Herndon v. Netflix, Inc.

Lawsuits targeting First Amendment-protected expression threaten the speech of large streaming services and independent creators alike. Freedom of speech includes the right to promote your speech to an audience, and fictional works that portray difficult topics, including suicide, don’t lose constitutional protection just because their creators recommend them to others.

The family of a 15-year-old girl, who tragically committed suicide in 2017 after watching the drama series 13 Reasons Why, sued Netflix, claiming the streaming company should not have recommended the series to its users and its content warnings were inadequate for the show’s fictional portrayal of suicide. The U.S. District Court for the Northern District of California dismissed the claims under California’s anti-SLAPP (Strategic Lawsuits Against Public Participation) statute, ruling Netflix’s creation and promotion of 13 Reasons Why were acts of protected speech on a public issue. 

On June 12, 2023, FIRE joined an amicus curiae brief with PEN America, the National Coalition Against Censorship, and the Student Press Law Center, arguing that the United States Court of Appeals for the Ninth Circuit should affirm the district court’s ruling. Authored by Professor Eugene Volokh and his students at UCLA School of Law’s First Amendment Clinic, the brief explains that from Romeo and Juliet to Dead Poets Society, fictional works that discuss suicide are protected by the First Amendment. And just as bookstore employees recommend novels to customers, streaming services have the right to promote their shows and movies to users. Lawsuits seeking to censor the creation or promotion of speech threaten anyone that tries to engage an audience with challenging material. 

In February 2024, the Ninth Circuit ruled in favor of Netflix and dismissed the case on procedural grounds without reaching the First Amendment issues.