A Difficult Season for Freedom of Speech

Comedy Central, which famously dabbles in outrageous content, found a "South Park" episode including Mohammed in a bear suit too outrageous and censored the show after receiving threats of violence from Muslim extremists targeting the show's writers. When Seattle Weekly cartoonist Molly Norris tried to rally support for the "South Park" writers by organizing an "Everybody Draw Muhammad Day" (on the premise that there is safety in numbers), she too was threatened. Her publisher, following in the timid footsteps of Comedy Central, promptly announced that it would no longer carry her works. Norris herself has gone into hiding.

But an even bigger threat to freedom of speech did not come from religious extremists, and it did not involve violence. Instead, it emerged from a placid courtroom in Hawaii, where federal Judge Alan C. Kay recently issued a 49-page decision allowing one Craig Smallwood to pursue his case for damages against NCSoft Corporation, the maker and marketer of a computer game to which Mr. Smallwood has allegedly become addicted.

Lineage is an interactive fantasy game set in a virtual medieval world of elves, dark elves, knights, princes, and magicians. Players can play with or against other online players as they lay siege to castles, impose and collect taxes, kill monsters, and (in avatar form) kill other players. At its height, the game had over 3 million subscribers, most of them in Korea. 

According to his complaint, Mr. Smallwood began playing Lineage II (a prequel to the original game) in 2004 or 2005. Over the next five years, Mr. Smallwood played for over 20,000 hours, or roughly ten hours per day, seven days per week. Mr. Smallwood experienced "great feelings of euphoria and satisfaction from persistent play." Soon, he was "psychologically dependent and addicted." NCSoft banned him from internet gameplay for allegedly scheming to create real money transfers with other players, a charge Mr. Smallwood denies. The expulsion has upset Mr. Smallwood. For one thing, he is out the $65 he prepaid for playing time. More importantly, Mr. Smallwood's expulsion has caused "extreme and serious emotional distress and depression." He has suffered "psychological trauma, he was hospitalized, and he requires treatment and therapy three times a week." 

In short, Mr. Smallwood is now a mess, and not at all the well-adjusted fellow he was back in those halcyon times when he was playing Lineage ten hours per day.

Mr. Smallwood may have relished his years as an inhabitant of the Lineage kingdom, but when he was expelled, he remembered his real roots and did what red-blooded Americans are bred to do when confronting disappointment. He sued. His complaint sets forth eight claims, four of which Judge Kay dismissed on various procedural grounds. But he allowed Mr. Smallwood to pursue his claims for negligence, gross negligence, and negligent infliction of emotional distress. All three claims rest on the premise that NCSoft was negligent in designing and distributing the game and in failing to warn Mr. Smallwood of its "dangerous and defective characteristics." (Judge Kay also allowed Mr. Smallwood to proceed with his defamation claim based on the allegedly false accusation of real money transfers.)

The most disturbing aspect of the opinion was its treatment of the First Amendment. There wasn't any. Defendants, in their motion to dismiss, did not raise it. Judge Kay, in his opinion, did not discuss it.

The court and counsel proceeded in their own virtual world, where castles, dragons, and elves are real, but the First Amendment is not. Locked in this fantasy, they ignored several decades of state and federal precedents holding that television programs, movies, magazine articles, and other forms of entertainment are subject to constitutional protection. Unless, under the Supreme Court's test in Brandenburg v. Ohio, they are "directed to inciting or producing imminent lawless action and are likely to incite or produce such action," these works are shielded by the First Amendment and furnish no basis for tort liability.

The facts underlying these precedents are far more heart-wrenching, and the victims far more sympathetic, than those in the Smallwood case.

In 1974, Olivia N., a nine-year-old girl, was artificially raped with a bottle on a San Francisco beach by a gang of minors who had recently viewed the film Born Innocent. The film, which dealt with the harmful effect of a state-run home upon an adolescent girl who had become a ward of the state, included a scene in which the central character is raped in a shower by four adolescent girls, one of whom wields a plumber's helper. The victim sued NBC, claiming that it should have known that susceptible young viewers might imitate the film's crime scene.

In 1979, also in San Francisco, Jocelyn Vargas attended a showing of Boulevard Nights, a movie involving Hispanic youth gangs. After the showing, as she was walking down Polk Street to catch a bus, Ms. Vargas was shot in the neck by a gang member. She sued the director and producers of the movie, claiming that they should have warned her that the movie would attract violent people.

In 1981, Troy D., a fourteen-year old boy, read a Hustler Magazine article entitled "Orgasm of Death," describing the practice of "auto-erotic asphyxia." The next morning, his nude body was found hanging in his closet. His mother sued Hustler for negligence, product liability, dangerous instrumentality, and attractive nuisance.

In 1992, Bill Davidson, a Texas state trooper, was shot and killed by a black teenager driving a stolen car. The killer had been playing and replaying Tupac Shakur's "2 Pacalypse Now," an album with racial lyrics glorifying cop-killing. At his criminal trial, the killer blamed the lyrics for motivating him to shoot the trooper. The trooper's widow sued Shakur and Time Warner, claiming that their album caused her husband's death.

In 1995, Patsy Ann Byers, a clerk at a Louisiana convenience store, was shot and rendered a paraplegic by a couple who had watched Oliver Stone's Natural Born Killers. Ms. Byers (and, after she died, her husband and children) sued Stone and Time Warner for distributing a movie that allegedly inspired the couple to imitate the murderous escapades of the characters in that film.

In 1997, Noah Wilson, a thirteen-year-old Connecticut boy, was stabbed to death by his friend. The two boys had been playing the violent video game "Mortal Kombat." Noah's mother sued Midway Games, the producer of the game, alleging that her son's friend was addicted to the game and actually believed that he was the character Cyrax. Her complaint included claims of product liability, negligence, and intentional infliction of emotional distress.

In the cases filed after each of these tragedies, the courts found the First Amendment an insuperable barrier to the victims' claims and dismissed the actions. While each case had its own specific facts and legal issues, three general themes emerged. First, the content of books, magazines, films, computer games, and other forms of entertainment is not a "product" for purposes of product liability law. Of course, a physical computer game disk itself may be a "product." If it blows up when inserted in a computer drive, there could be product liability. But the ideas and expressions on that disk are not. They are protected by the First Amendment and are not subject to product liability law.

Second, under the First Amendment, such content is protected from civil litigation claims unless it meets the Brandenburg v. Ohio standard of being directed to inciting or producing imminent lawless action and is likely to produce such action.

Third, creators cannot be found liable for failing to warn the public of the supposedly dangerous nature of their works unless the creators have some special relationship with the victim, or with the third party who injures the victim.

Had NCSoft raised these First Amendment issues, it is difficult to imagine Judge Kay denying its motion to dismiss. First, Lineage II is clearly a form of entertainment subject to First Amendment protection. So Mr. Smallwood's "defective product" contentions would not have survived. Second, whatever the merits of the game, it certainly was not created for the purpose of inciting imminent lawless action. Indeed, compared to the trash involved in some of the precedents mentioned above, Lineage II is a Shakespearean sonnet. Finally, NCSoft could not have been subject to a duty to warn Mr. Smallwood that he would suffer "psychological trauma" as result of playing the game. It did not know him. Moreover, Lineage had 3 million subscribers, and no massive outbreaks of mental collapse had been reported.

But operating in their virtual world, undisturbed by constitutional considerations, the court and counsel proceeded to create a precedent more dangerous than any dragon. For no writer, director, or programmer can predict how the Smallwoods of the world will react to their creative handiwork. A story that moves one man to tears may move another to murder. The unpredictable nature of this kind of legal peril makes the Smallwood case, in some respects, a greater danger to free speech than the violent threats of Muslim extremists. The Comedy Central writers and the Seattle Weekly cartoonist at least knew the nature of the risks they were undertaking when they decided to take on Muslim topics. A computer game creator, by contrast, has no idea who will become addicted or depressed or enraged by her product. All she can know is that under this decision, she may face years of litigation at the hands of such discontented customers.

Ultimately, the Smallwood decision will be reversed. But the longer the case continues, the more it burdens the First Amendment. NCSoft is a large corporation capable of bearing the cost of protracted litigation. Other potential defendants are not. For the sake of a vibrant, creative marketplace, one must hope that Judge Kay will invite the parties to revisit the dismissal proceedings, this time with full briefing of First Amendment considerations.
Comedy Central, which famously dabbles in outrageous content, found a "South Park" episode including Mohammed in a bear suit too outrageous and censored the show after receiving threats of violence from Muslim extremists targeting the show's writers. When Seattle Weekly cartoonist Molly Norris tried to rally support for the "South Park" writers by organizing an "Everybody Draw Muhammad Day" (on the premise that there is safety in numbers), she too was threatened. Her publisher, following in the timid footsteps of Comedy Central, promptly announced that it would no longer carry her works. Norris herself has gone into hiding.

But an even bigger threat to freedom of speech did not come from religious extremists, and it did not involve violence. Instead, it emerged from a placid courtroom in Hawaii, where federal Judge Alan C. Kay recently issued a 49-page decision allowing one Craig Smallwood to pursue his case for damages against NCSoft Corporation, the maker and marketer of a computer game to which Mr. Smallwood has allegedly become addicted.

Lineage is an interactive fantasy game set in a virtual medieval world of elves, dark elves, knights, princes, and magicians. Players can play with or against other online players as they lay siege to castles, impose and collect taxes, kill monsters, and (in avatar form) kill other players. At its height, the game had over 3 million subscribers, most of them in Korea. 

According to his complaint, Mr. Smallwood began playing Lineage II (a prequel to the original game) in 2004 or 2005. Over the next five years, Mr. Smallwood played for over 20,000 hours, or roughly ten hours per day, seven days per week. Mr. Smallwood experienced "great feelings of euphoria and satisfaction from persistent play." Soon, he was "psychologically dependent and addicted." NCSoft banned him from internet gameplay for allegedly scheming to create real money transfers with other players, a charge Mr. Smallwood denies. The expulsion has upset Mr. Smallwood. For one thing, he is out the $65 he prepaid for playing time. More importantly, Mr. Smallwood's expulsion has caused "extreme and serious emotional distress and depression." He has suffered "psychological trauma, he was hospitalized, and he requires treatment and therapy three times a week." 

In short, Mr. Smallwood is now a mess, and not at all the well-adjusted fellow he was back in those halcyon times when he was playing Lineage ten hours per day.

Mr. Smallwood may have relished his years as an inhabitant of the Lineage kingdom, but when he was expelled, he remembered his real roots and did what red-blooded Americans are bred to do when confronting disappointment. He sued. His complaint sets forth eight claims, four of which Judge Kay dismissed on various procedural grounds. But he allowed Mr. Smallwood to pursue his claims for negligence, gross negligence, and negligent infliction of emotional distress. All three claims rest on the premise that NCSoft was negligent in designing and distributing the game and in failing to warn Mr. Smallwood of its "dangerous and defective characteristics." (Judge Kay also allowed Mr. Smallwood to proceed with his defamation claim based on the allegedly false accusation of real money transfers.)

The most disturbing aspect of the opinion was its treatment of the First Amendment. There wasn't any. Defendants, in their motion to dismiss, did not raise it. Judge Kay, in his opinion, did not discuss it.

The court and counsel proceeded in their own virtual world, where castles, dragons, and elves are real, but the First Amendment is not. Locked in this fantasy, they ignored several decades of state and federal precedents holding that television programs, movies, magazine articles, and other forms of entertainment are subject to constitutional protection. Unless, under the Supreme Court's test in Brandenburg v. Ohio, they are "directed to inciting or producing imminent lawless action and are likely to incite or produce such action," these works are shielded by the First Amendment and furnish no basis for tort liability.

The facts underlying these precedents are far more heart-wrenching, and the victims far more sympathetic, than those in the Smallwood case.

In 1974, Olivia N., a nine-year-old girl, was artificially raped with a bottle on a San Francisco beach by a gang of minors who had recently viewed the film Born Innocent. The film, which dealt with the harmful effect of a state-run home upon an adolescent girl who had become a ward of the state, included a scene in which the central character is raped in a shower by four adolescent girls, one of whom wields a plumber's helper. The victim sued NBC, claiming that it should have known that susceptible young viewers might imitate the film's crime scene.

In 1979, also in San Francisco, Jocelyn Vargas attended a showing of Boulevard Nights, a movie involving Hispanic youth gangs. After the showing, as she was walking down Polk Street to catch a bus, Ms. Vargas was shot in the neck by a gang member. She sued the director and producers of the movie, claiming that they should have warned her that the movie would attract violent people.

In 1981, Troy D., a fourteen-year old boy, read a Hustler Magazine article entitled "Orgasm of Death," describing the practice of "auto-erotic asphyxia." The next morning, his nude body was found hanging in his closet. His mother sued Hustler for negligence, product liability, dangerous instrumentality, and attractive nuisance.

In 1992, Bill Davidson, a Texas state trooper, was shot and killed by a black teenager driving a stolen car. The killer had been playing and replaying Tupac Shakur's "2 Pacalypse Now," an album with racial lyrics glorifying cop-killing. At his criminal trial, the killer blamed the lyrics for motivating him to shoot the trooper. The trooper's widow sued Shakur and Time Warner, claiming that their album caused her husband's death.

In 1995, Patsy Ann Byers, a clerk at a Louisiana convenience store, was shot and rendered a paraplegic by a couple who had watched Oliver Stone's Natural Born Killers. Ms. Byers (and, after she died, her husband and children) sued Stone and Time Warner for distributing a movie that allegedly inspired the couple to imitate the murderous escapades of the characters in that film.

In 1997, Noah Wilson, a thirteen-year-old Connecticut boy, was stabbed to death by his friend. The two boys had been playing the violent video game "Mortal Kombat." Noah's mother sued Midway Games, the producer of the game, alleging that her son's friend was addicted to the game and actually believed that he was the character Cyrax. Her complaint included claims of product liability, negligence, and intentional infliction of emotional distress.

In the cases filed after each of these tragedies, the courts found the First Amendment an insuperable barrier to the victims' claims and dismissed the actions. While each case had its own specific facts and legal issues, three general themes emerged. First, the content of books, magazines, films, computer games, and other forms of entertainment is not a "product" for purposes of product liability law. Of course, a physical computer game disk itself may be a "product." If it blows up when inserted in a computer drive, there could be product liability. But the ideas and expressions on that disk are not. They are protected by the First Amendment and are not subject to product liability law.

Second, under the First Amendment, such content is protected from civil litigation claims unless it meets the Brandenburg v. Ohio standard of being directed to inciting or producing imminent lawless action and is likely to produce such action.

Third, creators cannot be found liable for failing to warn the public of the supposedly dangerous nature of their works unless the creators have some special relationship with the victim, or with the third party who injures the victim.

Had NCSoft raised these First Amendment issues, it is difficult to imagine Judge Kay denying its motion to dismiss. First, Lineage II is clearly a form of entertainment subject to First Amendment protection. So Mr. Smallwood's "defective product" contentions would not have survived. Second, whatever the merits of the game, it certainly was not created for the purpose of inciting imminent lawless action. Indeed, compared to the trash involved in some of the precedents mentioned above, Lineage II is a Shakespearean sonnet. Finally, NCSoft could not have been subject to a duty to warn Mr. Smallwood that he would suffer "psychological trauma" as result of playing the game. It did not know him. Moreover, Lineage had 3 million subscribers, and no massive outbreaks of mental collapse had been reported.

But operating in their virtual world, undisturbed by constitutional considerations, the court and counsel proceeded to create a precedent more dangerous than any dragon. For no writer, director, or programmer can predict how the Smallwoods of the world will react to their creative handiwork. A story that moves one man to tears may move another to murder. The unpredictable nature of this kind of legal peril makes the Smallwood case, in some respects, a greater danger to free speech than the violent threats of Muslim extremists. The Comedy Central writers and the Seattle Weekly cartoonist at least knew the nature of the risks they were undertaking when they decided to take on Muslim topics. A computer game creator, by contrast, has no idea who will become addicted or depressed or enraged by her product. All she can know is that under this decision, she may face years of litigation at the hands of such discontented customers.

Ultimately, the Smallwood decision will be reversed. But the longer the case continues, the more it burdens the First Amendment. NCSoft is a large corporation capable of bearing the cost of protracted litigation. Other potential defendants are not. For the sake of a vibrant, creative marketplace, one must hope that Judge Kay will invite the parties to revisit the dismissal proceedings, this time with full briefing of First Amendment considerations.