Watch what you watch; a jury may watch, too

Ombudsman

By Paul McMasters
First Amendment Ombudsman
First Amendment Center
pmcmasters@freedomforum.org

07.14.98

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The Georgia Supreme Court handed down two rulings Monday that should give pause to anyone who checks books out of the library, rents movies from the video store, or buys CDs from the music store.

In cases involving two different murder trials, the Georgia court ruled that movies such as "Natural Born Killers" and "Menace II Society" may be shown to jurors during murder trials to prove that people were somehow coerced into real crime by fictional crime.

Justice Harris Hines wrote for the majority: "Evidence of a movie in a criminal defendant's possession which depicts the conduct with which the defendant is charged may be admissible to show the defendant's bent of mind."

Consider the implications of the court's acceptance of the idea that what one reads, views or listens to creates or demonstrates one's "bent of mind." This is the sort of reasoning that can launch all sorts of prosecutorial "Starr searches." In Georgia, if not elsewhere, prosecutors now have the court's encouragement to paw through bookstore records, video store rental receipts, and music store sales slips to beef up a case, find something that will help them get a balky witness to cooperate, or produce "evidence" of a defendant's "bent of mind."

Consider the implications of allowing a prosecutor to have his cake and feed it to the jury, too. In other words, the prosecutors in these two cases charged that these horrible movies so inflamed and incited the defendants that they committed murder. Then they got to use those same movies to inflame and incite the jurors as they prepared to go into deliberations.

Consider the implications of making books, movies, and songs instruments of criminality, which in turn increases the liability of book publishers and movie and music producers. Movie-makers and publishers already are the targets of civil suits making their way through the judicial system. In each of these several cases, the plaintiffs' attorneys are claiming that this is an isolated, special case with no consequences for other books, movies or records.

Consider the implications for the kind of creative and fictional fare consumers will have access to if their producers are intimidated into homogenous pablum by the threat of a flurry of lawsuits every time some crazy commits a crime and it is learned that he has read or watched or listened to their works.

Now consider the consequences of such a legal theory gaining widespread acceptance and applicability.

It relieves the criminal of full responsibility for his acts. It relieves the prosecutor of full responsibility for making a case based on facts, not fiction. It relieves the jurors of full responsibility for verdicts based on reality, not fantasies.

Such a theory shifts the blame for crime to the publishers of book publishers, movie makers and music producers. The records of bookstores, music stores, and movie stores become the targets of "Starr searches." What you read, watch and listen to becomes fodder for a prosecutor looking for material to force testimony or to shore up a shaky case.

This has real-life consequences for the rights of the defendant, the rights of producers of creative works, and the public, people who exercise an increasingly threatened First Amendment privilege every time they pick up a book, rent a movie or buy a CD.

This idea that we can blame the movie for the crime turns the courtroom search for justice into a fantasy world where what people read or watch or listen to becomes not an act of enlightenment or entertainment but proof of criminal intent.

Now, that's mind-bending.

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