The Volokh Conspiracy

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Free Speech

No Liability for Netflix Over Teenage Suicides Supposedly Triggered by Thirteen Reasons Why

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Plaintiffs claimed that Netflix should be held liable, on the theory that "it had been warned by experts backed by decades of empirical research that child suicides and other profound psychological harm would occur if impressionable youths were targeted and not warned of the health risks inherent in viewing the Show." But today's decision by Judge Yvonne Gonzalez Rogers (N.D. Cal.) in Estate of B.H. v. Netflix, Inc. rejects that claim, giving four reasons why not, including:

[P]laintiffs' strict liability claim fails because it is premised on the content and dissemination of the show. There is no strict liability for books, movies, or other forms of media. See Winter v. G.P. Putnam's Sons (9th Cir. 1989) (holding that the content of a book concerning mushrooms did not support a products liability claim and basing its holding on the restatement relied upon by California courts as well as numerous authorities reaching the same)…. [P]laintiffs' efforts to distance the claims from the content of the show do not persuade. Without the content, there would be no claim….

[P]laintiffs also fail to identify a duty to support the negligence-based claims…. California courts have declined to find a duty as a matter of law … for claims implicating expression. McCollum v. CBS (Cal. App. 1988) (finding no duty as a matter of law when a musician  sought to appeal to troubled audience "perhaps most significantly, it is simply not acceptable to a free and democratic society to impose a duty upon performing artists to limit and restrict their creativity in order to avoid the dissemination of  ideas in artistic speech which may adversely affect emotionally troubled individuals"); Bill v. Superior Court (Cal. App. 1982) (finding that "the petitioner's activity in producing a motion picture and arranging for distribution, is socially unobjectionable—and, in light of First Amendment considerations, must be deemed so even if it had the tendency to attract violence-prone individuals to the vicinity of the theaters at which it was exhibited."). California courts have required a "very high degree of foreseeability" in cases concerning suicide and have found it difficult to satisfy. McCollum (holding that teen's suicide "was not reasonably foreseeable risk or consequence of defendants' remote artistic activities" even when the music was known for promoting suicide). The Court has not been persuaded that this case based upon the creation and dissemination of a show requires a different result.

Additionally, authority cited by plaintiffs demonstrate that even if there was a special relationship [between the parties, an argument raised by the plaintiffs -EV], the Rowland factor must be considered and may limit the duty. The above cases demonstrate that the countervailing First Amendment policy concerns warrant limiting the duty even if there were a special relationship. {Plaintiffs also acknowledge that traditional examples of a special relationship are "[t]he relationships between common carriers and their passengers, or innkeepers and their guests." The California Supreme Court recently extended this to college universities who "in turn, have a superior control over the environment and the ability to protect students," including "the power to influence [students'] values, their consciousness, their relationships, and their behaviors." The allegations of targeting in plaintiffs' FAC do not arise to this degree of control. Plaintiffs' allegations again concern the content of the show and implicate countervailing First Amendment policy concerns.}

This strikes me as quite right, for the reasons given in the cases on which Judge Rogers relies. Among other things, even speech intended to cause illegal conduct (a category that might be extensible to speech intended to cause suicide) is generally constitutionally unprotected only if

  1. it falls in the narrow incitement exception, which is to say that it's (a) intended to and (b) likely to cause (c) imminent illegal conduct, or
  2. it falls in the solicitation, exception, which is less well-defined but is likely limited to speech that urges crimes against specific targets or involving specific items of contraband.

But of course here Netflix isn't even alleged to have intended to cause harm; the claim is that it acting negligently in unreasonably distributing material that carried the risk of harm. Speech that supposedly merely negligently (or even recklessly) leads some viewers to act badly doesn't fit within these exceptions—or else a vast range of speech that is seen by millions of people would be jeopardized, because for so many works there is some risk that some tiny fraction of viewers will misbehave (against themselves or others) because of what they see there.

NEXT: Should Sarah Palin's Masked Singer Appearance Be Admissible in Her Libel Trial Against the N.Y. Times?

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  1. "Among other things, even speech intended to cause illegal conduct (a category that might be extensible to speech intended to cause suicide) is generally constitutionally unprotected only if

    it falls in the narrow incitement exception, which is to say that it's (a) intended to and (b) likely to cause (c) imminent illegal conduct, or...."

    I do not think the "likely to cause imminent illegal conduct" standard would be particularly helpful to Netflix. If you could actually show that they intended to cause people to commit suicide, I cannot think of a much better way to do it than via mass broadcasts to audiences that would almost by definition include emotionally-fragile or otherwise disturbed people.

    If I were in Netflix's shoes, I would deny the intent in the first place, which I am sure they did.

    1. Exactly -- even speech intended to cause harm is often protected; speech that merely supposedly negligently promotes harm is even more clearly protected. But I'll revise the text slightly just to make it extra clear.

      1. Again, Eugene Volokh proves that he puts "Free Speech" above the value of human life, even if the actions that involve speech are malicious, threatening, and should be illegal and no excused just because they involve "speech."

        The guy's a pure sadist who wants to see people's lives get ruined and likely takes pleasure in it.

        Eugene Volokh lacks any empathy for anyone but himself.

        Another example of how Eugene Volokh takes sadistic pleasure in seeing people's lives be ruined under the guise of "Free Speech."

        https://thenavelobservatory.wordpress.com/2015/11/03/prof-eugene-volokh-is-a-violent-sadist-who-fantasizes-about-torturing-people/

        Eugene Volokh is a sadistic, unethical liar of the highest order.

        He gets paid by Google so that's why he's purposely ignores the pain to victims of online harassment, cyberstalking, and related crimes. He doesn't care because he gets richer if laws are not passed to make Google remove harmful material. But these laws are necessary because otherwise victims have no recourse, and criminals are having a field day online. Eugene helps criminals and lines his own pockets with money.

        People on this forum who support Eugene Volokh are nothing but domestic terrorists who support using "speech" that is part of criminal conduct to justify online harms. America is screwed if people don't have the civility to agree that things like online harassment, cyberstalking, doxing are malicious and illegal. It means the people in this country have totally lost it and have no value of decency whatsoever. Free Speech is being weaponized to hurt the fabric of society and people are drunk on it.

        Eugene Volokh is a sadistic piece of shit for trying to harm the US social fabric and leave victims of heinous online crimes with no recourse.

        If you look through these forums, many others have called out Eugene's hypocritical analysis. The sadistic guy (Volokh) seems to take extreme pleasure in people getting their lives destroyed by harassers online and coming out and defending the harassers while leaving the victims to hang. He takes pleasure when people lose their jobs and livelihoods over doxing. He takes pleasure when plaintiffs cannot file suits using a pseudonym even when they are doing so to protect being re-victimized by the court system. He does not ever talk about how malicious the perpetrators are - they use VPN to hide their own privacy while purposefully, intentionally trying to destroy the lives of innocent victims. He never talks about whether it's fair or not for perpetrators to be able to hide behind "Free Speech" while all the friction to justice in the legal system fall on innocent victims. He never talks about how Section 230 has enabled intermediaries to contribute to the abuse by not removing harmful content in time. He never talks about the suicides that come with cyberharassment and bullying and how victims cannot ever get away from the tormentors. He doesn't give a shit, that's why he's a psychopath that is dangerous for society.

        Most people who take an absolutist view on the 1A have low empathy for people's sufferings, and are obsessed with defending the rights of a bunch of pervs, assholes, psychos, and low-life criminals of society who do not deserve defending and should be punished (fines or jail or both). Bad people deserve to be punished, but Eugene is advocating to punish the good people instead. Eugene Volokh is a grade A sadistic liar and a borderline psychopath based on his behaviour. He enjoys seeing people in pain and then coming out with his BS "Free Speech" arguments to make victims suffer more. You can see it in his eyes, he loves to destroy people using the "Free Speech" shield.

        Eugene Volokh's approach would give victims of malicious targeted online harassment NO legal recourse, even if their lives have been turned upside down by the malicious stalking or harassment from these individuals, and the speech does not implicate public interests and are purely aimed to harm the victims. For Eugene, Free Speech trumps all - deaths, suicides, victims be damned.

        Volokh has been trying his best to strike down all laws that would criminalize malicious online behavior like doxing, cyberstalking, harassment. This guy is grade-A liar and a psychopath who is harmful for society.

        Volokh purposefully ignores talking about the huge impact to the lives of victims of cyberharassers who target these people for years because the harasser has a mental issue. The reality is that Free Speech should be balanced with safety and appropriate privacy for citizens online, otherwise it's been weaponized by sick and sadistic bastards and criminals, and Eugene is fighting hard for these sadistic bastards and criminals to keep harming people.

        Eugene has never given two shits about the victims of cyber-harassment, never in any of his papers does he even consider the unique nature of the internet and the ability for malicious actors to ruin private individuals who are not in the public eye. Eugene Volokh has opposed laws banning doxing, revenge porn, Section 230 reform, etc... anything that would put more legal responsibility on platforms, ISPs, and intermediaries to make their products safer for people and to balance Free Speech with privacy.

        That's what's wrong with the USA today, it's maniacal focus on Free Speech to the extent of allowing social harms is what will destroy this country. All the countries around the world like EU, UK, Hong Kong, Australia, NZ, Canada, Brazil, Argentina are all passing legislation to criminalize doxing, online stalking, online harassment as it should, as these are crimes against human dignity. Is the right to be "free from harassment" not a fundamental right? Eugene doesn't think so. He fights for criminals to continue harming people online. Eugene is a threat to the American public and to the future of the country. He is basically fighting for America to be lawless online. Why should something be legal online when it is illegal offline?

        Volokh is a dishonest liar and sadistic human being with no ethics or morals. He only cares about superficial "speech", with no understanding (or even effort to understand) the fact that the internet has made it possible for anyone to use "speech" to wreak another's life, with or without justification, and many times, purely out of spite. This is why cases of cyberharassment, doxing, cyberstalking, revenge porn, blackmail are going through the roof, yet Eugene doesn't say a word about this. Has Eugene Volokh ever honestly asked himself, is it fair that the OFFENDERS CAN CONVENIENTLY HIDE BEHIND THE EXCUSE OF FREE SPEECH BUT WRECK HAVOC TO THE EMOTIONAL AND PHYSICAL LIVES OF THEIR VICTIMS? Does Eugene give a damn? This is part of the problem. Free Speech should only be free to the extent your rights don't interfere with those of others to live their lives free from your interference. "Your rights end under my nose".

        Yet Eugene doesn't care about the victims, the people who are harmed by malicious, low-value-add free speech that is solely meant to harm and torment private individuals. He wants every single law that would help victims of these crimes get redress to be cut down, so that criminals can run freely on the internet, and maximize the lethality of revealing victim's private information, doxing them, causing them emotional and social upheaval. The real reason Eugene supports this dangerous view is because it enriches Big Tech like Google, which then give kickbacks behind the scenes to Eugene Volokh. Eugene indirectly makes money from the pain and suffering of victims.

        Eugene Volokh is an emotionless being who doesn't weigh both sides of the arguments. For this robotic, emotionless “lawyer”, it's either Free Speech or nothing. His textualist interpretation of the First Amendment doesn't take into account that the Framers likely never even imagined the advent of the Internet, in which case an overly expansive view of the First Amendment can actually cause social harms because there is no barrier to entry, no cost of publishing cheap, harmful, malicious speech. Combined with Google's search engine, this means any malicious actor can type harmful things about someone, with or without justification, and this has a disproportionately large and negative impact on the victims' life, just for the sake of protecting the speaker's "freedom". But no consideration is made to balance the rights of the speaker against the rights of the victims, including the right of the victim to be free from harassment, free from stalking, privacy rights, freedom from intrusion into their lives. These are also Constitutional Rights (4th Amendment and elsewhere) Eugene ignores all of this and still adheres to his sadistic and dangerous view that it's all about the speaker and the rights of the victims be damned, even if they are bullied to suicide.

        How come Eugene has never addressed the fact that cyber-harassment and cyberstalking hurt and suppress the FREE SPEECH rights of victims? Isn't that a violation of the free speech rights of victims? Not surprisingly, Eugene is completely silent on this. That’s because he has an ulterior motive.
        Eugene Volokh's views are dangerous to the social fabric of America.

        The fact that no one on this forum, including himself, can respond to my points in a rational way shows that Eugene himself knows my arguments to be correct. I've exposed him as a biased, partisan, dishonest mouthpiece of Big Tech (especially Google), not dissimilar to other dishonest organizations such as the Electronic Frontier Foundation (EFF), who wants to strike down consumer protection laws online to enrich themselves at the expense of protecting Americas. Eugene is a dishonest individual with a hidden agenda to enrich Big Tech. He doesn't care about Free Speech at much as you think, what he cares about is making money by peddling dangerous views. If you notice, all of his views are exactly what Google would like to see, and he has written papers directly funded by Google absolving Google of all platform/ISP liability.

        Prove me wrong Eugene. Your sad and pathetic lack of ability to rationally respond to my points suggests you admit them to be true.

        Prolonged cyber-harassment, multiple instances of doxing, prolonged cyberstalking that can be shown to have malicious intent, will be categorized as "courses of conduct", and not "speech", hence will not receive First Amendment protections. They will be prosecuted for the crimes against individuals that they are, and malicious online stalkers who try to stay in the shadows and destroy innocent victims' lives will be locked up and fined, or both.

        If telephone harassment is illegal in states like California (PC 653m), then why the hell is doxing and online harassment NOT illegal and a crime? Makes zero sense.

        What's your view on this Eugene Volokh? Do you just think the world is better off if cyberstalkers are allowed to run amok and damage the fabric of society?

        Stalkers who use the anonymity of the internet to hide in the shadows, hide behind Free Speech, to try to ruin people's lives, are cowards and scum of the earth.

        The people who actively help these scum to hide from the law and hurt their victims without legal recourse are worse than scum.

        Volokh's interpretation of the 1A is borderless sadistic.
        Under Eugene Volokh’s asinine interpretation of the First Amendment, there would be NO such thing as cyberstalking or cyber-harassment! These crimes would simply not exist in his world. Because these actions are performed with words, Eugene would have the 1A apply to anything that involves words (or by extension, pixels). No course of conduct that involves typing words on a screen would be subject to any civil or criminal liability regardless of content, form, or intention. This mean in Eugene’s warped world, revenge porn, doxing, public disclosure of private fact, privacy violations, even swatting would be perfectly legal, and even encouraged!

        Ludicrously, he argues that these malicious acts are actually “valuable” because they provide value to “at least some people.” That’s a BS argument, because anyone can argue that say doxing material provides value to “someone” – yeah, the doxers and the criminals doing the harassment of course! A person’s credit card can be posted and it would provide value to someone, the thieves. A person’s revenge porn pictures can be posted and it would be obviously valuable to countless shady people on the internet. Eugene’s 1A internet speech test is: as long as the information posted is “of value” to someone, that content doesn’t qualify as harassment! This insanely warped logic is beyond asinine that I wonder how Eugene can say this with a straight face. There is no discussion at all from him on the rights of the victims and their constitutional right to be free from malicious harassment (4th Amendment). Eugene Volokh is borderline sadist who just wants to see people’s lives get wrecked and he takes enjoyment in seeing victims suffer.

        No civilized society would just let victims take the brunt of harassment while online criminals can get away by hiding behind a warped definition of the First Amendment. If the constitution says “Congress shall make no law” then maybe the 1A needs a new interpretation in the age of the internet! Because the current approach is leading to very bad social results and instability when people can just say whatever they want online with no liability. Volokh is insane.

        Eugene Volokh is dangerous to the public safety and to America. This guy is harming victims of cybercrimes. He should be arrested and tried for treason.

        1. Once again: the EU and Hong Kong aren't countries.

        2. Do you copy and paste this on every article? Get help please.

    2. d) Or it involves advocating for individual freedoms.

  2. I haven't read this yet but I must hasten to say some plaintiff's lawyer is a nutcase.

  3. Maybe there's room for some sort of unjust enrichment claim? If I sign up for your media service, and you negligently serve me some suicide propaganda that makes me kill myself, I feel like I should be able to get my $9 a month back.

    1. You agreed to binding arbitration of all claims against Netflix. Cases will be heard in the early spring in Nome, Alaska, with the proceedings to be conducted in person in the Chuvash language following traditional Afghan law (excluding any choice of law provisions, and waiving any claims of breach of warranty or negligence).

      1. That limitation of liability clause limiting damages to the amount paid hereunder...

    2. So you're claiming that there's some sort of economic incentive for a company to convince its customers to commit suicide and become non-customers? That seems ... counter-intuitive.

      1. Philip Morris did not return a call requesting comment.

        1. Did you walk through the virtual lobby/sound stage saying "Call for Philip Morris" in a loud voice?

  4. In the last several years in Massachusetts two young women have been convicted of manslaughter for repeatedly urging their boyfriends to kill themselves. That's far removed from the Netflix case, but I wonder if some day the gap will close and lawyers will have to start drawing finer distinctions. There is no shortage of angry sociopaths pushing the limits on one side or eager lawyers trying to move the bar on the other side.

    1. That was the point Prof V was making with the "intent" analysis. If you could show that Netflix actually intended for at least some viewers of the program to commit suicide (maybe in some misguided attempt to drum up publicity), then they would likely be in a heap of trouble.

      1. I still don't know how you get imminence. The Massachusetts cases are questionable, but it's a lot easier to see imminence in a one-to-one conversation where person A says "Go kill yourself" to person B than when a streaming service airs a show.

  5. "It is simply not acceptable to a free and democratic society to impose a duty upon performing artists to limit and restrict their creativity in order to avoid the dissemination of ideas in artistic speech which may adversely affect emotionally troubled individuals."

    One of the worst things about the modern day is that there's an entire generation and a half that thinks Title VII and Title IX should apply to general society. Leave your liability-fear trigger warnings on campus and in HR departments, kids.

  6. It does not surprise me at all that this show directly inspired and resulted in suicides. Completely expected result after watching it.

    1. Are you posting from the beyond?

      1. The show did not incline me off myself, but it will obviously have this effect among teens at a time when there is already a sharp upward trend and record high levels of this.

        1. "Obviously" is not an argument.

          1. It's not an argument so much as an observation. If you watch the show, you can see for yourself. For example, the show advances the notion that if you commit suicide, all the people who wronged you will finally notice you, and they will really care about you. They'll feel awful about what they did and will finally see the error of their ways.

            Of course, I don't think Netflix has or should have any liability for this.

  7. I would like to introduce plaintiffs to something called the "internet," much of which goes beyond negligently inducing suicide and right into encouraging it.

  8. The punishment the pedophiles at Netscape should receive is loss of their jobs - don't pay for their crap, and it won't bother you.

    I wasn't impressed with the premise of 13 reasons, and I quit the pedophile network over 'cuties'. Haven't missed it too much, either.

    1. Netscape? Forget it, he's rolling.

    2. Also, needless to say, you didn't watch "Cuties," and just got your information about it from the Outrage Media.

  9. Ever hear of a play called "Romeo and Juliet"?

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