In response to a lawsuit brought by the grieving family of a teenage girl whose suicide was reportedly inspired by the hit show 13 Reasons Why, Netflix is flexing its First Amendment rights to argue that were the complaint to proceed, it would be dangerous to the free speech of artists and Netflix itself.
In new documents filed in a California district court on Wednesday, Netflix invoked California’s anti-SLAPP statute, which gives plaintiffs the right to file a motion to dismiss a complaint brought against any content that might be considered protected speech. In its motion, the streaming giant argues that if a First Amendment challenge to its ability to produce potentially triggering content were to be successful, “a long line of creative works — from classics like Anna Karenina, Antigone, The Awakening, Madame Bovary, and The Bell Jar, to countless modern works like Dear Evan Hansen, The Perks of Being a Wallflower, Wristcutters: A Love Story, and The Virgin Suicides” — would also be at risk.
“Creators obligated to shield certain viewers from expressive works depicting suicide would inevitably censor themselves to avoid the threat of liability,” lawyers for Netflix wrote in the new filings. “This would dampen the vigour and limit the variety of public debate … The First Amendment does not permit such a result.”
Based on the young adult novel of the same name by author Jay Asher, 13 Reasons Why depicts the events that precipitate a high school-aged narrator’s suicide. Although the Netflix suit is being brought by a single grieving family, a study published by the Journal of the American Academy of Child and Adolescent Psychiatry reported a 28.9% increase in suicides among Americans aged 10-17 in the month after 13 Reasons Why premiered — an increase greater than any other seen in a single month over the five-year period the researchers studied.
In the motion to strike filed on Wednesday, lawyers for Netflix were careful to note that the platform is not being sued for the content of 13 Reasons Why itself, but rather for its “…failure to adequately warn of its Show’s, i.e., its product’s, dangerous features” and for its “trove of individualized data about its users to specifically target vulnerable children and manipulate them into watching content that was deeply harmful to them — despite dire warnings about the likely and foreseeable consequences to such children.”
That recommendation system — which is dictated by an algorithm — counts as protected speech, and is tantamount to a news editor deciding to “exercise ‘editorial control and judgment,’” Netflix argues:
“The recommendations system, and the display of suggested titles, is speech,” the dismissal motion states. “Plaintiffs allege that the recommendations here are different because they are dictated by an algorithm. But the fact that the recommendations ‘may be produced algorithmically’ makes no difference to the analysis. After all, the algorithms themselves were written by human beings…”
Netflix and the plaintiffs are due in court on November 16.
If you or someone you know is contemplating suicide, please call Lifeline on 13 11 14 or BeyondBlue on 1300 22 4636.