The FIRST AMENDMENT and CIVIL LIABILITY ii / Preface Preface / iii The FIRST AMENDMENT and CIVIL LIABILITY Robert M. O’Neil INDIANA UNIVERSITY PRESS Bloomington and Indianapolis iv / Preface This book is a publication of Indiana University Press 601 North Morton Street Bloomington, IN 47404-3797 USA http://iupress.indiana.edu Telephone orders 800-842-6796 Fax orders 812-855-7931 Orders by e-mail [email protected] © 2001 by Robert M. O’Neil All rights reserved No part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying and recording, or by any information storage and retrieval system, without permission in writ- ing from the publisher. The Association of American University Presses’ Res- olution on Permissions constitutes the only exception to this prohibition. The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences—Permanence of Pa- per for Printed Library Materials, ANSI Z39.48-1984. Manufactured in the United States of America Library of Congress Cataloging-in-Publication Data O’Neil, Robert M. The First Amendment and civil liability / Robert M. O’Neil p. cm. Includes bibliographical references and index. ISBN 0-253-34033-0 (cloth : alk. paper) 1. Freedom of speech—United States. 2. Liability (Law)—United States. 3. Authors and publishers—Legal status, laws, etc.—United States. 4. Libel and slander—United States. I. Title. KF4772 O54 2001 342.73'0853—dc21 2001002832 1 2 3 4 5 06 05 04 03 02 01 Preface / v To — hazel, elinor, otis and robert peter the next generation contents 00 Preface / ix 1. First Principles and Basic Tensions 1 2. Libel: The Value of a Reputation 17 3. Libel on the Internet 36 4. Threats and Incitement on the Internet 56 5. Privacy: Paparazzi and Other Intruders 74 6. The Perils of News-Gathering 91 7. Defective and Dangerous Products? 107 8. The Risks of Advertising 120 9. “The Movie Made Me Do It!” 137 10. What’s Next? 163 Sources and References / 173 000 000 Index / 181 preface Like most books, this one had serendipitous origins. While on vacation in the summer of 1990, I came upon a newspaper account of a bizarre lawsuit. Harri- son Ford was soon to star in the film version of Scott Turow’s best-selling novel Presumed Innocent. To prepare for his unfamiliar role as a Midwest prosecutor, Ford spent a day shadowing the Wayne County, Michigan, dis- trict attorney. The venue was appropriate; some of the scenes would be filmed in Detroit, even though Turow never identifies the city in which his tales of crime are set. The core of the experience was a “charging conference,” during which Ford and the real-life lawyers would review a recently discarded case file. Though the file involved a homicide, the prosecutor’s staff had found insufficient merit to justify pressing criminal charges. A self-defense plea on the part of Ronald Wnuk, the arrested suspect, had seemed to them disposi- tive. Chief prosecutor John O’Hair, Ford’s mentor for the day, had a quite different view of the now dormant file. The case seemed to him well worth taking to court, a step which was still within the permissible time limit for homicides. Charges against Wnuk were immediately reinstated. After a pro- tracted trial, a jury eventually acquitted Wnuk. That might well have end- ed the saga, had Wnuk not somehow learned of the circumstances that had caused him to be placed back in jeopardy. He then filed a $9 million suit against Harrison Ford, the studio, and the county. Wnuk’s legally plausible claim was that but for the charging conference which the real-life prosecutors had arranged to prepare Ford for his screen role, he would have soon fallen beyond the reach of the criminal process. Though it seems to have been quietly dismissed some months later, this novel lawsuit posed fascinating issues about the extent to which, and condi- tions under which, the news and entertainment media might be held liable for causing harm or injury. There have, in fact, been a host of lawsuits seeking redress for imitative or so-called copy-cat actions, inspired or provoked by a film, a broadcast, a book, or a magazine article. Most of these cases have, however, occurred during the past decade; at the time Mr. Wnuk sought to hold Mr. Ford legally liable for his distress, there were few precedents. Until quite recently, commentators had virtually ignored issues of civil liability, viewing threats to free expression as chiefly the product of govern- mental action, not implicated by private resort to the courts. When in the early 1960s I served as a law clerk to Justice William J. Brennan, Jr., the focus