Info/Law

This story from the Times of London is reminiscent of the anecdotes in the old book The Brethren about the Supreme Court justices gathering next to an old projector for showings of pornographic movies that were at the center of the Burger Court’s First Amendment cases.

The Times reports on a decision by Great Britain’s Court of Appeal that effectively requires a lower court judge to watch as much as 400 hours of the Jerry Springer Show and decide whether its content became more inappropriate for daytime television broadcast between 1997 and 2001.

The case illustrates how information law considerations enter into seemingly unrelated cases from oblique angles. The litigation is a straightforward contract dispute between the American producers of Springer and a British company that bought the rights to broadcast the program in the UK but is now trying to back out. The British company claims that the American producer breached the contract because the lowbrow program became so much more tasteless over time that eventually the majority of episodes became inappropriate to broadcast. (This in a country where a prominent tabloid newspaper routinely runs photos of topless models on page three, but that’s another issue). The UK has a complex system for regulating “taste and decency” on television, which was recently revamped, and of course there are no First Amendment restrictions. Basically, the structure seeks to have broadcasters self-enforce a code.

The appellate court is letting the case go to trial — and the key question will be whether or not the tone of Jerry Springer did in fact deteriorate over the time period. The only way to decide that, said the court, is to watch it:

It must be necessary for the judge who determines such issues to see at least some of the episodes although I would strongly encourage the parties to agree a sensible basis upon which the trial judge can reach a conclusion on the issues without having to view anything like the totality of all the episodes.

So, the case does not directly involve free speech or censorship or any such issue — yet a judgment about “appropriateness for broadcast” will nonetheless be fundamental to the outcome. These are the sorts of speech-evaluating questions that most of us would prefer to keep away from judges when possible. Yet real life and the law have a way of forcing these questions into court in unexpected ways. It is indeed hard to imagine how you could decide who should prevail in this contract dispute without sitting down and watching a whole lot of Jerry Springer — though let’s hope for the judge’s sake that it’s not “anything like the totality of all the episodes.”

Filed under: Intermediaries, Media