My UCLA School of Law students Aaron Boudaie, Eimile Nolan, and Simon Ruhland and I had filed an amicus brief, on behalf of the Foundation for Individual Rights and Expression (FIRE), PEN American Center, Inc. (PEN America), the National Coalition Against Censorship (NCAC), and the Student Press Law Center (SPLC), arguing that liability would violate the First Amendment. The court, though, avoided all that in its decision today (in an opinion by Judges Eric Miller, Bridget Bade, and Lawrence VanDyke), in concluding that the parents' lawsuit was filed too late under California law, and that the siblings' lawsuit failed because siblings weren't entitled to sue for wrongful death in such a situation.
For those interested in the First Amendment questions, here's our brief; I assume that the issues are likely to arise again in future cases:
Summary of Argument
Suicide is an enduring, though tragic, facet of human existence. Many great works of literature, history, and religion depict it, and those works are routinely taught to teenagers. For just some of the most famous literary examples, consider Shakespeare's Romeo and Juliet, Othello, and Julius Caesar, as well as the novels Anna Karenina, Madame Bovary, Les Miserables, The Catcher in the Rye, and The Great Gatsby. In political, scientific, and artistic history, consider any biography or history describing Cleopatra, Mark Antony, Hannibal, Vincent van Gogh, Alan Turing, Ernest Hemingway, Marilyn Monroe, or Kurt Cobain. In mythology, consider the myths of Hercules and of Aegeas, the father of Theseus; in the Bible, Samson and Saul. And these are just the possibly sympathetic figures: For others, see the Bible's account of Judas, or any book noting the deaths of Hitler, Himmler, Goering, or Goebbels.
Yet all the books, plays, and films that include such suicides are of course fully protected by the First Amendment, whether or not they include minors among their audience, and however they may be sold or marketed. None of them, from Shakespeare to the Bible, has to be distributed with a warning label. Publishers and distributors are free to promote them based in part on what they can infer about their target audience. And there is no First Amendment exception or California anti-SLAPP law exception for 13 Reasons Why.
