Natural-born censors

By refusing to throw out the Natural Born Killers case, the Supreme Court could create an ugly new precedent

EDITORIAL

Free speech got a lot more expensive earlier this month. Time Warner -- the corporate media giant that's being sued over the 1994 Oliver Stone film Natural Born Killers -- presumably can afford it. Society can't.

On March 8, the Supreme Court declined to throw out a lawsuit brought by the family of Patsy Byers, a convenience-store clerk in rural Louisiana who was shot and paralyzed in March 1995 (she later died of cancer). Byers's family charges that the shooters, Benjamin Darras and Sarah Edmondson, adopted Mickey and Mallory Knox as their role models after seeing Natural Born Killers, and embarked on a murderous rampage across Louisiana and Mississippi. The lawsuit seeks damages from Time Warner and from Stone.

News coverage of the Court's action has pointed out that Byers's family has little chance of succeeding. Under Justice Oliver Wendell Holmes's "clear and present danger" standard of the 1920s -- modified, in 1969, to cover material that would "incite imminent lawless activity" -- the Court has ruled repeatedly that speech is protected unless it would provoke immediate violence. In the case of Byers, the Court has ruled not that her family's lawyers have a legitimate case but, rather, that they should be given an opportunity to present evidence aimed at showing that Time Warner and Stone incited Byers's assailants.

How civilized. How reasonable.

But an old saying -- "Justice delayed is justice denied" -- applies here. The Supreme Court had an opportunity to affirm free speech in the strongest possible terms: to throw out the lawsuit, to strengthen the Holmes standard, even to admonish the appeals court for letting the case move forward. Instead, Time Warner and Stone must spend more money and face the uncertainties of litigation.

Time Warner, the country's largest media company, and Stone, a controversial filmmaker, may appear to some in this age of media backlash to be distinctly unsympathetic defendants. Add to this the fact that Byers's family has a heartbreaking story to tell. But that is not the issue. The issue is whether creating controversial art will become so legally and financially hazardous that no one will undertake to do it.

The Court's refusal to throw out the Byers suit is similar to -- but potentially more dangerous than -- a decision by a federal district-court jury in Oregon last month to order the creators of "The Nuremberg Files," an extremist anti-abortion Web site, to pay $107 million to Planned Parenthood. The Nuremberg Files included the names and addresses of abortion providers (a/k/a "baby butchers"), and cheered whenever one of those providers was murdered. Still, the Web site's authors did not urge people to murder doctors; thus, as civil-liberties lawyer and Phoenix contributor Harvey Silverglate argues, their activities should have been protected by the First Amendment (see "Freedom Watch," News, February 12).

But at least with the Nuremberg Files, honest observers can disagree over whether the site violated the Holmes standard. (Holmes himself defined speech that should not be protected as the equivalent of shouting "Fire!" in a crowded theater.) In the case of Natural Born Killers, it appears that the standard isn't even being considered -- or, to be more legally correct, it will be considered only after the Byers family's lawyers have an opportunity to show that Stone's dark, disturbing social satire about media and celebrity was actually an instructional film for impressionable, homicidally inclined young lovers.

"I think that Hollywood ought to be very concerned," Douglas Mirell, a First Amendment lawyer, told the Los Angeles Times. "There is no way of knowing what a jury would do if the case goes to trial."

Actually, it's fairly easy to predict what a jury would do. Find the defendants liable. Order them to pay millions of dollars. And force a lengthy appeals process that could create dangerous new precedents about the limits of free speech.

What happened to Patsy Byers is a tragedy. But it is a tragedy for the culture that the Supreme Court chose not to put a stop to the war against free speech that's being waged in her name.

What do you think? Send an e-mail to letters[a]phx.com.