Can the media kill?
A syndrome, a case study and the law

OUTLINE

I. Introduction
II. Case Law Review -- Incitement and the First Amendment
III. A Death in Alton -- Community Sensitivity
IV. Current Knowledge of Autoerotic Asphyxia
V. Autoerotic Asphyxia in Insurance Case Law
VI. "Orgasm of Death" -- The Hustler Magazine Case
VII. Role of the Media -- Literary, Scientific, Popular Press
VIII. Conclusions -- About the Media
IX. Conclusions -- About the Law

INTRODUCTION

Can the media kill? The question may be an exaggeration, but it makes the point.

There has been a dramatic increase in teenage suicides. Suicide has become the second leading cause of death among Americans aged 15-24. The ratio of attempts and suicidal gestures to accomplished suicides is estimated to be 200:1. It seems, in some communities, that teenage suicide is an epidemic. This "epidemic" may be transmitted through the media, as the black plague was spread throughout Europe by fleas on rats. However, unlike rats, the media may have an obligation to transmit the very information that appears to fuel the epidemic.

Whether proven or not, there is a public belief that deviant human behavior can be inspired or incited by the media. For example, local Illinois law enforcement officials requested and a local video rental store manager consented to removing the video "Three Faces of Death," very popular with the teenage market, from the shelf. The officials reported to the manager that they were finding carcasses of animals in the countryside, slain in manners identical to the video, and that one teenage confessed that his action was inspired by the "documentary."

The suggested roles of the press in American society include its responsibility as surveillance or watchdog and its responsibility as educator. This is coupled with the presumption of a "public's right to know." What happens, however, if while serving its various roles, the press appears to transmit, encourage or "incite" dangerous behavior? The purpose of this paper is to explore some of the legal and journalistic ramifications of this dilemma in the context of a specfic medical-legal phenomenon -- autoerotic asphyxiation.

Little is publicly written about the phenomenon, with the exception of Ann Landers-style columns. Unfortunately, the information is not necessarily comprehensive or representative of what is known about the behavior. One "Dear Ann" letter and response read:

Dear Ann: Your answer to "Concerned Mother" who was worried because she found her panty hose and her daughter's bikini underwear hidden in her son's room made me realize that you must not know anything about auto-erotic-asphyxiation. This is a game played by young men usually between the ages of 14 and 21. They dress in women's panty hose and bikini underwear, engage in masterbation, take a rope, toss it over a joist, pull a slipknot in a noose and put it over their head. As the rope tightens it gives them an erotic high seconds before they become unconscious. The weight of the body supposedly releases the knot and the subject regains consciousness. Sometimes, however, the knot does not release and the person chokes to death.

Although hundreds of young men have died as a result of this experimentation, one never sees any mention of it in the papers. I'm sure the reason for the secrecy is that the families are ashamed to let the circmunstances of the death be known. Please, Ann Landers, print this letter and make parents aware of what can happen to their young sons. If you do not believe me, consult with any large police department. The police along with the parents are the ones who take down the bodies and it is heartbreaking. Sign me -- One whose family has been touched (St. Louis)

Dear St. Louis: I do known about this tragic accidental form of suicide and have written about it in this space. I hope all my young readers will realize how dangerous this little game can be. Hundreds of deaths occur this way -- most of them unreported for the reasons you mentioned. Thanks St. Louis, for giving me the opportunity to discuss this topic again.

What would happen if a newspaper or magazine wrote about this phenomenon, complete with warnings, and a reader died while attempting to replicate the behavior? How far does a newspaper go to report a story that (1) may fuel irrational or deviant human behavior and (2) may offend community sensibilities. The first situation has been raised in the context of non-libelous negligent statements or misstatements -- statements which result in a tort and for which the media could be liable for if published negligently.

CASE LAW REVIEW

The dilemma was forced into the public's attention with the made-for-television movie, "Born Innocent." The protagonist, played by actress Linda Blair of "The Exorcist" fame, was a girl whose innocence was shattered by her experience in a girls' reformatory. Central to the movie was a scene in which Blair was raped by four female inmates using a plumber's helper for penetration. Three days later, on Baker Beach near San Francisco, three girls and a boy "raped" nine-year old Olivia Niemi with a beer bottle.

Olivia's mother sued the National Broadcasting Company and the owners of KRON-TV, the NBC affiliate in San Francisco, for negligence in airing the program during family viewing hours (8 p.m. on the West Coast). She contented that the network had not taken adequate precautions against the movie's potential effects on young viewers. NBC, though well-known First Amendment attorney Floyd Abrams, responded that it was protected from liability for the alleged effects of the program by the First Amendment. Personal-injury attorney Marvin Lewis, for Olivia, countered that no one should be absolved of civil liability because of the First Amendment.

The trial judge, Robert L. Dossee, ruled that the sole issue would be whether NBC had intended to incite soemone to an assault with a beer bottle. Olivia's attorney conceded "that the film did not advocate or encourage violent acts and did not constitute an 'incitement' within the meaning of Brandenburg...." Dossee ruled that the movie was presumptively protected by the First Amendment and dismissed the case. Olivia attorney appealed the dismissal. Dossee's decision was upheld by the California appeals court since "the television broadcast which is the subject of this action concededly did not fulfill the incitement requirements of Brandenburg. Thus it is constitutionally protected."

The leading case defining incitement in the context of the First Amendment is Brandenburg v. Ohio. Clarence Brandenburg, owner of a television repair shop near Cincinnati, Ohio, was an officer in the Ku Klux Klan. In the midst of the growth of the civil rights movement in the mid-1960's, he invited at local television reporter to cover a Klan rally and cross-burning. Based on what the authorities observed in the telecast, Brandenburg was arrested and charged with violation of Ohio's ciminal syndicalism statute, adopted in 1919 in response to the Red scare of that era. He was found guilty and sentenced to one to 10 years in prison and fined $1,000.

The U.S. Supreme Court, in considering the case, focused on the broad language of the syndicalism statute. It was found to be invalid on its face because, as it was written, speakers could be punished for doing no more than talk about violence. Brandenburg's speech, the Court found, was bluster, with little connection to imminent action. "Neither the indictment nor the trial juge's instructions to the jury in any way refined the statute's bald definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action." In effect, the Court phrased the issue as the absence of a constitutionally clear distinction between advocacy of an idea and incitement to some unlawful action.

The Court declared,

The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

In effect, speech advocating use of force or violation of the law can only be regulated if the speech is "incitement," defined under Brandenburg as (1) the speech is directed to "inciting or producing" action, (2) the action must be imminent, (3) the action must be "lawless," and (4) the speech is "likely to incite or produce such action." Governments have the right to protect themselves against those who use violence or break the law, but mere advocacy is insufficient. "One who unambiguously urges specific criminal action is protected so long as he does not urge imminent lawless action." The Brandenburg standard also requires that the speech be "directed" toward inciting or producing an illegal action, which implies that it is the speaker's purpose to incite or produce such action.

The case reversed the earlier cases, such as Schenck v. United States, its progency, and Whitney v. California. The Court has generally reaffirmed the Brandenburg test in subsequent cases. One subsequent case, for example, held:

[S]ince there was no evidence or rational inference from the import of the language, that his words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the state on the ground that they had "a tendancy to lead to violence."

On March 23, 1979, talk show host Johnny Carson participated in demonstrating a stunt hanging. Although the show was taped and replayed, the stunt, supervised by an experienced stuntman, was conducted live before an audience. It was accompanied by several warnings, though in light banter between Carson and his guest, as to the danger of the stunt and that it should never be attempted.

Several hours after watching the show with their son Nicky, Shirley and Nickolas DeFilippo, Sr., found his body hanging from a noose in front of the television set, which was still turned to the channel airing the Tonight Show. The DeFilippos alleged that their son had watched the stunt and tried to imitate it, thereby accidently hanging himself. They charged that the network, NBC, was negligent in permitting the stunt to be broadcast and negligent in failing to adequately warn viewers of the dangers of the stunt. They also charged that that NBC intentionally aired the show in malicious and reckless disregard of the victim's welfare.

The Rhode Island supreme court determined that this was an issue of "incitement to immediate harmful conduct." The court, using the Brandenburg test, found "no basis for a finding that the broadcast in any way could be construed as incitement." It denied the DeFilippos' appeal of the granting of summary judgment to the defendants at the trial level.

The DeFilippos relied on Weirum v. RKO General, Inc., to argue that the First Amendment should not bar recovery. In Weirum, the California supreme court held that a Los Angeles radio station was liable for the death of a motorist who was forced off the road by two speeding teenagers. The teenagers were racing to find a roving disc jockey as part of the radio station's promotional campaign. The station's promotion urged that the listeners "race" to find the disc jockey. The California court rejected the First Amendment defense:

Defendant's contention that the giveaway contest must be afforded the deference due society's interest in the First Amendment is clearly without merit. The issue here is civil accountability for the foreseeable results of a broadcast which created an undue risk of harm to decedent. The First Amendment does not sanction the infliction of physical injury merely because achieved by word, rather than act.

The First Amendment was not a bar to recovery in another, although unreported, case. The case, Carter v. Rand McNally & Co., was not important because of incitement or negligent misstatement, but because the negligent statement was not false. The case concerned the failure of a junior high school science textbook to warn of the dangers of an experiement which resulted in the physical injury to an eighth-grade student. The case suggested a tort of "negligent publishing."

This brief review of the case law shows that the First Amendment has not been a complete bar to tort recovery. The Brandenburg incitement standard, though, still remains in effect.

A DEATH IN ALTON

On July 6, 1987, The (Alton, Illinois) Telegraph printed the following story on the lower center of the front page:

Godfreyite dies, mishap during sex act blamed

A Godfrey man apparently accidently strangled himself during a sex act Sunday, the Madison County Sheriff's Department reported.

William Frank O'Bryan, 63, 801 Pardee Drive, Godfrey, was found dead at about 6 p.m. Sunday in a wooded area off Stamper Lane west of Godfrey Road, the department said. The death has been classified as an auterotic (sic) asphyxial death, said Sheriff Bob Churchich.

The department said O'Bryan was found by his son and a friend, who were taking a walk in the woods. O'Bryan was slumped on the ground with a rope attached from his neck to a tree branch, Churchich said.

Auterotic asphyxiation involves the strangulation of an individual while performing a sex act on himself. The diminished air supply is supposed to heighten the sexual experience, the sheriff explained.

O'Bryan apparently did not release the rope that was strangling him in time, authorities said. He was believed to be alone, Churchich said.

O'Bryan was manager of price administration and planning for Olin Corp. in East Alton. He had worked for Olin since 1970 and was employed in the East Alton office since 1981, a company spokesman said.

The largest newspaper in the region, the St. Louis Post-Dispatch, in a short obituary, reported only that O'Bryan "died Sunday of accidental asphyxiation in a wooded area near Godfrey." It reported that O'Bryan was survived by his wife and son, of Godfrey, and three daughters, who did not live in the area.

Community reaction was swift and offended. Letters from readers were headlined with phrases such as "nothing but journalistic sensationalism," "outlandish and inexcusable," "never so horrified," "breach of confidence," "National Enquirer image," "on par with worst tabloids," and "unnecessary, insensitive." Only one of the 16 letters published by the paper supported the paper's action. The newsroom received approximately 50 telephone calls and the letters were running 9-to-1 against the coverage. Although the volume of response may have been small in comparison to larger urban dailies, the story generated the largest response the newspaper had ever received concerning its reporting. The pressure was so great that Peter Ellis, the interim editor, published a front page reply.

This article appeared at a difficult time in the recent history of The Telegraph. On June 3, 1980, a Madison County, Illinois, jury returned against the newspaper what was at the time the largest libel judgment in American history -- $9.2 million. The verdict was not be appealed because the newspaper could not afford to post a bond equal to the size of the verdict, as required by Illinois law. The paper filed for Chapter 11 bankrupcy protection to prevent the plaintiff from seizing the paper. Eventually, the verdict was set aside in exchange for a $1.4 million settlement. The verdict remained, as of mid-1988, the largest libel award against a newspape. The suit "all but zapped" The Telegraph. Once noted for its "crusading spirit," it "now deliberately avoids investigative journalism."

The Telegraph, then owned by the Cousley family, was sold to the Ingersoll newspaper chain as part of its expansion into the St. Louis suburban market. The sale was not necessarily the result of the losses incurred in the lawsuit. Ellis was serving temporarily as interim editor after The Telegraph was purchased by the Ralph Ingersoll III company. He had been transferred from one of the company's New England papers with a possible eye towards becoming the regular managing editor. Ellis a native New Englander and graduate of Bates College, returned to New England early in the fall of 1987 for reasons unrelated to the handling of this story.

The coverage of the death was, in part, a result of the unique pressures of daily journalism. The sequence of events surrounding the reporting of the case is muddy. At the time, The Telegraph published Monday through Saturday. Front page editorial deadline was approximately 10:30 a.m., with the first copies of the paper coming off the presses around 11 a.m. According to Ellis, the paper first learned of the incident when a Telegraph photographer was refused access to the scene of the death. Ellis reported: "The staff of The Alton Telegraph first received word of the story on Monday when a call came to the office during the routine daily meeting which determines coverage and layout." At first, Ellis thought the death might have been a homicide. The story was allotted front page space based on an estimated article length of 4 1/2 column inches. When the story was finally written, it was less than 2 1/2 inches, leaving a hole in the front page of two column inches. It did not appear that any known information was left out of the story. According to Ellis, "The layout editor then designed a headline to fill the space." Dick Fackler, the layout editor, said that he was concerned "that the headline convey the fact that this was not a routine death," and that "the wording of the headline needed to convey that message at first glance."

Members of the family of the deceased met with the newspaper's city editor. He reported that they, naturally, were not pleased with the coverage. They told him that they were convinced that their father had not died from autoerotic asphyxiation. Apparently, the family had also visited the Madison County sheriff to seek complete details of their father's death. The sheriff reported that he suggested that "they might find it betteer not to see the materials collected," to which they agreed.

Ellis contacted Elwood Woodlow, a director of the American Press Institute, Reston, Virginia. Ellis asked Woodlow: "Did we do the right thing in reporting this article the way we did on Page One?" Woodlow gave two replies: "It depends on whether the event is a pattern that should be brought to public attention. If so, I wouldn't blush about it. If it's not a matter that should be brought to public attention, I think I would not. I don't think I'd put it on Page One."

Ellis also asked his editors, "If we violated the community's sensibilities by running the article; did we violate our implied contract with readers to provide them with the community news they need to know?" The editors could not agreed. Some thought the story was "overplayed." One did not think the paper did anything wrong.

The one letter in support of the paper's coverage stated, in part:

I believe there is a benefit for society in the release of this type of information. It is a warning to all....As to breach of confidence, is it not better to have facts in news media, if true, than interpretations and conclusions sent by mouth to mouth, destroying the image of some innocent person or even making an image of someone for your causes? Barring the trauma for the Godfrey family -- the value of the article was pinpointing the pitfall for anyone and everyone.

Ellis, however, concluded that the paper was wrong, at least in how it "played" the story. He wrote:

Every newspaper has an obligation to respond to the sensitivities of the community. If the article served the public good by warning them of a dangerous trend, then I would defend the way it was played. But it didn't....We also offended deeply the family of the man who died and shook our readers' faith in us.

If I were to do the story again, I would have taken it off Page One, downplayed it and incorporated background and explanatory material indicating that, although rare, the act described is becoming an increasing threat.

We can't take back the way we played the story. I wish we could.

A request to the St. Louis medical examiner for a toxicology report indicated that the deceased was pronounced death at 6:15 p.m. The requesting official, Chief Deputy Coroner Ralph H. Baahlmann, had checked the boxes under "suspected circumstances:" "hanged," "accidental," "self-inflicted," and "other," with "possible auto-erotic anoxia" added. In the "short descriptive history" section was written: "Victim is found by his son and the sons (sic) friend, in wooded area near victims home. A cloth ligature attached to a rope was placed around the neck. There was a release mechanism, that apparently failed, rigged into the ligature." The autopsy of O'Bryan revealed that he died of sudden cardiorespiratory arrest due to interruption of cerebral blood flow as a result of a ligature around the neck. The certificate of death listed the cause of death as an accident as the result of a "self-placed ligature around neck w/ failure of release." The final autopsy report summarized the findings:

In summary, the scene, the gross and microscopic anatomic findings, and the toxicology findings are all consistent with death secondary to cardiorespiratory arrest occurring during voluntary interruption of cerebral blood flow. This is consistent with an accidental death occurring during possible an auto-erotic experience.

The autopsy included a detailed description of the ligature, including the "overall device is constructed such that pulling on the loose end of the rope tightens the braided strap around the neck of the deceased." The Madison County coroner's jury ruled the death accidental, from "cardiorespiratory arrest due to interruption of cerebral blood flow due to a ligature placed around the neck."

Details of the death, as documented in the autopsy and coroner's reports, were not available to the newspaper at the time of the story. The newspaper never tried to follow up on the incident. The one question that was never asked by coroner, police or press was how did O'Bryan learn about this behavior.

CURRENT KNOWLEDGE OF AUTOEROTIC ASPHYXIA

"Sexual asphyxia or death during autoerotic activity is a well recognized phenomenon to death investigators." However, "[f]atal autoerotic behavior is so unknown and aberrant to many people that rejection and suppression of the topic is a common reaction." The Armed Forces Institute of Pathology studies eight to 10 cases of sexual asphyxia each year. One of the 106 "asphyxial deaths by hanging" in New York City in 1964-1965 was "a 29-year-old man who accidently hanged himself while masterbating." Fifty similar deaths were estimated to occur each year in the late 1960's and early 1970's. By the late 1970's, the number of deaths was estimated to be as high as 250 a year. A study of the 61 asphyxial deaths by hanging in King County, Washington (Seattle), between 1978 and 1982 revealed 59 were suicides and two were accidental, the result of autoerotic activity. Current estimates vary widely, from 500 to 1,000 deaths each year. According to the Metropolitan Life Insurance Company, around 250 of its policyholders die from sexual asphyxia each year.

"Sexual gratification obtained through one's own efforts is commonplace if not almost universal." However, behavior resulting in autoerotic or sexual asphyxia is generally unknown. Only recently has it received much attention in the media, especially with the Ann Landers column, reproduced above, and the airing of the subject on a recent Oprah Winfrey show. The media has not reported the story comprehensively. The result is possible misinformation about the extent and danger of this form of behavior. For example, the Ann Landers column as well as a 1984 New York Times article give the impression that this is a youth problem. However, the FBI officals, who have collected the largest data base of cases, reports that the average age is 26.5. Experts are leery about discussing the behavior in controversial settings, such as the Oprah show. This does not mean that the topic has never been discussed by the media.

Sexual asphyxia is normally a solitary auto- (self) erotic (sexual stimulation) activity practiced by adult, white, middle-class, unmarried males. The practitioner devises some sort of mechanism, usually involving self-hanging, to impede the flow of oxygen to the brain in order to heighten sexual pleasure, usually as a result of masterbation. Death usually results when the mechanism used to impede the flow of oxygen fails to release the victim. In some cases, the use of alcohol or other drugs contributes to the accident. There is almost never any indication of suicidal intent.

Sexual asphyxia is not a new phenomenon. Researchers have found evidence of autoerotic asphyxia in the Mayan culture as early as 1000 A.D. In 1791, the musician Koczwara, considered by Bach as the best bass player in Europe, died in London, the victim of sexual asphyxia. Koczwara persuaded Susanna Hill, an English prostitute, to hang him for his sexual pleasure. He instructed her to cut him down after five minutes. However, when she did so, the musician was dead. Hill was tried for murder and the court ruled the death as accidental manslaughter. The facts were evidently so unusual that the court requested the ladies in the audience to leave the courtroom and all the court records were destroyed. The Marquis de Sade wrote a graphic description of the practice that very same year. Melville made reference to the practice in Billy Budd.

Hanns Heinze Ewers, the German novelist, wrote a novel called Alraune (The Mandrake) in 1911. The story was based on a folk superstition that semen ejaculated from a hanged man will fertilize the growth of a mandrake plant. The same folk superstition surfaces in Samuel Beckett's Waiting for Godot:

"Vladimir: ....What do we do?

Estragon: Wait.

Vladimir: Yes, but while waiting.

Estragon: What about hanging ourselves?

Vladimir: Hmm. It'd give us an erection.

Estragon: (highly excited) An erection!

Vladimir: With all that follows. Where it falls mandrakes grow. That's why they shriek when you pull them up. Did you not know that?

Estragon: Let's hang ourselves immediately."

The two characters go on to discuss who will go first although no action is ever undertakem.

Anthropologists have observed asphyxial practices in other cultures. Six cases were studied by the Department of Legal Medicine at the Harvard Medical School in the mid-1950's.

Sexual asphyxiation is probably underreported, both by law enforcement authorities and by the media. Standard reporting codes by which coroners report statistics on causes of death do not have a code for sexual asphyxia. Many deaths are judged as suicides, either out of ignorance or concern for the embarrassment of the survivors. According to one Illinois sheriff, "There is considerable indication that many cases show suicide as a cause of death where the death may have actually been due to autoerotic asphyxiation. Suicides are either not investigated thoroughly or full information is withheld from public record in consideration of families and their privacy." Even suicide can be embarrassing, with surviving relatives reportedly cutting down the body and hiding evidence of hanging. Several deaths in the 1950's were certified either as "suicidal hanging" or "accidental hanging while experimenting." In one of these cases, the relatives questioned the medical examiner's conclusion of "accident" after the local newspaper reported the death as "suicide." Only then did the medical examiner reveal the specifics of the case. An English coroner's inquest labeled one such death as "misadventure." Burgess and Hazelwood summarized several other incidents:

Parents of a 21-year-old college student were successful in having the cause of death changed on the death certificate. And there are a few cases in which the family would not accept the determination that the death was accidental. Most often these families believe that the death was a homicide and became angry with investigating officers for closing the case prematurely. Some families were upset and angry with the victim and refused to believe anything. One family refused to bury a son after learning that his death was sex-related.

Though decreasing, the social stigma still exists.

Autoerotic fatalities have been the subject of one of two ongoing research studies into sexual fatalities (the other involved serial sexual murders) by the Behavioral Sciences Unit of the FBI Academy. The study, begun in 1978, received over 160 cases submitted from investigative agencies in the United States and Canada. At least 150, based on official reports and autopsy results, occurred accidently. The FBI continues to receive case files, building the largest data base in the United States with nearly 250 cases of autoerotic fatalities to date.

The leading book on the subject, Autoerotic Fatalities, based on the FBI study and co-authored by the supervisory special agent of the FBI's Behavioral Sciences Unit, includes the following warning at the end of its preface:

Do not attempt any of the autoerotic activities described or depicted in this monograph. These activities are inherently dangerous and carry a risk of death. There is no reason to believe that these activities are pleasurable to the ordinary person and there is every reason to believe that they may prove fatal.

The book, which appears to be the only book on the subject, presents and analyzes 157 cases of autoerotic fatalities, provided by law enforcement agencies from throughout the United States. The authors focused most of their attention on asphyxial fatalities (132 out of the 157 cases). One reviewer believes that this is the largest collection of such data in the world. The purpose of the book was two-fold: (1) to document the phenomenon in order to familiarize medical and legal practitioners with the problem, and (2) to present the legal issues involved, such as when the courts must decide whether the deaths were accidental or intentional. The authors advocate designating "erotic hangings" as "Kotzwarraism," after the musician who died in the first documented case of autoerotic asphyxiation. Hazelwood, the lead author, indicated an interest in updating the book given the growth in documentation and newly discovered trends among the deaths.

Victims die of sexual or autoerotic asphyxia as the result of loss of oxygen. Most die as a result of hanging, although there are documented cases of autoerotic fatalities as a result of "abdominal ligature" (similar to cases where mountain climbers fall and their safety lines restrict their diaphragms), chest compression (one victim was evidently trapped in a garbage can), suffocation (plastic bag over the head), drowning (victim pulled from the bottom of a river bound in special rigging), electrocution, and Volkswagen. Autoerotic deaths involving asphyxia are not limited to the United States. Cases have been reported in countries such as Great Britain, Japan and Singapore.

In many instances, the autoerotism, primarily masterbation while in the suspension apparatus, appears to have been a repetitive activity. Resnick calls the syndrome "erotized repetitive hanging." There is some indication that participants are aware of the dangerousness of self-hanging.

Autoerotic deaths, though predominantly a male phenomena, are not limited to men. Five of the 132 asphyxial deaths in Autoerotic Fatalities were female. Nor, unfortunately, is it limited to adults. Death, however, is not necessarily the outcome of such practices. Researchers, such as psychiatrists and counselors, have reported on interviews with living practicitioners of autoerotic hanging. In what may be the most unusual case study, researchers had access to two years worth of psychiatric counseling information, detailed evidence from the scene of death, and a sequential photographic record, initiated by the participant, of the events leading to death.

There is evidence to suggest that what may have appeared to be accidental death as a result of autoerotic asphyxiation may actually have been suicide or even murder. One of the objectives of the FBI study was to undertake behavioral analyses of the cases which, on the physical evidence, are equivocal. "Suicidal sexual fatalities are rare." One of the conclusions of the FBI researchers was: "There should be a strong presumption that the manner of death in an autoerotic fatality is accident."

AUTOEROTIC ASPHYXIA IN INSURANCE CASE LAW

Medical, psychiatric and law enforcement personnel generally consider autoerotic asphyxiation to be accidental. Some researchers view the behavior as more complex. Ford and Sass feel that the deaths should be considered as accidental without suicidal intent. Resnick concludes that such repetitive behavior, similar to drug addition or alcoholism, should be considered suicidal. "We agree with Resnick that [such behavior] is best classified as a suicidal syndrome despite the fact that on a conscious level [the victim's] intent is to survive. Unconsciously he is compelled to take risks that clearly endanger life." Litman and Swearingen take a middle position, stating that the deaths are "a mixture of suicide and accident."

American case law, derived from a series of insurance liability cases, approaches the question differently. Many insurance policies have accidental death benefit clauses, which pay amounts in addition to the basic death benefits, hence the terminology of "double indemnity." Since suicides are intentional deaths, the question of whether autoerotic fatalities are accidental or not becomes important for both beneficiaries and the insurance companies.

Accidental benefit clauses generally employ one of two tests -- "accidental means" or "accidental results." Under the latter test, only the result needs to be accidental. Thus, if the action was intentional, but the result was unintentional, the test would term the death "accidental." Under the former test, a death is accidental only if the means or cause of death is accidental. Death from a game of Russian roulette is a useful example. While the action -- the game of Russian roulette -- is intentional, the resulting death is not. Under the "results" test, the death would be accidental; under the "means" test, the death would not be. The "means" test is more restrictive than the "results" test.

Often the means or cause of death is not apparently intentional. If an autoerotic death is not suicide, since the insured did not intend to take his (or her) life; is not homicide, since no one else intended or did in fact kill the insured; is not due to natural causes; nor is accidental, since the victim intented to undertake the hazardous act -- what is it? Thus, the "means" test requires some standard of foreseeability that death could result from the means employed act undertaken.

Three federal cases have denied recovery under double indemnity provisions by applying the "means" test. The sole issue in Runge v. Metropolitan Life Insurance Co. was whether Runge died by "accidental means." "Runge died under very bizarre circumstances. Briefly stated, Runge hung himself in the course of engaging, as the district court found: in an unusual autoerotic practice in which he was seeking to heighten the experience of masterbastion by stimulation of certain nerve centers in the brain through the asphyxial process." The court found that Runge had locked the doors of his house to prevent instrusion, had engaged in the practice at a time when instrusion was unlikely, had engaged in an inherently dangerous practice, and that a fatal mishap was reasonably foreseeable. Runge tied an electrical extension cord into a noose. He lost consciousness due to accentuated asphyxia during orgasm and hanged.

The appeals court upheld the district court decision for the insurer and ruled that Runge's death was not by accidental means. The court cited language from a Virginia Supreme Court decision:

Where the policy insures against loss of life through accidental means, the principle seems generally upheld that if the death of the insured, although in a sense unforeseen and unexpected, results directly from the insured's voluntary act..., it is not death by accidental means, even though the result may be such as to constitute accidental injury."

In International Underwriters, Inc. v. The Home Ins. Co., the insured used a noose equipped with a pulley device designed to lower him if he lost consciousness. The pulley would operate if he lost his grip on a rope controlling the pulley. The insured lost consciousness, apparently letting go of the control rope, but the pulley system jammed, causing him to die. The insurance policy covered "accidental bodily injury," death being included in the definition of injury. The district court held that the death was accidental since it resulted from a malfunction of the pulley system. The court distinguished this case from Runge because Runge involved an "accidental means" policy while this case involved an "accidental results" policy.

The appeals court overturned the lower court decision. It held that the insured voluntarily placed his neck in the noose and intentionally tightened it to the point where he lost consciousness. His death was ruled to be the natural result of a voluntary act unaccompanied by anything unforeseen except for death. In a subsequent case, the Fourth Circuit reaffirmed that death from autoerotic hanging is not accidental under what they call "the natural or probable consequence analysis."

The Eighth Circuit denied benefits in Sigler v. Mutual Benefit Life Ins. Co. The policy contained an accidental result clause and excluded intentionally self-inflicted injury of any kind. Sigler was found in the bathroom of his hotel in Denver, where he was attending a seminar. Both parties agreed that the insured died of autoerotic asphyxiation and not as a result of suicide or foul play. The lower court relied on the definition of accidental from the Iowa Supreme Court: "If the insured does a voluntary act, the natural, usual, and to be expected result of which is to bring injury upon himself, then a death so ocurring is not an accident in any sense of the word, legal or colloquial." The district court decided that a reasonable person, such as Sigler, would have recognized that his actions could result in death and that such as reasonably foreseeable death is not an accident. The appeals court upheld the district court finding that the death was not accidental.

At least two state courts have ruled in favor of the beneficiaries. In Connecticut General Life Ins. Co. v. Tommie a Texas appeals court ruled that the death was accidental in that it was not the result of a self-inflicted injury in the normal sense of the word. The court concluded: "Although the type of activity in which Mr. Tommie was engaged was foolish and fraught with substantial risks of injury or death, it was not of such a nature that the insured should have reasonably known that it would probably result in his death."

In a Wisconsin case, Kennedy v. Washington National Insurance Co., an orthopedic surgeon was found dead in his shower at home. His nude body was found hanging by a rope from the shower head. Pornographic pictures were attached to a nearby wall. The sole issue in the case was whether death by autoerotic asphyxiation was included in the definition of "accidental death." The court found that Kennedy had engaged in the autoerotic acts on previous occasions and that "death was not a normal expected result of this behavior." It concluded that, based on Wisconsin's "average man" standard, there was no evidence that the insured's death was highly probable, expected or a natural result. The death, therefore, was ruled accidental.

As this review indicates, "[t]here is no universal position on this issue." Law enforcement officials believe that many of the victims are aware of the risks involved in their acts. In at least one case, the researcher believed that the deceased "knew the hazard of the game." According to the FBI researchers,

[T]here is a substantial body of opinion and some very suggestive evidence that men who engage in autoerotic asphyxia are indeed aware of the risk to their lives: The question, not yet answerable, is whether their knowledge of the risk should be viewed as similar to that of motorcyclists who ride without helmets, skydivers, men who habitually inject heroin, or men who play "Russian roulette."

The authors of Autoerotic Fatalities concluded that courts are reluctant "to allow beneficiaries to gain from what is perceived as the insured's misconduct." Generally, the courts have ruled that the insured "knew or should have known that death or serious bodily injury would be the probable consequence of his act." The authors argue that such reasoning should apply equally well to drunken drivers, motorcyclists who do not wear helmets, and skydivers. Insurance companies do not contest accidental death claims pertaining to these groups. One reviewer concluded, "[I]t seems likely that the courts are judging not on the basis of existing and definitive legal rules, but rather on the basis of a narrow, personal moral code."

"ORGASM OF DEATH" -- THE HUSTLER MAGAZINE CASE

The question, raised earlier, about the O'Bryan death was how did he learn about autoerotic asphyxia by hanging? He could have learned about it from a 1981 Hustler magazine article. Troy Herceg apparently did, with tragic consequences.

In its August 1981 issue, Hustler magazine ran a two-page article entitled "Orgasm of Death" as part of a series on "Sexplay." The article described is detail how to perform autoerotic asphyxiation. It began with an "Editor's Note" warning, in italics: "HUSTLER emphasizes the often-fatal dangers of the practice of 'auto-erotic asphyxia' and recommends that readers seeking unique forms of sexual release DO NOT ATTEMPT this method. The facts are presented here solely for an educational purpose." The article warned repeatedly (at least 10 times) and in strong terms that the act was dangerous and possibly fatal.

The appeals court described the article:

The article begins by presenting a vivid description of the tragic results the practice may create. It describes the death of one victim and discusses research indicating that such deaths are alarmingly common: as many as 1,000 United States teenagers die in this manner each year. Although it describes the sexual "high" and "thrill" those who engage in the practice seek to achieve, the article repeatedly warns that the procedure is "neither healthy nor harmless," "it is a serious -- and often-fatal -- mistake to believe that asphyxia can be controlled," and "beyond a doubt...auto-asphyxiation is one form of sex play you try only if you're anxious to wind up in cold storage, with a coroner's tag on your big toe."

The warnings did not stop Troy, a 14 year-old Texas boy, from trying the act. The next morning, a close friend, Andy Vines, found Troy's nude body hanging by its neck in the closet. Spread at his feet was a copy of Hustler opened to the article on "Orgasm of Death."

Troy's mother, Diane Herceg, and Andy Vines invoking diversity jurisdiction and brought suit in federal district court. The plaintiffs originally sued Hustler in tort and under the wrongful death statute, using theories of negligent publication and strict liability. They alleged that the magazine "negligently published an inflammatory article on the practice of 'autoerotic asphyxiation'...which caused the death of [Troy]." They also made "the novel claims that the article was both an attractive nuisance for which the defendant has a duty of social responsibility, and a dangerous instrumentality or a defective, unreasonably dangerous product." Hustler moved to dismiss the case for failure to state a claim.

District Court Judge McDonald ruled that the plaintiffs' claims under either strict liability or negligent publication were not supported in existing case law.

The Court is aware of no court which has held that the content of a magazine or other publication is a product within the meaning of section 402A of the Second Restatement of Torts. Rather, they have held to the contrary...a bookseller's strict liability under implied warranty under the UCC is limited to the physical properties of the books, not the material communicated.

The court held that "negligent" publication arises in defamation law. But, according to the court, "No court has held that the written word is either an attractive nuisance which would impose a special duty on defendant magazine, or a dangerous instrumentality for which defendant would be strictly liable." The court cited the Zamora case for support.

The Court dismissed the plaintiffs' case without prejudice, but with a lengthy suggestion that the plaintiffs might consider refiling under an incitement cause of action. "It is conceivable that plaintiffs could prove facts showing that Hustler's article was 'directed to inciting or producing' the death which occurred and was 'likely to incite or produce' the death, which would entitled them to relief." In laying the groundwork for its suggestion, the Court discussed the Zamora, Olivia N., Weirum, and DeFilippo cases, as well as the U.S. Supreme Court case of Brandenburg v. Ohio. Under the Brandenberg test, speech that is "directed to inciting or producing imminent lawless action and...likely to incite or produce such action" is not protected by the First Amendment.

The plaintiffs did not appeal Judge McDonald's decision, either then or later, but instead filed an amended complaint. At trial before Judge Woodrow B. Seals, Jr., a jury heard testimony from experts on both sides about whether the article implicitly advocated the practice it described or was likely to incite readers to attempt the act. The jury ruled for the plaintiffs, awarding Troy's mother $69,000 in actual and $100,000 in punitive damages, and young Andy Vines $3,000 in actual and $10,000 in punitive damages. Hustler moved for a judgment not withstanding verdict or for a new trial. The district court denied both motions. Hustler appealed the decision to the U.S Circuit Court of Appeals in New Orleans in April, 1987.

Hustler relied on the Brandenberg case. It asserted that in order for plaintiffs to win, they had to prove that autoerotic asphyxiation is a lawless act, that the magazine advocated the act, that the publication of "Orgasm of Death" was beyond "mere advocacy" to incitement, and that the incitement was directed to imminent action. Hustler argued that the article warned against the behavior rather than advocated it. Furthermore, while admitting that autoerotic asphyxiation was dangerous, Hustler argued that it was not illegal under Texas law and, therefore, the magazine could not be found guilty of advocating a lawless act.

The appeals court found in Hustler's favor, ruling "we hold that liability cannot be imposed on Hustler on the basis that the article was an incitement to attempt a potentially fatal act without impermissibly infringing upon freedom of speech," and "no fair reading of it can make its content advocacy, let alone incitement to engage in the practice." The court relied heavily upon and discussed the Brandenburg standard. It laid out its rational in a series of logical steps.

First, the court stated, "One of our basic constitutional tenets...forbids the state to punish protected speech, directly or indirectly, whether by criminal penalty or civil liability." Second, it acknowledged that "some types of speech are excluded from, or entitled only to narrowed constitutional protection." It included incitement to imminent lawless activity as one of the excluded categories, but concluded: "Whatever the problems created in attempting to categorize speech...the Hustler article fits none of them." Third, the appellate court acknowledged that "freedom of speech is not absolute...regulation of expression is not forbidden by the first amendment," so long as "the state interest is compelling and the means of regulation narrowly tailored to accomplish a proper state purpose." The court then applied a balancing test. It balanced the interest of the state -- "the important social goal of protecting the lives of adolescents like Troy" -- and "the danger that unclear or diminished standards of first amendment protection may both inhibit the expression of protected ideas by other speakers and constrict the right of the public to receive those ideas."

The court reminded the plaintiffs that they had not appealed the district court's dismissal of their original causes of action. The matter before the jury as well as the appellate court was solely the issue of "whether, as a matter of law, the language of 'Orgasm of Death' may be defined as incitement for purposes of removing the speech from the purview of first amendment protection." It found that "under Brandenburg...the article was entitled to first amendment protection." In Brandenburg, according to the court, "neither the statute nor the state court's jury instruction distinguished between advocacy and incitement to imminent lawless action." The Herceg court found that the Hustler article neither advocated nor incited behavior. As a result, "we need not decide whether Texas law made autoerotic asphyxiation illegal or whether Brandenburg is restricted to the advocacy of criminal conduct."

The plaintiffs had relied on the Weirum case in which the California supreme court held that

[an RKO] radio station could be held liable for wrongful death damages arising from an accident caused when two youths who listened to a promotional broadcast engaged in a street race in order to be the first to reach the site at which the station had announced prize money could be given away.

The appeals court distinguished Weirum as an effort to achieve a commercial result by the act advocated, whereas Hustler, "at least in the explicit meaning of the words employed, attempts to dissuade its readers from conducting the dangerous activity." Footnoting to Virginia State Board of Pharmacy v. Virginia Consumer Council, the court set aside the Weirum rational:

Because the speech challenged was merely a promotional device to encourage listeners to continue listening to the radio station, it may have been entitled only to limited first amendment protection.

While the Hustler article was not political speech, the court held that Brandenburg still applied. It stated that "the Supreme Court generally has not attempted to differentiate between different categories of protected speech for the purposes of deciding how much constitutional protection is requried." If they did, according to the court, "an article discussing the nature and danger of 'crack' usage -- or of hang-gliding -- might lead to liability just as easily."

Judge Edith H. Jones concurred and dissented with the majority position in a lengthy opinion. She agreed that "the undeniable novelty of plaintiff's 'incitement' theory does not permit us fairly to support the judgment below." However, she believed that the tort claim was defensible and claims of "negligence and attractive nuisance seem theoretically appropriate." Her primary cause of concern was

the majority's broad reasoning which appears to foreclose the possiblity that any state might choose to temper the excesses of the pornography business by imposing civil liability for harms it directly causes.... Why cannot the state...fashion a remedy to protect its children's lives when they are endangered by suicidal pornography?

With repeated references to the Meese Commission report on pornography, Judge Jones argued that "Hustler is not a bona fide competitor in the 'marketplace of ideas,'" but is largely pornographic. "The article trades on the symbiotic connection between sex and violence." She concluded:

In sum, as Hustler knew, the article is dangerously explicit, lethal, and likely to be distributed to those members of society who are most vulnerable to its message.... Hustler's publication of this particular article bears the seeds of tort liability....

Judge Jones agreed that the article did not "conveniently match the current categories of speech defined for first amendment purposes." She argued that a new category should be fashioned "on a par with Dun & Bradstreet's 'private speech' or with commercial speech, for the purposes of permitting tort lawsuits...." She argued that such as category would be reasonable, given "the fact that only one lawsuit was filed in regard to 'Orgasm of Death.'" She also argued that the "slippery slope" argument -- if Hustler was found liable so would the publisher of an article on hang-gliding -- to be strained. "This case is not a difficult one in which to vindicate Troy's loss of life."

Diana Herceg and Andy Vines filed a writ of certiori to the United States Supreme Court, which denied certiori on March 21, 1988.

ROLE OF THE MEDIA -- LITERARY, SCIENTIFIC, POPULAR PRESS

"Autoerotic sexual asphyxia has always been an enigma to investigators, since practitioners of this form of behavior have apparently arrived at this practice independently of one another, and there does not appear to be an 'autoerotic underground'." Nevertheless, there is "a flourishing market for pornographic literature on the themes of domination and submission, flaellation and bondage." In a study of nine male practitioners of bondage, solicited by an article and advertisement entitled "Whips, Chains and Leather," researchers determined that all were aware of the pornographic bondage literature and one third of those interviewed claimed they had been strongly influenced by it.

In one instance the pathological autopsy revealed that victim had watched, about two weeks before his death, "a sexual oriented television program" with a co-worker. The program included a five-minute segment on sexual asphyxia with "comments about the possibility of accidental death" resulting from such practices. The victim was reported to have remarked: "Wow, how could someone die from that?" He was also reported to have made "repeated references to the television program, inquiring about how such 'hanging' could cause death."

With the exception of the book Autoerotic Fatalities, there has been no comprehensive coverage of the general subject. There has been no systematic study of the media's portrayal or reporting of autoerotic behavior, especially asphyxia. The literary media has portrayed sexual asphyxia in an attractive or at least not strongly negative light -- witness Billy Budd, De Sade's Justine, Ewers' Alraune, the play Waiting for Godot, or the movies "The Ruling Class" and "In the Realm of the Senses." Other than in the most general terms, the literary portrayals are not how-to descriptions. At the other extreme is the scientific media -- forensic, pathological, behavioral, law enforcement, medical, etc. The scientific press portrays the act in its most negative, deadliest light. The coverage is almost always of a case study nature. It often provides the most graphic details. Photographs of sexual asphyxia practices, such as body positions and hanging devices, are readily available in the scientific -- forensic and psychological -- literature. Much like building a hydrogen bomb from the public literature, as in The Progressive case, one could learn how-to from the scientific literature. In fact, the primary material in the Hustler article was adapted from an article in the Journal of Child Psychology.

The news media, in all of its variations, have portrayed autoerotic asphyxia in a negative light, sometimes in detail, although more often in sketchy terms. Likewise, when compared with the scientific literature, the news media is generally neither comprehensive nor particularly accurate. The predominant focus on youthful male deaths tends to imply that women and older people are not "at risk." The stories have appeared in different categories -- spot news, such as The Telegraph coverage, which is case-specific; investigative news, such as the Brody piece in The New York Times; advice and self-improvement feature columns, stories and television shows, such as Ann Landers, the Vanity Fair article, and the Oprah show; and the soft-pornography "men's press," such as Playboy and the Hustler article, both of which claim to serve an informational role, similar to the Ann Landers, Vanity Fair and Oprah material.

It is through the professional and scientific literature that law enforcement, medical and psychological personnel are learning about the phenomenon and how to deal with it. This is part of the obvious educational and informational role played by the media. It is from these same sources, directly or via officials who have read it, that the news media and popular press obtain their information. In most cases, including the claims of the Hustler editors, the popular press extends the educational and informational role to the general public.

As with O'Bryan and Tony D., where do people get the information and impetus to commit the acts? There have been no studies into the relationship of autoerotic behavior and fatalities, and media use. The only findings related to media use or consumption is the fairly regular presence of pornographic materials among the "fantasy aids" found at the scene of death. These materials appear to be aids to the act, much like ropes and harnesses, rather than causes of the act.

Does the impetus or incitement for this behavior come from the media? Again, there is no systematic data, either in the law enforcement or communciation literature. Although the data is incomplete, Hazelwood indicates that the FBI does not see any trend of learning the behavior from the media. Based on the data available to the FBI, which is antecdotal, it appears that "word-of-mouth" (interpersonal communication) is the primary source of the learned behavior, especially among young people. The secondary source appears to be self-experimentation (intrapersonal communication). With regard to the former, the next question is where did the flow of information begin -- with mass media or with experimentation? Lazarfeld, Katz and Berelson's famous concept of a "two-step" information flow and its progeny come to mind. The two-step model suggests that most people obtain information that affects their opinions and behavior from other people rather than directly from the mass media. Likewise, autorerotic behavior may be originally learned from self-experimentation (intra-personal) or exposure to some message in the mass media -- literary, scientific or popular -- and then transmitted interpersonally. The research has not yet been done.

CONCLUSION -- ABOUT THE MEDIA

What, then, can we conclude at this point? Most obvious is that the research is incomplete. Special Agent Hazelwood succinctly summarized the problem: "Police officers are investigators, not reserachers." Law enforcement and medical personnel are trained to investigate the immediate case and collect evidence that will permit a determination of cause of death -- how the victim died. Rarely do they have the time, skill or inclination to dig further and try to identify the underlying motivations -- why the victim died. For the purpose of better understanding the role of the media, investigators need to ask questions as to how the deceased learned of the behavior and from where the deceased obtained the information necessary to engaged in the behavior. This data needs to be collected on a detailed and systematic basis. The investigation of every autoerotic fatality must include these questions. The data must not be just categorized as experimental (intrapersonal), interpersonal or mass media. The investigators must try to identify the specific source of the information -- not for the purpose of pressing criminal charges, but for the purpose of better understanding the cause and spread of this behavior. In effect, we need to be able to track the flow of information. If the information came from the media, the investigators must try to identify which media (especially newspapers, magazines, television, movies and videos), and, if possible, the title of the actual publication or show. If the information was interpersonal, they must try to identify who provided it -- a peer of the deceased (school or officemate), elder, etc. -- again, not for the purpose of pressing criminal charges, but to better understand the source and spread of the behavior.

Hazelwood indicates that there is a growing awareness among law enforcement, forensic, medical and other officials, as well as among friends and parents, of the problem. The result, he believes, is better investigations, resulting in better forensic data. While the stigma attached to autoerotic fatalities still exists, he believes that friends and relatives of the victims are better able to cope with the crisis. Perhaps, our society is even developing better preventative measures.

Where is this improvement coming from? Probably through some form of communication -- both interpersonal and mass. Investigators call experts on the subject; parents speak to doctors; experts give papers at conferences. Law enforcement officials read the forensic literature; doctors and coroners read professional journals; the public read articles in newspapers and magazines, and watch television shows. Whether directly or through a "two-step" flow, the professionals and public are learning about the phenomenon.

As this paper began, it ends -- questioning the role of the media in (1) possibly inciting or spreading the behavior and, at the same time, (2) providing the necessary information to understand and possibly prevent the behavior. The inconclusive evidence favors the latter. The antecdotal evidences appears to indicate that the media is not inciting the behavior. Instead, the media may be helping us to understand the problem. Of course, there is little evidence to prove at that the media is successful educating the general public.

There is the question of the type of media involved. Practitioners of autoerotic behavior routinely use pornographic literature to inspire their masterbation. They are not, however, likely to look up the forensic literature or use the New York Times. This raises the Hustler case and its role in educating versus inciting. Hustler, probably better than most other publications, reaches the autoerotic audience. Thus, it (and similar publications) can play a crucial role. The article, "Orgasm of Death" promoted itself as education. Diane Herceg tried to argue that it was, instead, incitement.

CONCLUSION -- ABOUT THE LAW

There are at least two forums for discussion of causation -- the legal and the medical. Until more is understood about the workings of the human mind and body, forensic science and psychiatry are still short of an answer. Their results will undoubtly influence the law, especially in the area of insurance litigation. Until medical science and communication studies undetake more extensive research, the problem of liability for caustion of autoerotic fatalities will remain in the courts.

The courts have acted, in an unspoken attempt to resolve the education - incitement issue. The Hustler decision, relying on Brandenburg, reaffirmed the distinction between advocacy of an idea or position and incitement to imminent action. The Hustler court extended the distinction to some stage, though undefined, less than advocacy. This is the stage of education or information. So long as the publication is education/information or "mere advocacy," under current law, it will not be liable for caustion of auoterotic fatalities. For Diane Herceg and the original Hustler jury, this may fly in the face of gut-reaction. Tony was found hanging with the Hustler article, even if merely informing him about autoerotic asphyxiation and its dangers, spread at his feet.

No decision has clarified the meaning of the words "advocating" or "directing" in Brandenburg, although Greenawalt argues that the latter is an "intention" requirement. This distinction, if developed by the courts, may help clarify and preserve the separation between education/information and advocacy of unpopular ideas, and incitement. This is especially important as the number of "imitation" crimes and actions grow. It is also important if the tort of negligent publication of truthful information is expanded, as Judge Jones has advocated. If the distinction is not preserved, publishers and authors will be increasingly held liable for the crimes and torts of criminals and tort-feasors, rather than the criminals and tort-feasors themselves.

This distinction will also help establish and clarify the balance between regulation and protection of expression that is accorded a lesser standard of First Amendment protection. The results of social science research, such as data on the flow of information concerning autoerotic asphyxia, may also prove useful. The current standard is a balance between the compelling state interest, implemented by means of regulation narrowly tailored for a proper state purpose, versus the array of First Amendment interests and concerns. Social science research may quantitatively support the current reading of the law -- that mere advocacy (as well as mere information) are insufficient to incite imminent action.

As unsavory as Hustler may be, any artifical distinction between it and other publications, as advocated by Judge Jones dissent, will grease the "slippery slope." The literary, scientific and popular press have provided as many, if nor more, details about autoerotic asphyxia than did Hustler. Instead of the analogy of an article on hang-gliding, used by the Hustler majority, they should have used an article from the Journal of Child Psychiatry or the Journal of Forensic Science. Would Judge Jones hold these professional and scientific journals, necessary for the understanding and prevention of this form of behavior, liable for Tony's death? We should hope not, otherwise the necessary open and unhindered discussion so fundamental to the principles of the First Amendment will be censored for fear of liability, not just criminal, but also civil.