Sunday, October 3, 2010

Did Tupac's Lyrics Incite A Cop Killer?

Hold on a second... it's not what you think.

Davidson v. Time Warner, 25 Med.L.Rptr. 1705 (D.C.S.Texas 1997)

Facts of the Case
In April 1992, Ronald Howard fatally shot Officer Bill Davidson while driving a stolen automobile in Jackson County, Texas.

Davidson had stopped Howard, originally from the South Park area of Houston, Texas, on U.S. Highway 59 about 5 miles (8 km) south of Edna, Texas in a 1986 GMC Jimmy, as his vehicle had a broken headlight. When Davidson approached the driver-side window of the car, he was shot in the neck. Howard drove off but was apprehended later in the night, with a 9 mm pistol. The car was later found to be stolen. Three days later, Davidson died of his injuries. Drug tests showed that Howard had cocaine and cannabis in his system at the time of the murder.

He was listening to an audio cassette of... (cue suspenseful music)

...2Pacalypse Now.

Howard did not even pay 2Pac for his music... he was listening to an illegal bootleg tape!

Davidson's wife, Linda Davidson (and their children) sued Time Warner/Interscope Records/Atlantic Recording/Tupac Shakur, arguing that 2Pacalypse Now did not merit First Amendment protection. 

They alleged it was obscene, contained “fighting words,” defamed peace officers like Officer Davidson and tended to incite imminent illegal conduct on the part of individuals like Howard. 

She alleged that the music led to her husband's death.
Decision of the Court

Dismissed for lack of personal jurisdiction and the motion for summary judgment were granted. 

The District Judge John D. Rainey held that the record companies and Tupac did not hold property in the state and did not have enough minimum contacts in the state to be responsible for the direct distribution of the tape.

They did not have the duty to prevent the distribution of the music when they could not reasonably foresee that distributing the music would lead to violence nor was there an expectation to use the music as a “product for purposes of recovery under a products liability theory.”

Finally, Judge Rainey ruled that the Davidsons' argument that the music was unprotected speech under the First Amendement was irrelevant.

Reasoning of the Court

If we gave government the ability
to censor all ideas
that offend us,
would we be able to
think for ourselves?
All political and non-political music is considered First Amendment protected speech. First Amendment protection is not weakened because the music takes an unpopular or even dangerous viewpoint.

The court invokes the idea from Herceg v. Hustler Magazine, Inc., 814 F.2d 1017, 1019 (5th Cir. 1987) that freedom of speech is “not based on the naive belief that speech can do no harm” but “on the confidence that the benefits society reaps from the free flow and exchange of ideas outweigh the costs society endures by receiving reprehensible or dangerous ideas.”

Judge Rainey ruled that the burden to prevent harm is too high for the Defendants and society to police their recordings to the extent that would result in the sale of “only the most bland, least controversial music.”

The court also held that Davidson's argument that the music was obscene was irrelevant because they claimed that the violent lyrics incited Howard to kill Davidson, not sexually obscene lyrics.

Judge Rainey ruled that while 2Pacalypse Now may “spew invectives” at California police officers, it does not defame all police officers like the Davidsons' claims. In order for a remark to be defamatory it must be directed at a specific person and must be blatantly false.

Tupac recorded "God Bless The Dead" as a trailer for The Notorious B.I.G.'s classic Ready to Die, when Biggie was still alive. 
Could he be sued for libel? We'll get to that next week.

The court weighed his speech against the precedent set by Eimann v. Soldier of Fortune Magazine, 880 F.2d 830 (5th Cir. 1989), where plantiff Eimann sued Soldier of Fortune for negligence and gross negligence for publishing a personal services classified advertisement through which the victim's husband hired an assassin.

While 2Pacalypse Now may advocate illegal and violent activity, the “probability that a listener of 2Pacalypse Now would act on Shakur's message is substantially less than the chance that a person responding to a Soldier of Fortune advertisement would hire a 'hit man' for illegal activity.”

Eimann tied seven suspects to responding to the advertisement. Conversely, the Davidsons presented no evidence that 2Pacalypse Now had been the source of "music-inspired crime"; after more than 400,000 sales of 2Pacalypse Now, if the Davidsons are the only ones alleging violence after listening to Shakur's music, the probability of harm is very low.

Judge Rainey ruled that 2Pacalypse Now could not be considered “fighting words” because “no reasonable jury could conclude that persons would reflexively lash out because of the language of Shakur's recording."
"Fighting words" are not protected speech under the First Amendment. 
Only when words are combined with actions do they become punishable.

While the Davidsons may have shown that Shakur intended to produce imminent lawless conduct, the Davidsons cannot show that Howard's violent conduct was an imminent and likely result of listening to Shakur's songs. While Shakur may describe his music as “revolutionary,” it does not mean that Shakur intended his music to produce imminent lawless conduct. Rainey cites Brandenburg v. Ohio (395 U.S. 444, 447-48, 89 S. Ct. 1827, 1829-30, 23 L. Ed. 2d 430), stating that the constitution protects the advocacy of the use of force or law violation unless it is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. 

Rainey's use of the precedent makes clear that the “the mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.”