The First Amendment and Civil Liability:

200 Pages·2001·0.98 MB·English

by  Robert M. O'Neil

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
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© 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