Man Without Qualities

Monday, June 30, 2003

More, Better Litigation

The tort bar is widely reported to be eager to sue companies like McDonald's that make people fat. It's wrong, but it is happening. The theory seems to be that the companies suppressed, failed to disclose or outright misrepresented the obese consequences of consumption of their products. There is also an undertone of fast- food "addiction," served up to gut the "personal responsibility" defense.

Maybe it will work. But, if it does, the entertainment industry should surely be next - and the focus should be on the commercial use of sex. The concept of "sexual addiction" has long been accepted. The entertainment companies certainly don't emphasize the darker consequences of the sexual behavior their products encourage. Evil entertainment executives have long lied about their knowledge of such consequences. Indeed, if there is one class of executives who can easily make tobaco executives look honest, it is entertainment industry executives. And, of course, there are plenty of people who will be able to testify quite truthfully that their AIDS, sterility, unwanted pregnancies, bad personal relationships and/or divorces are probably the direct results of a childhood spent consuming Hollywood fare.

And the best thing is that the First Amendment should be no effective defense to such claims - any more than the Amendment was a defense for the cigarette companies for liability arising from their advertising. And if the Amendment allows Nike to be held liable for making false and misleading statements when responding to critics of its overseas labor practices, how can the Amendment be an effective defense to a studio's obligation to support an infant parented by two teenagers sexed-up on some installment of the James Bond "franchise" - or much, much worse.

Often, such liability turns on whether the "speech" in question is "commercial speech" - which at one time was restricted to speech which did no more than propose a commerical transaction:

In its Kasky decision, the California Supreme Court reversed this ruling, introducing a new and extraordinarily broad definition of commercial speech. The court majority rejected the United States Supreme Court's "no more than" formula and instead devised a three-part test for determining whether particular statements constitute commercial speech. ... Under the test invented by the Kasky court, three elements must be considered: the speaker, the intended audience, and the content of the message. The three-part commercial speech test devised by the Kasky majority sweeps within its ambit almost any statements by any corporate or commercial speaker, or entity, involving any public controversy that touches upon the defendant's practices and policies.

First, ... the "speaker" element of the test will be met whenever the speaker is "someone engaged in commerce" ... The second element - the "intended audience" for the speech - is ... satisfied if the intended audience is "likely to be actual or potential buyers or customers of the speaker's goods or services, or persons acting for actual or potential buyers or customers, or persons (such as reporters or reviewers) likely to repeat the message to or otherwise influence actual or potential buyers or customers." ... The third Kasky element - the "content" of the speech - is satisfied ... if a lawyer can allege that a corporation's ultimate purpose is promoting sales....

James Bond movies and, indeed, most Hollywood movies and television shows, seem now to be "commercial speech" in the eyes of the California Supreme Court, entitled to only minimal First Amendment protection.

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