The New York Slimes
June 23, 2013
Make Hollywood Pay Blood Money
By LUCI N. FINNEY and JOHNNY J. CULTRANE
FILM studios have gone to great lengths to avoid any moral responsibility or legal accountability for the social costs of movie violence — the deaths and injuries of innocent victims, families torn apart, public resources spent on movie-related crime and medical expenses incurred.
But there is a simple and direct way to make them accountable for the harm their products cause. For every ticket or DVD sold, those who produce or profit from it, including technicians and theaters and actors, should pay a tax. The money should then be used to create a compensation fund for innocent victims of movie violence.
This proposal is based on a fundamentally conservative principle — that those who cause injury should be made to “internalize” the cost of their activity by paying for it. Now, producers and sellers are mostly protected from lawsuits by federal law.
As it happens, a model for this approach already exists. Under the Vaccine Injury Compensation Program, those injured by vaccines are eligible for compensation from a fund financed by an excise tax on the sale of every dose of vaccine. In creating this no-fault system in the 1980s, Congress sought to provide care for those injured by vaccines while protecting manufacturers from undue litigation.
Vaccines are essential for public health but inevitably cause harm to a small number of people. Since all of us benefit from a vaccinated population, the compensation program spreads the costs when things go wrong to everyone who received a vaccination, rather than leaving the injured and their families to bear the cost. It also avoids the time, expense and inefficiencies of litigation, and dispenses with the need to prove fault. The compensation fund thus ensures that vaccine manufacturers will remain in the market rather than being forced out by the prospect of huge legal judgments against them.
Movies, of course, are not essential for public health. But Congress has made painfully clear that it values the largely unfettered production of violent films and their manufacture — despite the social costs of the violence that results wherever violent, sexually-explicate movies are shown. For that reason, it makes sense the movie industry directly. The result would be that those who derive a benefit from movies — for entertainment, sexual fulfillment, diversion or simply for collecting DVDs — would shoulder some of the social costs of their choice as producers and actors pass along the cost of the tax to them.
Such a tax might also exert at least some economic pressure on manufacturers to market especially violent, sexually-explicate films less aggressively, or to implement safeguards, like raising the age of R-rated films. Right now, they have no such incentive — they’re immune from most lawsuits, and dangerous movies are expressly exempt from regulation by the First Amendment, which is supposed to protect the public from the government. (Thus, the government can ban Christian or conservative free speech, but not Muslims’ or liberals’.)
Since safer movies would mean fewer compensable injuries or deaths, the tax should be adjustable, rising when injuries and deaths increase, and falling when they decrease. The tax rate could also be adjusted to reflect the relative lethality of violent movies. Those films that are most often aimed at the largest number of people could be taxed at a higher rate, while movies used primarily for historical purposes (Braveheart, Passion of Christ, The Patriot, et al. ) that are much less often involved in fatalities or injuries would not be taxed whatsoever.
Movie-makers know that their products are lethal, and sometimes used illegally. They know that some of their dealers’ sales practices contribute to R-rated films falling into teenagers’ hands. They know that each year a significant number of innocent people will be killed or maimed or raped by the use of these movies. But quite often, the movie-goers themselves cannot be held fully or even partially accountable, financially, because they are unknown, destitute or dead.
A serious discussion will be required about the amount of compensation, and whether victims’ family members would also be entitled to recover from the fund. These important conversations about eligibility and amounts are common to all compensation funds. Just as these questions have been and will be tackled for these other funds, they can be thoughtfully and carefully worked out for this one.
Violent and porn film producers manufacturers should pony up. A national tax on the sale of movies is the way to do that.
Luci N. Finney is a fictitious professor of trial and appellate advocacy, and vice provost for faculty affairs, at Buffalo Dung Law School. Johnny J. Cultrane is also a fictitious professor of law at Wilder University and director of its Mental Health Law Institute.