Do violent images cause violent behavior?

Risk & Insurance
November 1999
By Tom Vander Neut

Add violence incitement to the list of liabilities entertainment and media companies face. The media has traditionally been held liable for risks such as libel, invasion of privacy, and copyright and trademark infringement. Now, they may be held liable for bodily injury as a result of the content they publish due to claims of inciting violence.

Anything from movies to books to video games have been fingered as inciting or encouraging an individual to commit a violent act. Any media or entertainment company producing content with elements of violence is vulnerable. But the most vulnerable, as is evidenced by recent lawsuits, seem to be motion picture companies and video game manufacturers that sell products that seemingly glorify violence.

Recently, court cases seeking punitive damages in the millions of dollars have claimed that companies can be held liable if the content they publish plays a part in an individual's violent act, resulting in the loss of life. And juries are finding for the plaintiffs. In fact, two cases in the last year -- one was settled out of court -- have found that companies can be held accountable if their content leads to violence. And in a relatively new case stemming from a school shooting incident in West Paducah, Kentucky, in 1997, entertainment companies -- mostly motion picture companies and computer and video game manufacturers -- are being sued for $130 million because their products allegedly played a part in the shooter's killing of three students and wounding of five others.

Those within the industry say that claims against entertainment and media companies for violent content have increased over the last few years.

Should this continue, underwriters may raise rates or impose more stringent criteria for bodily injury and property damage coverage for television programs, books, or video games with violent or potentially violence-inciting content. "Since underwriting is the process of assessing the risk, and if the risk proceeds to go up, then that would affect the underwriting," says Chad E. Milton, senior vice president for Media/Professional Insurance in Kansas City. Media/Professional Insurance is the world's largest provider of insurance for media content and underwrites companies such as book and magazine publishers and film, television, and video game producers.

"We insure, for instance, a lot of video game producers and the extent that the claim in Paducah is successful or at least inspirational to other plaintiffs, that would be a concern for us for that class of business," says Milton. "Likewise, we insure some film producers and we have some similar concerns there.

The Lawsuits

The most recent lawsuit, filed last April, stems from the school shooting incident that occurred in West Paducah, Ky., on December 1, 1997. In this incident, then 14-year-old Michael Carneal shot and killed three students at Heath High School and wounded three others. Afterwards it was established that Carneal logged onto pornographic Internet sites, played violent computer and video games, and had watched violent movies, including The Basketball Diaries, which depicts a scene of a student graphically killing classmates with a shotgun.

In preparation for Carneal's criminal trial, where he was found guilty of second degree murder and sentenced to 25 years in jail without parole, his family hired psychiatrist Diane Schetky, also a Yale University medical professor, as a criminal defense expert. After evaluating Carneal, according to the plaintiff's lawsuit, "she concluded that Carneal was profoundly influenced by his exposure to the ...violent/pornographic media and to 'the media's depiction of violence as a means of resolving conflict and a national culture that tends to glorify violence further condoned his thinking.'"

In the lawsuit, plaintiff attorneys Mike Breen of Bowling Green, Ky., and Jack Thompson of Coral Gables, Fla., who represent the victim's families, sued an assortment of 25 motion picture, video game, and Internet site companies for $130 million. Among the allegations, the lawsuit claims that defendants Time Warner, Palm Pictures, Island Pictures, New Line Cinema, and Polygram, who produced and distributed The Basketball Diaries, "specifically decided and intended to make, market, and distribute a movie in which they fabricated a gratuitous and graphic murder spree for the sole purpose of hyping the movie and increasing its appeal to young audiences. This had the effect of harmfully influencing impressionable minors such as Michael Carneal and causing the shootings."

The lawsuit also claims that the "video game defendants manufactured and/or supplied to Michael Carneal violent video games that made the violence pleasurable and attractive, and disconnected the violence from the natural consequences thereof, thereby causing Michael Carneal to act out of violence_ Additionally, said games trained Carneal how to point and shoot a gun in a fashion making him an extraordinarily effective killer without teaching him any of the constraints or responsibilities needed to inhibit such a killing capacity."

"This type of lawsuit is a major threat," says Bruce Johnson, a defense attorney with Davis Wright Tremaine in Seattle. "We are developing in this country a process of destroying industries through litigation, a kind of alternate regulatory structure built by trial lawyers. Tobacco was targeted first. Guns are now targeted. If the media and entertainment industry remains as unpopular as it is, it will also be hit by major jury verdicts and judgements."

Other recent highly-publicized cases include the hit man case, the Jenny Jones case, the Natural Born Killers case. All of these lawsuits have met with some success in the legal system to varying degrees.

In the hit man case, James Perry hired himself out to be a hit man in 1992 after reading the book, Hit Man: A Technical Manual for Independent Contractors, and murdered three people. Paladin Press, the publisher of the book, was sued by the victim's families for conspiracy to commit murder, aiding and abetting the murderer, and negligence for making the material available. The case concluded in an out of court multimillion-dollar settlement earlier this year.

In the Natural Born Killers case, Oliver Stone and Time Warner Entertainment Co., among others, were sued for intentionally inciting a teenage couple to shoot Patsy Byers in 1995. Byers was paralyzed during a robbery of a convenience store in Ponchatoula, La., where she worked, by Sarah Edmondson and Benjamin Darras, who were convicted and sentenced to 35 years in prison. Last March, the U.S. Supreme Court denied a motion to review the case.

"I don't see how you could really anticipate that kind of liability that somebody would just go crazy after a particular program and kill somebody," Johnson says. "Unless you can anticipate every cracked psyche in the world, it's very hard for a risk manager to deal with this particular risk.

Violence and the Media

Many studies have been done linking media violence with violence in our society. For example, longitudinal studies that track viewing habits and behavior patterns of a single individual over time found that 8-year-old boys who viewed the most violent programs growing up were the most likely to engage in aggressive and delinquent behavior by age 18 and serious criminal behavior by age 30, according to information the American Medical Association gathered from the testimony of Dr. Leonard Eron of the University of Illinois at Chicago, before the Sentate Committee on Commerce, Science and Transportation, Subcommittee on Communications on June 12, 1995.

Television violence affects youngsters of all ages, both genders, all socioeconomic levels, and all levels of intelligence. The effect is not limited to children pre-disposed to aggressive behavior. Instead, television violence creates a vicious cycle in which televised violence causes children to become more aggressive, and these more aggressive children, in turn, watch more violence on television to justify their own behavior, according to the American Medical Association.

"The impact of violent video games upon children is not as clearly established as the impact of violent television programming. Young children possess an instinctive desire to imitate actions they observe, without always possessing the intellect or maturity to determine if such actions are appropriate," said Dr. Robert E. McAfee, past president of the American Medical Association, in testimony before House Energy and Commerce Committee Subcommittee on Telecommunications and Finance in June 1994. "Due to their role-modeling capacity to promote real world violence, there is deep concern that playing violent video games, with their fully digitized human images, will cause children to become more aggressive toward other children and become more tolerant of, and more likely to engage in, real-life violence."

"Manifestly, every violent act is the result of an array of forces coming together -- poverty, crime, alcohol and drug abuse, stress -- of which childhood exposure to television is just one," wrote Dr. Brandon S. Centerwall in a June 10, 1992, Journal of the American Medical Association article entitled "Television and Violence." "Nevertheless, the epidemiological evidence indicates that if, hypothetically, television technology had never been developed, there would today be 10,000 fewer homicides each year in the united States, 70,000 fewer rapes, and 700,000 fewer injurious assaults.

Available coverages

The insurance industry is scurrying to play catch up with trends on the legal side, says Leib Dodell, media underwriting manager for Chubb Executive Risk in Simsbury, Conn. "These are new kinds of claims that we're starting to see," he says. In some cases, he explains, plaintiffs are viewing content such as movies, magazines, and games as a product and then arguing that there was a defect in the product that incited an individual to cause bodily injury. "It's difficult to figure out where the right insurance solution is for these types of claims because we just haven't really seen them until somewhat recently."

For instance, Dodell explains, media liability policies with named perils -- such as libel, invasion of privacy, and copyright and trademark infringement -- may not respond to a product liability or bodily injury claim when it is not named. Therefore, he emphasizes, companies may need to acquire an all-perils policy that covers all claims arising out of content or be sure to include coverage for new media liability theories in the policy as named perils. Many carriers, for example, offer coverage for bodily injury and property damage through an errors and omissions endorsement.

In addition, Dodell notes, it is conceivable that a general liability policy may provide coverage under the theory that the loss is an accident that resulted in bodily injury. But the more traditional source of coverage for claims arising out of content would be media liability policies. Both Chubb Executive Risk and Media/Professional Insurance offer media liability coverage for bodily injury and property damage. Chubb Executive Risk's policy is structured as an all-perils policy with available limits up to $25 million. Media/Professional Insurance, on the other hand, offers a named-perils media liability policy with limits up to $10 million, Milton says, and offers a contingency errors and omissions coverage endorsement for bodily injury and property damage in nearly every situation.

Most important, Dodell adds, companies at risk of a bodily injury or property damage claim due to their content potentially inciting violence need to make sure there isn't a bodily injury/property damage exclusion listed. Sometimes, he notes, insurers include this exclusion in the standard form, but offer an E & O endorsement for bodily injury and property damage and add the coverage when appropriate.