HERCEG v. HUSTLER, No. 85-2833, 1987
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Herceg v. Hustler Magazine, Inc.
- US Court of Appeals, 5th Circuit
- No. 85-2833
- April 20, 1987
Who wrote it?
Alvin B. Rubin, Circuit Judge
Facts
- 1981, Hustler publishes "Orgasm of death" about autoerotic asphyxia
- Note at the top of the page reads, "DO NOT ATTEMPT this method"
- Troy D., 14, died while attempting to perform the act
Legally important facts
Prior procedural posture
- Diane Herceg, Troy's mom sues Hustler on the grounds of negligence, products liability, dangerous instrumentality, and attractive nuisance
- Seeking damages based on trauma suffered by mom and Andy (boy who found Troy's body)
- Hustler moves to dismiss for failure to state a claim, court grants the motion but gives plaintiff time to amend
- Plaintiff amended an "incitement" claim
- Hustler moved for summary judgement, Court dismissed all claims but incitement
- Jury awarded 69k$ to Diane in actual damage, 100k$ in exemplary; 3k$ and 10k$ to Andy
- Hustler appeals
Issue to be decided
- Can Hustler be held liable for civil damages, in this case, a kid's death after trying something he read about?
Law that applies
Court's holding
- REVERSED: We hold that liabiliy cannot be imposed on Hustler on the basis that the article was incitement
- Free speech is not based on the "naive belief" that speech can do no harm
- Some speech is excepted, Hustler article fits none
- Whether or not Hustler's article suggested a dangerous idea to Troy is balanced against the danger of restricting the free flow of information
- Court must determine if the article constitutes "incitement" as excepted from protection
- If not, the jury judgement must be reversed
Considering the evidence
- Text of the article provides best basis for deciding "incitement"
- Accept as true that Troy read the article immediately before his act and that his reaction to the article was not the result of a psych abnormality
- Still, SCOTUS must review the facts to ensure that the speech in question is not protected by 1st
- Does it meet the Brandenburg Test? No.
- Mere negligence cannot form the basis of liability
Dissent/joining opinion
Edith Jones concurring and dissenting
- If the state can regulate obscenity, why not impose civil liability for porn biz?
- Protecting children
- Finds "slippery slope" argument "too much"
- Compares Hustler to tobacco/alcohol, "not a bona fide competitor in the 'marketplace of ideas'"
- Hustler's appeal is "non-cognitive"
- Adolescent males may take warnings + cautions as "invitations"
