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At its inception two decades ago, MTV delivered music videos. In more recent years, it evolved into a programmer, further capitalizing on its success in capturing a young audience. It has millions of loyal viewers, many of whom are teenagers. And since last October, many of those teen-agers have watched a program called “Jackass.” “Jackass” consists of stunts, often silly, gross or just plain outrageous. Scheduled for Sundays at 9 p.m. Eastern Time (a prime spot on the TV schedule), “Jackass” appeals to a 12-to-17-year-old demographic, the core viewers of the network. Since its launch, it has become a cable TV hit, with 2.4 million viewers in the 12-34 age group watching each episode — the highest such numbers on cable. The lead character, known as “Johnny Knoxville,” employs antics that are a gross-out version of the X Games and Jay Len extreme, often tasteless and sometimes dangerous. In the first month, viewers were subjected to the following: Knoxville (and/or his co-stars) swallowing a goldfish and then vomiting it out, romping through traffic in a gorilla suit, incurring injury while pogo-jumping through a public fountain, mowing the lawn in the nude, stapling pieces of paper to bare buttocks and occupying a full portable toilet as it was upended. Some incidents were more violent: Knoxville was blasted in the face with pepper spray and fell screaming to the ground, he was decked by a boxer and, most notoriously, he put on a suit with pieces of meat tied on it, lay down on a giant grill and had others set him on fire. Knoxville wore protective, fire-resistant clothing. Unfortunately, 13-year-old Jason Lind did not. Jason and a friend were trying to re-create that last stunt — without the suit. The Connecticut boy suffered third-degree burns over his hands and legs after his friend reportedly poured gasoline on Jason’s feet and lit him on fire after watching that episode. The 14-year-old friend was charged with reckless endangerment. Jason’s father, along with Sen. Joseph Lieberman, D-Conn., criticized MTV for airing such a show. Sen. Lieberman said, “MTV is an influential force � and with that power � comes a certain level of responsibility.” He added, “I intend to make it clear to the network’s owner that we expect more.” WARNINGS GIVEN During the broadcast, MTV warned viewers that the stunts featured should not be tried by viewers. The warnings, given during the broadcast, stated: “The following show features stunts performed by professional and/or total idiots under very strict control and supervision. MTV and the producers insist that neither you nor anyone else attempt to rescue or perform anything you have seen on this show.” For the most dangerous stunts, a skull-and-crossbones is displayed in a corner of the screen, and Knoxville will say, “Don’t try this at home.” During a recent broadcast, the above warning was given three times. Each time it came after a commercial break, before the next sequence of skits came. The warnings were stand-alone, written on the screen with no other action or background. They did not have any accompanying narration. The screen lasted about two seconds each of the three times. Some of the antics on this broadcast included attempted sumo wrestling (with the actor getting whacked by a stick each time he fell) and waking up someone by hitting him with an electric guitar while playing heavy metal music. The accident involving Jason Lind produces questions as to the attempts MTV used to prevent injury. One issue is whether these particular warnings are enough to defeat a tort claim against the network and, and even if adequate, are the activities shown so inherently dangerous that a warning, even a suitable one, is enough to prevent liability? And, probably most significantly, how big a role do First Amendment freedoms play in such a case? If MTV is sued (a likely scenario), MTV will no doubt show that, unlike general tort cases, freedom of expression, coupled with the network’s warnings, precludes liability. But under the surface, the interplay between tort and constitutional issues are more subtle. Do the phraseology, frequency and context of the warnings serve as a complete defense? Does the younger, arguably more impressionable audience, need more protection? How much of a shield, if any, does the First Amendment claim provide in such a case? And, finally, should the courts look at these matters as strict product liability cases, rather than as constitutional ones? There have been lawsuits against media companies, claiming that violent content caused injury to viewers or friends of viewers. Generally, and not surprisingly, these suits have been difficult to win because of the First Amendment considerations, and the proximate causation standards required to prove liability in tort. Most likely, specific and pointed warnings would serve as a major boost to MTV’s defense. At a minimum, the warnings have to be direct, specific and frequent. FIRST AMENDMENT But even if the warnings were inadequate or not broadcast at all, a significant First Amendment defense exists. Unlike cases involving alleged defects in cleaning agents, a powerful First Amendment dynamic creates severe limitations on liability for television violence. Restrictions on content are limited under the classic “strict scrutiny” theory only when the speech would result in “imminent lawless action.” Brandenburg v. Hayes, 395 U.S. 444 (1969). Often, it cannot be determined whether the broadcast directly or “imminently” led to the actions. Though steeped in constitutional doctrine, this standard also infers a direct causal link between the broadcast and the violent act. An important case is Waller v. Osbourne, 763 F. Supp. 1144 (M.D. Ga. 1991), aff’d, 958 F2d 1084 (11th Cir. 1992). In Waller, the plaintiffs alleged the music, lyrics and subliminal message of Ozzy Osbourne’s song “Suicide Solution” caused their son to commit suicide. The song included the lyrics, “Get the gun and try it, shoot, shoot, shoot.” Id. at 1146 n. 2. The court rejected the argument that the song was unprotected speech because it was likely to incite imminent lawless activity, i.e., suicide, but found for defendants on the causation argument. No conclusive evidence was demonstrated that the song was intended, or likely, to cause imminent suicides. The court found no subliminal message, despite its seemingly outrageous musical content. Instead, it found a general, but unparticularized, exhortation. For MTV, this is good news. Another interesting case is Zamora v. CBS, 480 F. Supp. 199 (S.D. Fla. 1979). The facts seem curious and far less compelling than in Walleror the MTV matter. The 15-year-old plaintiff and his parents sued the major television networks for negligently causing him to become “involuntarily addicted” to television violence. The district court rejected this claim on First Amendment grounds, even if causation could be shown. However, the ruling did leave open the possibility that a future cause of action based on the effect of television violence could be legitimate. Id. at 206-7. That last point does open up a door in a suit against MTV. Unlike a song advocating suicide, or a general claim of TV addiction to violence, the facts here point to a specific representation in a television program. Jason Lind and his friend watched the show and specifically copied the activity. Does that mean that the tide turns in favor of the potential plaintiff? Maybe. But not easily. FIRST AMENDMENT ASIDE, CAN LIABILITY BE SHOWN? If the First Amendment claims can be put aside, an argument under strict liability theory could be made. To be sure, courts have not extended this doctrine to expression. Watters v. TSR Inc., 904 F.2d 378 (6th Cir. 1990) involved a suit against a video game manufacturer for the suicide of a “devoted player.” The court dismissed the case, noting that strict liability has never been extended to words or pictures. Similarly, the content in “Jackass” could be considered not so inherently dangerous that it was likely to cause the injury, despite the non-negligent or nonintentional motivations of the producers and the network involved. P.J. Clapp, the actor who portrays Johnny Knoxville, was quoted in a recent issue of Rolling Stonemagazine: “We’re working toward a common goal … doing what most people wish they could do. But what’s funny about it is, we’re no good at it. It’s, ‘come watch us fail.’ ” See“The King of Pain,” Rolling Stone, Feb. 1, 2000, at 43. Does that wish result in a causal connection? That would require more evidence, but the right to prove the casual link and the inherent dangerousness of these activities should not necessarily be barred, especially because of the young age of many of the viewers. Teens are highly impressionable; they take to fads or programs with a high degree of loyalty. That loyalty can sometimes get in the way of better judgment. Past courts have opened the door a crack to this type of lawsuit. With more extreme television over the last two decades, it is a threat that should not be taken idly. And, at the very least, producers and networks must draft specific warnings to limit their liability. Mark Conrad is the editor-in-chief of Broadcast Law Report and associate professor of legal and ethical studies at Fordham University’s Schools of Business Administration. He can be reached at [email protected].

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