700x394_D.Hudson_Col_5.6.20

Producers of ‘First 48’ Prevail in Negligence Suit Partly Because of the First Amendment

A man interviewed on the show “The First 48” lost his negligence claim against the producers of the show, a Texas state appeals court has ruled in part because of the First Amendment.

“The First 48” episode that aired June 9, 2014 featured discussions about the murder of Donovan Reid, a suspected drug dealer in Dallas. The police theorized that Reid was robbed and murdered by rival drug dealers.

The episode in question shows Dallas detectives interviewing Arking Jones. As is customary on the show, Jones’s image is blurred and his voice altered. Jones explains to detectives a conversation he had with Clint Dewayne Stoker, whom police considered a suspect. According to Jones, Stoker implicated himself in the murder of Reid.

Jones asserts that immediately after the episode aired, he received threats from Stoker and another individual. Jones reported those threats, leading to an indictment of Stoker and the other man. However, Jones reports that he continued to be victimized, assaulted and robbed by friends of Stoker. Fourteen months after the episode aired, Michael Scott, another friend of Stoker’s, shot Jones four times.

Jones sued Kirkstall Road Enterprises, Inc. (Kirkstall), alleging the producers were negligent in the editing, production and release of his image and voice on national television. He contended that the producers failed to disguise his image and voice enough and, as a result, he faced severe retaliation from people who viewed him as a snitch.

Negligence refers to socially unreasonable conduct that harms another individual or entity. In this case, Jones contends that Kirkstall was negligent because it had a legal duty to use reasonable care in the editing and release of his name and likeness on television. He further argued that Kirkstall had a legal duty to ensure that (1) his identify was not discernible and (2) he was not falsely portrayed as a confidential informant.

Kirkstall filed a motion for summary judgment, contending that it had a First Amendment right to edit the program as it saw fit. Kirkstall also contended that it was never informed of any threats against Jones and that any such threats or retaliatory acts were not foreseeable.

A trial court judge granted summary judgment to Kirkstall. On appeal, the Texas Court of Criminal Appeals affirmed the ruling in its April 29, 2020 decision in Jones v. Kirkstall Road Enterprises.

The appeals court emphasized Kirkstall’s First Amendment rights in its decision, noting that it is “settled that entertainment programs, as well as news programs, enjoy First Amendment protection.”

“If we were to place the burden to prevent the kind of unforeseeable injury that befell Jones in this case on the media, the result would be a significant infringement on its Constitutional protections when reporting matters of public interest,” the appeals court wrote.

The appeals court ultimately determined that the likelihood of injury was low and Kirkstall’s programming was of keen interest to the public. Furthermore, the contract Kirkstall signed with the city required the City of Dallas to secure permission from individuals before the show exhibited any identifiable image of those persons.

While the case was decided largely on negligence grounds, it remains important from a First Amendment perspective because the decision emphasizes that entertainment programs are protected by the First Amendment and that society has a keen interest in programs about crime.

David L. Hudson Jr. is a First Amendment Fellow at the Freedom Forum Institute, and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled, “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).

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