Rock on Trial: Subliminal Message Liability

Tuesday, January 1st, 1991 at 12:00 am by Pamela Marsden Capps
Pamela Marsden Capps, Rock on Trial: Subliminal Message Liability, 1991 Colum. Bus. L. Rev. 27

In a recent case of first impression, Belknap v. Judas Priest, a Nevada judge ruled that unlike rock lyrics, subliminal messages are not “speech” and are not protected by the first amendment. While the judge absolved Judas Priest of liability in the case because he found that the subliminals were not intentionally placed on the album and that they did not cause the shootings, he left the door wide open on the question of future liability for subliminals in other circumstances by ruling that subliminal messages are not protected speech. The case is currently being appealed, and a number of similar cases are pending in other jurisdictions. A finding of liability in these cases would have a profound effect on the recording industry and send a chilling message to others making use of subliminals in a similar manner. This Note argues that subliminals should not be protected speech under the first amendment when the following conditions are met: the subliminal amounts to a non-commercial, harmful message; it is received by an unconsenting, captive, or unaware audience; and the message causes the audience to act in an injurious manner.

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