David Ortiz of the Boston Red Sox is often called a "Yankee-killer" because he seems to love batting against New York Yankees pitching, particularly in clutch moments. And with the Red Sox playing the Yankees in New York this week, Mike Vacarro and editors of the New York Post thought it would be wise to post a headline suggesting that Yankees pitchers throw pitches that nearly hit him. Here is the backpage of yesterday's Post:
And in his corresponding article "It's About Time the Bombers Drop David," Vacarro writes:
"The Yankees have to droppy Papi. They need to brush the beast back. They need to pick out one of David Ortiz' chins and let a little music dance across the whiskers. And they need to do this immediately. Across the next three days, Randy Johnson, Mike Mussina and Shawn Chacon will each get three or four shots to put Ortiz on notice that, on behalf of the entire Yankee pitching staff, they are mad as hell.
In many ways, the headline and article are a tribute to Ortiz. He's clearly "in the head" of the Yankees and their media and fans. And as alluded in the excerpt above, Vacarro's piece lauds Ortiz, even calling him "otherworldly" when playing against the Yankees.
So is there any concern with the headline? Well, what would happen if a Yankees pitcher throws at Ortiz this series and hits him in the head or face, causing him a serious, perhaps career-threatening injury? Likely to happen? Nope. Possible? Sure. Pitchers don't have perfect command of their pitches, and if they were to throw at Ortiz to brush him back from the plate and accidentally (recklessly) hit him, we might wonder if the New York Post would have anything to worry about legally.
Ortiz might try two tort claims in this imagined scenario. Specifically, he might sue the Post for battery or negligence. Let's take battery first. Battery is an intentional tort that protects against physical harm. But intent is key, and for that reason, it's unlikely to provide a recourse for Ortiz: a headline or story suggesting that a player be harmed, or risk being harmed (as can happen with a brush-back pitch) is not the same thing as intending that he be harmed or be exposed to the risk of that harm.
And not surprisingly, media and entertainment ventures are seldom held liable for battery resulting from a published work. One exception (as my Torts students know all-too-well from their final exam yesterday!), concerned Soldier of Fortune Magazine, which published personal ads that solicited murder (see Braun v. Soldier of Fortune Magazine, 968 F.2d 1110 (11th Cir. 1992)). The magazine was held liable for publishing the content that led to the murders, with the court reasoning that the magazine could have easily corrected the problem in advance by editing the ad or providing a disclaimer. But more generally, this argument doesn't work. And that is one of the reasons why tort lawsuits or threatened tort lawsuits against the makers of violent films (e.g., Natural Born Killers) or violent video games (the sublime Grand Theft Auto: San Andreas) almost always fail.
More likely, if he brought a lawsuit, Ortiz would sue the Post under a negligence theory, alleging that the Post owed and failed to satisfy a duty of care to him, and that the failure was a legally-recognizable cause of his harm. While I think Ortiz could make a fairly compelling argument that a newspaper owes a duty to not incite specific violence against a player, I see causation as a major problem here. While the Post is indeed influential, it certainly doesn't dictate the decisions of the New York Yankees, and its influence on the Yankees is speculative, at best. On the other hand, causation can sometimes be inferred from evidence that the defendant's negligence made the outcome more likely, but again, what would that evidence be in this circumstance? Would it take a conversation between Mike Mussina and Joe Torre that went something like this?:
Torre: I think we need to brush Ortiz back. He's killing us, and the whole world seems to agree--just look at this headline.While that kind of conversation might be fun for a torts exam, it's obviously not believable. And even if it were, what about the obvious intervening cause: a New York Yankees pitcher, and not anyone at the Post, hitting Ortiz with a pitch? Granted, proximate cause sometimes enables an intervening act to not break the causal nexus between a plaintiff and defendant, particularly if the defendant had foresight as to the intervening cause (here, a Yankees pitcher throwing at Ortiz and exposing him to the risk of being hit), but media and entertainment companies can typically point to intervening cause as a way of breaking a causal nexus.
Mussina: I agree.
Moreover, using tort law to seek redress for media headlines may run into constitutional hurdles and first amendment protection, particularly since the "danger" evoked by a headline seems far from substantially certain, which, among other things, is normally required to overcome a first amendment hurdle.
Bottom Line: While headlines like "Drop Papi" may be in poor taste, it's tough to imagine a scenario whereby they trigger any liability under tort law. And for a wonderful and in-depth study of the relationship between media and tort law, check out the following article by Professor David Robertson of the University of Texas School of Law: "Incitement and Tort Law," 37 Wake Forest Law Review 957 (2002).
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