Natural Born Copycat Killers and the Law of Shock Torts

The recent Columbine-related filing of a $5 billion lawsuit against various video game manufacturers and other entertainment industry entities has focused attention on the vital and complex legal issues implicated in any attempt to hold media defendants liable for physical harms they cause. This case, along with other similar cases, presents a fascinating juxtaposition of First Amendment principles, products liability, and traditional tort law. "Natural Born Copycat Killers and the Law of Shock Torts," is my contribution to this subject. I begin by describing some examples of allegedly media-inspired murders and suicides, and I coin a new term, "shock torts," to denote the phenomenon of shockingly violent mass entertainment and its possible linkage to such incidents. I then systematically examine the case law pertinent to shock torts, from the U.S. Supreme Court to the state court level. From there, I criticize the reflexive and restrictive application of the Brandenburg v. Ohio "incitement" test as found in many shock torts decisions and I propose a new, more appropriate balancing test consistent with the principles underlying the key Supreme Court precedent. I also analyze the legal and policy issues attendant to a products liability approach to entertainment industry "products" and the possibility of judicial recognition of a new category of disfavored speech for extremely violent mass-media entertainment.