A Texas Court of Appeals recently affirmed the dismissal of a case against Kirkstall Road Enterprises (Kirkstall), the production company behind the true-crime show The First 48, holding that Kirkstall could not be held liable for the shooting of a man who appeared as a witness on one of the show’s episodes.
The First 48 is a nationally-broadcasted show that features investigations of real homicide cases. Each episode follows homicide detectives in the first 48 hours of their investigation and includes both reenactments of events surrounding the investigation as well as actual recordings of police interviews of different witnesses.
An episode of the show (the Episode) involved the murder of a suspected Dallas drug dealer by rival drug dealers. One of the police interviews shown in the Episode is of the plaintiff, Arking Jones. Like the other witnesses in the Episode, Jones’s image is blurred and his voice is altered. Jones tells the detectives that he had a conversation with Clint Dewayne Stoker – whom police had identified earlier as a suspect – in which Stoker told Jones the details of the murder and, accordingly, implicated both himself and a man known as 21. Jones tells the detectives, “21 and them . . . they’re some killers. Let me tell you the full scoop.” Jones then describes the conversation he had with Stoker.
Immediately after the Episode aired, Jones and his mother started receiving threats from Stoker and Stoker’s friend for being a “snitch.” Fourteen months after the Episode aired, Jones was shot four times by another friend of Stoker’s. Jones then sued the production company Kirkstall, arguing that the production company was negligent in the editing, production, and release of Jones’s image and voice on national television. Kirkstall filed a motion for summary judgment, the trial court granted the motion, and Jones subsequently appealed.
The Texas Court of Appeals focused on Jones’s inability to prove that Kirkstall owed a legal duty to Jones. To prevail on a negligence claim under Texas law, as in California, Jones must establish that (1) Kirkstall owed him a legal duty; (2) Kirkstall breached that duty; and (3) the breach proximately caused Jones’s injury. “A duty represents a legally enforceable obligation to conform to a particular standard of conduct.” Way v. Boy Scouts of Am., 856 S.W.2d 230, 233 (Tex. App. – Dallas 1993, writ denied). Jones alleged that Kirkstall owed him “a duty to exercise reasonable care in the editing, production, and release of [Jones’s] image, likeness, and/or voice on national television.” Opinion at 4.
The Court first concluded that Kirkstall did not owe Jones any duty under the law’s traditional sources of duty. The Court agreed with Kirkstall that Texas does not recognize a general duty to protect others from the criminal acts of third parties. The Court also noted that it was unaware of any authority imposing a duty on a media defendant to refrain from publishing a “true, public, facially harmless, and newsworthy fact.” Id. at 6 (quoting Orozco v. Dallas Morning News, Inc., 975 S.W.2d 392, 395 (Tex. App. – Dallas 1998, no pet.)).
The Court then performed a “traditional risk-utility analysis” to determine whether Kirkstall owed Jones any duty and again concluded that it did not. Opinion at 6. A risk-utility analysis requires the Court to “weigh the risk, its foreseeability, and the likelihood of injury to Jones, against the social utility of Kirkstall’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing that burden on Kirkstall.” Id.
The Court held that while “the likelihood of injury was low in this case, the utility of Kirkstall’s programming was significant.” See id. at 9. The Court considered the First Amendment’s impact on its risk-utility analysis and provided that “it is settled that entertainment programs, as well as news programs, enjoy First Amendment protection.” Id. The Court then “acknowledged ‘society’s keen interest in a press free to report newsworthy facts’ as well as the social utility of crime reporting.” Id. (Orozco, 975 S.W.2d at 396, 397). The Court emphasized that if it 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 [the media’s] Constitutional protections when reporting matters of public interest.” Opinion at 9-10.
Ultimately, the Court concluded that “the remote possibility of a violent retaliation against Jones did not create a duty on the part of Kirkstall to refrain from editing and producing the Episode as it did.” Id. at 10. “The balance of the actual risk of harm presented and the burden of preventing that harm weighs in favor of Kirkstall.” Id.
The Court also concluded that Kirkstall did not voluntarily assume a legal duty to disguise Jones in the Episode by disguising his image and voice. See id. at 11. There was no evidence that Kirkstall blurred Jones’s image and altered his voice to protect Jones. Instead, the evidence showed that Kirkstall disguised participants’ identities merely to avoid obtaining releases from the participants.
The Jones case illustrates the strength of the First Amendment protections given to the media. When content involves matters of public interest, courts will not hold media defendants liable for resulting harm unless that harm was significant, foreseeable, and likely because courts do not want to infringe on the media’s First Amendment rights.