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  • Arizona House Bill 2660 | mediacoalition
    to lawless action those who produce or sell First Amendment protected material may not be subjected to financial liability for the unlawful or violent acts of third parties even if they were influenced by specific media In 1986 the U S Supreme Court summarily affirmed a lower court s decision in American Booksellers Association v Hudnut striking down an Indianapolis ordinance that sought to give victims of sex crimes a cause of action against producers and distributors of the material that allegedly caused the crime The bill creates a substantial chilling effect on producers and distributors of any material that could be construed to produce or incite a felony The bill could apply to civil engineering textbooks that teachers how to implode a bridge or a video game instructor for flying an airplane These can be used to learn how to commit a felony if the reader or viewer is inclined Imposing third party liability for injuries on producers or distributors of First Amendment protected material makes innocent third parties responsible for the acts of criminals It also diminishes the responsibility of the criminal since he can claim that something he saw or heard made me do it Actions on

    Original URL path: http://mediacoalition.org/arizona-hb2660/ (2016-04-24)
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  • Arkansas Senate Bill 79 | mediacoalition
    other important social commentaries The chilling effect is compounded by vagueness on who has to prove the right One part of S B 79 specifically refers to the claimant bearing the burden of proving that the use is protected by the First Amendment But the caveat for artistic use does not refer to any language about who bears the burden suggesting it is on the defendant producer or publisher of media If the legislature does intend the defendant to bear the burden the caveat would essentially be an affirmative defense But speech is generally protected by the First Amendment absent a showing that it is not The Supreme Court has noted that an affirmative defense causes a chilling effect on producers and publishers of protected speech The caveat also treats types of media differently which is unconstitutional The caveat applies to some media but not to others and only to some types of speech The Supreme Court has made clear that governments cannot place financial burdens on speech based on its content It has also been skeptical of governments selectively imposing financial penalties on one media but not on another History On January 20 2015 the bill was introduced 4 and referred to the Senate Committee on Judiciary It would create a right of publicity in commercial uses but there is no explicit exemption for artistic or creative uses On February 2 2015 the bill was amended 5 to include an exemption for artistic uses On March 4 2015 the Senate Committee on Judiciary recommended the bill be passed The Arkansas Senate passed the bill 32 0 2 on March 5 2015 The bill was sent to the House for consideration and was referred to the House Committee on Judiciary On March 10 2015 the bill was amended 6 in

    Original URL path: http://mediacoalition.org/arkansas-sb79/ (2016-04-24)
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  • Hawaii House Bill 548 | mediacoalition
    for regulation and such content based regulation of speech is presumptively invalid Any constitutional infirmities of H B 548 are not cured by the fact that the legislation would create a private civil tort action rather than imposing a direct government sanction on the speaker It is well established that the First Amendment does not allow application of state tort law in a way that violates free speech Civil liability creates a substantial chilling effect on producers and distributors of such material The prospect of being responsible for the behavior of each viewer reader or listener is likely to frighten producers and distributors to the point where it will severely chill the dissemination of constitutionally protected works Due to this potential chilling effect courts have repeatedly held that absent actual incitement to imminent lawless action those who produce or sell First Amendment protected material may not be subjected to financial liability for unlawful or violent acts of third parties even if they were influenced by specific media In third party liabilities cases where the perpetrator or victim had copied what he or she read or saw courts have barred or thrown out suits seeking civil damages Writers and publishers do not have a duty of care to readers and the state cannot impose such an obligation Guide books are protected by the First Amendment and the state cannot tell an author how to describe an attraction or activity or risk financial punishment Courts have declined to impose liability on publishers even where a reader has relied on the content of a book that turned out to be incorrect Imposing liability is questionable policy for three reasons first it makes innocent third parties responsible for the acts of those who trespass second it diminishes the responsibility of the trespasser since he or she can claim that something he saw or heard made me do it and it absolves property owners for injury or death of the trespasser even if the property owner is at fault History On January 24 2011 the bill was introduced 5 and referred to the House Committees on Tourism on Water Land and Ocean Resources and on Judiciary The House Committee on Tourism held a hearing on the bill on January 31 2011 The committee recommended the bill be deferred On February 7 2011 Media Coalition submitted a memo to the House Committee on Tourism 4 The memo explained the constitutional issues with the bill The bill was amended in the House Committee on Tourism 6 As amended the bill would impose civil liability on publishers and authors if the guide or website knowingly or negligently encourages or invites a person to enter cross or remain on privately owned land The committee recommended the bill be passed as amended On February 13 2011 Media Coalition submitted a memo to the House Committee on Water Land and Ocean Resources 3 ahead of a scheduled hearing on the bill on February 14 2011 The bill was amended in the

    Original URL path: http://mediacoalition.org/hawaii-hb548/ (2016-04-24)
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  • Hawaii Senate Bill 1207 | mediacoalition
    civil tort action rather than imposing a direct government sanction on the speaker It is well established that the First Amendment does not allow application of state tort law in a way that violates free speech Civil liability creates a substantial chilling effect on producers and distributors of such material The prospect of being responsible for the behavior of each viewer reader or listener is likely to frighten producers and distributors to the point where it will severely chill the dissemination of constitutionally protected works Due to this potential chilling effect courts have repeatedly held that absent actual incitement to imminent lawless action those who produce or sell First Amendment protected material may not be subjected to financial liability for unlawful or violent acts of third parties even if they were influenced by specific media In third party liabilities cases where the perpetrator or victim had copied what he or she read or saw courts have barred or thrown out suits seeking civil damages Writers and publishers do not have a duty of care to readers and the state cannot impose such an obligation Guide books are protected by the First Amendment and the state cannot tell an author how to describe an attraction or activity or risk financial punishment Courts have declined to impose liability on publishers even where a reader has relied on the content of a book that turned out to be incorrect Imposing liability is questionable policy for three reasons first it makes innocent third parties responsible for the acts of those who trespass second it diminishes the responsibility of the trespasser since he or she can claim that something he saw or heard made me do it and it absolves property owners for injury or death of the trespasser even if the property owner is

    Original URL path: http://mediacoalition.org/hawaii-sb1207/ (2016-04-24)
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  • New Hampshire Senate Bill 175 | mediacoalition
    prolonged litigation would prompt self censorship by producers and distributors of biographies histories documentaries and other important social commentary A publisher or movie producer would have to consider the cost of litigation when deciding to publish an unflattering biography or produce a critical documentary about controversial public figures such as Donald Trump Tiger Woods Martin Luther King Jr J Edgar Hoover Richard Nixon or the Kennedys A book or film exploring the life of any of these public figures would be unquestionably protected by the First Amendment However a lawsuit filed by the respective individual or their heirs could take years to decide and cost hundreds of thousands of dollars The risk of expensive litigation is heightened in New Hampshire because there is very little case law that directly or indirectly addresses the right of publicity as it would be codified in this legislation New Hampshire courts have acknowledged the common law tort of invasion of privacy by appropriation but there is very little case law defining the contours of the use of the name or image of a public figure and their commercial uses This lack of case law is an invitation to those seeking to stifle free speech with the added burden of litigation History On January 19 2011 the bill was introduced 5 and referred to the Senate Committee on Commerce As introduced the bill included a list of expressive works exempted from the right The committee held a hearing on the bill on March 8 2011 On March 24 2011 the bill was amended 6 to add a provision that video games are specifically not included in the list of expressive works exempted from the right On October 26 2011 Media Coalition sent a letter 4 to Sen Russell Prescott chairman of the Committee on Commerce The letter explains that video games are fully protected by the First Amendment noting the recent Supreme Court ruling in Brown v Entertainment Merchants Association The bill was carried over to the 2012 legislature session On January 19 2012 the Senate Committee on Commerce amended 7 the bill to add video games to the list of expressive works exempted from the right The committee recommended the bill be passed as amended On January 25 2012 the Senate voted to pass the bill and sent it to the House for consideration The bill was referred to the House Committee on Commerce and Consumer Affairs The committee amended 8 the bill on May 9 2012 The House amendment no longer includes a list of expressive works exempted from the right of publicity The committee recommended the bill be passed as amended The House passed the bill as amended on May 15 2012 The bill was sent back to the Senate for concurrence with the amendment On May 16 2012 Media Coalition sent a letter 3 to Senate President Peter Bragdon urging him not to concur with changes The letter explains that the lack of an expressive works exception leaves creators and distributors

    Original URL path: http://mediacoalition.org/new-hampshire-sb175/ (2016-04-24)
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  • New York Assembly Bill 7904 and Senate Bill 5650 | mediacoalition
    B 5650 may be taken up again next year Analysis The caveat to the expressive use exception will have a substantial chilling effect on First Amendment protected speech by increasing the likelihood that publishers filmmakers and others will be forced to litigate to prove that their works do not contain images that are primarily commercial not transformative and are not protected by the U S and New York Constitutions The purpose of the expressive use exception is to avoid the threat of such costly litigation for creators and distributors of what is plainly non commercial speech and not subject to the right of publicity But because of this caveat this legislation would require a court to rule that the speech is not subject to the right of publicity because it does not meet the first two conditions or is not constitutionally protected speech As a result these conditions will undoubtedly increase the likelihood of expensive litigation The surviving family or estate of a deceased person that is unhappy with a book movie article or show can more credibly threaten to litigate over its use The heirs of a noted public figure upset about unsavory revelations could force the publisher or producer to establish their First Amendment rights in court to distribute the work rather than being able to rely on the list of exceptions to lessen the time and cost of the litigation The mere threat of costly and prolonged legal battle will lead to self censorship by producers and distributors of biographies histories documentaries and other important social commentaries who do not have the financial means to defend themselves in court If this caveat is included in the legislation New York will encourage the heirs of a deceased person to try to establish that he or she was domiciled

    Original URL path: http://mediacoalition.org/new-york-ab7904-sb5650/ (2016-04-24)
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  • Connecticut Senate Bill 328 | mediacoalition
    concerning the coordination and administration of state programs that may reduce the effects of violent video games on youth behavior Status The Connecticut legislature adjourned its 2013 session There is no carryover of bills to 2014 Analysis Ban on minors playing video games In Brown v Entertainment Merchants Association the Supreme Court struck down a California law that banned minors from buying or renting video games with certain violent imagery The Court found that video games are fully protected speech and that there is no exception to the First Amendment for violent content for adults or minors There is no basis in the Brown decision or other case law for treating video games in arcades or public businesses differently from those that are played at home Task force to study video games There have been numerous reviews of the social science by government bodies and the courts These reviews have found that the science does not show that media with violent content causes actual violence despite the often sweeping claims of some who believe there is a connection For more information on the social science research see Media Coalition s report Only a Game Why Censoring New Media Won t Stop Gun Violence History On January 23 2013 the bill was introduced 2 and referred to the Joint Committee on General Law The committee re referred the bill to the Joint Committee on Children As introduced the bill would bar minors from playing certain video games in arcades or public establishments On February 19 2013 the Joint Committee on Children amended 3 the bill to add the provision creating a task force to study the effects of video games with violent content Media Coalition submitted a legal memo 1 to the members of the committee ahead of a scheduled hearing

    Original URL path: http://mediacoalition.org/connecticut-sb328/ (2016-04-24)
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  • Delaware House Bill 346 | mediacoalition
    with the intent to distribute The law also included a safe harbor for material with serious religious scientific political educational journalistic historical or artistic value The Court declined to create a new exception to the First Amendment for images of illegal cruelty to animals The Court then reviewed the law under traditional strict scrutiny analysis They first considered the substantial breadth of the law The Court acknowledged that reach of an obscenity law could be limited by exempting serious material but that such a safe harbor could not be used as a pre condition for other categories of speech and therefore cannot be used to limit this law They then ruled that the law is unconstitutional as substantially overbroad and that it violates the First Amendment There is no language in the Stevens opinion that would suggest that this bill is constitutional where the federal law was not H B 346 seeks to criminalize the same types of images of illegal animal cruelty while allowing a safe harbor for serious material In fact this bill may also be unconstitutional in that it is limited to possession of such images rather than their sale or creation The Supreme Court has ruled

    Original URL path: http://mediacoalition.org/delaware-hb346/ (2016-04-24)
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