Lawyers are calling it a landmark First Amendment battle, a recent U.S. appeals court ruling that a book publisher can be held liable for a triple murder committed by one of its readers.

"Hit Man," published by Palladin Enterprises, is not protected First Amendment speech according to the 3-0 ruling issued in November.

What follows in this alert is an analysis of the lengthy opinion from the Society's counsel, Baker & Hostetler. The firm wrote a brief in the case. Other media groups also support the publisher’s position including The Washington Post. Co. and The New York Times Co.

Denver attorney Thomas B. Kelly represented the publisher and says he will seek review at the U.S. Supreme Court.

The ruling now clears the way for a damage suit to be brought by a homicide victim's sister who claims the publisher aided and abetted the murder. On March 3, 1993, James Perry murdered Mildred Horn, her eight-year-old quadriplegic son Trevor, and Trevor's nurse, Janice Saunders. Perry was hired by Horn’s ex-husband to commit the killings so he would receive a $2 million settlement his son had received for his injuries.

Here"s an interesting side note found in the opinion on Page 40. The court notes that "Hit Man" is not available in most bookstores but requires a search process through catalogues and mail orders to obtain. " 1û4 a jury need not, but could permissibly find that Hit Man is not at all distributed to the general public and that, of people interested in learning from and being trained by a self-described professional killer in various methods of killing for money, individuals who are then contemplating or highly susceptible to the commission or murder."

There is no plainer way to say this except that the court is wrong. I ordered "Hit Man" from a Borders bookstore in Indianapolis. The book took only a few days to arrive. For more information, see the Baker & Hostetler note on the next page.

The following text is from Baker & Hostetler:

A case that already had a tragic and bloody background, Rice v. Palladin Enterprises, Inc. now threatens to do serious harm in the First Amendment area. This civil tort action was instituted by relatives of victims of a triple homicide in Maryland who alleged that a book publisher aided and abetted these crimes by publishing a "how to" guide for murderers. A copy of Hit Man: A Technical Manual for Independent Contractors was found among the belongings of James Perry, who was hired to commit the killings.

The plaintiffs' case was unsuccessful in the U.S. District Court for the District of Maryland before Judge Alexander Williams, Jr., who ruled in 1996 that the First Amendment barred the claim as a matter of law. But an angry and unfortunately repressive opinion from a three-judge panel of the United States Court of Appeals for the Fourth Circuit reversed the District Court's grant of summary judgment in favor of Paladin and remanded the case for trial. Paladin intends to seek a re-hearing en banc and, if necessary, certiorari in the United States Supreme Court.

The opinion, which was written by Judge Luttig, is most noteworthy for its outrage over the Hit Man book. Much of the 65-page opinion is devoted to selective excerpting of the book, designed to support Judge Luttig's view that it is "pure and simple, a step-by-step murder manual, a training book for assassins." As was apparent from oral argument, the judge's emotional assessment of the book's social merit leads him inexorably to a result-oriented finding that the book is not deserving of First Amendment protection from civil liability.

In doing so, the judge relies heavily upon the stipulations that the parties entered into solely for purposes of the motion for summary judgment, especially, the unfortunate stipulation that the publisher "intended to attract and assist criminals and would-be criminals who desire information and instructions on how to commit crimes and 'intended' and had knowledge that HitMan actually would be used by criminals to plan and execute the crime of murder-for-hire." The court characterizes these stipulations as "almost taunting defiance" and is clearly infuriated by them. In haste to reach a desired result, the opinion fluctuates between an attitude that the case is "unique in the law" and a concession that the decision "may not bode well for those publishers, if any, of factually detailed instructional books, similar to Hit Man, which are devoted exclusively to teaching the techniques of violent activities that are criminal, per se."

Today, Hit Man. Tomorrow, whatever words, rap lyrics or graphic depictions of violence that outrages another judge.

In our view, the court mischaracterizes the Hit Man book and seriously misstates the legal positions of Paladin and the amici. (Baker & Hostetler prepared amicus briefs for a broad media coalition before both the trial and appellate courts.) The circuit also finds it "breathtaking" (rather than "admirable" or "helpful") that the amici "[felt] obliged to vigorously defend Paladin's assertion of a constitutional right." In this regard, the Court simply ignores the opening paragraph of the amici brief, which stated:

While people who live in a society afflicted with growing violence do not condone the content of the Paladin Press books at issue here, the amici can see no principled distinction between constitutional protection for the type of information found in these books and protection for identical or similar information found in a vast array of fiction, nonfiction, music, electronic communication, and video programming. The history of First Amendment jurisprudence in the United States repeats a theme that echoes once again in this lawsuit: from the unscrupulous rag sued in Near v. Minnesota, 283 U.S. 697 (1931), to the vulgarities of Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), and the passionate issue of flag burning in Texas v. Johnson, 491 U.S. 397 (1989), it is most often the speech at the fringes of American life that defines the freedoms for those at the center.

NOTE: The text of the court’s decision can be found at the Society’s website at the following websites:

http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=4th&navby=case&no=962412P

http://www.law.emory.edu/4circuit/nov97/962412.p.html

or by calling SPJ's communications director at 317/927-8000, spj@spj.org.