Lawsuit against hotel that didn't block pornographic images

[Volokh, Eugene]

    Mark is quite right.  This law is applied to speech *because of the
content of the speech*, and the harms that supposedly flow from the
comment (not harms that the law calls secondary effects, by the way; see
U.S. v. Playboy Enterprises).  An award of damages to plaintiffs would
thus clearly involve state action, and state action that should trigger
First Amendment scrutiny.  Perhaps the law can withstand such scrutiny,
for instance because the speech is unprotected when displayed to
children.  But it pretty clearly must be subject to such scrutiny.
 
    Consider an analogy, if one is needed:  Say that the lawsuit was
over a hotel's supposedly negligently exposing the child to pro-drug
messages in some movie that was being shown on the hotel's system.  I
take it that we'd pretty clearly see state action, and content
discrimination, there.  That the material is sexually themed rather than
pro-drug may affect the substantive First Amendment analysis, but it
doesn't affect the state action or content discrimination question.
 
    Eugene


________________________________

	From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Scarberry, Mark
	Sent: Friday, November 09, 2007 12:59 PM
	To: Steven Jamar
	Cc: CONLAWPROF at lists.ucla.edu
	Subject: RE: Lawsuit against hotel that didn't block
pornographic images
	
	
	I thought it was already clear that state action is involved in
defining or creating a tort cause of action. If I bring a tort action,
that is not state action, but what the court does with my suit certainly
is, isn't it?
	 
	Mark Scarberry
	Pepperdine

________________________________

	From: conlawprof-bounces at lists.ucla.edu on behalf of Steven
Jamar
	Sent: Fri 11/9/2007 3:24 PM
	Cc: CONLAWPROF at lists.ucla.edu
	Subject: Re: Lawsuit against hotel that didn't block
pornographic images
	
	

	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?
	
	Steve
	
	
	On 11/9/07, Volokh, Eugene <VOLOKH at law.ucla.edu> 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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