Lawsuit against hotel that didn't block pornographic images

Steven Jamar stevenjamar at
Fri Nov 9 12:24:39 PST 2007

I'm missing it the point.  Assuming there is a duty and it was
breached and there was an injury caused by the breach, where is the
first amendment issue on such a generally applicable law?

Are you saying that a duty to inform parents of the risk of kids being
exposed to something harmful is different if the harm is speech than
if it is some other hazard (construction or wet cement, for example)?

Isn't this a simple case of secondary effects or regulating time place
and manner or of extra solicitiousness for minors or some combination
of those?

I am certain I am missing something.  A private hotel's duty to warn
of a hazard becomes a state action through a generally applicable
negligence tort?  Seems to even have some possible state action
problems, even.    Or has state action developed to the extent that
all tort law is now automatically state action?  Have they done the
same with enforcing all contracts too?


On 11/9/07, Volokh, Eugene <VOLOKH at> wrote:
>         In McCombs v. Value Lodge, No. VC047178, Cal. Superior Ct.,
> filed Aug. 23, 2006, Edwina McCombs and her two daughters (age 8 and 9),
> checked into a Value Lodge.  Value Lodge, like other hotels, provides
> in-room movies, including pornographic movies; I take it that, like
> other hotels, guest may ask that such movies be blocked, but by default
> they are not blocked.  The girls saw pornographic material, and McCombs
> is suing the hotel for negligence, intentional infliction of emotional
> distress, negligent infliction of emotional distress, and premises
> liability.  McCombs' theory is that the hotel should have warned the
> parents of the risk, and perhaps should have blocked access to the
> movies in the first place, given that McCombs apparently told hotel
> staff "that she was staying in the room with her two young daughters."
>         Any First Amendment problems with such tort liability?  I take
> it the major objection would be vagueness or overbreadth or some such; I
> think a statute that required hotels that provide pornography to warn
> patrons of this, or to by default block access to the pornography if
> hotel staff know that minors are staying in the room, would be
> constitutional, but no such statute was present here.
>         Eugene
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Prof. Steven Jamar
Howard University School of Law

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