042: Jailhouse Blues

Stella Case No. 042, Originally Published: 19 March 2003

Jason Henthorne is in prison in West Virginia for murdering Michael Hart. Cable TV music channel VH1 produced a show called Music Behind Bars, about musical prison inmates. Among other criminals, it featured Henthorne and his music in one segment.

That upset his murder victim’s mother, Linda Garrett, and his sister Misty Hart. They demanded that VH1 scrap the show, but the cable channel aired it anyway. Garrett and Misty Hart have thus sued Viacom, the corporate owner of VH1, claiming “emotional distress” from the show. They demand unspecified damages, plus unspecified punitive damages, plus a court order prohibiting VH1 from ever running the show again.

“Our case is alleging that despite repeated requests not to air the show, VH1 went ahead and it did it anyway,” says attorney Liz Thompson, who represents the family. “A criminal who has harassed this family is being celebrated as someone of merit and it’s causing the family to feel more harassed,” agrees co-counsel Cy Weiner, adding that “VH1 is assisting in harassing the family. This is a victim’s rights case, primarily. And it’s an example of corporate irresponsibility.”

Were the producers trying to glorify criminals? Hardly. The Music Behind Bars series was produced by Arnold Shapiro, who made the Oscar-winning 1978 prison documentary Scared Straight, which was designed to, well, scare kids into going “straight” and not committing crimes.

“I’m not fond of criminals,” Shipiro says. “It was never our intention to make heroes of these criminals, just to show that a music program in a prison has many beneficial arenas to it. Music programs in whatever form they take actually benefit the prison itself. They focus the men and women on something positive. It contributes to rehabilitation of the criminal.”

Maybe, and maybe not. There’s only one way for the public to decide the issue, though: the issues and facts need public airing. So how does it serve the public interest to attempt to censor an exploration of what’s going on in publicly funded prisons so that citizens can have an informed opinion on the subject? Indeed, that’s what the First Amendment is all about: the right to look into a public institution and tell their viewers what they found. The plaintiffs weren’t hurt by Viacom, they were hurt by a murderer. Their anger is misplaced, and their action threatens the ideal of an informed society.

Sources

• “Murder Victim’s Family Sues VH1,” Fox News, 6 March 2003

Case Status

I was not able to find any update on this case, but I have to believe it was dismissed for the reasons discussed in the next section.

My 2020 Thoughts on the Case

For context, Michael Hart was murdered in 1994: not exactly a fresh wound for the family, even if that wound never fully heals.

If there were to be a case here, shouldn’t it be against the murderer, rather than VH1 and its parent company? After all, didn’t he benefit in some way — if not financially, then in other ways?

Well no: that wouldn’t work for the lawyers here. Not only does an incarcerated prisoner not have “deep pockets” to dig money from, but in 1991 the U.S. Supreme Court upheld even a murder’s right to free speech, including profiting from such speech, even if it is distasteful for the victims’ families. The New York Crime Victims Board had been sued by a book publisher over the state’s Son of Sam law, named for the New York serial killer, and that case went to the high court.

“Held:”, the court ruled in response, “The Son of Sam law is inconsistent with the First Amendment.”

Their reasoning is the key for this case, too: “The Board disclaims, as it must, any state interest in suppressing descriptions of crime out of solicitude for the sensibilities of readers. ‘[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.’ (Hustler Magazine, Inc. v. Falwell, 1978*) ‘If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.’ (United States v. Eichman, 1990) The Board thus does not assert any interest in limiting whatever anguish Henry Hill’s victims may suffer from reliving their victimization.

“There can be little doubt, on the other hand, that the State has a compelling interest in ensuring that victims of crime are compensated by those who harm them. Every State has a body of tort law serving exactly this interest.”

*(Full case citations omitted, but available in the full decision.)

The First Amendment, of course, protects the freedom of the press in addition to speech, so if even the murderer is free to speak, how is there a case here against a media company who looked into attempts at rehabilitating such murderers? Exactly right: there isn’t.

More recent “Son of Sam” laws, including one enacted in New York in 2001, don’t restrict speech. New York’s current (and Constitutional) version of the law requires that victims of crimes be notified whenever a convicted perpetrator of a crime receives $10,000 or more from virtually any source. The law also gives the victims an extended statute of limitations to sue the criminal to recover compensation denied them when the criminal was indigent — expanding the state’s “body of tort law serving exactly this interest.”

Letters

For once, a trial lawyer admits TSA is right in looking into his profession:

Michael in Washington, D.C.: “I am a lawyer — a trial lawyer, and have Not enjoyed these stories — but I read them anyway (and subscribed, to get them all). It is sad to see so many people attempting to take advantage of others, no matter what their status in life (convicted dog-killer in prison; attorney representing fat man suing all fast-food restaurants). It does beat the alternative (fat men shooting it out with Mickey Dee cooks at High Noon) but too many lawsuits do not pass the ‘smell’ test. What I’d love to read is the ‘ultimate’ outcome. Many frivolous suits are brought, but never result in ‘favorable’ results; many that do, are overturned on appeal; but occasionally, some that get through the system change the system — for good or bad. But all of them carry a heavy toll, particularly on the participants. Keep up the good work! Air it all out, and let the winds of time sort it all out.”

Well sure: I also would like to know the “ultimate outcome” of these suits, but one of the other problems with our civil system is that the outcome is often not known for many years. Indeed that’s a tactic of some of the corporate bullies, prolonging the case for years so their adversaries run out of money to pursue justice, or die from old age….

[2020 addition: and that’s one of the reasons why I’m revisiting the cases again, after all this time!]

There were quite a few letters regarding last week’s feature about the night club fire. Here is a sampling.

Jenny, Rhode Island: “I’m from Rhode Island, and live about 10 minutes from where the fire was. Your story only shows the tip of the iceberg. In the local newspaper there was a comprehensive list of all the places that are being sued, including Budweiser, for providing the beer that made the people too drunk to get out, the record label of the band who was playing (Great White), and the one that is most horrifying to me is the guy who lives behind the nightclub and complained about the noise — which was the reason they installed the soundproofing [foam that caught fire]. Rhode Island is a small place, and everyone knows someone who was affected by this fire. It was a terrible tragedy. But the day afterwards there were probably three times as many commercials for personal injury lawyers on than usual. It was so blatant it has a lot of people feeling sick to their stomachs.”

I suspect that’s not an uncommon reaction to the people close to any frivolous lawsuit, Jenny….

John in Oregon: “Why not sue everyone that attended the performance as well? After all, had they not been there the club would not have been crowded, the band would not have performed, and nobody would have been harmed. It is sad that the balance of ‘responsibility’ can be purchased by ‘deep pockets’. Perhaps it is better to be uninsured and broke, thus removing the temptation for someone to sue.”

Bennett in Illinois: “The logical extension of suing Clear Channel, and an absurd one, is that any media which has distributed any advertising for a product involved in a product liability suit is also liable. That should reduce the amount of advertising to which we are subjected, and put lots of PR folks out of work. It would also greatly reduce the sales of all kinds of merchandise, further depressing the economy. And put most of the print and broadcasting media, highly dependent upon advertising revenue, out of business. Let’s nip this bad precedent in the bud.”

- - -

Email Subscriptions

No new cases are being published, so please don’t try to submit cases.

My Flagship Email Publication This is True continues to come out with new stories every week. It’s “Thought-Provoking Entertainment” like Stella, but uses weird-but-true news items as its vehicle for social commentary. It is the oldest entertainment newsletter online — weekly since 1994. Click here for a This is True subscribe form.