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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