In December 1997, a heavily armed 14-year-old boy opened fire on a group of fellow high school students who were participating in a prayer session at their school in McCracken County, Ky. Three youngsters died and five others were wounded in the tragedy. Police, investigating the crime, seized the boy’s computer and determined that he was a user of violent computer and video games, and obscene, pornographic, and violent Internet sites and movies including The Basketball Diaries, a movie in which a student shoots classmates with a shotgun. The boy was convicted of second-degree murder and sentenced to 25 years in prison without parole.

    Parents of the students killed brought suit against the makers and distributors of The Basketball Diaries, the creators and distributors of various video games, and the owners of various Internet Web sites frequented by the assailant. The plaintiffs framed their lawsuit in negligence, product liability, and the Racketeer Influenced and Corrupt Organizations Act (RICO).

    The plaintiffs alleged that the defendants knew or should have known that copycat violence would result from the use of their products and materials; that their products and materials created an unreasonable risk of harm because of their influence over minors; that the products and materials were dangerous for the use for which they were supplied; and that there was no adequate warning to consumers about the products’ danger. In essence, the plaintiffs sought to hold segments of the entertainment industry liable for glamorizing violence and inducing the boy’s criminal acts.

    In dismissing the lawsuit in April 2000, a federal trial court found that no viable legal claim had been made. James v. Meow Media, Inc., 90 F. Supp. 2d 798_(W.D. Ky. 2000). First, Judge Edward H. Johnstone held that it was "clearly unreasonable" to expect the producers of imaginative products to have anticipated that a purchaser might inflict harm on others. Id. at 803. In support of its position, the court cited Watters v. TSR, Inc., 904 F.2d 378 (6th Cir. 1990), a case that rejected liability on the part of the manufacturers of Dungeons & Dragons, a game alleged to have caused the plaintiffs’ son to commit suicide.

    The court adopted the Watters reasoning that holding media companies responsible in negligence for murders committed by another "stretch[es] the concepts of foreseeability" beyond all reason. James, 90 F. Supp. 2d at 804. It added, from Watters, that a company "cannot be faulted, obviously, for putting its game on the market without attempting to ascertain the mental condition of each and every prospective player." Id.

    Any other rule, it said further, would limit artistic and imaginative expression solely to "the broadest standard of taste and acceptance and the lowest level of offense, provocation and controversy," citing McCollum v. Columbia Broadcasting System, Inc., 249 Cal. Rptr. 187 (Cal. App. 2d 1988). In that case the court dismissed another suit based on a boy’s suicide, this time allegedly inspired by a song sung by Ozzy Osbourne. James, 90 F. Supp. 2d at 805.

    The court also rejected the plaintiffs’ product liability claim, noting that "the actual use of the products in question (the video games, a movie and Web site materials) did not cause any injury." Id. at 809. After all, no person was injured "when the assailant played the games or watched the movie or Web site materials." Id. Instead, the plaintiffs improperly attempted to treat "intangible thoughts, ideas and messages contained within the products" as if they were products. Id. The court found such treatment untenable, as was the plaintiffs’ racketeering charge.