Waller v. Osbourne
763 F. Supp. 1144 (1991)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
The First Amendment protects artistic expression, such as music, from liability for a listener's harmful actions unless the speech falls into an unprotected category, such as a direct incitement to imminent lawless action. Abstract advocacy of harmful ideas, without a direct call to immediate action, is constitutionally protected speech.
Facts:
- Thomas and Myra Waller's son, Michael Jeffery Waller, died on May 3, 1986, from a self-inflicted pistol wound.
- Prior to his death, Michael had repeatedly listened to the Ozzy Osbourne song “Suicide Solution” from the album “Blizzard of Oz.”
- The Wallers claimed the song contained a subliminal message in a twenty-eight second interlude that incited their son's suicide.
- The defendants Ozzy Osbourne, CBS Inc., and CBS RECORDS Inc. provided the master tapes of the album for expert analysis.
- The Wallers' expert, Martin Hall, analyzed the master tapes and concluded that the song contained no subliminal messages, only audible but unintelligible lyrics he termed "pre-conscious suggestions."
- The Wallers' other expert, Victoria Evans, labeled the same audible but unintelligible lyrics a "subliminal message" by using a personal definition that contradicted the established meaning of subliminal as being below the threshold of conscious awareness.
Procedural Posture:
- Thomas and Myra Waller (plaintiffs) filed a complaint in federal district court against Ozzy Osbourne, CBS Inc., and CBS RECORDS Inc. (defendants) for the wrongful death of their son.
- The original complaint alleged that audible lyrics in the song “Suicide Solution” incited the suicide.
- Defendants moved to dismiss the complaint for failure to state a claim.
- Before the court ruled, plaintiffs amended their complaint to allege the inciting lyrics were a subliminal message.
- Defendants filed a new motion to dismiss the amended complaint.
- The court denied the motion to dismiss and allowed limited discovery to determine if a subliminal message existed.
- After the close of discovery, defendants filed a joint motion for summary judgment.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the First Amendment protect musicians and a record company from tort liability for a listener's suicide, allegedly caused by lyrics that philosophically discuss suicide, when there is no evidence of subliminal messages or incitement to imminent lawless action?
Opinions:
Majority - Fitzpatrick, District Judge
No. The First Amendment protects the defendants' music from liability because the plaintiffs failed to prove the existence of subliminal messages and the music does not constitute incitement to imminent lawless activity. The court's reasoning proceeded in two parts. First, it addressed the claim of subliminal messages, which, if proven, would likely receive little First Amendment protection. The court found that plaintiffs failed to create a genuine issue of fact on this point, as their own experts confirmed the contested lyrics were audible. By definition, a message that is consciously perceived, even if garbled, is not subliminal. Second, because the music is protected speech, the court analyzed whether it fell into an unprotected category, specifically incitement under the test from Brandenburg v. Ohio. The court found the song was not directed to inciting or producing imminent lawless action and was not likely to produce such action. At most, the song is an abstract discussion of suicide, which is protected speech, however irresponsible it may seem. Therefore, plaintiffs' tort claims of negligence, nuisance, and fraud are barred by the First Amendment.
Analysis:
This decision strongly reinforces the high threshold for stripping artistic expression of its First Amendment protection. By applying the Brandenburg test for incitement to music lyrics, the court clarified that abstract advocacy of dangerous ideas is not the same as a direct command to imminent lawless action. The ruling makes it exceptionally difficult for plaintiffs to hold artists civilly liable for the actions of their listeners, thereby protecting controversial art from being chilled by tort lawsuits. This case serves as a key precedent for defending music, film, and other media against claims that they negligently or intentionally caused harm to consumers.
