Heinke, Rex S.

English

Loyola Marymount University

Loyola Marymount University and Loyola Law SchoolDigital Commons at Loyola MarymountUniversity and Loyola Law SchoolLoyola of Los Angeles Entertainment Law Review Law Reviews1-1-2002A Hypothetical: Potential Liability Arising from theDissemination of Violent MusicRex S. HeinkeThis Symposium is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola LawSchool. It has been accepted for inclusion in Loyola of Los Angeles Entertainment Law Review by an authorized administrator of DigitalCommons@Loyola Marymount University and Loyola Law School. For more information, please contact digitalcommons@lmu.edu.Recommended CitationRex S. Heinke, A Hypothetical: Potential Liability Arising from the Dissemination of Violent Music, 22 Loy. L.A. Ent. L. Rev. 233 (2002).Available at: http://digitalcommons.lmu.edu/elr/vol22/iss2/2A HYPOTHETICAL: POTENTIAL LIABILITYARISING FROM THE DISSEMINATION OFVIOLENT MUSICtRex S. Heinke *Daniel Roberts, a fifteen-year-old fan of heavy metal music, pledguilty to killing a teenage girl in 1998. At his arraignment, Roberts statedthat he had committed the crime after listening repeatedly to albums by hisfavorite heavy metal band. The music on the albums depicted in graphicdetail brutal acts that the singer sought to perform against the listener andvarious "girls" and "virgins."The girl's parents (the plaintiffs) sued multiple defendants: (1) theband; (2) its individual members; (3) its record company; (4) the producerof the albums; (5) the music publishing company that sold sheet music ofthe band's songs; (6) the distribution company that distributed the band'salbums; and (7) a separate distribution company that sold the band's olderalbums through mail order.The plaintiffs raised two separate causes of action. First, they allegedthat the lyrics of the music caused Daniel Roberts to commit the murder.Accordingly, the plaintiffs alleged that the defendants should be liable forwrongful death. Second, they alleged that the defendants committedunlawful and unfair business practices' by disseminating material that isallegedly obscene2 and "harmful" to minors3 under California law.In support of their unfair competition claim, the plaintiffs cite varioussocial science data that suggests that violent music correlates to violentf The following represents a set of hypothetical facts prepared for a panel discussion held inconjunction with the Fourth Annual Entertainment Law Symposium sponsored by Loyola of LosAngeles Law School on February 22, 2002. An edited transcript of the panel discussion appearsin this Issue. A Panel Discussion: Potential Liability Arising From the Dissemination of ViolentMusic, 22 LoY. L.A. ENT. L. REv. 237 (2002) (panel discussion transcript).* Partner, Akin, Gump, Strauss, Hauer & Feld, L.L.P.; Member, Advisory Board of theMedia Law Reporter and author of the treatise Media Law (Bureau of National Affairs). JessicaWeisel, an associate at Akin, Gump, Strauss, Hauer & Feld, L.L.P., greatly assisted in thedevelopment of this hypothetical.1. CAL. Bus. & PROF. CODE §§ 17200-17210 (Deering 2001).2. CAL. PENAL CODE § 311.1 (Deering 2001).3. Id. § 313.1.234 LOYOLA OF LOS ANGELES ENTERTAINMENT LAW REVIEW [Vol.22:233behavior in minors.The plaintiffs contend studies based in social science show acorrelation between delinquent behavior and listening to heavy metalmusic. Youth in juvenile detention are more likely than other teenagers toclaim heavy metal as their favorite music. Other studies show correlationsbetween chemical dependency and preference for heavy metal music.The plaintiffs also cite government reports that conclude that mediaviolence is a factor in aggressive behavior. Similarly, the Surgeon Generalhas concluded that teen exposure to media violence is a factor in theirphysically and verbally aggressive behavior and in aggressive attitudes andemotions. However, these studies have found that other factors-childabuse and neglect, victimization, bullying, drug and alcohol abuse,exposure to violence in the home, neurobiological indicators,socioeconomic factors, and access to guns-are more important factors.In particular, the plaintiffs point to a recent Federal TradeCommission ("FTC") study that concludes that music like the heavy metalmusic at issue here is advertised in publications and television programsattracting high percentages of teenage readers and viewers.4 Many of theseadvertised recordings contain parental advisory lyrics. In studying fifty-five explicit content recordings, "all of them were marketed to childrenunder 17." 5The defendant's main argument in response is that music is protectedunder the First Amendment. Thus, unless the music on the albums fallsinto a category of speech that lies outside the scope of First Amendmentprotection, no liability may be imposed for creating or disseminating thesongs. The defendants argue that the music could not "incite" violence.They also maintain the music is neither obscene nor harmful under theapplicable California statutes, which restrict only sexual content. If theplaintiffs wish to regulate violence in the media, their arguments are moreappropriately directed to the legislature and not to a trial court applying thebroadly worded unlawful and unfair competition statute.With respect to the social science and government reports, thedefendants argue they cannot override the first Amendment. In addition,the recording and other media industries have contended that the FTCreport equates advertising in a forum possessing a large teenage audiencewith marketing to minors. However, these forums also provide target4. This is an actual FTC document. FED. TRADE COMM'N, MARKETING VIOLENTENTERTAINMENT TO CHILDREN: A SIx MONTH FOLLOW-UP REVIEW OF INDUSTRY PRACTICESIN THE MOTION PICTURE, MUSIC RECORDING & ELECTRONIC GAME INDUSTRIES: A REPORT TOCONGRESS (April 2001), available at http://www.fic.gov/reports/violence/ violenceO10423.pdf.5. Id. at 13.2002] TUNE IN, TURN ON, COP OUT? 235audiences for adults who are likely to be interested in the advertisedproducts. Thus, for instance, advertising a record album on the MTV show"Total Request Live" not only reaches the majority audience of teenagers,but also the minority group of adult viewers who are likely to have a stronginterest in music. Thus, the advertisers argue that equating advertising inthese forums with advertising to minors fails to take into account the rightsof all viewers, including the adult minority, to receive the advertisements.

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A Hypothetical: Potential Liability Arising from the Dissemination of Violent Music

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