Constitutionalized negligence.

• Author: Sacks, Deana Pollard
• Position: Introduction to III. Lower Courts' Negligent Speech Immunity Rules B. Lower Courts' Constitutional Analysis of Negligent Speech Liability, p. 1065-1100

TABLE OF CONTENTS INTRODUCTION I. THE DANGERS THAT VIOLENT VIDEO GAMES POSE TO CHILDREN AND SOCIETY A. Research on the Indirect Social Effects of Media Violence B. Research on Video Games' Effects on Brain Functioning II. SOCIAL GOALS OF TORT REGULATION & MANIFESTATIONS OF JURISPRUDENTIAL IMBALANCE III. LOWER COURTS' NEGLIGENT SPEECH IMMUNITY RULES A. Lower Courts Tort Analysis of Negligent Speech Liability B. Lower Courts Constitutional Analysis of Negligent Speech Liability IV. EVIDENTIARY FRAMEWORK FOR CONSTITUTIONALIZING TORTS A. New York Times v. Sullivan B. Supreme Court Speech-Tort Precedent: The Evidentiary Tailoring Method 1. Narrow Tailoring of Tort Claim Elements for Speech That Causes Dignitary or Emotional Harm to Public Figures & Broad Protection For Accurate Republication of Public Records and Public Forum Political Speech That Cannot Be Characterized as "False" 2. Intermediate Tailoring For Private Individuals' Defamation Claims Arising From Public Concern Speech & The Import of Snyder v. Phelps Relative to Private Individuals 3. Minimal Tailoring and Deference to State Law Where the Speech is Purely Private or Causes Proprietary Harm V. THE CASE FOR REFORMATION A. The Inapposite Nature of the Incitement Test B. The Case for a Negligence-Based Analytical Paradigm VI. CONSTITUTIONALIZED NEGLIGENCE A. A Balancing Test to Determine the Level of Evidentiary Tailoring for Negligence Claims Arising From Unreasonably Dangerous Speech 1. The Nature of the Speech 2. The Vulnerability of the Plaintiff 3. The State's Interest in Punishing Speech/The Nature of the Injury B. Constitutionalized Negligence: Suggestions for Prima Facie Cases 1. Narrow Tailoring 2. Intermediate Tailoring 3. Minimal Tailoring CONCLUSION INTRODUCTION

The propriety of imposing tort liability for negligent speech has been the subject of controversy since before the First Amendment's incorporation. The debate over whether and to what extent civil liability may be socially desirable for unreasonably dangerous speech has intensified in recent years as entertainment media have become more explicitly violent and widely available. Experts have long concurred that exposure to all forms of violence is a cause of increased societal violence. Recent research on children's brain development indicates that children are exceptionally vulnerable to violent media influences, and numerous risks to society are created by children's exposure to violent video games in particular.

Video games are a unique form of media due to their interactive and repetitive cognitive programming characteristics, which render them a special danger to children. Accordingly, the contemporary controversy over regulating allegedly unreasonably dangerous speech has centered on the harmful effects that violent video games can have on a child's neurological and physiological health, which in turn can manifest in acts of violence toward others. Numerous state legislatures have responded to the scientific research by regulating the sale of violent video games to children. Lower federal courts have consistently declared such legislative action a First Amendment violation, and during the summer of 2011, the Supreme Court broadly declared that violent video games are fully protected speech and that state sales regulations are subject to strict scrutiny. (1)

The Supreme Court has never reviewed the constitutionality of imposing civil liability for unreasonably dangerous speech. Lower courts have generally rejected tort liability for speech on a theory of negligence. Further, lower courts have unanimously rejected tort liability for injuries allegedly caused by violent video games. The controversial scientific evidence concerning the harrowing potential effects that violent video games can have on children's brains and behavior warrants review of the lower courts' rules immunizing dangerous speech. A constitutionalized (2) form of negligence liability for unreasonably dangerous speech that foreseeably causes actual injury should be considered, and the effects of violent video games on children present the most compelling case for recognizing such liability.

All forms of government regulation of protected speech are bounded by the First Amendment. In New York Times v. Sullivan, the Supreme Court recognized that tort liability constitutes state action and is therefore subject to constitutional scrutiny. Historically, the Supreme Court's approach to analyzing the constitutionality of criminal regulation of speech has been different than its approach to analyzing the constitutionality of tort liability for speech. The Court has constitutionalized a variety of tort claims arising from speech and created a balancing framework for reconciling First Amendment values with the state's interest in punishing and deterring injurious speech, as opposed to applying strict scrutiny for criminal regulation of speech. (3) The Supreme Court's recent decision in Snyder v. Phelps immunized from civil liability a narrow class of harassing and invasive speech that was predominantly political in nature, caused primarily emotional upset, and was disseminated through traditional public sidewalk picketing. (4) Snyder v. Phelps was specifically limited to its extraordinary facts and does not control the constitutionality of imposing tort liability on a theory of negligence for unreasonably dangerous speech that can be proven to cause tangible injury.

The Supreme Court's recent criminal sales regulation decision in Brown v. Entertainment Merchants Ass' n (5) also does not control the issue of negligence liability for actual harm caused by children's consumption of violent video games. Criminal penalties for sales require no proof of actual harm to be enforced and risks chilling speech that does not actually cause harm. Tort liability is inherently more narrowly tailored than criminal regulation by virtue of the proof elements necessary to establish a claim in a particular case, including proof of actual harm to the plaintiff and both factual and proximate causation. Carefully circumscribed negligence liability for speech that is clearly unreasonably dangerous and that can be proven to have caused serious injury or death in an individual case may optimize social values. This Article considers how tort liability for actual harms caused to children (and others) by unreasonably dangerous speech might be conceived and proposes reform. The effect of violent video games on children is used to exemplify the civil liability analysis proposed herein.

Part I of this Article surveys the scientific evidence concerning the neurological and behavioral problems that are known to exist among children who play a lot of violent video games and distinguishes between direct harm to children's brains and the more general risk of increased societal violence. Part II reviews the game producers' apparent fault and tort policy, and concludes that tort immunity for unreasonably dangerous speech has created an imbalance of rights that operates to undermine the goals of tort law and public welfare. Part III reviews the lower courts' negligent speech jurisprudence and summarizes the development of the two strains of immunity rules lower courts created based on tort and constitutional doctrine. Part IV analyzes the Supreme Court's balancing approach to tort liability for speech and distills the Court's general evidentiary tailoring method of reconciling tort and constitutional policies relative to defamation and a few other speech-torts. Part V demonstrates that lower courts have departed from the Supreme Court's general speech-tort balancing approach to tort liability for allegedly negligent speech and points out flaws in the lower courts' analyses. Part VI proposes an analytical paradigm for reviewing liability for harm caused by unreasonably dangerous speech derived from the Supreme Court's speech-tort analytical framework, and then illustrates how the test might be applied relative to violent video games and children.

1. THE DANGERS THAT VIOLENT VIDEO GAMES POSE TO CHILDREN AND SOCIETY

   The Supreme Court of the United States and the American Academy of Pediatrics have reached very different conclusions concerning the social effects of violent media:

   The State's evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children.... They do not prove that violent video games cause minors to act aggressively.... (6) Exposure to violence in media, including television, movies, music, and video games, represents a significant risk to the health of children and adolescents. Extensive research evidence indicates that media violence can contribute to aggressive behavior, desensitization to violence, nightmares, and fear of being harmed.... The evidence is now clear and convincing: media violence is [one] of the causal factors of real-life violence and aggression.... The debate should be over. (7) This Part reviews scientific evidence demonstrating that violent video games pose serious health risks to children and society. This Part distinguishes indirect social harm, i.e., intervening acts of violence that may be caused by exposure to violent media generally and violent video games in particular, from direct neurological harm that can be caused by playing violent video games, particularly among children. The distinction is important to both tort and constitutional analyses. (8)

   1. Research on the Indirect Social Effects of Media Violence

      There is no legitimate dispute over whether consumption of all forms of violent media is substantially correlated with violent behavior, particularly among children. (9) The controversy concerns causation theories that explain the correlation. In social science research, the causes of behavior are necessarily...