Week 11 News Item: CNN Guest Blames Video Games for Dark Knight Shooting

 

This article discusses whether or not the creators of first-person video games should be held responsible for causing, in this case, James Holmes, to go on a shooting rampage in a movie theater in Aurora, Colorado. 

If some or all of the victims of the Aurora shooting were to bring forward a suit against the makers of video games or of the film "The Dark Knight Rises" itself, it would likely be a physical harm suit. Here, the judge would have to decide to use either the negligence test or the incitement test. Both of which would be difficult to prove. For example, meeting the requirements of the incitement test means proving that the defendant:

1. Intentionally or recklessly
2. Intended to cause harm and
3. Imminent harm was the result


 In this case, it would be extremely difficult to establish that the harm which occurred, the shooting, was an imminent result of the expression, which here are the video games being blamed for motivating James Holmes to open fire in a crowded movie theater.
Link to article: http://www.egmnow.com/articles/news/cnn-guest-blames-video-games-for-dark-knight-rises-colorado-shooting/

Week 11 Topic Post: Emotional Distress & Physical Harm

Topic Overview:
In addition to privacy and libel, there are a handful of other torts that media and communication professionals must be aware of. These include emotional distress and physical harm. Cases often arise in this area when individuals feel they have suffered emotional or physical distress as a direct result of the actions, including publication, of members of the media or other culture industries. For example, the parents of the victims in a school shooting may bring forward a suit against the makers of the video game Mortal Kombat, saying that it caused the shooters to lash out, resulting in the untimely death of their child.

In order to be successful, however, these cases must meet the threshold established by the relevant legal doctrine. This is often a difficult task because the very concept of negligence brings with it a duty of care. Previous rulings have established that unlike a doctor/ patient relationship, it is impossible for communications (and other) professionals to have a duty of care to someone they do not no. Therefore, negligence cannot be established in many of these instances, making both emotional distress and physical harmdifficult to prove.


Defining Key Terms:
Parody: The copyrighted work is the targeted. To mimic an original to make its point

Satire: The copyrighted work is used to poke fun at another target. Can stand on its own so requires justification for the very act of borrowing.

Actual Malice: Knowledge of falsity or reckless disregard for the truth.

Important Cases:
Rice v. Paladin (1997) - How to book for Hitmen - one of the few instances in which a publisher was held liable for inciting violence.

Hustler Magazine v. Falwell (1988) - Established that public officials and public figures must prove actual malice in order to win a emotional distress case.

Brandenberg v. Ohio (1969) - Established current incitement doctrine; clarified imminence requirement.


Relevant Doctrine: 
Intentional Infliction of Emotional Distress
Plaintiff must prove:
1. Defendant was extremely outrageous - beyond the bounds of decency tolerated in civilized society,
2. Involved actual malice, if plaintiff is public official or figure, and
3. Caused plaintiff severe emotional distress.

Negligent Infliction of Emotional Distress
Plaintiff must prove:
1. The defendant had a duty to use due care,
2. Negligently breached that duty,
3. Causing the plaintiff severe emotional distress, and
4. The breach was the proximate cause of the plaintiff's emotional distress.

Physical Harm (two tests) -  Negligence or Incitement
Negligence

1. Mass medium owes duty of care to plaintiff,
2. Breaches duty, 
3. Causing real or potential physical harm.

Incitement
1. Defendant intentionally or recklessly
2. Intended to cause harm and
3. Imminent harm was the result


Current Issues or Controversies:
Although the loved ones of victims of mass shootings or other tragedies are often quick to blame the creators of media content for the harm caused by individuals or groups who consume the controversial material, the legal framework within which these cases are brought discourages holding the content creators liable for harm caused by the material, except in those instances in which the creators could reasonably anticipate the unintended results.

On one side of this argument are those who fear the media will be chilled and the press will be unable to serve its function as the Fourth Estate if the fear of pending lawsuits was permenantly lodged in the creator's mind. Other the other hand, the abscence of these torts would result in a lack of recourse for those who feel they've been harmed by the actions of media or communications professionals. Moreover, to prohibit communication law suits under these torts would absolve the organizations and individuals working in these areas of their accountability to their audience, something I would find extremely problematic.


My Questions / Concerns: 
1. When do people sue for emotional distress vs. physical harm?
2. How do judges decide whether the Incitement or Negligence test should be used in physical harm cases?
3. Are there examples of successful negligence cases if media must always have a duty of care to the defendant?


References:
Trager, R., Russomanno, J. & Ross, S.D. (2012), The law of journalism and mass communication. Thousand Oaks, CA: Sage Publications.