The Freedom to Speak and the Freedom to Listen: The Admissibility of the Criminal Defendant's Taste in Entertainment

Abstract

This article contrasts the First Amendment rights of producers of popular culture with those of the consumers of that culture when cultural works are alleged to have caused crime. The First Amendment protects both speakers and listeners. Producers, creators and distributors of movies, books, music or videogames have successfully invoked the First Amendment as a defense against civil suits alleging their works incited murder. Yet evidence that a criminal defendant had a taste for certain movies, music or other cultural works is frequently admitted in support of the prosecution's case, often without consideration of the defendant's First Amendment rights and with questionable relevance. Producers have the right to sell anything in our marketplace of ideas, yet consumers may be blamed for their choices. The article examines the reasons for this difference in treatment and suggests ways in which the criminal defendant's First Amendment consumer rights can be better protected, while recognizing that there can be no absolute bar to evidence of the defendant's viewing, reading or listening habits.

Keywords: Evidence, First Amendment, Popular Culture