When Publishers Are Responsible for Harm: Negligent Publication Explained

After staying up all night watching the film “Natural Born Killers,” two teenagers went on a copycat crime spree in Mississippi and Louisiana in 1995. A cotton mill worker was killed, and a convenience store clerk was shot and paralyzed. Both teens were found guilty, with one sentenced to life in prison without parole. The victims’ families sued director Oliver Stone and the producers of the movie, arguing that the killings were the result of a film that glorified drug use and violence.

The lawsuit in question was Byers v. Edmondson, and the case involved a concept known as “negligent publication.” A Louisiana trial court dismissed the case, saying that holding the filmmakers responsible for these deaths would violate the First Amendment because it would essentially punish them for creating entertainment that was so vivid and engaging that people would want to copy it in real life.

But in 1998 the Louisiana Court of Appeals allowed the case to go forward, saying that the First Amendment would not be violated if the filmmakers were held responsible for the deaths, as it was foreseeable that someone would engage in these acts after watching this film. The case went back to a Louisiana trial court, which dismissed the case because there was no proof that the filmmakers intended or should have known that someone would copy the violent crimes they saw in the movie.

Though the case was dismissed in the end, the fact that a court was even willing to hold filmmakers accountable for the unintended consequences of their art sent a chilling message not only to Hollywood but to authors, songwriters and other creators who had previously enjoyed broad First Amendment protection against what have generally been referred to as lawsuits for negligent publication.

What is negligent publication?

The law defines negligence as occurring when a person is injured and claims that the injury was directly caused by someone else who has not acted with “reasonable care.” That means a person has an obligation to act in a certain way and then disregards that obligation, causing injury to someone else. For instance, a driver going too fast in wet road conditions loses control and crashes into another car. Another example would be a doctor who fails to note that a patient is allergic to a particular drug and prescribes it to that patient, who then has an allergic reaction.

In a First Amendment context, negligent publication claims most often arise when someone is heavily influenced by something they have read, heard or watched. Most often this comes when a person imitates something they see in a movie or television show.

How does negligent publication relate to the First Amendment?

The First Amendment protects freedom of speech and freedom of the press from government infringement. But this protection is not without limits.

For instance, if you tell someone to commit a crime or give them clear instructions on how to commit that crime, you could be found guilty of aiding and abetting that crime, even if you weren’t physically there when it occurred. The First Amendment doesn’t protect your speech in this instance. The same would be true if someone creates a piece of content with the clear intention for their work to be used in harming someone. The law is clear: They can be held liable for this clearly intended result.

But most people — especially most people creating mainstream works — have no intention of hurting anyone. Yet sometimes people do get hurt by copying dangerous acts they see in movies or on TV; using information they read in a book or magazine; or following instructions they hear on the radio. Should the content creator be held liable because the audience responded in a certain way?

This is where “negligent publication” comes into play.

Negligent publication lawsuits, if successful, can threaten the freedoms of speech and the press because they result in a court punishing an author, songwriter, filmmaker or other creator by forcing them to pay money to someone based on the content they have created. This not only penalizes the creator but may deter others from creating content about potentially controversial topics for fear that they may be sued because someone has misunderstood, misinterpreted or misused what they have written or said.

Famed author John Grisham has written about this — but perhaps not as you would expect from someone within the creative community. Grisham supported the people who sued director Stone and others in the Byers v. Edmondson lawsuit. Grisham was friends with one of the victims and wrote, “The last hope of imposing some sense on Hollywood will come through another great American tradition, the lawsuit. A case can be made that there exists a direct causal link between “Natural Born Killers” and the death of Bill Savage. It will take only one large verdict against the likes of Oliver Stone, and then the party will be over.”

How do courts determine when content meets the standard for negligent publication?

To win a negligent publication lawsuit, a plaintiff must show four things:

1. The defendant had a duty to act in a certain way. There must be an obligation for the defendant to act or not act a certain way with regard to the person who was harmed or killed. It could be in the form of a specific law or a general expectation that you will not take actions you know or reasonably should know will harm another person. In a negligent publication lawsuit, this means the person bringing the lawsuit must show that a book publisher, television producer, songwriter, etc., has created content they know or should know will be relied on or acted upon by their audience.
2. The defendant has breached this duty by failing to exercise due care.
3. The defendant’s actions were the cause of the injury.
4. The plaintiff suffered a loss. They have incurred an actual injury that requires them to get medical treatment, incur medical expenses, endure pain and suffering, etc.

What are some past examples of negligent publication cases from different media?

Negligent publication cases can be unpredictable because they often depend on the specific facts involved. However, the First Amendment protections of freedom of speech and the press mean that defendants win more often than they lose.

Here are some examples.

Informational content

• In a 1991 case, two people filed a lawsuit against the publisher of a book titled “The Encyclopedia of Mushrooms.” The people suing the publisher each had to have a liver transplant after falling ill from eating mushrooms the book claimed were edible. In this case, Winter v. G.P. Putnam’s Sons, the court ruled in favor of the publisher, noting the publisher did not have a duty to investigate every fact in the book.
• An interesting contrast is the 1997 decision in a case involving the book “Hit Man: A Technical Manual for Independent Contractors.” It was written in a tongue-in-cheek “how-to” style about starting a career as a hitman, with a disclaimer in the book stating: “Neither the author nor the publisher assumes responsibility for the use or misuse of information contained in this book. For informational purposes only!” Still, it was read and relied upon by an actual hitman, who later murdered an 8-year-old boy who was quadriplegic, his mother and the boy’s nurse. Surviving family members sued the publisher of the book, Paladin Enterprises, arguing it had aided and abetted the murderer. In Rice v. Paladin Enterprises Inc., the court said the case could go to trial, despite the publisher’s arguments that the First Amendment protected this expression. The court noted the book was not just a work of fiction — it contained real instructions. The publisher settled the case before trial and agreed to stop selling the book.
• Soldier of Fortune magazine was the defendant in two cases arising from advertisements in the magazine:
  • In a 1989 case, the magazine was found not responsible when a classified ad seeking “EX-MARINES 67-69 'Nam vets ex-DI-weapons specialist jungle warfare, pilot, M.E., high risk assignments, U.S. or overseas” was used to procure a hitman for a murder. The court said the magazine could not have reasonably foreseen that the advertisement would lead to the harm of any specific individual. The case was Eimann v. Soldier of Fortune Magazine Inc., decided by the U.S. Court of Appeals for the 5th Circuit.
  • Three years later, a different appeals court ruled against the magazine. In this case the advertisement read, “GUN FOR HIRE: 37-year-old professional mercenary desires jobs. Vietnam Veteran. Discrete and very private. Bodyguard, courier, and other special skills. All jobs considered.”  The advertisement led to the hiring of a hitman who committed a murder. This time the court — a different appeals court not required to follow the earlier ruling — held that the magazine had a duty to abstain from publishing the advertisement, in that it posed a substantial risk of creating harm.

Entertainment content

Most negligent publication cases arise when people engage in behavior they have seen or heard about in the media:

• The California Supreme Court did find a direct relationship between a radio station and its listeners in Weirum v. RKO General Inc. in 1975. In this case, a radio station held a scavenger hunt where listeners, many of whom were teenagers, would hear a clue and drive to meet the DJ at a spot to win a prize. Two drivers, having spotted the DJ’s red car, were racing to keep up with the car when one crashed, killing another driver. The court found that the station had a duty to protect both those participating in the scavenger hunt and anyone nearby from harm because the station directly dictated the actions of the driver who crashed.
• A California Court of Appeals ruled in favor of singer Ozzy Osborne and his record label when they were sued by the family of a teenager who died by suicide after listening to Osborne’s song “Suicide Solution.” In McCollum v. CBS Inc. (1988), the court explained, “Reasonable persons understand musical lyrics and poetic conventions as the figurative expressions which they are.”
• A lawsuit is currently pending against the makers of the video game Call of Duty that was filed by the families of victims of the 2022 school shooting in Uvalde, Texas. The lawsuit claims the shooter played the game “obsessively.” Lawsuits against video game makers are rarely successful, however, as evidenced by Wilson v. Midway Games Inc., decided by a federal district court in Connecticut in 2002. That court held that the makers of Mortal Kombat were not responsible for the death of a 13-year-old boy who was fatally stabbed by his friend because the game did not direct or incite violent action.

How does negligent publication impact traditional media, including newspapers, magazines and broadcast news?

Negligent publication lawsuits seek to hold newspapers, magazines, and nonfiction book authors and publishers accountable for content that is designed to educate people, especially on topics that have an element of danger and require precise step-by-step instructions. Proponents of these lawsuits say they will hold content creators accountable for harm that content has caused — similar to the point of view expressed by John Grisham above. But should those content creators be held accountable for outcomes they never intended or perhaps never could have envisioned? Such a result might chill creative speech as writers decide not to write about certain topics, particularly in the nonfiction area. That would mean that people who are seeking instruction in these areas may not be able to find it at all.

Negligent publication is a prime example of the difficulty in promoting freedom of speech and freedom of the press while also recognizing that these rights are not unlimited, especially where there is the potential that the expression may cause direct harm to another person.