Helen A. Anderson, The Freedom to Speak and the Freedom to Listen: The Admissibility of the Criminal Defendant's Taste in Entertainment, 83 Or. L. Rev. 899 (2004), https://digitalcommons.law.uw.edu/faculty-articles/222
Oregon Law Review
In Part I of this Article, I will establish that the First Amendment protects both consumers and producers of expression, although the scope of consumer protection has not been greatly elaborated. Part II discusses attempts to hold the entertainment industry liable for crimes by third persons, as well as legislative efforts to restrict or ban certain kinds of entertainment or art deemed to cause violence. For the most part, these efforts against producers have failed.
Part III then shows how a criminal defendant's viewing, listening, or reading habits may be used as evidence against that defendant, and that the constitutional implications of such evidence are rarely discussed. Part IV looks at the analogous issue of First Amendment associational evidence in criminal cases, showing that while the Supreme Court has established that such evidence may violate the Constitution, the lower courts have collapsed the constitutional question into one of relevance with a loose, discretionary standard of review.
Part V discusses whether the apparently disparate treatment of consumers and producers under the First Amendment is a really an inconsistency, and examines several counterarguments. Part VI then recommends a change in the approach to admission of evidence of consumption of entertainment or art in criminal trials. The showing of relevancy should be more rigorous, the standard of review should be less deferential, and the harmless-error analysis should be appropriate for a constitutional error.