A Judicial Teaching Point: The Lesson of the Late Justice John Paul Stevens in Sony V. Universal City Studios as a Response to Civil Lawfare

Abstract

Gun-control proponents, unable to enact their favored gun control measures via democratic means, often engage in lawfare against gun manufacturers and distributors — i.e., warfare by means of litigation and other legal processes, designed to penalize financially such businesses with a view toward putting them out of business altogether. Courts presiding over these cases should take a lesson from the late Supreme Court Justice John Paul Stevens. He authored the 1984 decision in Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 ( the “Betamax” case), in which movie production companies tried to use the courts — and not the legislature — to outlaw the selling of video cassette records, or VCRs, on the grounds that they could be used by criminals to infringe upon the studios’ copyrights. The Supreme Court’s ruling in that case, which refused to hold sellers of VCRs liable for the harms caused by third-party misuse of the product, is equally applicable to manufacturers of firearms that some seek to ban. Just as VCRs were widely and predominantly used for legitimate, unobjectionable purposes in the 1980s and 1990s, the same can be said for firearms today. Justice Stevens, who decades later advocated for the repeal of the Second Amendment, sat in the same seat as today’s judges before whom warfare against the gun industry is currently being waged. But when the studios sought to accomplish through the courts what they could not accomplish through the legislature (the imposition of financially devasting legal liability arising from the conduct of unaffiliated third parties), Justice Stevens and our highest court said, “No.” In 2005, Congress passed the Protection of Lawful Commerce in Arms Act (“PLCAA”), which was inspired by the same sentiment implicit in the Justice Stevens’s Betamax ruling, i.e., the desire to stem the tide of liability suits against gunmakers and sellers for the criminal misuse of guns by individuals over whom the gun manufacturers had no control or relationship. Recently, litigants have tried (with some success) to exploit loopholes in the PLCAA. Such lawsuits are not necessarily meant to win in court. They are often motivated partially, if not entirely, by political desires to rid American society of gun manufacturers by intentionally and effectively driving them out of business due to the onerous cost of civil lawfare. If successful, the gun control lobby will have succeeded in accomplishing through the courts something that they were unable to accomplish in the legislative or political sphere: eliminating the manufacture and sale of firearms in the United States. The Betamax decision represents an important — but, until now, mostly overlooked — judicial teaching moment. Justice Stevens’ reasoning and the language and purpose of the PLCAA should be considered by today’s courts when deciding lawsuits against the gun industry for harms caused by criminal third parties.