The Day They Came to Sue the Book

The courts take out a contract on free speech

David B. Kopel from the August/September 1999 issue

(Page 2 of 2)

But in November 1997, the U.S. Court of Appeals for the 4th Circuit reversed the decision and said the trial against Paladin should go forward. How could the 4th Circuit reconcile their decision with the clear Brandenburg standards about protection of free speech? It couldn't.

Instead, it asserted that because Hit Man contained no express political or social advocacy, the book was not protected by the Brandenburg test--even though many other courts have applied Brandenburg to apolitical speech. Further, claimed the court, a jury could find that the book's only "communicative value" was "training persons how to murder." This was obviously false, given that only two of the book's buyers are known to be criminals. There is simply no analogy between Hit Man and a document intended solely for crime (e.g., bank blueprints drawn up for a robbery).

The 4th Circuit ruling in Rice v. Paladin is inconsistent with many cases from other federal courts finding that the First Amendment prohibits suits against authors or publishers of various instruction manuals for illegal activity such as drug smuggling or marijuana cultivation. The defendants appealed to the Supreme Court, which denied certiorari--as the Court usually does before a factual record has been developed through a trial. The case was set for trial on May 25, 1999. A few days before then, Paladin's insurance company decided to settle, paying several million dollars to Mildred and Trevor Horn's family. Paladin agreed to cease publishing the book and its remaining stock of 700 copies sold out within a day.

The Utopian Anarchist Party promptly posted the full text of Hit Man on its Web site (www.overthrow.com/hitmanonline. html), where the book is now available for free. Thus, the perverse result of Siegel's lawsuit has been to make Hit Man more widely available than ever.

But an ominous precedent has been set, paving the way for more censorship by lawsuit. It was this fear that prompted The Washington Post, the Society of Professional Journalists, and the Horror Writers Association to file amicus briefs in support of Paladin. Already, Oliver Stone is being sued for making Natural Born Killers, under the theory that the movie caused a robber to shoot and paralyze a clerk in a Louisiana convenience store. Refusing to dismiss the suit, the Louisiana Court of Appeals cited the 4th Circuit's Paladin decision. Thus litigation will go forward to discover what Stone's "intent" was in creating Natural Born Killers.

Who loses from such censorship? More people than you'd think. After all, a book that's useful to criminals can also be useful to law enforcement. Paladin's The Ultimate Sniper is used at the U.S. Army Sniper School in Fort Benning, Georgia, and by police SWAT teams all over the country. (If it can be proven that FBI sniper Lon Horiuchi read The Ultimate Sniper sometime before he killed Vicki Weaver at Ruby Ridge, Idaho, should her children have a right to sue Paladin?)

If Paladin is to blame for the murders, who else might find themselves in the dock? The U.S. Army, which trained Perry to kill people with the M-16 rifle (similar to the AR-7) and deliberately put him through a training regimen to desensitize him to the taking of human life? The State of Michigan, which let Perry out of prison after only a few years, despite two separate armed robbery convictions and an attempt to murder a police officer? (Michigan needed the space for drug users.) Or perhaps Jackson State Prison itself? Almost all the techniques mentioned in Hit Man could be learned from prisoners there, according to a guard on Perry's unit.

Or should we blame Mildred Horn? She knew her ex-husband was a murderer: He had bragged to her that during his Navy service, he shoved a sailor off a ship's deck into the ocean and made it look like an accident. She also said that Horn had tried to kill her more than once, and she warned relatives that if she were killed, Horn would be responsible. But there is no evidence that she took protective steps, beyond having a burglar alarm installed and warning Saunder, Trevor's nurse, not to open the door to strangers when Mildred was away. Nor was there any evidence that Saunder, before she accepted her job, was warned that she might be putting her life at risk.

Is it realistic to claim that a book, which at most affected a few details of how the crime was committed, is more responsible than anyone except the actual criminals? State legislatures in Louisiana, Texas, Nevada, Georgia, Maine, and elsewhere have passed laws to stop cities from filing suits designed to destroy Second Amendment rights. Rep. Bob Barr (R-Ga.) has introduced similar legislation in Congress. The Hit Man case suggests that even broader reforms are needed, to protect the First Amendment as well as the Second.