[Fwd: SPJ FOI Alert - "Hit Man" decision a landmark battle]

A.C. Szul mack97 at EROLS.COM
Thu Dec 18 16:31:38 MST 1997

Society of Professional Journalists wrote:
> December 18, 1997
> To:     FOI Activists
> From:   Kyle E. Niederpruem, FOI Chairwoman
>         nkyle at aol.com
>         (800) 639-7827
> Re:     FOI Alert Volume 3 Issue 2 (1997-98)
> 1st of 2 pages
> "Hit Man" decision a landmark battle
>         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=92s 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. " =85 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.=20
>         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 Hit Man 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." =20
>         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=92s=
>  website
> at the following websites:
> =
>         http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=3D4th&navby=3Dcase&no=
> =3D962412P
>         http://www.law.emory.edu/4circuit/nov97/962412.p.html
>         or by calling Julie Grimes at SPJ at (765) 653-3333 ext. 218.


"The sharpest tool in the shed." -- anonymous

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