As if the blood-soaked aftermath of the Batman movie shooting massacre in Aurora, Colorado, wasn’t horrific enough, along come the opportunists who hope to profit from tragedy via frivolous lawsuits.
The first but probably not the last lawsuit filed in the wake of the shootings comes courtesy of Torrence Brown, Jr., a young man who attended the screening but was not injured. Rather than reflecting on his good fortune — something denied the 12 people who were killed, including Brown’s friend A.J. Boik, and the 59 injured during the shooting — Brown has gone on the legal warpath. He is suing Aurora’s Century 16 Theater, asserting that the theater was negligent in having an emergency door that was not alarmed or guarded. Brown is also suing alleged killer James Holmes’ doctors for mistreating his medical condition. Finally and most notably, he is suing Warner Brothers, the studio behind “The Dark Knight Rises,” charging that the film was so irresponsibly violent that audience members didn’t realize that Holmes’ shooting rampage wasn’t part of the film. “Somebody has to be responsible for the rampant violence that is shown today,” Brown’s lawyer, Donald Karpel, told the website TMZ.
One can certainly sympathize with Brown for his beyond-awful experience and what is no doubt the painful loss of his friend. But it’s hard to see the justification for his suit, other than the promise of a payoff from a deep-pocketed Hollywood studio. Complaints about inadequate security are inevitable after shootings like Aurora, but short of preparing for the improbable likelihood of a paramilitary assault, which is what Holmes carried out, it’s not clear that the theater could reasonably have done much more to protect its patrons. As for Holmes’ medical condition, it has not yet been determined, so suing doctors for failing in their duty to warn about Holmes’ mental illness seems premature to say the least. Most problematic, though, is the claim about movie violence. Reasonable people can certainly object to the level of violence in movies, but Brown would seem an unlikely objector given that he voluntarily went to see it.
The good news from a legal standpoint is that Brown is unlikely to prevail. Courts generally have taken a dim view of efforts to extend legal liabilities to companies for premeditated crimes committed by non-employees. As well, the Supreme Court has long ruled that violence in movies and video games is protected expression under the First Amendment, raising a high hurdle to any successful suit of Warner Brothers.
We’ve seen such cases before. The closest example comes from Colorado and the legal fallout from a similar tragedy, the 1999 Columbine murders. At the time, the families of the 13 victims brought a $5 billion suit against 25 entertainment companies, including video game makers Sony and Nintendo and Time Warner (the parent company of Warner Brothers). The suit claimed that the companies’ violent video games, films, and websites had influenced the young gunmen, Eric Harris and Dylan Klebold, to shoot up their high school. As evidence, the plaintiffs cited the fact that the two killers were fans of violent video games like “Doom”; Eric Harris had even named his sawed-off shotgun after a character in the game. Then as now, however, there was little evidence that entertainment like video games led directly to murder. A Colorado federal court dismissed the case in 2002, ruling that the video-game makers could not have foreseen that their products would cause acts of violence like the Columbine shooting and as such were beyond the scope of legal liability.
The Columbine ruling reaffirmed the logic of an earlier case from 2000. In 1997, a 14-year-old student named Michael Carneal killed three students and wounded five at Heath High School in West Paducah, Kentucky, with a .22 caliber pistol. The families of Carneal’s victims filed a $33 million lawsuit that blamed Time Warner and other companies for the shooting. As in Columbine, the plaintiffs singled out the video game “Doom,” which they claimed had “trained Carneal to point and shoot a gun … making him an effective killer.” A lower court dismissed the case and the dismissal was subsequently upheld by the U.S. Court of Appeals for the 6th Circuit in Cincinnati, Ohio. In language that may prove directly relevant to the Batman case, the court found that it was “simply too far a leap from shooting characters on a video screen (an activity undertaken by millions) to shooting people in a classroom (an activity undertaken by a handful, at most).”
Even lawsuits against one of the more violent films of the past 20 years, Oliver Stone’s 1994 “Natural Born Killers,” have failed to win over the courts. For years the film, which tells the story of two psychopathic serial killers, had been accused of inspiring copycat crimes. The most compelling suit was filed by Patsy Ann Byers, a Louisiana woman who was shot and paralyzed from the neck down when two adults went on a violent spree after watching the film and taking LSD. In her suit, Byers blamed Oliver Stone and Time Warner, claiming that they “knew or should have known” that the film would inspire people to commit violent crimes. After several rounds of litigation, the suit was finally dismissed in 2001 after a Louisiana judge found no evidence that the defendants had intended to encourage imitative violence.
If the courts have generally been reluctant to hold media and entertainment companies liable for acts of violence, the Supreme Court under Chief Justice Roberts has cemented a further defense by finding violent films and video games protected under the First Amendment — even when the circumstances are unusual. Last June, in the case of Brown v. Entertainment Merchants Association, the Supreme Court overturned a California law that made it a crime to sell or rent violent video games to minors. Although California claimed that the law was necessary to protect minors from “psychological and neurological harm,” the court rejected that argument, noting that the state did not have a right to limit the First Amendment on these grounds. Justice Scalia, generally not known for his deference to the rights of juveniles, observed that the state does not have “a free-floating power to restrict the ideas to which children may be exposed.”
In light of the steep challenges to its success, Torrence Brown, Jr.’s suit mostly serves as a sad reminder that some will always try to exploit human tragedy for financial gain. The impulse for justice after a heinous crime like Aurora is appropriate, but it should be directed at those responsible, in this case the plainly deranged James Holmes. But the fact that Holmes will get his deserved day in court doesn’t mean others are similarly worthy.
Jacob Laksin is co-author, with David Horowitz, of The New Leviathan: How the left-wing money machine shapes American politics and threatens America’s future. Follow him on Twitter.