"Defendants concede, for purposes of this [summary judgment] motion, and for no other purposes, that ... in publishing, marketing, advertising and distributing Hit Man and Silencers, defendants intended and had knowledge that their publications would be used, upon receipt, by criminals and would-be criminals to plan and execute the crime of murder for hire, in the manner set forth in the publications."
So stipulated Paladin Enterprises Inc., publisher of a book (Hit Man) that was used by a real hired killer, James Perry, to plan and execute three murders in Silver Spring, Md. Subtitled A Technical Manual for Independent Contractors, the book describes itself as "an instruction book on murder."
None of this has stopped media groups and free speech advocates-including the National Association of Broadcasters, the Association of American Publishers, the Reporters Committee for Freedom of the Press, and the Society of Professional Journalists-from rushing to the defense of Paladin's First Amendment right to publish its murder manual with impunity.
While Perry sits on death row, these groups have joined in an amicus brief seeking summary judgment for Paladin and its owner, Peder Lund, in damage suits brought by survivors of the three victims. In March 1993, Perry shot Mildred Horn and her son's nurse, Janice Saunders, three times each in the eyes (as advised by Hit Man); he smothered Horn's quadriplegic eight-year-old son, Trevor, and pulled his breathing tube. The killer, who followed some 20 tips from Hit Man, was hired by the boy's father, Lawrence Horn, who had hoped to inherit $1.7 million that his son had received in a malpractice settlement.
The First Amendment issue is pending before Judge Alexander Williams Jr. of the U.S. District Court in Greenbelt, Md., who heard arguments on July 22. Meanwhile, some members of the First Amendment bar seem horrified that a leading scholar, Rodney Smolla, is helping the plaintiffs sue the publisher for aiding and abetting murder.
I like my freedom of speech as well as the next fellow, but I'm with Smolla on this one-at least on the summary judgment issue. A murder manual intentionally marketed to would-be contract killers (along with assorted fantasists and others) doesn't strike me as the kind of "freedom of speech" that the framers sought to protect.
In the words of First Amendment champion Zechariah Chafee, "When A urges B to kill C and tells him how he can do it, this has nothing to do with the attainment and dissemination of truth." The same is true when A's instructions are published to the world rather than being whispered into B's ear.
Nor can I buy the claim in the amicus brief by leading media litigator Bruce Sanford that this lawsuit threatens "a devastating impact on the marketplace of ideas" because there is "no principled distinction between constitutional protection for the type of information found in [Hit Man] and protection for identical or similar information found in a vast array of fiction, nonfiction, music and video programming."
How about the distinction stressed by the plaintiffs? As they point out, Hit Man's 130 pages evidence what the defense has stipulated: that the publisher intended to profit by offering would-be killers detailed advice on how to commit murder without being caught. I don't know of many other publishes who act with such intent, or why any who do should be shielded from liability.
This is not to say that the case is as easy as the plaintiffs suggest or to deny that an unduly broad ruling against Paladin could pose significant slippery-slope problems, with a chilling effect on artistic expression.
It's true, as Paladin's lawyers and amici stress, that many mass-marketed books, movies, and other works contain information about murder techniques just as graphic as that in Hit Man, which itself seems fanciful at points-as does the author's pseudonym, "Rex Feral."
(Seeking to minimize any slippery-slope problem, the plaintiffs claim that future publishers could easily avoid liability "through such cosmetic devices as dressing up a how-to book as a work of fiction." I'm not so sure. If the evil intent were really clear, why should a murder manual win protection by masquerading as a novel?)
It's also true that there is more evidence that some actual murders, other crimes, and suicides have been caused by popular movies, writings, and songs than that Perry's murders were caused by Hit Man.
It's father true that while no reputable publisher "intends" to facilitate murder-in the sense of publishing with that purpose-many arguably have depicted violent crimes or fantasies with "reckless disregard" for the possibility that they might inspire copycat, crimes. Unless the courts define "intent" more narrowly in this context than in many others- as they should-a flood of litigation could indeed ensue.
And it's true that a ruling against Paladin could narrow somewhat the protection that advocacy of unlawful acts has enjoyed under the rule of the 1968 Supreme Court decision in Brandenburg v. Ohio: "[T]he constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
Paladin's lawyers claim that Hit Man did not cause "imminent" lawless action. It was first published a decade before the murders, and was ordered by Perry more than a year before them. But Paladin has stipulated that it intended that would-be killers would put Hit Man to use "upon receipt." Sounds pretty imminent to me.
In any event, the Brandenburg line of cases is distinguishable. They focused mainly on revolutionary political rhetoric and mass protests. And the Court's purpose was to draw a line between abstract advocacy of violence and actual face-to-face incitement, which tends to produce violent behavior either right away or not at all. Where something like a murder manual is involved, violent intent may foreseeably lead to violent results even absent "imminence" in the strict sense.
Would Paladin's illustrious amici advocate similar protection for, say, the publisher of a manual for terrorists that spells out in detail how to smuggle bombs onto airplanes? Or how to steal nuclear materials from Russia, build a nuclear device, smuggle it into New York City, and blow up a few million people? How "imminent" would the intended explosion have to be to satisfy Brandenburg? Is the Constitution a suicide pact?
The hardest question lurking in cases like this one is whether the courts should begin to carve out a new category of unprotected speech, in response to a danger that seemed remote at the time of Brandenburg but now seems very real: the publication of works that brazenly seek and foreseeably cause the slaughter of innocents.
Consider The Turner Diaries, by William Pierce, the racist tract that contains precise instructions for building a bomb from fuel oil and fertilizer and delivering it to a federal building in a rented van. It was closely read by Timothy McVeigh before the Oklahoma City bombing, of which he is accused. Should this sort of speech be protected?
The Supreme Court already denies protection to other narrowly defined categories of speech that do great harm while adding little or nothing to the dissemination of truth. Libel and obscenity laws, for example, have not produced nightmares of censorship. And the evils against which they are aimed are surely no more grave than murder.
A strong case could therefore be made for imposition not only of tort liability, but also of criminal sanctions and even (in cases of extreme danger) prior restraints, were it clear that works like The Turner Diaries and Hit Man actually cause murders that would not otherwise occur.
But it's not clear. Would there have been an Oklahoma City bombing had there been no Turner Diaries? Conceivably not. Would the Silver Spring murders have occurred had there been no Hit Man? Probably so. It's also possible that such works may avert some violence by providing fantasy-world outlets to twisted people who might otherwise commit violent crimes. On the other hand, such works may make some crimes more deadly or difficult to solve.
In a society that is committed to the free flow of information and ideas-including those of virulent and unpopular critics of the established order-and that is unavoidably awash in news and entertainment about violence, we cannot and should not seek to stamp out all speech that might inspire or facilitate violent crimes. But we should stamp out the worst of it, through cautious, case-by-case adjudication.
The issue of the moment is whether to shield from tort liability a publisher who sells a murder manual with the intent and effect of facilitating murders. The answer should be no.