This will be our third post on Garth Ennis’s Preacher (one, two), the irreverent, humorous, disturbing comic from the 1990s. This one’s about a character Vertigo had to call “You-Know-Who” because DC apparently wouldn’t allow the word “arse” to appear on a cover. The character is somewhat of a tragi-comic figure. He grew up in an abusive household and attempted suicide shortly after Kurt Cobain killed himself, only to end up with severe facial deformities rather than dead. But he winds up in some rather interesting legal situations as the series goes on, and we’re going to take a look at those this time around.
So after swearing vengeance on Jesse and the gang, Arseface catches up with them in a diner, only to realize he doesn’t actually want to go through with it. Jesse feels bad for him, and Arseface winds up tagging along until the crew gets to New Orleans… where Arseface is discovered by a record label while singing with a band. He winds up becoming a major national sensation, and one wonders if maybe, just maybe Ennis is offering some commentary on the state of American culture in general and pop music in particular.
Anyway. He deals with the sudden fame and fortune fairly well, and never seems to stop being a rather sweet guy, all things considered. The trouble is that he gets hit with a few dozen lawsuits seeking several hundred million dollars in damages. The plaintiffs? The families of teenagers who tried to duplicate Arseface’s apparent route to success, i.e. shooting their faces off with a shotgun. This works about as well as one might expect, and the few that don’t end up dead are comatose.
Thing is, there doesn’t really seem to be any liability here. Arseface hasn’t done or said anything which could remotely be considered to promote shooting yourself in the face. People made that connection on their own. Two things here. First, the First Amendment is most definitely in play. Americans enjoy the freedom of speech, which includes most especially artistic expression. Suing someone for things that they say is something the courts tend to take a very dim view of, as awarding damages amounts to the government punishing someone for their speech. This is why, for example, the truth of a statement is generally a complete defense to a claim of defamation: you can call someone anything you like, provided it’s true and you can prove it. The First Amendment protects that kind of speech. Even the disclosure of private information is permissible under certain circumstances. So the plaintiffs are going to have to show some pretty terrible facts to survive a First Amendment defense, and really, unless they can find Arseface going on record encouraging people to do what he did, the plaintiffs might actually be vulnerable to a motion to dismiss for failure to state a claim.
But second… where’s the negligence? The elements of negligence are 1) the breach, of 2) a duty, which 3) is the proximate cause, of 4) damages. Well we’ve certainly got damages. But artists don’t really owe any kind of duty to the people that listen to their music, read their works of fiction, etc. But even if there was such a duty, how has he breached it? He hasn’t told anyone to do anything. Really, his songs seem to be incomprehensible covers of saccharine pop staples, and his interviews rival William Hung for sheer banality. So it’s not like he’s doing or saying anything people haven’t heard before. No breach. And even if there was a breach, how did it cause the damages? Suicide is an intentional act, and unlike when Jesse uses The Word, Arseface doesn’t have any particular influence over anyone. Certainly no more than any other pop star does. And he isn’t directing his music or message at anyone in particular. Any self-harm that someone commits, even if they claim it was inspired by his music, is going to be really, really hard to link to Arseface in a way that a judge is going to recognize as constituting proximate cause.
Ultimately, there just doesn’t seem to be any way of establishing negligence here. This would amount to something equivalent to suing rappers for encouraging criminal behavior: it just doesn’t work. Even where a plaintiff was shot by a rapper, the judge threw out the case against the label, as there was no real basis for the lawsuit. The appeals court affirmed, because the shooter wasn’t an employee of the label at the time of the shooting, so in the absence of a respondeat superior argument, the plaintiff didn’t have a leg to stand on.
Even if there were liability, the writers have massively overvalued these cases, saying the plaintiffs are claiming a total of $208 million. First of all, plaintiffs’ attorneys generally don’t put a demand for a specific amount in their complaints when there’s any possibility of a jury awarding serious money, which is the only way these claims get to $208 million. If a claim is easy to calculate, e.g. we know how much it costs to fix a car, so here’s a demand for $24,309.34, then there might be a demand for that, but otherwise, damages are left up to juries to determine. But second, wrongful death claims aren’t actually worth that much, particularly for teenagers. Half a million, maybe a million or two, tops. Teenagers (usually) don’t have jobs or educations to speak of, nor any dependents or heirs, so there really aren’t any economic damages. As a result, damages are calculated based on things like “loss of love and affection” for the parents, and now we’re only talking a few hundred grand. Even a guy who was earning $250,000 a year and could be expected to do so for another twenty years would only rack up $5 million in lost income over the rest of his life, and that ought to be discounted for its present value anyway. It’s sort of perverse, but wrongful death cases are, on average, a lot cheaper than bodily injury cases.
So though Ennis does seem to enjoy making fun of Americans and our legal system at various points throughout the series, this particular arc doesn’t hold water. There’s no way these lawsuits would even come close to $208 million in value—about $7 million each!—and there isn’t even really a good theory for establishing liability anyway.