Last week, Ozzy & Judas Priest were on trial for spreading suicide-inducing messages in their music.  How then were they able to escape liability for their actions? For simplicity, I’ll only refer to Ozzy’s trial. (For those of you interested in reading the full opinion, it can be found at McCollum v. CBS, Inc., 202 Cal. App. 3d 989. )

The court in Ozzy’s case rejected the McCollums’ claim on two different grounds.  First, the First Amendment provided an absolute bar to the claim.  Second, even if the McCollums could have gotten past the First Amendment bar, they could not have proven the foreseeability element of their negligence claim.

The First Amendment is a pretty amazing thing.  In case you forgot what it says, here it is:

Congress shall make no law respecting an establishment of religion, or  prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Rather than trying to have the government control what could and could not be said, they washed their hands of the whole mess by granting free speech to all.  Until that time, England had only protected freedom of speech for Parliamentary debates, and France had recently enacted legislation similar to our First Amendment.  I don’t know all of the history here, so if you do, please edify the rest of us in the comments.

Essentially, the Founders thought that exposing the people to more speech was preferable to not having the ability to speak freely, even if that speech was bad, wrong, deceitful, obscene, or whatever other reason you might think of to decry it.  Rather than thinking that you, the great unwashed masses, might be to thin-skulled or soft-brained to deal with potentially dangerous ideas, they took the position that exposure to varying forms of speech would toughen you up.  Sure, this means that you will get to hear the speech that you like and with which you agree.  It also means that you will hear speech that you don’t like or agree with.  If you don’t like it or if you are offended by it, the First Amendment prevents you from using the government to stop that speech.

Now, this means that [noble, civic-minded group you like] can inform the public about [perfectly sensible proposal to which all right-thinking people would subscribe].  It also means that [group of mouth-breathing troglodytes that you don’t like] can tell the public about [vile proposal that no self-respecting adult would acknowledge in public, and most likely results in any adherents ultimately subscribing to a solitary lifetime of baby-eating and derision], and you cannot use the government to stop them. At all.

Does it mean that you can’t use other methods to prevent their message from spreading? No.  If you own a newspaper, radio station, blog, or other means of communication, then you are not required to give persons with whom you do not agree space to spread their [hate-fueled, baby-eating] message.

Enough of the soapbox, let’s get back to the case. The court held that the First Amendment prevented the government from restricting free speech, no matter what the subject matter, premise, ideology, purpose, or method of delivery.  Going further, the court held that this not only protected the right of the artist to produce any message, it also protected the right of the listener to hear that message.  Essentially, there should be no impediment imposed by the government between a speaker and the public.

So, we all know that you can say basically anything you want, right? No, there limits to free speech.

Wait, what?

The court recognized four limited exceptions to the First Amendment: 1, obscene speech; 2, “libel, slander, misrepresentation, obscenity, perjury, false advertising, [and] solicitation of crime;” 3, “speech used as an integral part of conduct in violation of a valid criminal statute;” and 4, speech directed as inciting imminent lawless action.

In this case, only the last category was important.  In Brandenburg v. Ohio, the Supreme Court held that there is no First Amendment protection if the speech both advocates imminent illegal behavior and also is likely to result in such illegal behavior.  The Supreme Court has heard many cases since Brandenburg, and this test is very hard to meet.

The court held that incitement at some indeterminate time in the future will not satisfy the imminency requirement.  How can Ozzy incite someone to imminent lawless action if he isn’t present when McCollum listens to the album, doesn’t know when the album will be heard, and doesn’t even know that McCollum will be incited to commit suicide?  The court declined to hold recordings to the same standard of live speech because recording and distribution process was so prolonged.

The court also held that the McCollum’s claim failed because they could not prove the foreseeability element of negligence.  The court would have needed a high degree of foreseeability to find liability because the burdens imposed upon artists by restricting free speech.  Such a burden would reduce artistic expression in all forms because some people might be adversely affected by the content.  This goes back to the underlying reasoning for First Amendment protection: we are better off having more speech than less speech.

What is going on with Negral?

Poland apparently believes that protecting religion from any sort of insulting conduct is more important than people having the right of free speech.  The First Amendment gets the government out of the religion business as well as the regulating-speech business.  There is a lot of law dealing with what you can do in the course of practicing whatever you might call your religion, and it boils down to the idea that you can believe any crazy thing you wish, but you may not be able to practice your religion if it involves breaking the law.

It is a travesty that a modern state in the West would have such a law. Negral is claiming that artistic expression should allow him to burn the Bible. Frankly, I think he should be able to burn any copy of any text, religious or not, that suits him without the state getting in the way.

There is a lot more to this, and I’ll get into why this law would be unconstitutional in the US next week.

-AS

Antonin Skullia, Esq. is licensed by the one of the many fine states of this great union as an attorney and counsellor-at-law. While he is a licensed attorney, nothing in this article should be construed as specific legal advice. It only constitutes commentary on legal issues, and is for educational and informational purposes only.

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