PEN America and 3 Other Free Speech Groups File Amicus Brief in 1st Amendment Herndon v. Netflix Case
Legal Filing Argues that Netflix Can’t be Held Liable for Depicting Suicide in Fictional Series Under 1st Amendment
FOR IMMEDIATE RELEASE
(NEW YORK) – PEN America, the Foundation for Individual Rights and Expression (FIRE), the National Coalition Against Censorship (NCAC), and the Student Press Law Center (SPLC) on Monday jointly filed an amicus brief to support the First Amendment rights of Netflix in a lawsuit over the series 13 Reasons Why, which depicted suicide.
Netflix is being sued for damages following a 15-year-old girl’s tragic suicide after watching the series. The lawsuit filed in 2022 by the girl’s father, John Herndon of Livermore, CA, alleged that viewers were not adequately warned or shielded from the show’s content. A federal judge dismissed Herndon v. Netflix in 2022; Herndon has appealed.
In its amicus brief, the four free speech organizations argued that the program is fully protected under the First Amendment and therefore Netflix cannot be held liable for the death.
The brief states: “Suicide is an enduring, though tragic, facet of human existence. Many great works of literature, history, and religion depict it, and those works are routinely taught to teenagers. For just some of the most famous literary examples, consider Shakespeare’s Romeo and Juliet, Othello, and Julius Caesar, as well as the novels Anna Karenina, Madame Bovary, Les Miserables, The Catcher in the Rye, and The Great Gatsby. … Yet all the books, plays, and films that include such suicides are of course fully protected by the First Amendment, whether or not they include minors among their audience, and however they may be sold or marketed.”
Kate Ruane, Sy Syms director of the U.S. Free Expression programs at PEN America, said: “Understandably it is difficult to adhere to principles when faced with a tragedy like this one. But to hold Netflix liable in this case would violate constitutional protections, court precedent and, in addition to chilling Netflix’s speech, would undoubtedly risk chilling the speech of other writers, filmmakers, artists and creators on sensitive topics like suicide, drug addiction, or mental health.”
“The plaintiff’s demands fail to take into account the far-reaching ramifications of excluding groups of ‘impressionable audiences’ from essential conversations, blocking student journalists from engaging and informing their peers in an era already fraught with misinformation,” said Jonathan Gaston-Falk, staff attorney for the Student Press Law Center.
FIRE Attorney Jeff Zeman said: “Freedom of speech isn’t the freedom to speak in a vacuum; it necessarily includes the right to promote your speech to an audience. Whether it’s Romeo and Juliet, Dead Poets Society or 13 Reasons Why, fictional works that portray difficult topics like suicide don’t lose their First Amendment protection just because their creators seek to find an audience.”
About PEN America
PEN America stands at the intersection of literature and human rights to protect open expression in the United States and worldwide. We champion the freedom to write, recognizing the power of the word to transform the world. Our mission is to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible. Learn more at pen.org.
Contact: Suzanne Trimel, [email protected], 201-247-5057