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1 Comm. Law. 1 (1983)

handle is hein.journals/comlaw1 and id is 1 raw text is: Communications Pubi cat on of the Forum Committee on Communications Law American Bar Association Volume 1, Number 1, Winter 1983L a w y e r TORT! There is Tort Liability for Negligent Programming BY HARVEY L. ZUCKMAN Being the case for the proposition that the California and Rhode Island courts erred in extending first amendment protection to media whose negligent programming causes personal injury to those in the audience. Maybe it's the torts professor in me overwhelming the communications law pedagogue, Floyd, but I am convinced that the decisions in Olivia N. v. NBC, 126 Cal. App. 3d 488, 178 Cal. Rptr. 888 (1981), and DeFilippo v. NBC, - R.I. ___ 446 A.2d 1036 (1982), are just plain wrong. In those cases your client, the National Broadcasting Com- pany, was held to be protected against personal injury liability in tort for allegedly negligent programming by the first amendment. In the Olivia N. case, a minor female was bottle raped by other minors at a San Francisco beach following the presentation on the NBC television network of a film en- titled Born Innocent in which an adolescent female inmate of a state-run home for wayward girls is sexually attacked in a shower room by other inmates wielding a plumber's helper. In the DeFilippo case, a thirteen-year-old boy accidently hanged him- self while apparently em- ulating a trick hanging demonstrated by Johnny Carson and a Hollywood stunt man on NBC's Tonight Show. While I believe, Floyd, that in neither case should your client have been held liable for damages in tort, I also believe that it received unwarranted protection of the first amendment. Regarding tort liability for negligent program- ming, it is a basic propo- sition of tort law that a defendant can only be negligent if it creates Continued on page 8 RETORT! Negligent Programming? Some First Amendment Ramifications BY FLOYD ABRAMS Being the case against the proposition that the California and Rhode Island courts erred in extending first amend- ment protection to the media in this situation. The questions forcefully put, if wrongly answered, by Harvey Zuckman are best considered in a hypothetical framework. Consider the following wholly fictional creation: 1. In the weeks following the reporting of the Tylenol deaths, similar acts of poison being inserted in publicly sold drug products occur around the nation. 2. Two people in Cleveland die as a result of such actions. 3. A Cleveland resident is apprehended who claims that he got the idea to poison the drugs from reports he had seen and read. 4. Some social scientists believe that the reporting of the Tylenol deaths foreseeably led to imitative acts by members of the public. 5. An action is commenced by the widow of one of the two deceased Cleveland victims against a local newspaper and television station. What result? I take it, Harvey, that you and I agree on the answer. There can be no li- ability imposed upon the newspaper and television station. But why? What analysis leads to that con- clusion? Here we disagree. Your analysis is rooted in-I would say mired in-neg- ligence law. Mine is premised upon the first amendment. What differ- ence does it all make? Let's see. Under principles of neg- ligence law, you rightly say, the test is one of rea- sonableness. We should C ~ weigh, you say, the prob- Continued on page 10

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