Rice v. Paladin Enterprises, Inc. , 128 F.3d 233 ( 1997 )

Filed: December 4, 1997
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 96-2412
(CA-95-3811-AW)
Vivian Rice, etc., et al,
Plaintiffs - Appellants,
versus
The Paladin Enterprises, etc.,
Defendant - Appellee.
O R D E R
The Court amends its opinion filed November 10, 1997, as
follows:
On page 28, first paragraph, line 29 -- the cross-reference is
corrected to read "infra at 39-44."
On page 29, first paragraph, line 14 -- the cross-reference is
corrected to read "infra at 37-38."
On page 30, first full paragraph, line 18 -- the opening quo-
tation mark before the phrase "to be represehensible" is deleted.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
VIVIAN RICE, Guardian and next
friend of Tamielle Horn; MARILYN
FARMER, Co-personal representatives
of the estate of Mildred Horn;
TIFFANI M. HORN, Co-personal
representatives of the estate of
Mildred Horn; MICHAEL D.
SAUNDERS, Individually and next
friend of Colin D. Saunders, a
minor and personal representative of
the estate of Janice Y. Saunders;
COLIN D. SAUNDERS; JANICE Y.
SAUNDERS,
Plaintiffs-Appellants,
v.
No. 96-2412
THE PALADIN ENTERPRISES,
INCORPORATED, a/k/a The Paladin
Press,
Defendant-Appellee,
and
PETER C. LUND,
Defendant.
DAVID CRUMP, Professor of
Constitutional Law and Recipient of
"Friend of the First Amendment"
Award; NATIONAL VICTIM CENTER;
STEPHANIE ROPER FOUNDATION,
INCORPORATED; VICTIMS RIGHTS
POLITICAL ACTION COMMITTEE; THE
HORROR WRITERS ASSOCIATION; THE
THOMAS JEFFERSON CENTER FOR THE
PROTECTION OF FREE EXPRESSION;
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION; AMERICAN CIVIL
LIBERTIES UNION OF THE NATIONAL
CAPITOL AREA; AMERICAN CIVIL
LIBERTIES UNION OF COLORADO; ABC,
INCORPORATED; AMERICA ONLINE,
INCORPORATED; ASSOCIATION OF
AMERICAN PUBLISHERS; THE
BALTIMORE SUN COMPANY; E.W.
SCRIPPS COMPANY; FREEDOM TO READ
FOUNDATION; MAGAZINE PUBLISHERS
OF AMERICA, INCORPORATED;
MCCLATCHY NEWSPAPERS,
INCORPORATED; MEDIA GENERAL, INC.;
MEDIA PROFESSIONAL INSURANCE;
NATIONAL ASSOCIATION OF
BROADCASTERS; NEWSPAPERS
ASSOCIATION OF AMERICA; THE NEW
YORK TIMES; THE REPORTERS
COMMITTEE FOR FREEDOM OF THE
PRESS; SOCIETY OF PROFESSIONAL
JOURNALISTS; THE WASHINGTON POST,
Amici Curiae.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Alexander Williams, Jr., District Judge.
(CA-95-3811-AW)
Argued: May 7, 1997
Decided: November 10, 1997
Before WILKINS, LUTTIG, and WILLIAMS, Circuit Judges.
_________________________________________________________________
2
Reversed and remanded by published opinion. Judge Luttig wrote the
opinion, in which Judges Wilkins and Williams joined.
_________________________________________________________________
COUNSEL
ARGUED: Rodney Alan Smolla, Marshall-Wythe School of Law,
COLLEGE OF WILLIAM & MARY, Williamsburg, Virginia, for
Appellants. Thomas Buchan Kelley, FAEGRE & BENSON, L.L.P.,
Denver, Colorado, for Appellee. ON BRIEF: John Marshall, MOL-
DAWER & MARSHALL, Rockville, Maryland; Howard Siegel,
Rockville, Maryland; Thomas L. Heeney, HEENEY, ARMSTRONG
& HEENEY, Rockville, Maryland, for Appellants. Steven D. Zans-
berg, FAEGRE & BENSON, L.L.P., Denver, Colorado; Lee Levine,
Seth D. Berlin, LEVINE, PIERSON, SULLIVAN & KOCH, L.L.P.,
Washington, D.C., for Appellee. David Crump, UNIVERSITY OF
HOUSTON LAW CENTER, Houston, Texas, for Amicus Curiae
Crump. Neal Goldfarb, D. Thomas Nelson, Russell Butler, Charles G.
Brown, INGERSOLL & BLOCH, Washington, D.C., for Amici
Curiae National Victim Center, et al. Douglas E. Winter, BRYAN
CAVE, L.L.P., Washington, D.C., for Amicus Curiae Horror Writers
Association. Robert M. O'Neil, J. Joshua Wheeler, THE THOMAS
JEFFERSON CENTER FOR THE PROTECTION OF FREE
EXPRESSION, Charlottesville, Virginia; Dwight H. Sullivan,
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF
MARYLAND, Baltimore, Maryland; Arthur Spitzer, AMERICAN
CIVIL LIBERTIES UNION OF THE NATIONAL CAPITAL
AREA, Washington, D.C.; Mark Silverstein, AMERICAN CIVIL
LIBERTIES UNION OF COLORADO, Denver, Colorado, for Amici
Curiae Thomas Jefferson Center, et al. Bruce W. Sanford, Henry S.
Hoberman, Michael J. Lorenger, BAKER & HOSTETLER, L.L.P.,
College Park, Maryland, for Amici Curiae ABC, et al.
_________________________________________________________________
OPINION
LUTTIG, Circuit Judge:
To Those Who Think,
To Those Who Do,
To Those Who Succeed.
3
Success is nothing more than taking advantage
of an opportunity.
A WOMAN RECENTLY ASKED HOW I could, in good conscience,
write an instruction book on murder.
"How can you live with yourself if someone uses what you write to
go out and take a human life?" she whined.
I am afraid she was quite offended by my answer.
It is my opinion that the professional hit man fills a need in society
and is, at times, the only alternative for "personal" justice. Moreover,
if my advice and the proven methods in this book are followed, cer-
tainly no one will ever know.
[A]lmost every man harbors a fantasy of living the life of Mack
Bolan or some other fictional hero who kills for fun and profit. They
dream of living by their reflexes, of doing whatever is necessary with-
out regard to moral or legal restrictions. But few have the courage
or knowledge to make that dream a reality.
You might be like my friends -- interested but unsure, standing on
the sidelines afraid to play the game because you don't know the
rules. [But] within the pages of this book you will learn one of the
most successful methods of operation used by an independent con-
tractor. You will follow the procedures of a man who works alone,
without backing of organized crime or on a personal vendetta. Step
by step you will be taken from research to equipment selection to job
preparation to successful job completion. You will learn where to find
employment, how much to charge, and what you can, and cannot, do
with the money you earn.
But deny your urge to skip about, looking for the "good" parts.
Start where any amateur who is serious about turning professional
will start -- at the beginning.
[And when] [y]ou've read all the suggested material, you [will
have] honed your mind, body and reflexes into a precision piece of
4
professional machinery. You [will have] assembled the necessary
tools and learned to use them efficiently. Your knowledge of dealing
death [will have] increased to the point where you have a choice of
methods. Finally, you [will be] confident and competent enough to
accept employment.
[When you go to commit the murder, you will need] several (at
least four or five pairs) of flesh-tone, tight-fitting surgical gloves. If
these are not available, rubber gloves can be purchased at a reason-
able price in the prescription department of most drug stores in boxes
of 100. You will wear the gloves when you assemble and disassemble
your weapons as well as on the actual job. Because the metal gun
parts cause the rubber to wear quickly, it is a good practice to change
and dispose of worn gloves several times during each operation.
[The bag you take to the kill also] should contain a few pairs of
cheap handcuffs, usually available at pawn shops or army surplus
stores.
Dress, as well as disguises, should be coordinated according to the
job setting.
Black, dark brown or olive green clothes do not stand out and will
probably appear at first glance to be a mechanic or delivery driver's
uniform. . . . And underneath, you can wear your street clothes for a
quick change after the job is completed.
The kill is the easiest part of the job. People kill one another every
day. It takes no great effort to pull a trigger or plunge a knife. It is
being able to do so in a manner that will not link yourself or your
employer to the crime that makes you a professional.
[If you decide to kill your victim with a knife,] [t]he knife . . .
should have a six-inch blade with a serrated edge for making effi-
cient, quiet kills.
The knife should have a double-edged blade. This double edge,
combined with the serrated section and six-inch length, will insure a
deep, ragged tear, and the wound will be difficult, if not impossible,
to close without prompt medical attention.
5
Make your thrusts to a vital organ and twist the knife before you
withdraw it. If you hit bone, you will have to file the blade to remove
the marks left on the metal when it struck the victim's bone.
Using your six inch, serrated blade knife, stab deeply into the side
of the victim's neck and push the knife forward in a forceful move-
ment. This method will half decapitate the victim, cutting both his
main arteries and wind pipe, ensuring immediate death.
[You might also use an ice pick to murder your victim.] . . . An ice
pick can . . . be driven into the victim's brain, through the ear, after
he has been subdued. The wound hardly bleeds at all, and death is
sometimes attributed to natural causes.
[If you plan to kill your victim with a gun,] you will learn [on the
following pages] how to make, without need of special engineering
ability or expensive machine shop tools, a silencer of the highest
quality and effectiveness. The finished product attached to your 22
will be no louder than the noise made by a pellet gun. Because it is
so inexpensive (mine cost less than twenty dollars to make), you can
easily dispose of it after job use without any great loss. . . . Your first
silencer will require possibly two days total to assemble . . . as you
carefully follow the directions step by step. After you make a couple,
it will become so easy, so routine, that you can whip one up in just
a few hours.
The following items should be assembled before you begin [to build
your silencer]:
- Drill rod, 7/32 inch (order from a machine shop if not obtainable
locally)
- One foot of 1-1/2 inch (inside diameter) PVC tubing and two end
caps
- One quart of fiberglass resin with hardener
- One yard thin fiberglass mat
[List continues]
6
[If you plan to kill your victim with a gun,][c]lose kills are by far
preferred to shots fired over a long distance. You will need to know
beyond any doubt that the desired result has been achieved.
When using a small caliber weapon like the 22, it is best to shoot
from a distance of three to six feet. You will not want to be at point-
blank range to avoid having the victim's blood splatter you or your
clothing. At least three shots should be fired to ensure quick and sure
death.
[If you plan to kill your victim from a distance,] use a rifle with a
good scope and silencer and aim for the head -- preferably the eye
sockets if you are a sharpshooter. Many people have been shot
repeatedly, even in the head, and survived to tell about it.
The rifle has a ridge on top that will easily accept a scope, even
though it is not cut for one. Put the scope in place, tighten it down,
then sight it in. After sighting in, scratch a mark behind each scope
clamp to allow remounting of the scope without resighting each time.
Extra clips are a must for both the rifle and pistol and should be
carried as a precautionary measure. Hollow-point bullets are recom-
mended because they deform on impact, making them nontraceable.
As an added precaution, you can fill the hollows with liquid poison
to insure success of your operation. . . . [Details follow]
To test your guns and ammunition, set up a sheet of quarter-inch
plywood at distances of two to seven yards maximum for your pistol,
and twenty to sixty yards maximum for your rifle. Check for penetra-
tion of bullets at each range. Quarter-inch plywood is only a little
stronger than the human skull.
If the serial number is on the barrel of the gun, grinding deeply
enough to remove it may weaken the barrel to the point that the gun
could explode in your face when fired. To make these numbers
untraceable, [instructions follow].
[After shooting your victim] run a [specified tool] down the bore
of the gun to change the ballistic markings. Do this even though you
7
intend to discard the crime weapon. . . . If, for some reason, you just
can't bear to part with your weapon . . . alter the[specified parts of
the gun according to the directions that follow].
Although several shots fired in succession offer quick and rela-
tively humane death to the victim, there are instances when other
methods of extermination are called for. The employer may want you
to gather certain information from the mark before you do away with
him. At other times, the assignment may call for torture or disfigure-
ment as a "lesson" for the survivors.
There is no end to the various ways of torturing a mark until he
would tell you what you want to know, and die just to get it over.
Sometimes all it takes is putting a knife to his throat. Not from behind
with the blade across the throat the way they do in the movies, but
from the front with the tip of the blade creasing the soft hollow of the
throat, where the victim can see the gleaming steel and realizes what
damage it would do if fully penetrated.
The only time I can think of that explosives might be in order is
when several marks will be together in one place at the same time,
and you might be able to get them all with one shot. Notice that I
stressed the word might. Shrapnel doesn't always kill. So in the after-
math, it will be your responsibility to enter the area and make sure
that the desired result was accomplished.
[If you plan to kill your victim with a fertilizer bomb,] purchase a
fifty pound bag of regular garden fertilizer from your garden center
[and follow these detailed instructions for constructing the bomb].
Extend the fuse and light . . . .
Arson is a good method for covering a kill or creating an "acci-
dent."
Don't ever use gasoline or other traceable materials to start your
fire. [Specified substance] is your best starter because it burns away
all traces.
[In order to dispose of a corpse,] you can simply cut off the head
after burying the body. Take the head to some deserted location,
8
place a stick of dynamite in the mouth, and blow the telltale dentition
to smithereens! After this, authorities can't use the victim's dental
records to identify his remains. As the body decomposes, fingerprints
will disappear and no real evidence will be left from which to make
positive identification. You can even clip off the fingertips and bury
them separately.
[Or] you can always cut the body into sections and pack it into an
ice chest for transport and disposal at various spots around the coun-
tryside.
If you choose to sink the corpse, you must first make several deep
stabs into the body's lungs (from just under the rib cage) and belly.
This is necessary because gases released during decomposition will
bloat these organs, causing the body to rise to the surface of the
water.
The corpse should be weighted with the standard concrete blocks,
but it must be wrapped from head to toe with heavy chain as well, to
keep the body from separating and floating in chunks to the surface.
After the fishes and natural elements have done their work, the chain
will drag the bones into the muddy sediment. . . .
If you bury the body, again deep stab wounds should be made to
allow the gases to escape. A bloating corpse will push the earth up
as it swells. Pour in lime to prevent the horrible odor of decomposi-
tion, and lye to make that decomposition more rapid.
[After you killed your first victim,] you felt absolutely nothing. And
you are shocked by the nothingness. You had expected this moment
to be a spectacular point in your life. You had wondered if you would
feel compassion for the victim, immediate guilt, or even experience
direct intervention by the hand of God. But you weren't even feeling
sickened by the sight of the body.
After you have arrived home the events that took place take on a
dreamlike quality. You don't dwell on them. You don't worry. You
don't have nightmares. You don't fear ghosts. When thoughts of the
hit go through your mind, it's almost as though you are recalling
some show you saw on television.
9
By the time you collect the balance of your contract fee, the doubts
and fears of discovery have faded. Those feelings have been replaced
by cockiness, a feeling of superiority, a new independence and self-
assurance.
[E]verything seems to have changed.
The people around you have suddenly become so aggravatingly
ordinary. You start to view them as an irritating herd of pathetic
sheep, doing as they are told, doing what is expected, following some-
one, anyone, blindly. You can't believe how dumb your friends have
become, and your respect diminishes for people you once held in awe.
You too have become different. You recognize that you made some
mistakes, but you know what they were, and they will never plague
you again. Next time (and you know there will be a next time), there
will be no hesitation, no fear.
Your experience in facing death head-on has taught you about life.
You have the power and ability to stand alone. You no longer need
a reason to kill.
The things you have learned about life are important. You may
wish to pass on your observations to someone you care about. When
the bullshit starts to flow, you may feel compelled to set the record
straight and tell those morons how it really is. When someone starts
to brag, in confidence, about something he's done, the intimacy of the
moment, the shared confessions, may inspire you to do a little brag-
ging of your own. Or you may want to overawe some new woman in
your life with your masculinity and you feel the urge to shock her just
a little by hinting at your true profession.
Start now in learning to control your ego. That means, above all,
keeping your mouth shut! You are a man. Without a doubt, you have
proved it. You have come face to face with death and emerged the vic-
tor through your cunning and expertise. You have dealt death as a
professional. You don't need any second or third opinions to verify
your manhood.
10
Then, some day, when you've done and seen it all; when there
doesn't seem to be any challenge left or any new frontier left to con-
quer, you might just feel cocky enough to write a book about it.
Selected passages from Hit Man: A Technical Manual for Indepen-
dent Contractors.1
_________________________________________________________________
I.
On the night of March 3, 1993, readied by these instructions and
steeled by these seductive adjurations from Hit Man: A Technical
Manual for Independent Contractors, a copy of which was subse-
quently found in his apartment, James Perry brutally murdered Mil-
dred Horn, her eight-year-old quadriplegic son Trevor, and Trevor's
nurse, Janice Saunders, by shooting Mildred Horn and Saunders
through the eyes and by strangling Trevor Horn. Perry's despicable
crime was not one of vengeance; he did not know any of his victims.
Nor did he commit the murders in the course of another offense. Perry
acted instead as a contract killer, a "hit man," hired by Mildred Horn's
ex-husband, Lawrence Horn, to murder Horn's family so that Horn
would receive the $2 million that his eight-year-old son had received
in settlement for injuries that had previously left him paralyzed for
life. At the time of the murders, this money was held in trust for the
benefit of Trevor, and, under the terms of the trust instrument, the
trust money was to be distributed tax-free to Lawrence in the event
of Mildred's and Trevor's deaths.
In soliciting, preparing for, and committing these murders, Perry
meticulously followed countless of Hit Man's 130 pages of detailed
factual instructions on how to murder and to become a professional
killer.
_________________________________________________________________
1 The foregoing passages have been selected by the court as representa-
tive, both in substance and presentation, of the instructions in Hit Man.
These are but a small fraction of the total number of instructions that
appear in the 130-page manual. And the court has even felt it necessary
to omit portions of these few illustrative passages in order to minimize
the danger to the public from their repetition herein.
11
Perry, for example, followed many of the book's instructions on
soliciting a client and arranging for a contract murder in his solicita-
tion of and negotiation with Lawrence Horn. Cautioning against the
placement of advertisements in military or gun magazines, as this
might prompt "a personal visit from the FBI," Hit Man instructs that
"as a beginner" one should solicit business "through a personal
acquaintance whom you trust." Hit Man at 87. James Perry offered his
services as a professional killer to Lawrence Horn through Thomas
Turner, a "good friend" of Perry's, and Lawrence Horn's first cousin.
State v. Perry, 344 Md. 204, 686 A.2d 274, 278 (1996), cert. denied,
117 S. Ct. 1318 (1997).
Hit Man instructs to request "expense money" from the employer
prior to committing the crime, advising the contract killer to get "all
expense money up front." Hit Man at 92 (emphasis added). The man-
ual goes on to explain that this amount should generally range from
five hundred to five thousand dollars, "depending on the type of job
and the job location," and that the advance should be paid in cash. Id.Prior to commission of the murders, Lawrence Horn paid James Perry
three thousand five hundred dollars through a series of wire transfers
using phony names. Perry, 686 A.2d at 280.
Hit Man instructs that the victim's personal residence is the "initial
choice" location for a murder and "an ideal place to make a hit,"
depending on its "layout" and "position." Hit Man at 81-82. James
Perry murdered the Horns at their place of residence. Perry, 686 A.2d
at 277.
Hit Man instructs its readers to use a rental car to reach the victim's
location, Hit Man at 98, and to "steal an out-of-state tag" and use it
to "replace the rental tag" on the car, explaining that "[s]tolen tags
only show up on the police computer of the state in which they are
stolen." Id. James Perry stole out-of-state tags and affixed them to his
rental car before driving it to the Horns' residence on the night of the
murders. Perry, 686 A.2d at 276.
Hit Man instructs the reader to establish a base at a motel in close
proximity to the "jobsite" before committing the murders. Hit Man at
101. On the night that he killed Mildred and Trevor Horn and Janice
Saunders, James Perry took a room at a Days Inn motel in Rockville,
12
Maryland, a short drive from the Horns' residence. Perry, 686 A.2d
at 276.
Hit Man instructs that one should "use a made-up [license] tag
number" when registering at the motel or hotel. Hit Man at 102.
James Perry gave a false license tag number when he registered at the
Days Inn on the night of the murders. Perry, 686 A.2d at 276.
Hit Man instructs that a "beginner" should use an AR-7 rifle to kill
his victims. Hit Man at 21. James Perry used an AR-7 rifle to slay
Mildred Horn and Janice Saunders. Perry, 686 A.2d at 279.
Hit Man instructs its readers where to find the serial numbers on
an AR-7 rifle, and instructs them that, prior to using the weapon, they
should "completely drill[ ] out" these serial numbers so that the
weapon cannot be traced. Hit Man at 23. James Perry drilled out the
serial numbers of his weapon exactly as the book instructs. Perry, 686
A.2d at 280.
Hit Man instructs in "explicit detail" (replete with photographs)
how to construct, "without [the] need of special engineering ability or
machine shop tools," a homemade, "whisper-quiet" silencer from
material available in any hardware store. Hit Man at 39-51. James
Perry constructed such a homemade silencer and used it on the night
that he murdered Mildred and Trevor Horn and Janice Saunders. J.A.
at 24.
Perry also followed any number of Hit Man's instructions on how
to commit the murder itself. The manual, for example, instructs its
readers to kill their "mark" at close range, so that they will "know
beyond any doubt that the desired result has been achieved." Hit Man
at 24. The book also cautions, however, that the killer should not
shoot the victim at point blank range, because "the victim's blood
[will] splatter [the killer] or [his] clothing." Id. Ultimately, the book
recommends that its readers "shoot [their victims] from a distance of
three to six feet." Id. James Perry shot Mildred Horn and Janice
Saunders from a distance of three feet. J.A. at 24.
Hit Man specifically instructs its audience of killers to shoot the
victim through the eyes if possible:
13
At least three shots should be fired to insure quick and sure
death. . . . [A]im for the head -- preferably the eye sockets
if you are a sharpshooter.
Hit Man at 24. James Perry shot Mildred Horn and Janice Saunders
two or three times and through the eyes. Perry, 686 A.2d at 277.
Finally, Perry followed many of Hit Man's instructions for con-
cealing his murders. Hit Man instructs the killer to "[p]ick up those
empty cartridges that were ejected when you fired your gun." Hit Man
at 104. Although Perry fired his rifle numerous times during the mur-
ders, no spent cartridges were found in the area. Compare Perry, 686
A.2d at 277, with id. at 280.
Hit Man instructs the killer to disguise the contract murder as bur-
glary by "mess[ing] the place up a bit and tak[ing] anything of value
that you can carry concealed." Hit Man at 104. After killing Mildred
and Trevor Horn and Janice Saunders, James Perry took a Gucci
watch, as well as some credit cards and bank cards from Mildred
Horn's wallet. Perry, 686 A.2d at 278. According to the police report,
a few areas of the Horns' residence appeared "disturbed" or "slightly
tossed," and "a rug and cocktail table in the living room had been
moved." Id. at 277.
Hit Man instructs that, after murdering the victims, the killer
should break down the AR-7 in order to make the weapon easier to
conceal. Hit Man at 105. James Perry disassembled his weapon after
the murders, in accordance with the instructions in Hit Man. Perry,
686 A.2d at 280.
Hit Man instructs killers to use specified tools to alter specified
parts of the rifle. Hit Man at 25. The author explains that the
described alterations will prevent the police laboratory from matching
the bullets recovered from the victims' bodies to the murder weapon.
James Perry altered his AR-7 in accordance with these instructions.
Perry, 686 A.2d at 280.
Hit Man also instructs the killer to dispose of the murder weapon
by scattering the disassembled pieces of the weapon along the road
14
as he leaves the crime scene. Hit Man at 105. And, after killing Mil-
dred and Trevor Horn and Janice Saunders, Perry scattered the pieces
of his disassembled AR-7 rifle along Route 28 in Montgomery
County. Perry, 686 A.2d at 280.
In this civil, state-law wrongful death action against defendant Pal-
adin Enterprises -- the publisher of Hit Man -- the relatives and rep-
resentatives of Mildred and Trevor Horn and Janice Saunders allege
that Paladin aided and abetted Perry in the commission of his murders
through its publication of Hit Man's killing instructions. For reasons
that are here of no concern to the court, Paladin has stipulated to a
set of facts which establish as a matter of law that the publisher is civ-
illy liable for aiding and abetting James Perry in his triple murder,
unless the First Amendment absolutely bars the imposition of liability
upon a publisher for assisting in the commission of criminal acts. As
the parties stipulate: "The parties agree that the sole issue to be
decided by the Court . . . is whether the First Amendment is a com-
plete defense, as a matter of law, to the civil action set forth in the
plaintiffs' Complaint. All other issues of law and fact are specifically
reserved for subsequent proceedings." J.A. at 58.
Paladin, for example, has stipulated for purposes of summary judg-
ment that Perry followed the above-enumerated instructions from Hit
Man, as well as instructions from another Paladin publication, How
to Make a Disposable Silencer, Vol. II, in planning, executing, and
attempting to cover up the murders of Mildred and Trevor Horn and
Janice Saunders. J.A. at 61. Paladin has stipulated not only that, in
marketing Hit Man, Paladin "intended to attract and assist criminals
and would-be criminals who desire information and instructions on
how to commit crimes," J.A. at 59, but also that it "intended and had
knowledge" that Hit Man actually "would be used, upon receipt, by
criminals and would-be criminals to plan and execute the crime of
murder for hire." J.A. at 59 (emphasis added). Indeed, the publisher
has even stipulated that, through publishing and selling Hit Man, it
assisted Perry in particular in the perpetration of the very murders for
which the victims' families now attempt to hold Paladin civilly liable.
J.A. at 61.2
_________________________________________________________________
2 The full fact stipulation of the parties reads as follows:
15
Notwithstanding Paladin's extraordinary stipulations that it not
only knew that its instructions might be used by murderers, but that
_________________________________________________________________
JOINT STATEMENT OF FACTS
The parties agree that the matters set forth below represent
facts that the plaintiffs and/or defendants would be able to estab-
lish by affidavit or otherwise in the context of defendants'
motion for summary judgment under F.R.C.P. 56. These facts
are offered only for the purposes of this motion and the parties
specifically reserve the right to contest all statements which fol-
low at any subsequent proceeding in this case. The parties agree
that the sole issue to be decided by the Court in this motion is
whether the First Amendment is a complete defense, as a matter
of law, to the civil action set forth in the plaintiffs' Complaint.
All other issues of law and fact are specifically reserved for sub-
sequent proceedings.
1. Prior to March 3, 1993, Lawrence Horn began plotting
with James Perry of Detroit, Michigan, to have Perry murder his
ex-wife, Mildred Horn, and his son, Trevor.
2. On or about January 24, 1992, James Perry responded to
a catalogue solicitation by the defendant, Paladin, advertising Hit
Man: A Technical Manual for Independent Contractors (herein-
after referred to as "Hit Man"), and How to Make a Disposable
Silencer, Volume 2 (hereinafter referred to as"Silencers"). Perry
ordered both publications. Hit Man and Silencers were mailed to
him by the defendants shortly thereafter.
3. Defendants had no other known contact with Perry and no
contacts with Lawrence Horn.
4. Defendants concede, for purposes of this motion, and for
no other purposes, that:
a. defendants engaged in a marketing strategy intended to
attract and assist criminals and would-be criminals who desire
information and instructions on how to commit crimes; and
b. 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.
c. The conditional factual concessions made in this ¶ 4 relate
only to the defendants' state of mind, and do not preclude defen-
dants from contending that defendants' published words, in and
of themselves, were neither directed at causing imminent unlaw-
16
it actually intended to provide assistance to murderers and would-be
murderers which would be used by them "upon receipt," and that it
_________________________________________________________________
ful action nor likely to produce such action, for purposes of the
doctrine of Brandenburg v. Ohio, 395 U.S. 444 (1969).
5. Plaintiffs concede, for purposes of this motion and for no
other purposes, that:
a. defendants' marketing strategy was and is intended to
maximize sales of its publications to the public, including sales
to (i) authors who desire information for the purpose of writing
books about crime and criminals, (ii) law enforcement officers
and agencies who desire information concerning the means and
methods of committing crimes, (iii) persons who enjoy reading
accounts of crimes and the means of committing them for pur-
poses of entertainment, (iv) persons who fantasize about com-
mitting crimes but do not thereafter commit them, and (v)
criminologists and others who study criminal methods and men-
tality.
b. in publishing, marketing, advertising and distributing Hit
Man and Silencers, as well as other publications, defendants
intended and had knowledge that their publications would be
purchased by members of the general public, including those
persons and for those purposes listed in ¶ 5(a).
c. The conditional factual concessions made in this ¶ 5 shall
not preclude the plaintiffs from contending that such facts are
irrelevant to any issue before this court.
6. On March 3, 1993, James Perry traveled from Detroit,
Michigan to Montgomery County, Maryland and murdered Mil-
dred Horn, Trevor Horn, and Janice Saunders, Trevor's private
duty nurse. Perry followed a number of instructions outlined in
Hit Man and Silencers (set forth in¶ 7 below) in planning, exe-
cuting and attempting to get away with the murders described in
the complaint.
7. Defendants concede, for the purpose of this motion and
for no other purposes, that in publishing, distributing and selling
Hit Man and Silencers to Perry, defendants assisted him in the
subsequent perpetration of the murders which are the subject of
this litigation, in the ways set forth in paragraphs 18 and 19 of
the Rice complaint and paragraphs 20 and 21 of the Saunders
complaint which are incorporated by reference and are filed
herewith as exhibit "D".
17
in fact assisted Perry in particular in the commission of the murders
of Mildred and Trevor Horn and Janice Saunders, the district court
granted Paladin's motion for summary judgment and dismissed plain-
tiffs' claims that Paladin aided and abetted Perry, holding that these
claims were barred by the First Amendment as a matter of law.
Because long-established caselaw provides that speech -- even
speech by the press -- that constitutes criminal aiding and abetting
does not enjoy the protection of the First Amendment, and because
we are convinced that such caselaw is both correct and equally appli-
cable to speech that constitutes civil aiding and abetting of criminal
conduct (at least where, as here, the defendant has the specific pur-
pose of assisting and encouraging commission of such conduct and
the alleged assistance and encouragement takes a form other than
abstract advocacy), we hold, as urged by the Attorney General and the
Department of Justice, that the First Amendment does not pose a bar
to a finding that Paladin is civilly liable as an aider and abetter of
Perry's triple contract murder. We also hold that the plaintiffs have
stated against Paladin a civil aiding and abetting claim under Mary-
_________________________________________________________________
8. Hit Man was first published in 1983 and Silencers was
first published in 1983. Approximately 13,000 copies of Hit Man
and an unknown but not disproportionate number of copies of
Silencers have been sold nationally.
9. At all relevant times, defendants had no specific knowl-
edge (1) that either Perry or Horn planned to commit a crime; (2)
that Perry and Horn had entered into a conspiracy for the pur-
pose of committing a crime; and (3) that Perry had been retained
by Horn to murder Mildred Horn, Trevor Horn, or Janice
Saunders.
10. The defendants' current catalogue, and publications Hit
Man and Silencers are filed herewith by the parties as exhibits
A, B and C, respectively.
11. The parties may file affidavits or supplement but not
alter the foregoing stipulation. Plaintiffs reserve the right to chal-
lenge defendants' affidavits declarations with counter-affidavits
or pursuant to F.R.C.P. 56.
J.A. at 58-62.
18
land law sufficient to withstand Paladin's motion for summary judg-
ment. For these reasons, which we fully explain below, the district
court's grant of summary judgment in Paladin's favor is reversed and
the case is remanded for trial.
II.
A.
In the seminal case of Brandenburg v. Ohio, 395 U.S. 444 (1969),
the Supreme Court held that abstract advocacy of lawlessness is pro-
tected speech under the First Amendment. Although the Court pro-
vided little explanation for this holding in its brief per curiam
opinion, it is evident the Court recognized from our own history that
such a right to advocate lawlessness is, almost paradoxically, one of
the ultimate safeguards of liberty. Even in a society of laws, one of
the most indispensable freedoms is that to express in the most impas-
sioned terms the most passionate disagreement with the laws them-
selves, the institutions of, and created by, law, and the individual
officials with whom the laws and institutions are entrusted. Without
the freedom to criticize that which constrains, there is no freedom at
all.
However, while even speech advocating lawlessness has long
enjoyed protections under the First Amendment, it is equally well
established that speech, which, in its effect, is tantamount to legiti-
mately proscribable nonexpressive conduct, may itself be legitimately
proscribed, punished, or regulated incidentally to the constitutional
enforcement of generally applicable statutes. Cf. Cohen v. Cowles
Media Co., 501 U.S. 663, 669 (1991) (noting "well-established line
of decisions holding that generally applicable laws do not offend the
First Amendment simply because their enforcement against the press
has incidental effects on its ability to gather and report the news"). As
no less a First Amendment absolutist than Justice Black wrote for the
Supreme Court almost fifty years ago in Giboney v. Empire Storage
& Ice Co., in rejecting a First Amendment challenge to an injunction
forbidding unionized distributors from picketing to force an illegal
business arrangement:
It rarely has been suggested that the constitutional free-
dom for speech and press extends its immunity to speech or
19
writing used as an integral part of conduct in violation of a
valid criminal statute. We reject the contention now. . . .
...
. . . It is true that the agreements and course of conduct
here were as in most instances brought about through speak-
ing or writing. But it has never been deemed an abridgment
of freedom of speech or press to make a course of conduct
illegal merely because the conduct was in part initiated, evi-
denced, or carried out by means of language, either spoken,
written, or printed. Such an expansive interpretation of the
constitutional guaranties of speech and press would make it
practically impossible ever to enforce laws against agree-
ments in restraint of trade as well as many other agreements
and conspiracies deemed injurious to society.
336 U.S. 490, 498, 502 (1949) (citations omitted). And as the Court
more recently reaffirmed:
Although agreements to engage in illegal conduct undoubt-
edly possess some element of association, the State may ban
such illegal agreements without trenching on any right of
association protected by the First Amendment. The fact that
such an agreement necessarily takes the form of words does
not confer upon it, or upon the underlying conduct, the con-
stitutional immunities that the First Amendment extends to
speech. [W]hile a solicitation to enter into an agreement
arguably crosses the sometimes hazy line distinguishing
conduct from pure speech, such a solicitation, even though
it may have an impact in the political arena, remains in
essence an invitation to engage in an illegal exchange for
private profit, and may properly be prohibited.
Brown v. Hartlage, 456 U.S. 45, 55 (1982); see also Osborne v. Ohio,
495 U.S. 103, 110 (1990) (quoting Giboney, 336 U.S. at 498); New
York v. Ferber, 458 U.S. 747, 761-62 (1982) (same); Ohralik v. Ohio
State Bar Ass'n, 436 U.S. 447, 456 (1978) (quoting Giboney, 336
U.S. at 502); National Organization for Women v. Operation Rescue,
37 F.3d 646, 656 (D.C. Cir. 1994) ("That ``aiding and abetting' of an
20
illegal act may be carried out through speech is no bar to its illegal-
ity."); United States v. Varani, 435 F.2d 758, 762 (6th Cir. 1970)
("[S]peech is not protected by the First Amendment when it is the
very vehicle of the crime itself."); Laurence H. Tribe, American Con-
stitutional Law 837 (2d ed. 1988) ("[T]he law need not treat differ-
ently the crime of one man who sells a bomb to terrorists and that of
another who publishes an instructional manual for terrorists on how
to build their own bombs out of old Volkswagen parts.").
Were the First Amendment to bar or to limit government regulation
of such "speech brigaded with action," Brandenburg, 395 U.S. at 456(Douglas, J., concurring), the government would be powerless to pro-
tect the public from countless of even the most pernicious criminal
acts and civil wrongs. See, e.g., Model Penal Code § 223.4 (extortion
or blackmail); id. § 240.2 (threats and other improper influences in
official and political matters); id. § 241 (perjury and various cognate
crimes); id. § 5.02 and § 2.06(3)(a)(i) (criminal solicitation); 18
U.S.C. § 871 (threatening the life of the President); Model Penal Code
§ 5.03 (conspiracy); id. § 250.4 (harassment); id. § 224.1 (forgery);id.
§ 210.5(2) (successfully soliciting another to commit suicide); id.
§ 250.3 (false public alarms); and the like. As Professor Greenawalt
succinctly summarized:
The reasons of ordinary penal policy for covering com-
municative efforts to carry out ordinary crimes are obvious,
and the criminal law sensibly draws no distinction between
communicative and other acts. Although assertions of fact
generally fall within a principle of freedom of speech, what
these sorts of factual statements contribute to the general
understanding of listeners is minimal, and the justifications
for free speech that apply to speakers do not reach commu-
nications that are simply means to get a crime successfully
committed.
Greenawalt, Speech, Crime, and the Uses of Language at 85 (1989).
In particular as it concerns the instant case, the speech-act doctrine
has long been invoked to sustain convictions for aiding and abetting
the commission of criminal offenses. Indeed, every court that has
addressed the issue, including this court, has held that the First
21
Amendment does not necessarily pose a bar to liability for aiding and
abetting a crime, even when such aiding and abetting takes the form
of the spoken or written word.
Thus, in a case indistinguishable in principle from that before us,
the Ninth Circuit expressly held in United States v. Barnett, 667 F.2d
835 (9th Cir. 1982), that the First Amendment does not provide pub-
lishers a defense as a matter of law to charges of aiding and abetting
a crime through the publication and distribution of instructions on
how to make illegal drugs. In rejecting the publisher's argument that
there could be no probable cause to believe that a crime had been
committed because its actions were shielded by the First Amendment,
and thus a fortiori there was no probable cause to support the search
pursuant to which the drug manufacturing instructions were found,
the Court of Appeals explicitly foreclosed a First Amendment defense
not only to the search itself, but also to a later prosecution:
To the extent . . . that Barnett appears to contend that he is
immune from search or prosecution because he uses the
printed word in encouraging and counseling others in the
commission of a crime, we hold expressly that the first
amendment does not provide a defense as a matter of law to
such conduct.
Id. at 843 (emphasis in original); see also id. at 842 ("The first
amendment does not provide a defense to a criminal charge simply
because the actor uses words to carry out his illegal purpose. Crimes,
including that of aiding and abetting, frequently involve the use of
speech as part of the criminal transaction."). The Ninth Circuit
derided as a "specious syllogism" with "no support in the law" the
publisher's argument that the First Amendment protected his sale of
the instruction manual simply because the First Amendment protects
the written word. Id. at 842.
The principle of Barnett, that the provision of instructions that aid
and abet another in the commission of a criminal offense is unpro-
tected by the First Amendment, has been uniformly accepted, and the
principle has been applied to the aiding and abetting of innumerable
crimes.
22
Notably, then-Judge Kennedy, in express reliance upon Barnett,
invoked the principle in United States v. Freeman to sustain convic-
tions for the aiding and abetting of tax fraud. 761 F.2d 549, 552-53
(9th Cir. 1985), cert. denied, 476 U.S. 1120 (1986). In Freeman, the
Ninth Circuit concluded that the defendant could be held criminally
liable for counseling tax evasion at seminars held in protest of the tax
laws, even though the speech that served as the predicate for the con-
viction "spr[ang] from the anterior motive to effect political or social
change." 761 F.2d at 551. Said the court:
[T]he First Amendment is quite irrelevant if the intent of the
actor and the objective meaning of the words used are so
close in time and purpose to a substantive evil as to become
part of the ultimate crime itself. In those instances, where
speech becomes an integral part of the crime, a First
Amendment defense is foreclosed even if the prosecution
rests on words alone.
Id. at 552 (citations omitted). Thus, the court held that a First Amend-
ment instruction was required only for those counts as to which there
was evidence that the speaker "directed his comments at the unfair-
ness of the tax laws generally, without soliciting or counseling a vio-
lation of the law in an immediate sense [and] made statements that,
at least arguably, were of abstract generality, remote from advice to
commit a specific criminal act." Id. at 551-52. For those counts as to
which the defendant, through his speech, directly assisted in the prep-
aration and review of false tax returns, the court held that the defen-
dant was not entitled to a First Amendment instruction at all. Id. at
552. See also United States v. Mendelsohn, 896 F.2d 1183, 1186 (9th
Cir. 1990) (holding Brandenburg inapplicable to a conviction for con-
spiring to transport and aiding and abetting the interstate transporta-
tion of wagering paraphernalia, where defendants disseminated a
computer program that assisted others to record and analyze bets on
sporting events; program was "too instrumental in and intertwined
with the performance of criminal activity to retain first amendment
protection").
Our own circuit, and every other circuit to address the issue, has
likewise concluded that the First Amendment is generally inapplica-
ble to charges of aiding and abetting violations of the tax laws. See,
23
e.g., United States v. Kelley, 769 F.2d 215 (4th Cir. 1985); United
States v. Rowlee, 899 F.2d 1275 (2d Cir. 1990), cert. denied, 498 U.S.
828 (1990); United States v. Moss, 604 F.2d 569 (8th Cir. 1979), cert.
denied, 444 U.S. 1071 (1980); United States v. Buttorff, 572 F.2d 619,
623-24 (8th Cir. 1978) (holding that tax evasion speeches were not
subject to Brandenburg because, although they did not "incite the
type of imminent lawless activity referred to in criminal syndicalism
cases," they did "go beyond mere advocacy of tax reform"), cert.
denied, 437 U.S. 906 (1978).
Thus, in Kelley, we held that a defendant who "participate[d]" in
the preparation of false tax forms for others by telling listeners "what
to do and how to prepare the forms" and by supplying forms and
materials was not entitled to the protections of the First Amendment,
769 F.2d at 217, even though the defendant offered his advice in a
meeting of a group concededly dedicated to the political belief "that
the federal income tax is unconstitutional as applied to wages," id. at
216. We observed, as the Ninth Circuit did with respect to the claim
made in Barnett, that,
[t]he claim of First Amendment protection of [Kelley's]
speech is frivolous. His was no abstract criticism of income
tax laws. His listeners were not urged to seek congressional
action to exempt wages from income taxation. Instead, they
were urged to file false returns, with every expectation that
the advice would be heeded.
The cloak of the First Amendment envelops critical, but
abstract, discussions of existing laws, but lends no protec-
tion to speech which urges the listeners to commit violations
of current law. Brandenburg v. Ohio, 395 U.S. 444, 89 S.
Ct. 1827; United States v. Buttorff, 572 F.2d 619 (8th Cir.
1978). It was no theoretical discussion of non-compliance
with laws; action was urged; the advice was heeded, and
false forms were filed.
Kelley, 769 F.2d at 217. Analogously, we held in United States v.
Fleschner, 98 F.3d 155 (4th Cir. 1996), cert. denied, 117 S. Ct. 2484(1997), that defendants who instructed and advised meeting attendees
to file unlawful tax returns were not entitled to a First Amendment
24
jury instruction on the charge of conspiracy to defraud the United
States of income tax revenue because "[t]he defendants' words and
acts were not remote from the commission of the criminal acts." 98
F.3d at 158-59.
Indeed, as the Department of Justice recently advised Congress, the
law is now well established that the First Amendment, and
Brandenburg's "imminence" requirement in particular, generally
poses little obstacle to the punishment of speech that constitutes crim-
inal aiding and abetting, because "culpability in such cases is prem-
ised, not on defendants' ``advocacy' of criminal conduct, but on
defendants' successful efforts to assist others by detailing to them the
means of accomplishing the crimes." Department of Justice, "Report
on the Availability of Bombmaking Information, the Extent to Which
Its Dissemination is Controlled by Federal Law, and the Extent to
Which Such Dissemination May Be Subject to Regulation Consistent
with the First Amendment to the United States Constitution" 37
(April 1997) (footnote omitted) [hereinafter "DOJ Report"]; see also
id. ("[T]he question of whether criminal conduct is ``imminent' is rele-
vant for constitutional purposes only where, as in Brandenburg itself,
the government attempts to restrict advocacy, as such.").3 And, while
_________________________________________________________________
3 Congress, in the Antiterrorism and Effective Death Penalty Act of
1996 ["the AEDPA"], Pub. L. No. 104-132, 110 Stat. 1214, 1297,
required the Attorney General to conduct a study concerning, inter alia,
the extent to which there is available public access to materials instruct-
ing on "how to make bombs, destructive devices, or weapons of mass
destruction"; the application of then-existing federal laws to such materi-
als; and the extent to which the First Amendment protects such materials
and their private and commercial distribution. The statutory mandate to
the Attorney General was prompted by legislation proposed by Senators
Feinstein and Biden in the aftermath of the Oklahoma City bombing,
which would criminalize the teaching or demonstration of the manufac-
ture of explosive materials "if the person intends or knows that such
explosive materials or information will likely be used for, or in further-
ance of" specified criminal offenses.
The AEDPA required the Attorney General to submit to the Congress
a report on these subjects and to make that report available to the public.
Recognizing that the exhaustive legal analysis set forth in that report was
directly relevant to the issues pending before us, the parties jointly
25
there is considerably less authority on the subject, we assume that
those speech acts which the government may criminally prosecute
with little or no concern for the First Amendment, the government
may likewise subject to civil penalty or make subject to private causes
of action. Compare Garrison v. Louisiana, 379 U.S. 64 (1964)
(applying the same "actual malice" standard to both criminal libel
prosecutions and private defamation actions) with New York Times
Co. v. Sullivan, 376 U.S. 254 (1964). Cf. Cohen, 501 U.S. 663 (find-
ing in civil promissory estoppel case that First Amendment does not
bar liability for newspaper's publication of confidential source's
name); Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562(1977) (First Amendment does not bar liability for common law tort
of unlawful appropriation of "right to publicity" where television sta-
tion broadcast "human cannonball" act in its entirety without plain-
tiff's authorization); Harper & Row, Publishers, Inc. v. Nation
Enterprises, 471 U.S. 539 (1985) (rejecting First Amendment defense
to copyright infringement action against magazine for printing unau-
thorized presidential memoir excerpts). Even if this is not universally
_________________________________________________________________
moved for, and we granted them, permission to file the report with the
court. The decision we reach today, which, as noted, was urged upon us
by Attorney General Reno and the Department of Justice, follows from
the principal conclusion reached by the Attorney General and the Depart-
ment in that report:
The First Amendment would impose substantial constraints on
any attempt to proscribe indiscriminately the dissemination of
bombmaking information. The government generally may not,
except in rare circumstances, punish persons either for advocat-
ing lawless action or for disseminating truthful information --
including information that would be dangerous if used -- that
such persons have obtained lawfully. However, the constitutional
analysis is quite different where the government punishes speech
that is an integral part of a transaction involving conduct the
government otherwise is empowered to prohibit; such"speech
acts" -- for instance, many cases of inchoate crimes such as aid-
ing and abetting and conspiracy -- may be proscribed without
much, if any, concern about the First Amendment, since it is
merely incidental that such "conduct" takes the form of speech.
DOJ Report at 2 (emphasis added).
26
so, we believe it must be true at least where the government's interest
in preventing the particular conduct at issue is incontrovertibly com-
pelling.
B.
We can envision only two possible qualifications to these general
rules, neither of which, for reasons that we discuss more extensively
below, is of special moment in the context of the particular aiding and
abetting case before us.
1.
The first, which obviously would have practical import principally
in the civil context, is that the First Amendment may, at least in cer-
tain circumstances, superimpose upon the speech-act doctrine a
heightened intent requirement in order that preeminent values under-
lying that constitutional provision not be imperiled. See, e.g., New
York Times, 376 U.S. 254; cf. United States v. Aguilar, 515 U.S. 593,
605 (1995) (rejecting defendant's First Amendment construction in
part because "the statute here in question does not impose such a
restriction [on the disclosure of wiretap authorizations] generally, but
only upon those who disclose wiretap information``in order to
[ob]struct, impede, or prevent' a wiretap interception" (emphasis
added)); Haig v. Agee, 453 U.S. 280, 308-09 (1981) ("[The defen-
dant's] disclosures, among other things, have the declared purpose of
obstructing intelligence operations and the recruiting of intelligence
personnel. They are clearly not protected by the Constitution."
(emphasis added)); United States v. Featherston, 461 F.2d 1119, 1122
(5th Cir. 1972) (rejecting First Amendment challenge to federal stat-
ute criminalizing the teaching or demonstration of the making of any
explosive device after construing statute to require"intent or knowl-
edge that the information disseminated would be used in the further-
ance of a civil disorder"), cert. denied, 409 U.S. 991 (1972); National
Mobilization Committee to End the War in Viet Nam v. Foran, 411
F.2d 934, 937 (7th Cir. 1969). That is, in order to prevent the punish-
ment or even the chilling of entirely innocent, lawfully useful speech,
the First Amendment may in some contexts stand as a bar to the
imposition of liability on the basis of mere foreseeability or knowl-
edge that the information one imparts could be misused for an imper-
27
missible purpose. Where it is necessary, such a limitation would meet
the quite legitimate, if not compelling, concern of those who publish,
broadcast, or distribute to large, undifferentiated audiences, that the
exposure to suit under lesser standards would be intolerable. See dis-
cussion infra, Part IV. At the same time, it would not relieve from lia-
bility those who would, for profit or other motive, intentionally assist
and encourage crime and then shamelessly seek refuge in the sanctu-
ary of the First Amendment. Like our sister circuits, at the very least
where a speaker -- individual or media -- acts with the purpose of
assisting in the commission of crime, we do not believe that the First
Amendment insulates that speaker from responsibility for his actions
simply because he may have disseminated his message to a wide
audience. See, e.g., Barnett, 667 F.2d 835 (holding that drug manu-
facturing instructions mailed to countless customers with whom the
defendant had no personal contact could give rise to aiding and abet-
ting conviction); Mendelsohn, 896 F.2d 1183 (holding that First
Amendment did not forbid prosecution of aiding and abetting inter-
state transportation of wagering paraphernalia where computer pro-
grams for recording and analyzing illegal wagers were distributed
generally and widely to the public); Buttorff, 572 F.2d at 622-23(affirming, despite First Amendment challenges, convictions for pro-
viding tax-evasion information at "large public gatherings" to partici-
pants whom the defendants did not personally meet); Kelley, 769 F.2d
215 (similar); Moss, 604 F.2d 569 (similar); Freeman, 761 F.2d 549(similar). This is certainly so, we are satisfied, where not only the
speaker's dissemination or marketing strategy, but the nature of the
speech itself, strongly suggest that the audience both targeted and
actually reached is, in actuality, very narrowly confined, as in the case
before us. See discussion infra at 39-44. Were the First Amendment
to offer protection even in these circumstances, one could publish, by
traditional means or even on the internet, the necessary plans and
instructions for assassinating the President, for poisoning a city's
water supply, for blowing up a skyscraper or public building, or for
similar acts of terror and mass destruction, with the specific, indeed
even the admitted, purpose of assisting such crimes -- all with impu-
nity.
We need not engage in an extended discussion of the existence or
scope of an intent-based limitation today, however, because we are
confident that the First Amendment poses no bar to the imposition of
28
civil (or criminal) liability for speech acts which the plaintiff (or the
prosecution) can establish were undertaken with specific, if not crimi-
nal, intent. See DOJ Report at 42-43 (advising that "the government
may punish publication of dangerous instructional information where
that publication is motivated by a desire to facilitate the unlawful
[conduct as to which the instructions inform, or] [a]t the very least,
publication with such an improper intent should not be constitution-
ally protected where it is foreseeable that the publication will be used
for criminal purposes . . . ."). In fact, this conclusion would seem to
follow a fortiori from the Supreme Court's holding in New York
Times, 376 U.S. 254, allowing the imposition of civil tort liability on
a media defendant for reputational injury caused by mere reckless dis-
regard of the truth of its published statements. And, here, as previ-
ously noted, see also discussion infra at 37-38, Paladin has stipulated
that it provided its assistance to Perry with both the knowledge and
the intent that the book would immediately be used by criminals and
would-be criminals in the solicitation, planning, and commission of
murder and murder for hire, and even absent the stipulations, a jury
could reasonably find such specific intent, see discussion infra at 38-
42. Thus, Paladin has stipulated to an intent, and a jury could other-
wise reasonably find that Paladin acted with a kind and degree of
intent, that would satisfy any heightened standard that might be
required by the First Amendment prerequisite to the imposition of lia-
bility for aiding and abetting through speech conduct.4
2.
The second qualification is that the First Amendment might well
(and presumably would) interpose the same or similar limitations
upon the imposition of civil liability for abstract advocacy, without
more, that it interposes upon the imposition of criminal punishment
for such advocacy. In other words, the First Amendment might well
circumscribe the power of the state to create and enforce a cause of
_________________________________________________________________
4 In addition to their aiding and abetting counts, which require that Pal-
adin have acted knowingly or intentionally, the plaintiffs also brought
claims sounding inter alia in negligence and strict liability. The district
court did not address these claims and we do not do so herein. We leave
to the district court on remand the task of addressing these counts in the
first instance.
29
action that would permit the imposition of civil liability, such as aid-
ing and abetting civil liability, for speech that would constitute pure
abstract advocacy, at least if that speech were not "directed to inciting
or producing imminent lawless action, and . . . likely to incite or pro-
duce such action." Brandenburg, 395 U.S. at 447. The instances in
which such advocacy might give rise to civil liability under state stat-
ute would seem rare, but they are not inconceivable. Cf. Schenck v.
United States, 249 U.S. 47 (1919) (criminal conspiracy prosecution
predicated upon subversive advocacy); Frohwerk v. United States,
249 U.S. 204 (1919) (same); Debs v. United States, 249 U.S. 211(1919) (criminal attempt prosecution predicated upon such advocacy).
Again, however, an exhaustive analysis of this likely limitation is not
required in this case.
Here, it is alleged, and a jury could reasonably find, see discussion
infra Part III.A, that Paladin aided and abetted the murders at issue
through the quintessential speech act of providing step-by-step
instructions for murder (replete with photographs, diagrams, and nar-
ration) so comprehensive and detailed that it is as if the instructor
were literally present with the would-be murderer not only in the
preparation and planning, but in the actual commission of, and
follow-up to, the murder; there is not even a hint that the aid was pro-
vided in the form of speech that might constitute abstract advocacy.
As the district court itself concluded, Hit Man "merely teaches what
must be done to implement a professional hit." J.A. at 218. Moreover,
although we do not believe such would be necessary, we are satisfied
a jury could readily find that the provided instructions not only have
no, or virtually no, noninstructional communicative value, but also
that their only instructional communicative "value" is the indisputably
illegitimate one of training persons how to murder and to engage in
the business of murder for hire. See id.; see also id. at 221 ("This
Court, quite candidly, personally finds Hit Man to be reprehensible
and devoid of any significant redeeming social value").
Aid and assistance in the form of this kind of speech bears no
resemblance to the "theoretical advocacy," Scales v. United States,
367 U.S. 203, 235 (1961), the advocacy of "principles divorced from
action," Yates v. United States, 354 U.S. 298, 320 (1957), overruled
on other grounds, Burks v. United States, 437 U.S. 1 (1978), the
"doctrinal justification," id. at 321,"the mere abstract teaching [of]
30
the moral propriety or even moral necessity for a resort to force and
violence," Brandenburg, 395 U.S. at 448 (quoting Noto v. United
States, 367 U.S. 290, 297-98 (1961)), or any of the other forms of dis-
course critical of government, its policies, and its leaders, which have
always animated, and to this day continue to animate, the First
Amendment. Indeed, this detailed, focused instructional assistance to
those contemplating or in the throes of planning murder is the antithe-
sis of speech protected under Brandenburg. It is the teaching of the
"techniques" of violence, Scales, 367 U.S. at 233, the "advocacy and
teaching of concrete action," Yates, 354 U.S. at 320, the "prepar[a-
tion] . . . for violent action and [the] steeling . . . to such action,"
Brandenburg, 395 U.S. at 448 (quoting Noto, 367 U.S. at 297-98). It
is the instruction in the methods of terror of which Justice Douglas
spoke in Dennis v. United States, when he said, "If this were a case
where those who claimed protection under the First Amendment were
teaching the techniques of sabotage . . . I would have no doubts. The
freedom to speak is not absolute; the teaching of methods of terror . . .
should be beyond the pale . . . ." 341 U.S. 494, 581 (1951) (Douglas,
J., dissenting). As such, the murder instructions in Hit Man are, col-
lectively, a textbook example of the type of speech that the Supreme
Court has quite purposely left unprotected, and the prosecution of
which, criminally or civilly, has historically been thought subject to
few, if any, First Amendment constraints. Accordingly, we hold that
the First Amendment does not pose a bar to the plaintiffs' civil aiding
and abetting cause of action against Paladin Press. If, as precedent
uniformly confirms, the states have the power to regulate speech that
aids and abets crime, then certainly they have the power to regulate
the speech at issue here.
III.
The district court's contrary conclusion, reached in an initial and
then an amended opinion, must be attributed ultimately, we believe,
to that court's failure at the time of its initial ruling to realize that
Maryland does recognize a civil cause of action for aiding and abet-
ting. Once the court's error with respect to the existence in Maryland
of a civil aiding and abetting cause of action was brought to the
court's attention by the parties on motion for reconsideration, it
appears that the court was simply unprepared to revisit its decision,
issued only the week before, in order to address the above-discussed
31
cases, which the district court itself had observed are "factually simi-
lar" to the case at hand, J.A. at 156, but which the court had distin-
guished on the ground that they involved criminal prosecutions for
aiding and abetting and Maryland does not provide a civil cause of
action for aiding and abetting. J.A. at 155 ("Plaintiffs are asking the
Court to allow the Defendants to be subjected to civil liability for
murder, based on a theory of civil aiding and abetting - a claim that
does not exist under Maryland law." (emphases added)). Perhaps
ironically, this unwillingness foreordained what was, as we explain
below, the district court's second error in the interpretation of Mary-
land law -- its holding, on reconsideration, that Maryland would not
recognize aiding and abetting liability under the facts as stipulated by
the parties to this litigation, or on the facts as they appear from the
record.
Whatever doubts the district court may have harbored about its
interpretation of Maryland aiding and abetting law were almost cer-
tainly eased because it concluded alternatively (albeit in dicta) that
Hit Man is entitled to the protections of Brandenburg in any event
because it is a mere instructional manual for, and not an incitement
to, murder. However, in this conclusion the district court erred as
well, misunderstanding the Supreme Court's decision in Brandenburg
to protect not just abstract advocacy of lawlessness and the open criti-
cism of government and its institutions, but also the teaching of the
technical methods of criminal activity -- in this case, the technical
methods of murder.
A.
In its initial memorandum opinion, the district court rejected the
plaintiffs' principal argument, that the First Amendment does not bar
the imposition of liability for the aiding and abetting of murder, on
the ground that the State of Maryland does not recognize a civil cause
of action for aiding and abetting:
Plaintiffs argue that Hit Man is not protected by the First
Amendment because the First Amendment does not protect
communication aiding and abetting murder. This argument
must fail, however, because Plaintiffs do not cite, nor has
the Court located, any reported decision that suggests that
32
Maryland recognizes the tort of aiding and abetting. A fed-
eral court sitting in diversity cannot create new causes of
action. Therefore, the Court cannot create a cause of action
for aiding and abetting under Maryland law . . . .
J.A. at 153-54 (footnote and citations omitted). In response to submis-
sions by both parties filed the very next day informing the court that
Maryland does recognize civil aiding and abetting, the district court
was obliged to amend its memorandum opinion to acknowledge the
overwhelming authority that Maryland does, in fact, recognize such
a cause of action. However, rather than address then the numerous
precedents holding that the First Amendment offers little protection
against claims of aiding and abetting criminal conduct, which in its
initial opinion the court had agreed were similar to the instant case,
the district court thereafter merely added to its original memorandum
opinion the single conclusory footnote sentence (together with the
necessary conforming changes to the relevant paragraph from its ini-
tial opinion5) that, "[a]lthough Maryland appears to recognize aider
and abetter tort liability, it has never been applied to support liability
in this context." J.A. at 205 n.2 (internal citation deleted).6 In this
_________________________________________________________________
5 Thus, in relevant part, the amended opinion reads as follows:
Plaintiffs argue that Hit Man is not protected by the First
Amendment because the First Amendment does not protect com-
munication aiding and abetting murder. This argument, the Court
believes, fails, however, because of the absence of any reported
decision suggesting that Maryland extends the tort of aiding and
abetting to the circumstances of this case. A federal court sitting
in diversity cannot create new causes of action. Therefore, the
Court cannot apply a new theory or extend the tort of aiding and
abetting under Maryland law . . . .
J.A. at 205-06 (footnote and citations omitted; emphases added). As evi-
dence of the haste with which the revised analysis was undertaken, the
amended opinion elsewhere still includes a statement of the district
court's initial conclusion that Maryland does not provide a civil cause of
action for aiding and abetting. See id. at 207 ("Plaintiffs are asking the
Court to allow the Defendants to be subjected to civil liability for mur-
der, based on a theory of civil aiding and abetting - a claim that does not
exist under Maryland law.").
6 The issue of whether, under the stipulated facts, Paladin could be held
liable for aiding and abetting under Maryland law was not even before
33
holding, as with its original holding that Maryland did not recognize
a cause of action for civil aiding and abetting, the district court erred.
Maryland's highest court has held that a defendant may be liable
in tort if he "by any means (words, signs, or motions) encourage[s],
incite[s], aid[s] or abet[s] the act of the direct perpetrator of the tort."
Alleco Inc. v. Harry & Jeanette Weinberg Foundation, 340 Md. 176,
665 A.2d 1038, 1049 (1995) (quoting Duke v. Feldman, 245 Md. 454,
226 A.2d 345, 347 (1967)). It further appears that generally Maryland
defines the tort of aiding and abetting in the same way that it defines
the crime of aiding and abetting. The state defines"aider" as one who
"assist[s], support[s] or supplement[s] the efforts of another," and
defines "abettor" as "one who instigates, advises or encourages the
commission of a crime." Anello v. State, 201 Md. 164, 93 A.2d 71,
72-73 (Md. 1952). The Court of Appeals has explained that in order
for a conviction to stand, "it is not essential that there be a prear-
ranged concert of action, although, in the absence of such action, it
is essential that [the defendant] should in some way advocate or
encourage the commission of the crime." Id. And, recently, the court
has reiterated that criminal aiding and abetting "may be predicated
upon counseling or encouraging" a criminal act, even if there is no
agreement between the principal and the aider or abettor, and also that
"[i]t is well settled that aiding and abetting does not always require
a conspiracy." Apostoledes v. State, 323 Md. 456, 593 A.2d 1117,
1121 (1991).
The primary, and possibly only, difference between Maryland's
civil and criminal laws of aiding and abetting is the intent require-
ment. As Judge Learned Hand explained in discussing generally the
difference between civil and criminal aiding and abetting laws, the
intent standard in the civil tort context requires only that the criminal
conduct be the "natural consequence of [one's] original act," whereas
criminal intent to aid and abet requires that the defendant have a "pur-
________________________________________________________________
the district court. In fact, the parties had expressly stipulated that "[t]he
parties agree that the sole issue to be decided by the Court in this motion
is whether the First Amendment is a complete defense, as a matter of
law, to the civil action set forth in the plaintiffs' Complaint. All other
issues of law and fact are specifically reserved for subsequent proceed-
ings." J.A. 58-59.
34
posive attitude" toward the commission of the offense. United States
v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938); see also Nye & Nissen
v. United States, 336 U.S. 613, 619 (1949) (adopting Judge Hand's
view of the criminal intent requirement). We assume that Maryland
prescribes a higher intent standard for the imposition of criminal lia-
bility than it does for civil liability.
Especially in light of the caselaw discussed above, we are satisfied
not only that the Maryland courts would conclude that an aiding and
abetting cause of action would lie in the circumstances of this case,
but also that plaintiffs have, by way of stipulation and otherwise,
established a genuine issue of material fact as to each element of that
cause of action. Perhaps most importantly in this regard, we conclude
that plaintiffs have more than met their burden of establishing a genu-
ine issue of material fact as to Paladin's intent, even assuming that the
First Amendment erects a heightened standard from that required
under Maryland state law.
Paladin itself has stipulated that "Perry followed a number of
instructions outlined in Hit Man" in preparing for and in murdering
Mildred and Trevor Horn and Janice Saunders. J.A. at 61. In fact, as
noted, the publisher has actually stipulated that it assisted Perry in the
"perpetration of the murders." Id.Even without these express stipulations of assistance, however, a
reasonable jury could conclude that Paladin assisted Perry in those
murders, from the facts that Perry purchased and possessed Hit Man
and that the methods and tactics he employed in his murders of Mil-
dred and Trevor Horn and Janice Saunders so closely paralleled those
prescribed in the book. As discussed above, see discussion supra Part
I, Perry followed, in painstaking detail, countless of the book's
instructions in soliciting, preparing for, and carrying out his murders.
Without repeating these in detail here, Perry faithfully followed the
book's instructions in making a home-made silencer, using a rental
car with stolen out-of-state tags, murdering the victims in their own
home, using an AR-7 rifle to shoot the victims in the eyes from point
blank range, and concealing his involvement in the murders. The
number and extent of these parallels to the instructions in Hit Man
cannot be consigned, as a matter of law, to mere coincidence; the cor-
respondence of techniques at least creates a jury issue as to whether
35
the book provided substantial assistance, if it does not conclusively
establish such assistance.
A jury likewise could reasonably find that Perry was encouraged
in his murderous acts by Paladin's book. Hit Man does not merely
detail how to commit murder and murder for hire; through powerful
prose in the second person and imperative voice, it encourages its
readers in their specific acts of murder. It reassures those contemplat-
ing the crime that they may proceed with their plans without fear of
either personal failure or punishment. And at every point where the
would-be murderer might yield either to reason or to reservations, Hit
Man emboldens the killer, confirming not only that he should pro-
ceed, but that he must proceed, if he is to establish his manhood. See
discussion infra at 54-56. The book is so effectively written that its
protagonist seems actually to be present at the planning, commission,
and cover-up of the murders the book inspires. Illustrative of the
nature and duration of the criminal partnership established between
Hit Man and its readers who murder is the following "dialogue" that
takes place when the murderer returns from his first killing:
I'm sure your emotions have run full scale over the past few
days or weeks.
There was a fleeting moment just before you pulled the
trigger when you wondered if lightning would strike you
then and there. And afterwards, a short burst of panic as you
looked quickly around you to make sure no witnesses were
lurking.
But other than that, you felt absolutely nothing. And you
are shocked by that nothingness. You had expected this
moment to be a spectacular point in your life. . . .
The first few seconds of nothingness give you an almost
uncontrollable urge to laugh out loud. You break into a wide
grin. Everything you have been taught about life and its
value was a fallacy.
Hit Man at 107. As this and other cases reveal, the book is arrestingly
effective in the accomplishment of its objectives of counseling others
to murder and assisting them in its commission and cover-up.
36
Finally, and significantly, Paladin also has stipulated to an intent
that readily satisfies that required under Maryland law or the First
Amendment. Even if the First Amendment imposes a heightened
intent-based limitation on the state's ability to apply the tort of aiding
and abetting to speech, see discussion supra at II.B.1, we are confi-
dent that, at the very least, the aiding and abetting of a malum in se
crime such as murder with the specific purpose of assisting and
encouraging another or others in that crime would satisfy such a limi-
tation. Paladin has stipulated not only that it had knowledge that its
publication would be used upon receipt by murderers and other crimi-
nals in the commission of murder, but that it even intended that the
book be so used. Thus, the publisher stipulated, "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." J.A. at 59. Paladin has even stipulated that
it "engaged in a marketing strategy intended to attract and assist crim-
inals and would-be criminals who desire information and instructions
on how to commit crimes." Id. These stipulations are more than suffi-
cient to foreclose an absolute First Amendment defense to plaintiffs'
suit. See DOJ Report at 43 & 44-45 n.71 ("[W]e believe that the dis-
trict court in Rice v. Paladin erred insofar as it concluded that
Brandenburg bars liability for dissemination of[instructions on mur-
der] regardless of the publisher's intent. . . . [Defendant Paladin's]
concession[s] would, for purposes of summary judgment, seem to
foreclose a constitutional defense . . .").
The district court was never required to consider the intent require-
ment under Maryland's law of aiding and abetting, much less whether
the First Amendment imposes a heightened intent standard in the con-
text of authorizing liability for speech acts, because of its mistaken
conclusion that Maryland does not recognize a civil cause of action
for aiding and abetting. In analogizing this case to the copycat cases
(and seemingly in order to permit the analogy), however, the district
court accepted Paladin's post hoc "clarification" that it meant by its
stipulation only that it was reasonably foreseeable to the publisher
that, once the book was published and publicly available, it would be
used by murderers to plan and to commit murder. Thus, in accepting
the defendants' belated clarification, the district court said:
Defendants conceded that they intended that their publica-
tions would be used by criminals to plan and execute murder
37
as instructed in the manual. . . . However, Defendants clarify
their concession by explaining that when they published,
advertised and distributed both Hit Man and Silencers, they
knew, and in that sense "intended," that the books would be
purchased by all of the categories of readers previously
described and used by them for the broad range of purposes
previously described.
J.A. at 215-16 (citations omitted). Of course, the district court was
without authority to allow Paladin to alter the parties' stipulation uni-
laterally, particularly given that Paladin was the party moving for
summary judgment. If anything, the stipulation should have been, and
in any event must now be, interpreted in the light most favorable to
the plaintiffs.
Furthermore, even if the stipulation only established knowledge,
summary judgment was yet inappropriate because a trier of fact could
still conclude that Paladin acted with the requisite intent to support
civil liability. Wholly apart from Paladin's stipulations, there are four
bases upon which, collectively, if perhaps not individually, a reason-
able jury could find that Paladin possessed the intent required under
Maryland law, as well as the intent required under any heightened
First Amendment standard. Compare DOJ Report, at 45 n.71 ("[E]ven
assuming arguendo that the defendants' own construction of the
``intent' stipulation were correct, that still would not justify the grant
of summary judgment, since it would leave unanswered the question
whether Paladin also had the specific purpose of facilitating mur-
der.").
First, the declared purpose of Hit Man itself is to facilitate murder.
Consistent with its declared purpose, the book is subtitled "A Techni-
cal Manual for Independent Contractors," and it unabashedly
describes itself as "an instruction book on murder," Hit Man at ix. A
jury need not, but plainly could, conclude from such prominent and
unequivocal statements of criminal purpose that the publisher who
disseminated the book intended to assist in the achievement of that
purpose.
Second, the book's extensive, decided, and pointed promotion of
murder is highly probative of the publisher's intent, and may be con-
38
sidered as such, whether or not that promotion, standing alone, could
serve as the basis for liability consistent with the First Amendment.
See Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993) ("The First
Amendment . . . does not prohibit the evidentiary use of speech to
establish the elements of a crime or to prove motive or intent."); cf.
Noto, 367 U.S. at 299.7 After carefully and repeatedly reading Hit
Man in its entirety, we are of the view that the book so overtly pro-
motes murder in concrete, nonabstract terms that we regard as distur-
bingly disingenuous both Paladin's cavalier suggestion that the book
is essentially a comic book whose "fantastical" promotion of murder
no one could take seriously, and amici's reckless characterization of
the book as "almost avuncular," see Br. of Amici at 8-9. The unique
text of Hit Man alone, boldly proselytizing and glamorizing the crime
of murder and the "profession" of murder as it dispassionately
instructs on its commission, is more than sufficient to create a triable
issue of fact as to Paladin's intent in publishing and selling the man-
ual.
Third, Paladin's marketing strategy would more than support a
finding of the requisite intent. Cf. Direct Sales v. United States, 319
U.S. 703, 712-13 (1943) (holding that jury may infer intent to assist
a criminal operation based upon a drug distributor's marketing strat-
egy). It is known through Paladin's stipulations that it "engaged in a
marketing strategy intended to attract and assist criminals and would-
be criminals who desire information and instructions on how to com-
mit crimes." J.A. at 59. But an inference as to such a strategy would
be permitted from Paladin's catalogue advertisement of Hit Man. The
_________________________________________________________________
7 Cf. DOJ Report at 30 & n.47 (citations omitted) ("Insofar as publica-
tion of [bombmaking] manuals were criminalized on account of those
manuals' advocacy of unlawful conduct, such a prohibition almost cer-
tainly could not pass constitutional muster. The First Amendment would
not, however, prohibit the evidentiary use of such advocacy to demon-
strate a disseminator's intent in conveying bombmaking information.
Therefore, insofar as criminal culpability for dissemination of such infor-
mation depends upon the distributors' intent -- for example, upon
whether a disseminator of bombmaking manuals had the conscious pur-
pose of helping others to use the information to engage in unlawful con-
duct -- the substance of the advocacy in such manuals could be used as
material evidence of such intent.").
39
publisher markets the book as follows, invoking a disclaimer which,
the district court's characterization notwithstanding, a jury could
readily find to be transparent sarcasm designed to intrigue and entice:
Learn how a pro gets assignments, creates a false identity,
makes a disposable silencer, leaves the scene without a
trace, watches his mark unobserved and more. Feral reveals
how to get in, do the job and get out without getting caught.
For academic study only!
Paladin Press Catalog, Vol. 26, No. 2 at 41 (emphasis in original). See
also infra note 10. From this statement by the publisher in its own
promotional sales catalogue, a jury could conclude that Paladin mar-
keted Hit Man directly and even primarily to murderers and would-be
criminals, and, from this permissible conclusion, in turn conclude that
Paladin possessed the requisite intent necessary to support liability.
Certainly, such a conclusion would be reasonable based upon this
promotional description coupled with the singular character of Hit
Man, which is so narrowly focused in its subject matter and presenta-
tion as to be effectively targeted exclusively to criminals. In other
words, despite the fact that Paladin may technically offer the book for
sale to all comers, we are satisfied that a jury could, based upon Hit
Man's seemingly exclusive purpose to assist murderers in the com-
mission of murder, reasonably conclude that Paladin essentially dis-
tributed Hit Man only to murderers and would-be murderers -- that
its conduct was not, at least in law, different from that of a publisher
(or anyone else) who delivered Hit Man to a specific person or group
of persons whom the publisher knew to be interested in murder. And
even Paladin effectively concedes that it could be liable were such a
finding permissibly made. Paladin's Memorandum in Support of
Summary Judgment at 33 n.24.
A conclusion that Paladin directed Hit Man to a discrete group
rather than to the public at large would be supported, even if not
established, by the evidence that Hit Man is not generally available
or sold to the public from the bookshelves of local bookstores, but,
rather, is obtainable as a practical matter only by catalogue. Paladin
Press is a mail order company, and for the most part does not sell
books through retail outlets. In order to procure a copy of Hit Man,
40
the prospective reader must first obtain a copy of Paladin's catalogue,
typically by completing a request form reprinted in one of Paladin's
advertisements in specialized magazines such as Soldier of Fortune.
After obtaining that catalogue, the reader must scan the list of book
titles and read the accompanying descriptions. Once the reader finds
the book he desires, he must then complete and mail another form to
order the book.
From the requirements of this process, together with the book's
character, a jury need not, but could, permissibly find that Hit Man
is not at all distributed to the general public and that, instead, it is
available only to a limited, self-selected group 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 of murder.
Finally, a jury could reasonably conclude that Paladin specifically
intended to assist Perry and similar murderers by finding, contrary to
Paladin's demurs, as would we, that Hit Man's only genuine use is
the unlawful one of facilitating such murders.8 Cf. J.A. at 221 (obser-
vation by district court that Hit Man is "devoid of any significant
redeeming social value"). Although before us Paladin attempts to
hypothesize lawful purposes for Hit Man, and it would doubtless
advance the same hypotheses before a jury, at some point hypotheses
are so implausible as to be deserving of little or no weight. The likeli-
hood that Hit Man actually is, or would be, used in the legitimate
manners hypothesized by Paladin is sufficiently remote that a jury
could quite reasonably reject them altogether as alternative uses for
the book. If there is a publication that could be found to have no other
use than to facilitate unlawful conduct, then this would be it, so
devoid is the book of any political, social, entertainment, or other
legitimate discourse. Cf. Miller v. California, 413 U.S. 15 (1973) (dis-
tinguishing obscene from nonobscene material in part on basis of
"whether the work, taken as a whole, lacks serious literary, artistic,
_________________________________________________________________
8 Paladin contends that plaintiffs have stipulated "that the defendant's
book has substantial informational value unrelated to the facilitation of
crime." Appellee's Br. at 29 (footnote omitted). But they have not; they
have stipulated only that Paladin's "marketing strategy" was intended to
reach audiences beyond criminals and would-be criminals. J.A. at 60.
41
political, or scientific value"). Thus, for example, a jury would cer-
tainly not be unreasonable in dismissing (in fact, it arguably would be
unreasonable in accepting) Paladin's contention that Hit Man has sig-
nificant social value in that the book, in the course of instructing mur-
derers how to murder, incidentally informs law enforcement on the
techniques that the book's readers will likely employ in the commis-
sion of their murders. Likewise, a reasonable jury could simply refuse
to accept Paladin's contention that this purely factual, instructional
manual on murder has entertainment value to law-abiding citizens.
And, just as a permissible inference as to Paladin's marketing strategy
would be supportable by evidence as to the specialized process by
which one acquires Hit Man, either of these conclusions as to the
absence of lawful purpose could be reinforced by the same evidence.
In summary, a reasonable jury clearly could conclude from the
stipulations of the parties, and, apart from the stipulations, from the
text of Hit Man itself and the other facts of record, that Paladin aided
and abetted in Perry's triple murder by providing detailed instructions
on the techniques of murder and murder for hire with the specific
intent of aiding and abetting the commission of these violent crimes.
B.
Any argument that Hit Man is abstract advocacy entitling the book,
and therefore Paladin, to heightened First Amendment protection
under Brandenburg is, on its face, untenable. Although the district
court erred in its alternative conclusion that the speech of Hit Man is
protected advocacy, see discussion infra at III.B.2, even that court
expressly found that "the book merely teaches what must be done to
implement a professional hit." J.A. at 217-18; id. at 218 n.4 (discuss-
ing "instructive nature" of book). Indeed, Paladin's protests notwith-
standing, this book constitutes the archetypal example of speech
which, because it methodically and comprehensively prepares and
steels its audience to specific criminal conduct through exhaustively
detailed instructions on the planning, commission, and concealment
of criminal conduct, finds no preserve in the First Amendment. To the
extent that confirmation of this is even needed, given the book's con-
tent and declared purpose to be "an instruction book on murder," Hit
Man at ix, that confirmation is found in the stark contrast between this
42
assassination manual and the speech heretofore held to be deserving
of constitutional protection.
1.
Through its stipulation that it intended Hit Man to be used by crim-
inals and would-be criminals to commit murder for hire in accor-
dance with the book's instructions, Paladin all but concedes that,
through those instructions, Hit Man prepares and steels its readers to
commit the crime of murder for hire. But even absent the publisher's
stipulations, it is evident from even a casual examination of the book
that the prose of Hit Man is at the other end of the continuum from
the ideation at the core of the advocacy protected by the First Amend-
ment.
The cover of Hit Man states that readers of the book will "[l]earn
how a pro makes a living at this craft [of murder] without landing
behind bars" and,
how he gets hit assignments, creates a false working iden-
tity, makes a disposable silencer, leaves the scene without
a trace of evidence, watches his mark unobserved, and more
. . . how to get in, do the job, and get out -- without getting
caught.
In the first pages of its text, Hit Man promises, consistent with its title
as "A Technical Manual for Independent Contractors," that the book
will prepare the reader, step by step, to commit murder for hire:
Within the pages of this book you will learn one of the most
successful methods of operation used by an independent
contractor. You will follow the procedures of a man who
works alone, without backing of organized crime or on a
personal vendetta. Step by step you will be taken from
research to equipment selection to job preparation to suc-
cessful job completion. You will learn where to find
employment, how much to charge, and what you can, and
cannot, do with the money you earn.
43
But deny your urge to skip about, looking for the "good"
parts. Start where any amateur who is serious about turning
professional will start--at the beginning.
Hit Man at x-xi (emphasis in original). And, faithful to these prom-
ises, in the successive chapters of the 130 pages that follow, Hit Man
systematically and in meticulous detail instructs on the gruesome par-
ticulars of every possible aspect of murder and murder for hire. The
manual instructs step-by-step on building and using fertilizer bombs,
constructing silencers, picking locks, selecting and using poisons,
sinking corpses, and torturing victims. It teaches would-be assassins
how to arrive at, and conduct surveillance of, a potential victim's
house, and it instructs on the use of a fake driver's license and regis-
tration at a motel, the placement of stolen out-of-state license plates
on rental cars, and the deception of the postal service into delivering
weapons to the murder scene. The book instructs the reader in murder
methods, explaining in dispassionate and excruciatingly graphic detail
how to shoot, stab, poison, and incinerate people, and in gory detail
it expounds on which methods of murder will best ensure the death
of the victims. The book schools the reader on how to escape the
crime scene without detection, and how to foil police investigations
by disassembling and discarding the murder weapon, altering the bal-
listics markings of that weapon, stealing and switching license plates,
and disguising the reader's physical appearance. And it counsels on
how to manipulate the legal system, if caught.
At the risk of belaboring the obvious, but in order to appreciate the
encyclopedic character of Hit Man's instructions, one need only con-
sider the following chapter-by-chapter synopsis.
Chapter One of Hit Man, entitled "The Beginning -- Mental and
Physical Preparation," starts by outlining the"essential" steps to
becoming a professional killer. Hit Man at 9. The book urges the
reader to read other books from publishers such as Paladin Press, but
it cautions that "[b]ooks on subjects related to the professional hit
man are hard to find [and that] there are[only] a few publishers out
there who have the backbone to provide those . . . who take life seri-
ously with the necessary educational materials." Hit Man at 9-10. The
book goes on to recommend that one read articles in magazines such
as Soldier of Fortune, and military newsletters in order to "[s]tay
44
abreast of new trends and developments [in weapons and techniques
of killing] as well as new gadgets and inventions as they become
available." Hit Man at 9. It also encourages the reader to comb fic-
tional accounts of murder, on the off chance that, for example, "the
warped imagination of a fiction writer will point out an obvious but
somehow never before realized method of pacification or body dis-
posal." Id. at 10. It instructs its readers to study their local newspapers
carefully "to see who in your area might be your next employer . . .
or victim," and to use the classified advertisements, among other
things, to find "new toys and pick them up from private owners to
avoid registering your weapons." Id. The book provides in-depth
advice on using a variety of publicly available reference materials to
locate weapons and other "equipment," gather information about vic-
tims, and plan murders for hire. For example, the book instructs its
readers to go to the auto tag department of the county courthouse and
"[l]ook up the mark by last name or tag number for address," because
books containing such information are often "left out for public use."
Id. at 12. Similarly, the book instructs the readers in how to use the
postal service to "track[ ] down the last known address of anyone you
choose as a function of the Freedom of Information Act," id. at 14,
and to send weapons safely to the location of a planned murder, id.
at 13.
In addition, Hit Man instructs its readers to become familiar with
local law enforcement techniques, for example by obtaining law
enforcement handbooks, and it provides practical advice on how to
obtain these books, either from "any college bookstore where law
enforcement courses are taught," id. at 14, or by theft. The book also
offers the readers practical tips on diet, fitness, combat training,
("Veterans with wartime experience and the ability to kill are first
choice instructors." Id. at 17), and observational skills. Although
much of the information in this chapter is not explicit in outlining the
methods of terror, it is explicit in advising the would-be assassin
where to turn for additional information beyond that found between
the covers of the book.
Chapter Two of the book, entitled "Equipment-- Selection and
Purpose," imparts a wealth of information on the"basic equipment"
the "beginner" will need as tools of his trade, id. at 21, and provides
detailed instructions as to the equipment's use. For example, the book
45
first instructs the reader to obtain, inter alia, an AR-7 rifle, hollow-
point bullets, disposable silencers, liquid poison, disposable rubber
gloves, a double-edged knife with a six-inch blade, handcuffs, and a
ski mask. See id. at 21-22. The book next provides precise instruc-
tions on how to kill, using each of the various weapons. The manual
recommends "close kills," and teaches that:
When using a small caliber weapon like the 22, it is best
to shoot from a distance of three to six feet. You will not
want to be at point-blank range to avoid having the victim's
blood splatter you or your clothing. At least three shots
should be fired to ensure quick and sure death.
You can judge when death has occurred by observing the
wound. When the blood ceases to flow, the heart has
stopped working. Check for pulse at both the wrist and
throat as an added precaution.
Id. at 24. The book goes on to teach which weapons to avoid and
why, explaining, for example, that,
[a]lthough revolvers are often depicted as being a favorite
tool among hit men, they are not recommended by this pro.
Revolvers cannot be effectively silenced. The open cylinder
allows gases to escape, thus making noise. When fired, gas
is forced around the cylinder in a 360 degree circle, thereby
throwing powder all over the person who fires the gun.
An automatic, on the other hand, is tightly sealed so that
when it is fired almost all the powder residue is forced into
the silencer, where it is trapped. This prevents the powder
from escaping and covering the person who fired the shot.
. . . If a shell catcher is used, the powder residue will
become trapped inside the catch bag.
Id. at 26. The manual further instructs how to kill efficiently at close-
range with a knife:
The knife you carry should have a six-inch blade with a
serrated section for making efficient, quiet kills. . . .
46
The knife should have a double-edged blade. This double
edge, combined with the serrated section and six-inch
length, will insure a deep, ragged tear, and the wound will
be difficult, if not impossible, to close without prompt medi-
cal attention.
Make your thrusts to a vital organ and twist the knife
before you withdraw it. If you hit bone, you will have to file
the blade to remove the marks left on the metal when it
struck the victim's bone.
Id. at 27-28. The book also instructs on alternatives to the close-range
kill, including instructions such as the following:
If you must do your shooting from a distance, use a rifle
with a good scope and silencer and aim for the head-- pref-
erably the eye sockets if you are a sharpshooter. Many peo-
ple have been shot repeatedly, even in the head, and
survived to tell about it.
Id. at 24. Finally, the chapter includes a host of other instructions on
how to use basic tools, ranging from handcuffs, to lock picks, to sur-
veillance equipment, in the commission of murder. For instance, the
book teaches the need for a hit man to always wear gloves and it dis-
cusses glove choice, recommending surgical gloves because,
[l]eather gloves are not to be considered as a job tool. The
leather has the same individual, distinct characteristics as
the human fingerprint. If you have to use leather gloves,
destroy them immediately after the job. If found in your
possession, they can convict you as quickly as a set of your
own fingerprints.
Id. at 27. The chapter continues in like vein.
Chapter Three, entitled "The Disposable Silencer-- A Poor Man's
Access to a Rich Man's Toy," teaches the reader, with step-by-step
instructions and accompanying photographic illustration, how to con-
struct a "whisper-quiet," "inexpensive," and "effective" disposable
47
silencer that is "reusable for over four hundred rounds." Id. at 47, 51.
These directions are designed to allow the "amateur" to construct dis-
posable silencers, which, the book explains, are "one of the most
important tools a professional will ever have." Id. at 38. As the book
explains, these "same directions can be followed successfully to con-
struct a silencer for any weapon, with only the size of the drill rod
used for alignment changed. . . ." Id. at 39.
Hit Man's Chapter Four, entitled "More Than One Way To Kill a
Rabbit -- The Direct Hit is Not Your Only Alternative," includes dis-
cursive instructions on numerous additional methods of killing and
torture. If "several marks will be together in one place at the same
time," the book teaches, one can kill all of the "marks" with a fertil-
izer bomb, and it goes on to teach the reader, through step-by-step
instructions, how to build such a bomb. Id. at 54-55. The chapter
teaches the reader how to kill by arson, admonishing and instructing,
"Don't ever use gasoline or other traceable materials to start your fire.
[Specified substance] is your best starter because it burns away all
traces." Id. at 56. In addition, the chapter includes instructions such
as that, "[a] fire victim will have smoke present in his lungs. There-
fore, if this is your choice of extermination, your mark should be
unconscious, but breathing, when the fire is set. Make sure no
scratches or bruises point to foul play." Id. Later in the chapter, Hit
Man discusses poisons. After teaching an elaborate method for
obtaining hard-to-find poisons through impersonation, the manual
explains how one can successfully use substances such as tetrodo-
toxin, oleander, nicotine, and jessamine to kill his victims. See id. at
58-63. The chapter's discussion of torture techniques provides
explicit advice on how to inflict sufficient pain to ensure that "people
will tell you anything you want to know, even when they are sure they
are about to die." Id. at 64. In what is offered as a helpful example,
the book illustrates from the author's own experience:
We [the book's author and his accomplice, referred to only
as "the Indian"] subdued the [victim], stripped him to the
waist and tied him into a wooden chair.
...
The Indian pulled an ice pick from his hip pocket.
48
...
. . . Suddenly he stopped and inserted the tip of the pick
into the [victim's] upper arm about a quarter of an inch.
When he withdrew the pick, there was a sickening little pop-
ping sound as blood spurted from the wound for a second,
then stopped.
...
Several stabs later, the [victim] was quivering like a jelly-
fish, his body like a pin cushion, while the Indian was get-
ting more and more excited and more and more into his
work.
. . . With a malicious grin, [the Indian] pulled a pair of
pliers from his other hip pocket and gave me a sly wink.
Pointedly, methodically, he began with the [victim's] little
finger on his left hand and crunched each knuckle slowly
with the pliers. It seemed to take no effort at all on his part
as the soft bone gave way under the force of the simple tool.
He had only gotten to the third finger when the [victim]
began to cry like a baby and spill his guts.
Id. at 65-66. The chapter concludes with instructions for disposing of
human corpses without detection, providing directions for, inter alia,
hiding the bodies in a river:
If you choose to sink the corpse, you must first make several
deep stabs into the body's lungs (from just under the rib
cage) and belly. This is necessary because gases released
during decomposition will bloat these organs, causing the
body to rise to the surface of the water.
The corpse should be weighted with the standard concrete
blocks, but it must be wrapped from head to toe with heavy
chain as well, to keep the body from separating and floating
in chunks to the surface. After the fishes and natural ele-
ments have done their work, the chain will drag the bones
into the muddy sediment.
49
Id. at 67. And the instructions we repeat here are but a few of the
methods of inflicting torture and death taught in the chapter.
The next chapter, entitled "Homework and Surveillance -- Map-
ping a Plan and Checking It for Accuracy," instructs on how to obtain
information about the victim from the client. It explains the impor-
tance of finding out information such as whether the victim has a dog
or other pet that might provide a warning of the impending assassina-
tion, the layout of the victim's residence, and whether the victim has
roommates or neighbors. The chapter includes a lengthy "sample
information sheet" that may be used in planning a first kill. Id. at 73-
80.
Chapter Six, entitled "Opportunity Knocks -- Finding Employ-
ment, What to Charge, What to Avoid," teaches readers how to find
someone who will hire their services as professional killers. The
chapter explains where to find potential employers, what to look for
in such persons, and what to charge for each murder:
Prices vary according to the risk involved, social or politi-
cal prominence of the victim, difficulty of the assignment,
and other factors. A federal judge [Judge Wood, slain in
Texas in 1978] recently brought a price of $250,000, for
example. A county sheriff might bring $75,000 to $100,000.
...
. . . It is not recommended that you take any contract that
pays less than $30,000, and that is working mighty cheap.
To work for any amount less would be amateurish. . ..
There are two good reasons for setting a $30,000 mini-
mum for your services. First, the risks involved are high. . . .
A fee of $5,000 or even $10,000 will be of little consolation
as you wait helplessly behind bars.
Second, because the risks are so high and employment
opportunities are limited, the money you earn should be suf-
ficient to carry you over until your next job comes along.
50
Id. at 90-91. The chapter also provides instructions on how to com-
municate with the employer after the hit, explaining, for example, that
it is best to develop a code for informing the employer that the con-
tract has been fulfilled, such as calling the employer's residence and
asking to speak with a fictitious individual, whose name signals to the
employer that the victim is dead. See id. at 93-94.
In the following chapter, titled "Getting the Job Done Right --
Why the Described Hit Went Down the Way It Did," Hit Man pro-
vides instructions for reaching the victim's location, transporting
tools, preparing to commit the murder, and cleaning up the crime
scene and escaping after the killing. Illustrative of the chapter's direc-
tions for preparing to commit the murder:
Wipe down your weapons as you assemble them. Even
the inner parts of your guns must be wiped to remove any
prints that were left behind during the last cleaning.
Wipe down each bullet and wear rubber gloves as you
load the clip. Just in case you leave behind an empty car-
tridge, you don't want your fingerprint emblazoned on the
casing.
Id. at 103. Similarly, the manual instructs on how best to discard the
clothes worn to commit the killing:
The first thing you should do when you reach the car
[after killing your victims] is change into another disguise
and get out of those work clothes. Check them for blood-
stains. If there are none, you can toss them into a charity
collection box or trash can. If the victim's blood is on those
clothes, they must be burned or buried.
Id. at 105. And it explains, with respect to sanitization of the rental
car:
[S]top and wipe the car for prints and wear driving gloves
as you return the car to the rental agency. . . .[W]ash the
car and vacuum the interior immediately when you arrive at
51
your destination [because] foreign soil from the [crime
scene] is now imbedded in the car's interior[and its] air fil-
ter . . . .
Id. at 106.
Chapter 8, entitled "Danger: Ego, Women, and Partners -- Con-
trolling Your Situation" instructs the reader on how, as a professional
killer, to use money, women, and partners. This chapter of the book,
for example, instructs the reader on how to use women while commit-
ting professional killings without getting caught. Thus, after explain-
ing that the "deceitful, ``game-playing' natures" of women make them
potentially better professional killers than men, the book goes on to
say that,
[f]ortunately for the world, a woman usually makes only
one man her target, and the nesting instinct quickly takes her
off the street and ties her down to the little world of babies,
laundry and housework she creates and protects for her own.
Unfortunately, even a hit man cannot deny that what women
have to offer is a basic necessity.
...
[Cautioning against marriage], if [your wife] knows too
much, she could someday become [your] worst enemy on
the face of the earth and may someday have to be eliminated
in the name of self-preservation.
And if she knows too little, her suspicious, jealous nature
could lead to more snooping and following and conjecture
on her part than is healthy -- for either of [you].
...
. . . Women are highly emotional, rarely rational crea-
tures. Is ten minutes of pleasure worth your life at the hands
(or tongue) of an irate spouse?
...
52
Ideally, a professional hit man will remain single. He will
either purchase his sexual pleasures or participate in imper-
sonal one-night-stands. His involvement with women will
only be on a sexual level. He will not live with them, nor
will he let them invade his privacy . . . . In most cases, they
won't even know his real name.
...
As a man, I appreciate as much as anyone a good-looking
body and a warm, willing smile on a woman. As a profes-
sional, however, that seems to have lost some of its thrill as
I've moved on to bigger, more exciting and more dangerous
prey.
Id. at 114-17. The chapter also advises the reader on how to enjoy the
fruits of crime without getting caught, warning that,
Unless you have additional sources of income to justify
large expenditures like a new home, paying off an old mort-
gage or a new sports car, don't spend any of your earnings
on big items of this type. Big expenditures arouse suspicion,
not only of your friends and family, but of the IRS and the
authorities if you should ever come under investigation.
Id. at 113.
The final chapter of Hit Man, entitled "Legally Illegal," includes
various sections instructing the reader on how and where to purchase
false identification, how to make false identification, how to launder
illegal money, and how to act in encounters with law enforcement
officers. For example, the book instructs on how to "launder" "illegal
money" through the use of a tax haven in the Cayman Islands:
The procedure is really quite simple: You form a corpora-
tion in [an offshore Island country] and put your illegal
monies into that corporation. Then you form a legal U.S.
corporation as your business and borrow the money you
need to get going from the foreign corporation you have pre-
viously set up. . . .
53
Let's say your legal American corporation is a land devel-
opment company, because you want to invest your laun-
dered monies into real estate. . . .
[Instructions continue].
Id. at 124. The book concludes by offering advice on how to escape
punishment by exploiting legal technicalities in the event that the
reader is arrested by the police, including how to avoid jailhouse
snitches and undercover agents.
As Hit Man instructs, it also steels its readers to the particular vio-
lence it explicates, instilling in them the resolve necessary to carry out
the crimes it details, explains, and glorifies. Language such as that
which is reprinted in the prologue to this opinion, and similar lan-
guage uncanny in its directness and power, pervades the entire work:
You may threaten, bargain, torture or mutilate to get the
information you want, and you must be prepared to use
whatever method works.
...
You are working. This is your job and you are a profes-
sional.
...
. . . You have the power and ability to stand alone. You
no longer need a reason to kill.
...
. . . You are a hardened criminal. You are capable of per-
forming cold-blooded murder for a fee . . . . [Y]ou are not
fit to be a part of organized society.
Id. at 66, 100, 111, 127 (second emphasis added). Speaking directly
to the reader in the second person, like a parent to a child, Hit Man
54
addresses itself to every potential obstacle to murder, removing each,
seriatim, until nothing appears to the reader to stand between him and
his execution of the ultimate criminal act. To those who are reluctant
because of the value of human life, Hit Man admonishes that "[l]ife
is not robust and precious and valuable" and that "[e]verything you
have been taught about life and its value was a fallacy[,] [a] dirty rot-
ten lie." Id. at 107. To those who fear guilt or remorse, the book reas-
sures:
You made it! Your first job was a piece of cake! Taking
all that money for the job was almost like robbery. Yet here
you are, finally a real hit man with real hard cash in your
pockets and that first notch on your pistol.
...
[After killing your first victim] [Y]ou felt absolutely
nothing. And you are shocked by that nothingness. You had
expected this moment to be a spectacular point in your life.
You had wondered if you would feel compassion for the
victim, immediate guilt, or even experience direct interven-
tion by the hand of God. But you weren't even feeling sick-
ened by the sight of the body.
Id. at 106-07. And the book allays the natural apprehension about the
immediate aftermath of the murders it counsels:
After you have arrived home [after your kill], the events
that took place take on a dreamlike quality. You don't dwell
on them. You don't worry. You don't have nightmares. You
don't fear ghosts. When thoughts of the hit go through your
mind, it's almost as though you are recalling some show you
saw on television.
By the time you collect the balance of your contract fee,
the doubts and fears of discovery have faded. Those feelings
have been replaced by cockiness, a feeling of superiority, a
new independence and self-assurance.
55
Id. at 108. Those who fear their cold-bloodedness are assuaged with
the reminders that "a hit man has a wide range of feelings" and that
he "may be extremely compassionate towards the elderly or disabled"
or "even . . . religious in his own way." Id. at 106. And for those who
fear only that they will be caught, comes the ominous pledge that "the
American Justice System is so bogged down in technicalities, over-
crowded jails, plea bargaining and a host of other problems that even
if charged with a serious crime, we [as killers] can rest assured that
the law is on our side," see id. at 125, that a "true" "professional"
"won't ever have to face [various] legal predicaments." Id. at 130.
Indeed, one finds in Hit Man little, if anything, even remotely
characterizable as the abstract criticism that Brandenburg jealously
protects. Hit Man's detailed, concrete instructions and adjurations to
murder stand in stark contrast to the vague, rhetorical threats of politi-
cally or socially motivated violence that have historically been con-
sidered part and parcel of the impassioned criticism of laws, policies,
and government indispensable in a free society and rightly protected
under Brandenburg. The speech of Hit Man defies even comparison
with the Klansman's chilling, but protected, statement in
Brandenburg itself that, "[the Ku Klux Klan is] not a revengent orga-
nization, but if our President, our Congress, our Supreme Court, con-
tinues to suppress the white, Caucasian race, it's possible that there
might have to be some revengeance taken," 395 U.S. at 446; the
protestor's inciteful, but protected, chant in United States v. Hess, 414
U.S. 105, 108 (1973) that "[w]e'll take the fucking street again"; the
NAACP speaker's threat, rhetorical in its context, to boycott violators
that "[i]f we catch any of you going in any of them racist stores, we're
gonna break your damn neck," which was held to be protected in
NAACP v. Claiborne Hardware Co., 458 U.S. 886, 902 (1982); or the
draft protestor's crude, but protected, blustering in Watts that "[i]f
they ever make me carry a rifle the first man I want to get in my
sights is L.B.J," Watts v. United States, 394 U.S. 705, 706 (1969).
Plaintiffs observed in their submissions before the district court
that,
Hit Man is not political manifesto, not revolutionary dia-
tribe, not propaganda, advocacy, or protest, not an outpour-
ing of conscience or credo.
56
...
It contains no discussion of ideas, no argument, no informa-
tion about politics, religion, science, art, or culture . . . it
offers no agenda for self-governance, no insight into the
issues of the day . . . .
Appellant's Br. at 32; Memorandum of Points and Authorities in Sup-
port of Plaintiffs' Opposition to Defendant's Motion for Summary
Judgment at 31-32. And, this is apt observation. Hit Man is none of
this. Ideas simply are neither the focus nor the burden of the book. To
the extent that there are any passages within Hit Man's pages that
arguably are in the nature of ideas or abstract advocacy, those sen-
tences are so very few in number and isolated as to be legally of no
significance whatsoever.9 Cf. Kois v. Wisconsin, 408 U.S. 229, 231
(1972) ("A quotation from Voltaire in the flyleaf of a book will not
constitutionally redeem an otherwise obscene publication."); see also
Miller, 413 U.S. at 24; Penthouse International, Ltd. v. McAuliffe,
610 F.2d 1353 (5th Cir. 1980), cert. dismissed, 447 U.S. 931 (1980).
Hit Man is, pure and simple, a step-by-step murder manual, a training
book for assassins. There is nothing even arguably tentative or recon-
dite in the book's promotion of, and instruction in, murder.10 To the
_________________________________________________________________
9 This circuit and others have repeatedly rejected Paladin's argument
that speech can be punished under the speech act doctrine, without regard
to the strictures of Brandenburg, only when that speech has no purpose
or value other than to facilitate a specific wrongful act. See Appellee's
Supp. Br. at 9. Thus, in Kelley, we found the defendant's concrete pro-
motion of, and provision of instructions for, tax evasion unprotected by
the First Amendment, even though the defendant offered his advice in a
meeting of a group indisputably dedicated to the political belief that the
federal income tax is unconstitutional as applied to wages. 769 F.2d at
216-17. And in Freeman, the Ninth Circuit upheld a similar conviction,
even though the defendant's speech "spr[ang] from the anterior motive
to effect political or social change." 761 F.2d at 551. See also Agee, 453
U.S. at 308-09 (holding that a former Central Intelligence Agency
employee's disclosure of intelligence information was unprotected by the
First Amendment even though the employee was "also engaged in criti-
cism of the Government").
10 The several brief "disclaimers" and "warnings" in Hit Man's adver-
tisement description and on its cover, that the book's instructions are "for
57
contrary, the book directly and unmistakably urges concrete viola-
tions of the laws against murder and murder for hire and coldly
instructs on the commission of these crimes. The Supreme Court has
never protected as abstract advocacy speech so explicit in its palpable
entreaties to violent crime.
2.
In concluding that Hit Man is protected "advocacy," the district
court appears to have misperceived the nature of the speech that the
Supreme Court held in Brandenburg is protected under the First
Amendment. In particular, the district court seems to have misunder-
stood the Court in Brandenburg as having distinguished between "ad-
vocating or teaching" lawlessness on the one hand, and "inciting or
encouraging" lawlessness on the other, any and all of the former
being entitled to First Amendment protection. The district court thus
framed the issue before it as "whether Hit Man merely advocates or
teaches murder or whether it incites or encourages murder." J.A. at
212. And, finding that Hit Man "merely teaches" in technical fashion
the fundamentals of murder, it concluded that "[t]he book does not
cross that line between permissible advocacy and impermissible inci-
tation to crime or violence." Id. at 218.
The Court in Brandenburg, however, did not hold that "mere teach-
ing" is protected; the Court never even used this phrase. And it cer-
tainly did not hold, as the district court apparently believed, that all
teaching is protected. Rather, however inartfully it may have done so,
the Court fairly clearly held only that the "mere abstract teaching" of
principles, id. at 447-48 (quoting Noto , 367 U.S. at 297-98) (emphasis
_________________________________________________________________
informational purposes only!" and "for academic study only!," and that
"[n]either the author nor the publisher assumes responsibility for the use
or misuse of the information contained in this book," are plainly insuffi-
cient in themselves to alter the objective understanding of the hundreds
of thousands of words that follow, which, in purely factual and technical
terms, tutor the book's readers in the methods and techniques of killing.
These "disclaimers" and "warnings" obviously were affixed in order to
titillate, rather than "to dissuade readers from engaging in the activity
[the book] describes," as the district court suggested they might be
understood, J.A. at 219.
58
added), and "mere advocacy," 395 U.S. at 448-49 (emphasis added),
are protected. In the final analysis, it appears the district court simply
failed to fully appreciate the import of the qualification to the kind of
"teaching" that the Supreme Court held to be protected in
Brandenburg. See J.A. at 217 (defining "advocacy" as "mere teach-
ing" rather than "mere abstract teaching" but citing to Brandenburg,
395 U.S. at 448 (quoting Noto, 367 U.S. at 297-98)). As the Supreme
Court's approving quotation from its opinion in Noto confirms, it is
not teaching simpliciter, but only "the mere abstract teaching . . . of
the moral propriety or even moral necessity" for resort to lawlessness,
or its equivalent, that is protected under the commands of
Brandenburg. 367 U.S. at 297-98 (emphasis added).11
Although we believe the district court's specific misreading of
Brandenburg was plainly in error, we cannot fault the district court
for its confusion over the opinion in that case. The short per curiam
opinion in Brandenburg is, by any measure, elliptical.
In particular, the Court unmistakably draws the distinction dis-
cussed above, between "the mere abstract teaching. . . of the moral
propriety or even moral necessity for a resort to force and violence"
on one hand, 395 U.S. at 448, and the "prepar[ation] [of] a group for
violent action and steeling it to such action" on the other. Id. And it
then recites in the very next sentence that "[a] statute which fails to
draw this distinction," id. (emphasis added) -- a seeming reference to
the distinction between "mere abstract teaching" and "preparing and
steeling" -- is unconstitutional under the First Amendment. In the
succeeding paragraph and a later footnote, however, the Court distin-
guishes between "mere advocacy" and "incitement to imminent law-
_________________________________________________________________
11 Even if the district court were correct in its holding that Hit Man is
speech somehow deserving of the protections of Brandenburg, we would
yet be constrained to reverse the court's judgment. Given Paladin's
remarkable stipulations that it knew that its murder manual would be
used by murderers, would-be murderers, and other criminals "upon
receipt" to assist them in the planning, commission, and cover up of their
crimes, that the publisher intended that the manual would be so used, and
that Hit Man actually assisted Perry's commission of the crime of mur-
der, we could not conclude as a matter of law that Hit Man is not
directed to inciting and likely to incite imminent lawlessness.
59
less action," a distinction which, as a matter of common sense and
common parlance, appears different from the first distinction drawn,
because "preparation and steeling" can occur without "incitement,"
and vice-versa. See id. at 448 ("Neither the indictment nor the trial
judge's instructions to the jury in any way refined the statute's bald
definition of the crime in terms of mere advocacy not distinguished
from incitement to imminent lawless action." (footnote omitted)); id.at 449 n.4 ("Statutes affecting the right of assembly, like those touch-
ing on freedom of speech, must observe the established distinctions
between mere advocacy and incitement to imminent lawless action
. . . ." ).
It would have been natural, based upon its prior cases, for the Court
actually to have contemplated and intended both distinctions, and to
have developed the latter only, because the case before it turned
exclusively on that distinction. It is more likely, however, that the
Court did not focus at all on the seeming facial incongruity between
the first and the latter two of these distinctions. The Court, therefore,
may well have intended to equate the preparation and steeling of a
group to violent action with speech that is directed to inciting immi-
nent lawless action and likely to produce such action. In other words,
the Court may well have meant to imply that one prepares and steels
another or others for violent action only when he does so through
speech that is "directed to inciting or producing imminent lawless
action and . . . [that is] likely to incite or produce such action," id. at
447, and thus that preparation and steeling is not per se unprotected.
Compare id. at 447-48 ("As we said in Noto. . . .") with Noto, 367
U.S. at 298 (describing preparation and steeling through "a call to vio-
lence"). Assuming that it did so mean to imply, however, we are con-
fident it meant to do so only in the context of advocacy -- speech that
is part and parcel of political and social discourse-- which was the
only type of speech at issue in Brandenburg, Noto, and the other cases
relied upon by the Court. See, e.g., 44 Liquormart v. Rhode Island,
116 S. Ct. 1495, 1505 (1996) (Stevens, J., for plurality) (describing
Brandenburg as setting forth "test for suppressing political speech").
The Court even so defined its own holding: "These later decisions
have fashioned the principle that the constitutional guarantees of free
speech and free press do not permit a State to forbid or proscribe
advocacy of the use of force or of law violation except where such
advocacy is directed to inciting or producing imminent lawless action
60
and is likely to incite or produce such action." 395 U.S. at 447 (foot-
note omitted; emphases added). For, as this case reveals, and as the
Court itself has always seemed to recognize, one obviously can pre-
pare, and even steel, another to violent action not only through the
dissident "call to violence," but also through speech, such as instruc-
tion in the methods of terror or other crime, that does not even
remotely resemble advocacy, in either form or purpose. And, of
course, to understand the Court as addressing itself to speech other
than advocacy would be to ascribe to it an intent to revolutionize the
criminal law, in a several paragraph per curiam opinion, by subjecting
prosecutions to the demands of Brandenburg's "imminence" and
"likelihood" requirements whenever the predicate conduct takes, in
whole or in part, the form of speech -- an intent that no lower court
has discerned and that, this late in the day, we would hesitate to
impute to the Supreme Court.
Accordingly, we hold that plaintiffs have stated, sufficient to with-
stand summary judgment, a civil cause of action against Paladin
Enterprises for aiding and abetting the murders of Mildred and Trevor
Horn and Janice Saunders on the night of March 3, 1993, and that this
cause of action is not barred by the First Amendment to the United
States Constitution.
IV.
Paladin, joined by a spate of media amici, including many of the
major networks, newspapers, and publishers, contends that any deci-
sion recognizing even a potential cause of action against Paladin will
have far-reaching chilling effects on the rights of free speech and
press. See Br. of Amici at 3, 22 ("Allowing this lawsuit to survive will
disturb decades of First Amendment jurisprudence and jeopardize free
speech from the periphery to the core. . . . No expression -- music,
video, books, even newspaper articles -- would be safe from civil lia-
bility."). That the national media organizations would feel obliged to
vigorously defend Paladin's assertion of a constitutional right to
intentionally and knowingly assist murderers with technical informa-
tion which Paladin admits it intended and knew would be used imme-
diately in the commission of murder and other crimes against society
is, to say the least, breathtaking. But be that as it may, it should be
apparent from the foregoing that the indisputably important First
61
Amendment values that Paladin and amici argue would be imperiled
by a decision recognizing potential liability under the peculiar facts
of this case will not even arguably be adversely affected by allowing
plaintiffs' action against Paladin to proceed. In fact, neither the exten-
sive briefing by the parties and the numerous amici in this case, nor
the exhaustive research which the court itself has undertaken, has
revealed even a single case that we regard as factually analogous to
this case.
Paladin and amici insist that recognizing the existence of a cause
of action against Paladin predicated on aiding and abetting will sub-
ject broadcasters and publishers to liability whenever someone imi-
tates or "copies" conduct that is either described or depicted in their
broadcasts, publications, or movies. This is simply not true. In the
"copycat" context, it will presumably never be the case that the broad-
caster or publisher actually intends, through its description or depic-
tion, to assist another or others in the commission of violent crime;
rather, the information for the dissemination of which liability is
sought to be imposed will actually have been misused vis-a-vis the
use intended, not, as here, used precisely as intended. It would be dif-
ficult to overstate the significance of this difference insofar as the
potential liability to which the media might be exposed by our deci-
sion herein is concerned.
And, perhaps most importantly, there will almost never be evi-
dence proffered from which a jury even could reasonably conclude
that the producer or publisher possessed the actual intent to assist
criminal activity. In only the rarest case, as here where the publisher
has stipulated in almost taunting defiance that it intended to assist
murderers and other criminals, will there be evidence extraneous to
the speech itself which would support a finding of the requisite intent;
surely few will, as Paladin has, "stand up and proclaim to the world
that because they are publishers they have a unique constitutional
right to aid and abet murder." Appellant's Reply Br. at 20. Moreover,
in contrast to the case before us, in virtually every "copycat" case,
there will be lacking in the speech itself any basis for a permissible
inference that the "speaker" intended to assist and facilitate the crimi-
nal conduct described or depicted. Of course, with few, if any, excep-
tions, the speech which gives rise to the copycat crime will not
directly and affirmatively promote the criminal conduct, even if, in
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some circumstances, it incidentally glamorizes and thereby indirectly
promotes such conduct.
Additionally, not only will a political, informational, educational,
entertainment, or other wholly legitimate purpose for the description
or depiction be demonstrably apparent; but the description or depic-
tion of the criminality will be of such a character that an inference of
impermissible intent on the part of the producer or publisher would
be unwarranted as a matter of law. So, for example, for almost any
broadcast, book, movie, or song that one can imagine, an inference of
unlawful motive from the description or depiction of particular crimi-
nal conduct therein would almost never be reasonable, for not only
will there be (and demonstrably so) a legitimate and lawful purpose
for these communications, but the contexts in which the descriptions
or depictions appear will themselves negate a purpose on the part of
the producer or publisher to assist others in their undertaking of the
described or depicted conduct. Compare Miller, 413 U.S. 15.
Paladin contends that exposing it to liability under the circum-
stances presented here will necessarily expose broadcasters and pub-
lishers of the news, in particular, to liability when persons mimic
activity either reported on or captured on film footage and dissemi-
nated in the form of broadcast news. Appellee's Br. at 26 n.17. This
contention, as well, is categorically wrong. News reporting, we can
assume, no matter how explicit it is in its description or depiction of
criminal activity, could never serve as a basis for aiding and abetting
liability consistent with the First Amendment. It will be self-evident
in the context of news reporting, if nowhere else, that neither the
intent of the reporter nor the purpose of the report is to facilitate repe-
tition of the crime or other conduct reported upon, but, rather, merely
to report on the particular event, and thereby to inform the public.
A decision that Paladin may be liable under the circumstances of
this case is not even tantamount to a holding that all publishers of
instructional manuals may be liable for the misconduct that ensues
when one follows the instructions which appear in those manuals.
Admittedly, a holding that Paladin is not entitled to an absolute
defense to the plaintiffs' claims here may not bode well for those pub-
lishers, if any, of factually detailed instructional books, similar to Hit
Man, which are devoted exclusively to teaching the techniques of vio-
63
lent activities that are criminal per se. But, in holding that a defense
to liability may not inure to publishers for their dissemination of such
manuals of criminal conduct, we do not address ourselves to the
potential liability of a publisher for the criminal use of published
instructions on activity that is either entirely lawful, or lawful or not
depending upon the circumstances of its occurrence. Assuming, as we
do, that liability could not be imposed in these circumstances on a
finding of mere foreseeability or knowledge that the instructions
might be misused for a criminal purpose, the chances that claims aris-
ing from the publication of instructional manuals like these can with-
stand motions for summary judgment directed to the issue of intent
seem to us remote indeed, at least absent some substantial confirma-
tion of specific intent like that that exists in this case.
Thus, while the "horribles" paraded before us by Paladin and amici
have quite properly prompted us to examine and reexamine the estab-
lished authorities on which plaintiffs' case firmly rests, we regard
them ultimately as but anticipatory of cases wholly unlike the one we
must decide today.
Paladin Press in this case has stipulated that it specifically targeted
the market of murderers, would-be murderers, and other criminals for
sale of its murder manual. Paladin has stipulated both that it had
knowledge and that it intended that Hit Man would immediately be
used by criminals and would-be criminals in the solicitation, plan-
ning, and commission of murder and murder for hire. And Paladin has
stipulated that, through publishing and selling Hit Man, it "assisted"
Perry in particular in the perpetration of the brutal triple murders for
which plaintiffs now seek to hold the publisher liable. Beyond these
startling stipulations, it is alleged, and the record would support, that
Paladin assisted Perry through the quintessential speech act of provid-
ing Perry with detailed factual instructions on how to prepare for,
commit, and cover up his murders, instructions which themselves
embody not so much as a hint of the theoretical advocacy of princi-
ples divorced from action that is the hallmark of protected speech.
And it is alleged, and a jury could find, that Paladin's assistance
assumed the form of speech with little, if any, purpose beyond the
unlawful one of facilitating murder.
Paladin's astonishing stipulations, coupled with the extraordinary
comprehensiveness, detail, and clarity of Hit Man's instructions for
64
criminal activity and murder in particular, the boldness of its palpable
exhortation to murder, the alarming power and effectiveness of its
peculiar form of instruction, the notable absence from its text of the
kind of ideas for the protection of which the First Amendment exists,
and the book's evident lack of any even arguably legitimate purpose
beyond the promotion and teaching of murder, render this case unique
in the law. In at least these circumstances, we are confident that the
First Amendment does not erect the absolute bar to the imposition of
civil liability for which Paladin Press and amici contend. Indeed, to
hold that the First Amendment forbids liability in such circumstances
as a matter of law would fly in the face of all precedent of which we
are aware, not only from the courts of appeals but from the Supreme
Court of the United States itself. Hit Man is, we are convinced, the
speech that even Justice Douglas, with his unrivaled devotion to the
First Amendment, counseled without any equivocation "should be
beyond the pale" under a Constitution that reserves to the people the
ultimate and necessary authority to adjudge some conduct -- and
even some speech -- fundamentally incompatible with the liberties
they have secured unto themselves.
The judgment of the district court is hereby reversed, and the case
remanded for trial.
It is so ordered
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