The Plaintiffs claimed Netflix should face liability on the basis that it had “been warned by experts, supported by decades-long empirical research, that child suicides would happen if vulnerable youths are targeted.” However, Judge Yvonne Gonzalez Rogers’s today’s decision (N.D. Cal.) Cal.) B.H. v. Netflix, Inc. The claim was rejected. There are four reasons to reject it:
[P]Because the strict liability claim of laintiffs is based on the contents and distribution of the show, it fails. Books, movies and other media are exempt from strict liability. Winter v. G.P. Putnam’s Sons (9th Cir. 1989) (holding that the content of a book concerning mushrooms did not support a products liability claim and basing its holding on the restatement relied upon by California courts as well as numerous authorities reaching the same)…. [P]The laintiffs’ attempts to separate the claims and the show’s content are not convincing. Without the content, there would be no claim….
[P]laintiffs also fail to identify a duty to support the negligence-based claims…. California courts have declined to find a duty as a matter of law … for claims implicating expression. McCollum v. CBS (Cal. App. 1988) (finding no duty as a matter of law when a musician sought to appeal to troubled audience “perhaps most significantly, it is simply not acceptable to a free and democratic society to impose a duty upon 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”); Bill v. Superior Court (Cal. App. 1982) (finding that “the petitioner’s activity in producing a motion picture and arranging for distribution, is socially unobjectionable—and, in light of First Amendment considerations, must be deemed so even if it had the tendency to attract violence-prone individuals to the vicinity of the theaters at which it was exhibited.”). California courts required “very high levels of foreseeability” when considering suicide cases and found this difficult to meet. McCollumThe Court ruled that the suicide of the teen was not a reasonably foreseeable consequence of the defendants’ distant artistic activities, even though suicide-promoting music is well-known. This case, which was based on the creation and distribution of a television show, has led to the Court not reaching a different conclusion.
The plaintiffs also point out that the authority they cite shows that there wasn’t a special relationship. [between the parties, an argument raised by the plaintiffs -EV]The Rowland The duty may be limited by taking into account this factor. All of the above cases indicate that there are countervailing First Amendment concerns which warrant the limitation of the duty, even though there was a special relation. {Plaintiffs recognize that special relations are not always traditional.[t]The relationship between common carriers and passengers or innkeepers with their guests. California Supreme Court has extended this right to college universities that “in turn have superior control over environment and ability to protect students,” the court said. [students’]Their values, their consciousness and how they behave. Plaintiffs’ FAC does not allege targeting. Plaintiffs’ allegations again concern the content of the show and implicate countervailing First Amendment policy concerns.}
For the reasons given by Judge Rogers, this seems to me quite reasonable. Even speech is affected, among other things. Designed Cause illegal conduct is generally not covered by the constitution. This category could also include speech that is intended to cause suicide.
- You can’t use it if it is in the narrow Incitement exception. This means that it was (a) designed to, (b) likely, (c) to cause, (d) imminent illegal behavior.
- It is included in the solicitation exemption, which although less defined is more likely to be speech that encourages crimes against particular targets or involves specific contraband.
Speech that supposedly merely negligently leads some viewers to act badly doesn’t fit within these exceptions—or else a vast range of speech that is seen by millions of people would be jeopardized, because for so many works there is some risk that some tiny fraction of viewers will misbehave (against themselves or others) because of what they see there.