Was Christian Bale's Terminator tirade illegal?

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Feb. 4 2009 6:36 PM

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Was Christian Bale's Terminator tirade illegal?

Christian Bale. Click image to expand.
Christian Bale

A recording of Christian Bale's outburst at a cinematographer on the set of Terminator Salvation leaked onto the Internet Monday, causing great embarrassment for the actor and the production studio, Warner Bros. In a three-minute expletive-laced tirade, Bale yells at the director of photography for walking into the frame and threatens to "kick [his] fucking ass." (Audio here; full transcript here.) Is verbal abuse ever illegal?

Yes. The First Amendment protects all kinds of insulting language but not speech that qualifies as "fighting words." In the 1942 case Chaplinsky v. New Hampshire, the Supreme Court defined fighting words as language that creates the threat of immediate physical conflict or that "by [its] very utterance inflict[s] injury." For Bale to be found liable in a civil suit, the plaintiff would first have to establish that the actor's words could easily have led to blows.

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Litigious victims of verbal abuse generally sue for either assault or emotional distress. Assault is defined to include a threatening gesture that would lead a reasonable person to fear imminent harmful contact, like pointing a gun and saying, "I'll shoot!" To prove emotional distress, the plaintiff must show that the aggressor's behavior was "outrageous"—defined by one law book as a case "in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!' " Secondly, he must demonstrate that the distress was absolutely unendurable.

Verbal abuse might also be punishable under broad rubrics like "disorderly conduct" or "disturbing the peace." But such statutes generally only apply to public places. In a private setting, like a Hollywood set, there's no public peace to disturb.

Bonus Explainer: Did the leaked audio violate a confidentiality agreement? Almost certainly. Most production companies these days require actors, designers, grips, and everyone else on-set to sign contracts that include confidentiality or nondisclosure agreements. (Sample here.) If the audio of Bale's freakout was leaked to the press by someone who worked on the film, chances are that person was breaching his or her contract. It's also possible the audio leaked after Warner Bros. sent it to their insurance company. (Warner Bros. was concerned Bale might bail.) In that case, the leak would probably violate a confidentiality agreement written into the contract with the insurer. And even if there was no explicit nondisclosure provision, there's a reasonable assumption of privacy in the relationship between insurer and insured that could merit legal action.

Got a question about today's news? Ask the Explainer.

Explainer thanks Don Herzog of University of Michigan, Stephen Sheppard of Cowan, DeBaets, Abrahams & Sheppard, Stephen Solomon of New York University, and Eugene Volokh of University of California, Los Angeles.

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