Some books aren't speech at all, says a November decision by a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit in Richmond.
Survivors of three victims of a murder-for-hire scheme are attempting to sue the Paladin Press, the publisher of a book called Hit Man (pseudonymously authored by "Rex Feral"), allegedly used as an instruction manual by the murderer. Paladin got the case thrown out on First Amendment grounds by a lower court, but now is told on appeal that the book does not deserve First Amendment protection since it constitutes "criminal aiding and abetting."
Some of Paladin's stipulations may have aided and abetted the judges who ruled against it. Paladin granted that it knew some of its readers might be murderers or would-be murderers and might use the instructions to commit crimes. But Paladin's knowledge that its book might be used by criminals, says the publisher's lawyer Thomas Kelley, is "certainly something that can be shown of any publisher who publishes what could be used as how-to information. A documentary on how Pan Am 103 was sabotaged would be of interest to terrorists doing the same thing." Perhaps in recognition of this principle, a number of more mainstream publishers, including The Washington Post, filed amicus briefs on Paladin's behalf.
Even granting that Paladin knew crooks would use the book, Kelley says Paladin should escape the suit under the protections enshrined in the 1969 Supreme Court case Brandenburg v. Ohio, which granted wide protection to speech that advocates lawbreaking. Kelley's petition to have the case thrown out by the full Fourth Circuit points out that the Supreme Court has applied Brandenburg protection to such things as ads detailing how to buy and use contraceptives in places where that was illegal. But the appellate panel said Brandenburg protections don't apply to Hit Man because it is not "abstract advocacy of lawlessness," but instead provides specific factual information on how to commit crimes.
If the Fourth Circuit refuses to rehear the case, Kelley says, he intends to appeal to the Supreme Court.