PHYSICAL HARM

THEORIES OF LIABILITY

A.1 CLEAR AND PRESENT DANGER

Walt Disney Productions v. Shannon (Ga. 1981)

A.2 INCITEMENT: Brandenburg v. Ohio--"directed to inciting or producing imminent lawless action and likely to produce such action."

CASES:

DeFilippo v. NBC (RI 1982) p. 447

Olivia N. v. NBC (Cal. App. 1981) pp. 446-447

Herceg v. Hustler (5th Cir. 1987) pp.437-439, 440-441

 

B. AIDING AND ABETTING

Factors

*purpose/intent to facilitate murder

*relation of promotion of product to intent

*marketing strategy

*genuine use

CASE:

Rice v. Paladin Enterprises (4th Cir. 1997) pp. 450, 453, 454-455

 

C. NEGLIGENCE

*a duty, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risk

*breach of duty--a failure to conform to the standard required

*foreseeable injury

CASES:

Weirum v. RKO (Cal. 1975) p. 445

Eimann v. Soldier of Fortune Magazine, Inc. (5th Cir. 1989)

Eimann ad: EX-MARINES--67-69 'Nam vets, Ex-DI, weapons specialist--jungle warefare, pilot, M.E., high-risk assignments, U.S. or overseas. (404) 991-2684.

Eimann jury instructions: You can find SOF liable if: "(1) the relation to illegal activity appears on the ad's face; or (2) the ad, embroidered by its context would lead a reasonable publisher of ordinary prudence under the same or similar circumstances to conclude that the ad could reasonably be interpreted as an offer to commit crimes."

Braun v. Soldier of Fortune Magazine, Inc. (11th Cir. 1992)

Braun ad: GUN FOR HIRE: 37 year old professional mercenary desires jobs. Vietnam veteran. Discrete [sic] and very private. Body guard, courier, and other special skills. All jobs considered." [Telephone number and address]

Braun jury instructions: You can find SOF liable if the ad "on its face" would have alerted a reasonably prudent publisher that the "ad in question contained a clearly identifiable unreasonable risk, that the offer in the ad is one to commit a serious violent crime."

p. 462