mar. 31,

1997) (rejecting plaintiff's claims that defendant’s rap music

had provoked imitative violent acts because there was no

showing that “the illegal conduct . . . would imminently occur

after listening to the album”); Lewis v. Columbia Pictures, Inc.,

No. E011948, 1994 WL 75866, at *3 (Cal Ct. App. Nov. 8,

1994) (dismissing plaintiffs claim that defendant's

advertisement for “Boyz ’n the Hood” was actionable since

“{s]peech directed to action at some indefinite time in the future

is not imminent incitement.”).

Indeed, because the expression at issue was disseminated

impersonally on a mass basis, it is doubtful that plaintiffs in

good faith could have made allegations that met such a

standard. To date, virtually every reported case that has found

imminent incitement under Brandenburg has involved live,

direct incitement, which is far more likely than inanimate

expression through books, films and television programs to

foment a crowd to violence and overcome rational deliberation.

See McCollum v. CBS, Inc., 249 Cal. Rptr. 187, 194 (Ct. App.

1988) (neither common sense nor the First Amendment permit

13

a “rational person” to “mistake musical lyrics and poetry for

literal commands or directives to immediate action”).

This Court should adhere to the longstanding principle

that the fact that a few aberrant individuals may react violently

to certain expression does not mean that imminent lawless

action is a “likely” outcome as a matter of law. This is

particularly true where, as here, the expression at issue is

indirect. For instance, in Cohen v. California, 403 U.S. 15

(1971), the Court recognized that “[t]here may be some persons

about with such lawless and violent proclivities, but that is an

insufficient base upon which to erect, consistently with

constitutional values, a governmental power to force persons

who wish to ventilate their dissident views into avoiding

particular forms of expression.” 403 U.S. at 23.

To adopt a weaker standard would force content providers

to tailor their works to accommodate the most vulnerable and

unstable persons in society — an impermissible result in a

society constitutionally committed to giving the widest possible

breathing space to freedom of expression. See McCollum, 249

Cal. Rptr. at 197 (“[I]t is simply not acceptable to a free and

democratic society to impose a duty on performing artists to

limit and restrict their creativity in order to avoid the

dissemination of ideas in artistic speech which may adversely

affect emotionally troubled individuals.”); Davidson, 1997 WL

405907, at *22 (“broadcasters . . . would be chilled into

producing only the most mundane, least emotional material”).?

” As one commentator stated:

The result of imposing upon television and movie producers the

duty of avoiding any scene that could possibly trigger violent

reaction in a few individuals would be a timidity and blandness in

programming that few of us would be prepared to accept.

Prettyman & Hook, supra, at 379.

14

C. The Court Of Appeal Ignored The Heightened

Pleading Burden For Claims Implicating The First

Amendment.

The decision below, which permitted plaintiffs’ suit to

proceed based upon a conclusory allegation directed to only

one element of the Brandenburg test, contravened the standards

for evaluating motions to dismiss, particularly those involving

important First Amendment rights. Causes of action that

implicate First Amendment values require plaintiffs to meet a

higher pleading burden in order to safeguard constitutional

rights. As the Ninth Circuit has noted, “the danger that the

mere pendency of the action will chill the exercise of First

Amendment rights requires more specific allegations than

would otherwise be required.” Kottle v. Northwest Kidney Ctrs.,

146 F.3d 1056, 1063 (9th Cir. 1998), pet. for cert. filed, 67

U.S.L.W. 3364 (U.S. Nov. 17, 1998) (No. 98-810). See also

National Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 264-

65 (1994) (Souter, J., with whom Kennedy, J., joins,

concurring) (citing with approval a case applying a higher

pleading standard for claims involving presumptively protected

First Amendment expression).

For this reason, unlike pleadings in other contexts, no

liberal construction generally is accorded complaints

implicating the First Amendment. See 5 Charles Alan Wright

& Arthur R. Miller, Federal Practice & Procedure § 1245, at

302 (2d ed. 1990) (“[T]he standard for successfully pleading

defamation tends to be more stringent than ordinary civil suits

because of the unfavored nature of this type of action and the

desire to discourage what some believe to be basically

vexatious litigation.”). For instance, in National Bowl-O-Mat

Corp. v. Brunswick Corp., 264 F. Supp. 221 (D.N.J. 1967), the

court dismissed a defamation counterclaim in part because the

defendant failed “to set out the alleged defamatory statements

with sufficient particularity to allow the court to determine if

they would support the action.” 5A Wright & Miller, supra, §

1357, at 359. “If the court had applied the usual liberal

15

standard for construing a complaint, it probably would have

assumed, for purposes of the motion, that the Statements were

defamatory. ...” Jd

In this case, the court’s failure to apply a heightened

pleading burden and a narrow construction to plaintiffs’

complaint trampled impermissibly on First Amendment values.

The court blithely accepted plaintiffs’ conclusory allegations

and “footless conclusions of law,” Ryan v. Scoggin, 245 F.2d

54, 57 (10th Cir. 1957), when the proper disposition was

dismissal. By concluding that plaintiffs’ woefully deficient

allegations survived defendant’s motion to dismiss, the court of

appeal not only failed to give any weight to defendant’s First

Amendment interests but also subverted the traditional pleading

requirement that claims for relief must be supported by factual

allegations and not mere conclusory assertions. Even outside of

the First Amendment context, courts consistently have

dismissed pleadings that failed to plead factual allegations

necessary to support a cognizable claim. See, e.g., Jackson v.

Nelson, 405 F.2d 872 (9th Cir. 1968) (dismissing a civil rights

complaint for failure to state a claim when the complaint

contained conclusory statements); Sutton v. Eastern Viavi Co..,

138 F.2d 959, 960 (7th Cir. 1943) (“No claim for relief is stated

if the complaint pleads facts insufficient to show that a legal

wrong has been committed. . . .”); Davis y. City of Portsmouth,

579 F. Supp. 1205, 1210 (E.D. Va. 1983) (“[MlJore detail often

is required than the bold statement by plaintiff that he has a

valid claim of some type against defendant.”), aff'd, 742 F.2d

1448 (4th Cir. 1984). See also SA Wright & Miller, supra, §

1357, at 319-20 (“[T]he court will not accept conclusory

allegations concerning the legal effect of the events plaintiff has

set out if these allegations do not reasonably follow from his

description of what happened, or if these allegations are

contradicted by the description itself."). The same disposition

was compelled here.

16

IL THIS COURT SHOULD SUMMARILY REVERSE

THE DECISION BELOW.

As indicated above, amici believe that plenary review is

warranted because of the failure of the court of appeal to apply

settled federal constitutional law and the harmful effects this

decision will have. As an alternative to full briefing and oral

argument on the merits, however, amici urge the Court to

consider summary reversal of the decision under Rule 16.1.

A. Summary Reversal Is Consistent With The Court’s

Previous Application of Rule 16.1.

Where, as here, a lower court clearly has misapplied

established Supreme Court precedent, this Court frequently has

granted a petition for purposes of summary disposition without

a full hearing on the merits. See, e.g., Olden v. Kentucky, 488

U.S. 227 (1988); Pennsylvania v. Bruder, 488 U.S. 9 (1988);

Chappelle v. Greater Baton Rouge Airport Dist., 431 U.S. 159

(1977). As one former Chief Justice has stated: “There are

many instances where the Court, without granting plenary

review, has summarily reversed, remanded or taken other direct

action to achieve what the Justices conceived to be essential

justice.”"° See also Robert L. Stern et. al., Supreme Court

Practice 247 (1993) (“This kind of reversal order usually

reflects the feeling of a majority of the Court that the lower

court result is so clearly erroneous, particularly if there is a

controlling Supreme Court precedent to the contrary, that full

briefing and argument” is unnecessary.).

Summary disposition is particularly appropriate where a

state court has misunderstood or disregarded federal law since

“the Supreme Court is the only tribunal with power to oversee

'° Warren, The Proposed New ‘National Court of Appeals,’ 28 Rec.

A.B. City N.Y. 627, 640-41 (1973), cited in Arthur D. Hellman, Error

Correction, Lawmaking, and the Supreme Court's Exercise of

Discretionary Review, 44 U. Pitt. L. Rev. 795, 801 (1983).

17

compliance by state courts with the dictates of the federal

Constitution and laws.”'' “If the Court, by failing to correct

error when it has the opportunity to do so, allows state courts to

deny federal rights, the supremacy clause could easily become

little more than an exhortation.”'? Such a concern is most acute

where fundamental rights are at stake.

This Court’s per curiam decision in Watts v. United States,

394 U.S. 705 (1969), is instructive. In Watts, during a public

rally at the Washington Monument, the speaker, in protesting

the draft, stated that “[i]f they ever make me carry a rifle, the

first man I want to get in my sights is L.B.J.” 394 U'S. at 706.

Agreeing with the defendant that the statement was nothing

more than “a kind of very crude offensive method of Stating a

political opposition to the President,” id. at 707, the Court

summarily reversed the conviction. As in this case, the Court

noted that “[w]hat is a threat must be distinguished from what

is constitutionally protected speech.” Jd.

Likewise, in Moore v. Arizona, 414 U.S. 25 (1973), the

Supreme Court summarily disposed of a decision of the

Arizona Supreme Court affirming a denial of a pretrial writ of

habeas corpus to a defendant alleging a speedy trial violation.

The Court granted the petition and vacated the judgment on the

ground that the court improperly had held that prejudice was

the “sole touchstone” for proving a speedy trial violation in

contravention of previous precedents. 414 U.S. at 26. Moore

is perfectly analogous to this case, in which the Louisiana court

'' Hellman, supra, at 801 n.34.

? Id. See also National Bank of N. Am. v. Associates of Obstetrics

& Female Surgery, Inc., 425 U.S. 460 ( 1976) (summarily reversing a

state court decision holding that the venue provision of the National

Bank Act were permissive rather than exclusive in contravention to

Supreme Court precedent); Pease v. Hansen, 404 U.S. 70 (1971)

(summarily reversing a state court decision improperly applying an equal

protection precedent).

18

of appeal improperly held that an allegation of subjective intent

was the “sole touchstone” for satisfying Brandenburg.

B. Summary Reversal Is Necessary To Safeguard Important

Constitutional Rights.

In addition to being consistent with previous applications

of Rule 16.1, summary reversal is necessary to preserve vital

First Amendment rights. If left undisturbed, the decision will

cause three significant constitutional harms. First, in eroding

the heightened pleading requirements litigants must meet to fit

within Brandenburg, the decision impermissibly subjects

previously fully protected expression to governmental sanction.

In so doing, the decision recasts Brandenburg as no longer a

narrow, rarely satisfied exception, but rather a general, easily

invoked principle — the “exception” that swallows the rule.

Such a result significantly reduces the scope of constitutional

protection for expressive content, causing a chilling effect on

the free and full dissemination of ideas.

Second, the anomalous decision, if left intact, will

undermine the uniformity of federal law and permit a state

court to trample upon well-established constitutional norms.

The deviation of lower courts from fundamental constitutional!

principles will create uncertainty as to the reach of First

Amendment protection and generate perverse incentives for

litigants to forum shop in jurisdictions applying less stringent

standards.

Finally, by allowing plaintiffs to subject defendants to the

continued burdens and costs of litigation, with the attendant

likelihood of self-censorship, the decision denies defendants the

very protections the First Amendment is designed to provide;

continued litigation is itself a reduction in First Amendment

freedoms. Defending against an action that survives a motion

to dismiss or for judgment on the pleadings is onerous. The

escalating expenses — financial and otherwise — of discovery

and pre-trial procedures are enormous and create a significant

incentive to avoid further litigation, either by settling

19

constitutionally meritless claims, or by avoiding potentially

controversial expression in the first instance. The First

Amendment does not countenance either result. The

Constitution requires courts to protect expression not only

against judicial penalization of the speech but equally against

legal proceedings that constrict unfettered expression by

inducing self-censorship. If plaintiffs unable to meet the

stringent Brandenburg test can nonetheless impose the costs of

litigation on content providers, the protections guaranteed by

the First Amendment are by that very fact significantly

diminished.

indeed, such a result will have ramifications not only for

motion picture and television companies, but for a variety of

other providers of creative and non-fictional material including

book publishers, cable companies, newspapers and magazines,

web sites and trade and non-profit organizations involved in the

dissemination of ideas and information. Under the court of

appeal’s standard, a variety of works would be subjected to

continued litigation and the risk of tort liability. Many such

works contain and even arguably glamorize often violent

suicides, murders and other brutalities: Shakespearean drama

contains 16 suicides; the lead character in Anna Karenina.

concluding that suicide was the only solution, throws herself

under a train; Arthur Miller’s Pulitzer prize-winning play,

Death of a Salesman, depicts suicide as a courageous

achievement; and the operas of Puccini, Mannotti and Verdi all

contain self-inflicted death. In addition, a variety of seminal

movies and television epics -- including Amistad, The Deer

Hunter, Roots, Apocalypse Now, Taxi Driver and Schindler's

ist -- all contain depictions of violence. Yet, if after

dissemination of such works, imitative violence occurred, under

the court’s standard, these content providers would face legal

exposure. Such a result would eviscerate traditional First

Amendment protections accorded even pernicious or offensive

expression. See, e.g., Gertz v. Robert Welch, Inc., 418 US.

323, 339-40 (1974) (“However pernicious an opinion may seem

we depend for its correction not on the conscience of judges

20

and juries but on the competition of other ideas.”); Winters v.

New York, 333 U.S. 507, 510 (1948) (“Though we can see

nothing of any possible value to society in these magazines

[stories of “bloodshed and lust”], they are as much entitled to

the protection of free speech as the best of ‘literature.””’).

Even if, as expected, the defendants in this case ultimately

prevail on surnmary judgment or at trial, they will be unable to

secure review by this Court of the state appellate court’s ruling.

That ruling will thus stand, creating a continued source of

confusion about the meaning and proper application of this

Court’s precedents and encouraging “copy cat” suits involving

protected expression. Ironically, the Louisiana court of

appeal’s willingness to permit plaintiffs’ case to proceed is

exactly the result that the Fourth Circuit in Paladin confidently

predicted would not occur since “[iJn the ‘copy cat 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.”

Rice v. Paladin Enters., Inc., 128 F.2d 233, 265 (4th Cir. 1997).

This case poignantly demonstrates why the stringent

standards of Brandenburg must be vigilantly guarded; a door,

once cracked, easily can be pushed wide open. It would be a

sad day indeed if the creators of important artistic works with

profound impact on American thought and culture were forced

to expend considerable time and resources in court defending

lawsuits merely because a few aberrant individuals mimicked

the powerful scenes depicted. It would be sadder still if, due to

fear of tort liability, the most challenging, provocative and

dramatic parts of such works were left on the cutting room

floor.

CONCLUSION

For the reasons stated above, amici respectfully request

that the Court grant the petition on the merits or for purposes of

summarily reversing the Louisiana court of appeal’s decision.

Respectfully submitted,

WALTER E. DELLINGER

(COUNSEL OF REC ORD)

CRYSTAL NIX

O'MELVENY & MYERS LLP

555 13th Street, N.W.

Washington, D.C. 20004

(202) 383-5300

ROBERT C. VANDERET

O'MELVENY & MYERS LLP

400 South Hope Street

Los Angeles, CA 90071

(213) 430-6000

Counsel for Amici

HENRY L. BAUMANN

STEVEN A. BOOKSHESTER

1771 N Street, N.W.

Washington, D.C. 20036

(202) 429-5430

Counsel for the National

Association of Broadcasters

February 5, 1999

DANIEL ROBBINS

15503 Ventura Boulevard

Encino, CA 91436

(818) 995-6600

Counsel for the Motion Picture

Association of America, Inc.

ANNE H. EGERTON

PATRICIA DUNCAN

3000 W. Alameda Avenue

Burbank, CA 91523

(818) 840-3508

Counsel for National

Broadcasting Company, Inc.

DANIEL L. BRENNER

NEAL M. GOLDBERG

1724 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 775-3664

Counsel for the National

Cable Television Association

APPENDIX

IN THE STATE COURT OF FULTON COUNTY

STATE OF GEORGIA

MARGO MILLER, Individually,

and as Administratrix of the

Estate of Olin Miller.

Plaintiff, CIVIL ACTION

\ File No. 96vs!117599-}

WARNER BROTHERS, IN¢

TIME WARNER ENTER-

TAINMENT, L.P., TIME

WARNER, INC., WARNER

HOME VIDEO, INC., REGENC\

ENTERPRISES, INC.. IXTLAS

COPORATION, INC.. J.D

PRODUCTIONS, INC., ALCOR

FILMS, OLIVER STONE, RONNIE

BEASLEY AND ANGELA

CROSBY.

Defendants

ORDER

[his matter came before the Court for oral argument

on the motion to dismiss filed by Defendant Time Warner

» on its behalf and also on behalf

Entertainment Company, L.f

of Defendants Warner Home Video and Warner Brothers.

Having heard oral argument. considered the briefs and

2a

reviewed the file. the Motion is GRANTED and the case is

dismissed on the pleadings as to the above-named Defendants.

This lawsuit, as a matter of law, cannot meet the

requirements found in Brandenburg v. Ohio, 395 U.S. 444

(1969). which protects statements except direct incitement to

imminent unlawful action. See Walt Disney Productions, Inc.,

v. Shannon, 247 Ga. 402 (1981).

Also, Plaintiff's allegations of subliminal flash frame

stimuli claim only that Defendants used them to intentionally

entice individuals to view the movie more than once so as to be

more profitable and to increase the effect of the movie's

message. Neither of these results, even if proven at trial, is

motionable. particularly in Georgia where the state constitution

is even broader than the First Amendment and where lawsuits

seeking to impose liability on speech are disfavored.

SO ORDERED, this 3rd day of December, 1996.

MELVIN K. WESTMORELAND, JUDGE

STATE COURT OF FULTON COUNTY