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Court of Appeal, Fourth District, Division 2, California.

Jon LEWIS, Plaintiff and Appellant, v. COLUMBIA PICTURES INDUSTRIES, INC., et al., Defendant and Respondent.

No. E011948.

Decided: November 08, 1994

Graves, Roberson & Bourassa, Stephen D. Roberson, Thousand Oaks, for plaintiff and appellant. O'Melveny & Myers, Robert C. Vanderet, and Abigail A. Jones, Los Angeles, for defendant and respondent.


Plaintiff and Appellant, Jon Lewis (Lewis), filed a first amended complaint for negligence for personal injuries which alleged in the second cause of action that defendant and respondent, Columbia Pictures Industries, Inc. (Columbia), had distributed and promoted the film, “Boyz 'n the Hood.”   The complaint alleged Columbia's marketing and advertising campaign for the movie constituted commercial speech and that Columbia was “negligent with respect to the marketing and advertising campaign created and utilized for ‘Boyz 'N The Hood’ as said campaign was unnecessarily and unreasonably misleading and volatile in nature and was likely to incite and produce violence and lawless activity during public screenings of the film.   Among other things, said marketing advertising campaign:  unnecessarily and unreasonably emphasized and exploited the relatively small amount of violence contained within the film, unnecessarily and unreasonably de-emphasized or ignored the positive and pacifistic messages contained within the movie, unnecessarily and unreasonably pandered [to] the gang element, and wrongfully and purposefully tried to portray an image that this particular film was similar to style and content to previously released films such as ‘New Jack City’ which tended to glorify gangs or treat them in a more favorable light.   It was, or should have been, reasonably foreseeable to said defendants that this marketing and advertising campaign was likely to lead to violent and lawless activity during screenings of the film, particularly in light of what had occurred in cases of previously-released films with gang-influenced themes and contents.”

The first amended complaint additionally alleged Columbia was actually aware of the potential for violence or criminal conduct during the screening of “Boyz 'n the Hood” because Columbia had informed movie theater owners of this potential for violence and had offered to pay for extra security precautions at certain movie theaters based on monetary and economic considerations.   Lewis's complaint further alleged that, as a proximate result of Columbia's negligence, Lewis was shot and wounded by a gang member while attending a screening of “Boyz 'n the Hood” at a movie theater in Chino.

Columbia filed a demurrer based on the grounds that Lewis's second cause of action was barred by the First Amendment and it failed to allege facts sufficient to constitute a cause of action because it lacked the requisite elements of duty and proximate cause.   Lewis filed an opposition to the demurrer.   After a hearing on the matter, the court sustained Columbia's demurrer on all three grounds without leave to amend and subsequently entered a judgment of dismissal with prejudice in favor of Columbia.

On appeal, Lewis contends the court erred in sustaining the demurrer because the First Amendment does not protect Columbia's advertising campaign and because Columbia owed a duty of care to Lewis.   We determine the court did not err in sustaining Columbia's demurrer without leave to amend and affirm the judgment on appeal.


IFirst Amendment

The court sustained the demurrer, in part, on the basis Lewis's lawsuit was constitutionally barred because Columbia's advertisements for the movie, “Boyz 'n the Hood,” are protected by the First Amendment.1  Expression by means of motion picture is included within the free speech and press guarantees of the First Amendment.  (Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S. 495, 502 [96 L.Ed. 1098, 72 S.Ct. 777].)

Lewis contends Columbia's promotions and advertisements are commercial speech which is not entitled to full First Amendment protection.   However, not all promotional speech is commercial speech.

Promotional speech may be noncommercial if it advertises an activity itself protected by the First Amendment.  (Bolger v. Youngs Drug Products Corp. (1983) 463 U.S. 60, 67, fn. 14 [77 L.Ed.2d 469, 103 S.Ct. 2875].)   If advertising for a movie could give rise to a cause of action for negligence against the distributor of a film on the ground it participated in the advertising, and that it knew and should have known the advertising might attract persons of violent propensities to the movie theater, First Amendment considerations would be as applicable as where liability is sought to be imposed directly for the contents of the film.  (Cf. Bill v. Superior Court, supra, 137 Cal.App.3d 1002, 1009.)  “Although ‘commercial speech’ has not traditionally enjoyed constitutional protection, commercial solicitation or promotion of constitutionally protected written works is protected as an incident to the First Amendment value of the underlying speech or activity.”   (People v. Fogelson (1978) 21 Cal.3d 158, 165, fn. 7;  accord, Guglielmi v. Spelling-Goldberg Productions (1979) 25 Cal.3d 860, 872-873 (conc. opn. of Bird, J.) [this principle applied to advertisements for a film].)   Advertisement for a motion picture goes beyond proposal of a commercial transaction and encompasses the ideas expressed in the motion picture which it promotes;  thus, it is afforded the same First Amendment protections as the motion picture.

“ ‘First Amendment rights are accorded a preferred place in our democratic society.  [Citation.]  First Amendment protection extends to a communication, to its source and to its recipients.  [Citation.]  “[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”  ․’ ” (McCollum v. CBS, Inc. (1988) 202 Cal.App.3d 989, 998-999.)

The present case does not involve government restriction of speech.   Instead, Lewis seeks to impose civil liability based on negligence.  “ ‘But the chilling effect of permitting negligence actions for a [motion picture advertisement] is obvious.  “The fear of damage awards ․ may be markedly more inhibiting than the fear of prosecution under a criminal statute.”  (New York Times Co. v. Sullivan [1964] 376 U.S. 254, 277․)’ ”  (Bill v. Superior Court, supra, 137 Cal.App.3d at p. 1006.)   Thus, Lewis's negligence suit may also be barred by the First Amendment.

“However, the freedom of speech guaranteed by the First Amendment is not absolute.   There are certain limited classes of speech which may be prevented or punished by the state consistent with the principles of the First Amendment:  (1) obscene speech is not protected by the First Amendment ․;  (2) ‘libel, slander, misrepresentation, obscenity, perjury, false advertising, solicitation of crime, complicity by encouragement, conspiracy, and the like’ are also outside the scope of constitutional protection ․;  (3) the constitutional freedom for speech and press does not immunize ‘speech or writing used as an integral part of conduct in violation of a valid criminal statute.’ ․;  and finally, (4) speech which is directed to inciting or producing imminent lawless action, and which is likely to incite or produce such action, is outside the scope of First Amendment protection․”  (McCollum v. CBS, Inc., supra, 202 Cal.App.3d at pp. 999-1000.)

Columbia's advertisement was not imminent incitement to lawless action.   It was neither directed toward causing violence at the movie theaters by gang members, nor was it likely to produce such a result.  (McCollum v. CBS, Inc., supra, 202 Cal.App.3d at p. 1000.)   Instead, it was directed to the general public to entice them to view the film at some indefinite time in the future.   Speech directed to action at some indefinite time in the future is not imminent incitement.  (Ibid.)  Furthermore, Lewis does not and cannot allege that the advertising encouraged viewers to engage in violence against other movie viewers.  (Olivia N. v. National Broadcasting Co., Inc. (1981) 126 Cal.App.3d 488, 496.)

Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, which Lewis cites in support of his argument, is distinguishable.   In that case, the California Supreme Court upheld a jury verdict that a radio station was liable for the wrongful death of a motorist killed by two teenagers participating in a contest sponsored by the station.   In a radio broadcast, the station encouraged listeners to speed to announced locations which resulted in “a competitive pursuit on public streets, accelerated by repeated importuning by radio to be the very first to arrive at a particular destination.”  (Id., at p. 48.)   In Weirum, the radio station's broadcast urged listeners to immediately act in an inherently dangerous manner and, therefore, was imminent incitement.   (Id., at pp. 47-48.)

The present case is also distinguishable from Braun v. Soldier of Fortune Magazine, Inc. (11th Cir.1992) 968 F.2d 1110, which defendant cites in support of his argument.   In that case, Soldier of Fortune magazine was found liable to the sons of a murder victim.   The murder victim was killed as a result of a contact made through an advertisement placed in Soldier of Fortune by a man seeking employment as a “gun for hire.”  Braun involved speech which was used as an integral part of conduct in violation of a valid criminal statute.   Therefore, it was not constitutionally-protected speech.   Therefore, it was not constitutionally-protected speech.  (Id., at pp. 1116, fn. 3, 1117.)   Lewis does not and cannot allege that the advertisements for “Boyz 'n the Hood” were an integral part of his shooting by the gang members

Finally, Lewis's allegations that the advertisements were false and misleading are not sufficient to remove the promotions from the protections of the First Amendment.  “In the context of this case, however, such an argument merely substitutes labels for reality.”  (Bill v. Superior Court, supra, 137 Cal.App.3d at p. 1009.)   Lewis is not, in actuality, complaining of the misleading nature of the advertisement because he is not basing his lawsuit on the fact he was shown a less violent film than promised by the advertisement.   Rather, Lewis complains of the allegedly violence-inducing content of the advertisements.   Lewis's allegations thus place this lawsuit within the ambit of the First Amendment.   The trial court did not err in determining Lewis's second cause of action was barred by the First Amendment.



Whether Columbia owed a duty to Lewis is primarily a question of law.   (McCollum v. CBS, Inc., supra, 202 Cal.App.3d at pp. 1003-1004.)   Foreseeability of the harm to Lewis is one of several factors to be considered in determining whether Columbia owed a duty to Lewis.  (Id., at p. 1004.)   A high degree of foreseeability may be required where the burden of preventing future harm is great, such as here, by restraining or punishing artistic expression.  (Ibid.)

“Therefore, if liability were imposed upon [Columbia] in this situation, First Amendment concerns would undoubtedly be implicated․  Film producers considering a movie about gangs, or about violence, or bearing some resemblence [sic ] to a movie which attracted violence-prone persons, would be required to take into account the potential for liability to patrons for acts of violence on the part of persons over whom the producers would have no control.   If, under such circumstances, they were held to have a duty to warn potential patrons of the risk of attending their movie, they would have to anticipate that the warning would deter substantial portions of the public from attending it․  And if, under such circumstances, they were to be held to be responsible for providing security protection at and in the vicinity of every theater at which the movie is shown, including public streets, the attendant costs might be substantial indeed.  ․

“Instructive also, in this context, is the general First Amendment principle that when speech is of such a nature as to arouse violent reaction on the part of the lawless, the first obligation of government is to maintain the peace and enforce the law, and not to silence or punish the speaker.   Were this not the rule, all speech would be subject to the ‘heckler's veto.’  [Citation.]  While this is not a situation in which the power of government is invoked directly to stifle speech, similar considerations apply.   It is an unfortunate fact that in our society there are people who will react violently to movies, or other forms of expression, which offend them, whether the subject matter be gangs, race relations, or the Vietnam war.   It may, in fact, be difficult to predict what particular expression will cause such a reaction, under the circumstances.   To impose upon the producers of a motion picture the sort of liability for which plaintiffs contend in this case would, to a significant degree, permit such persons to dictate, in effect, what is shown in the theaters of our land.”  (Bill v. Superior Court, supra, 137 Cal.App.3d at pp. 1008-1009, fn. omitted.)

Allowing liability for the advertisements for movies would ultimately prevent the dissemination of information about movies, decrease the public's knowledge of movies and decrease the viewing audience, which results in a heavy burden on the movie industry.   Therefore, a high degree of foreseeability is required.   Predicting when or where individuals or groups might react violently to an advertisement for a movie would prove difficult, if not impossible, in our violence-prone society.

Moreover, the fact Columbia warned movie theater owners of potential violence and offered to assist in security measures at certain theaters does not impose a duty on Columbia.  (Bill v. Superior Court, supra, 137 Cal.App.3d at p. 1014, fn. 3.)   Thus, the violent actions allegedly in response to Columbia's advertisements for “Boyz 'n the Hood” were not foreseeable;  therefore, Columbia had no duty to Lewis.


Proximate Cause

Although Lewis does not address on appeal the third ground upon which the court sustained the demurrer, we briefly discuss it.   The film's advertisements were not the proximate cause of Lewis's injuries.   Lewis does not allege that anyone was incited to injure him by the advertisements.   Even if the gang members who injured Lewis were attracted to the movie theater by the advertisement, Columbia cannot be held liable for the resulting injuries, which had an independent intervening cause.  (Martinez v. Pacific Bell (1990) 225 Cal.App.3d 1557, 1565-1566, 1569, fn. 3.)

The court properly sustained Columbia's demurrer to the second cause of action without leave to amend.


The judgment is affirmed.

RAMIREZ, Presiding Judge.

McKINSTER and McDANIEL *, JJ., concur.

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