Liability of Media Companies for the Violent Content of Their Products Marketed to Children

Article excerpt

INTRODUCTION

Children in the United States are frequently exposed to media violence, defined for the purposes of this Note as communication depicting physical force used to injure person or property.1 Courts have refused to hold media corporations liable for the violent content of child-entertainment products,2 but many legal commentators have argued for an expansion of the law.3 This Note examines the circumstances under which media corporations may be civilly liable for the violent content of their youth-oriented products. Specifically, this Note will examine negligence suits and First Amendment protections. It will explore whether the expansion of the law, such as presumption of a causal link between media violence and aggressive behavior in children, is necessary. It will also look at whether the health and safety of children is a compelling interest that mitigates First Amendment protections. Finally, this Note will consider whether retaining current law is preferable absent scientific proof that media violence leads to aggressive behavior in children.

This Note suggests that courts in media-violence suits have not considered the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.11 and that, despite scientific uncertainty regarding causal links between media violence and aggressive behavior in children, Daubert is not an absolute bar to expert testimony. Finally, this Note proposes that the health and safety of children is a compelling interest that should limit media companies' First Amendment freedom to market violent products to adolescents for pecuniary gain.

I. CAN VIOLENT MEDIA PRODUCTS LEAD TO VIOLENT BEHAVIOR IN CHILDREN?

Negligence claims hinge on whether plaintiffs can prove that media violence leads to violent behavior in children.5 Since the early 1960s, some scientists have argued that such a causal connection exists.6 Repetition of clinical and empirical studies cited by legal scholars continues to substantiate the hypothesis that media violence, including television, video games, and music, leads to aggressive behavior in children.7 Thus, there is scientific support that violent media products lead to violence among children. Video games have received particular attention, where evidence of such causal links is especially strong.8

Nonetheless, some studies reach contrary results and conclude that, absent preexisting psychological abnormalities, media violence neither desensitizes children to real life violence nor leads to violent behavior.9 According to these studies, the effects of motion pictures,10 video games,11 or other media products on children is negligible.12 Thus, violent media products pose no risk to child consumers.

Hypothesized links between media violence and violent behavior in children remain speculative or, in the opinion of one researcher, "pitifully underwhelming."13 The issue continues to generate debate within the scientific community, and a consensus has yet to be reached.14 Parents, religious groups, and educators express concern that media violence may be unhealthy for children.15 Furthermore, popular literature voices the concerns of many laypersons that media violence is a negative influence on children.16

II. MEDIA COMPANIES HAVE NOT BEEN held LIABLE FOR THE VIOLENT CONTENT OF THEIR PRODUCTS

Although scientists are divided, courts have decided the causation issue in favor of the media industry,17 and violent media products have received broad First Amendment protections.18 As a result, plaintiffs in media-violence suits are nearly foreclosed from presenting a genuine issue of material fact regarding causation because, even if the First Amendment does not bar suit, courts have concluded that media violence cannot, under virtually any circumstances, lead to violent behavior in children.19 Therefore, media companies are held to owe no duty to third parties injured by youths under the influence of violent media products. …