First Amendment Takes a Hit in Paladin Press Case

July 1999
by Jonathan Kirsch
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Jonathan KirschJonathan Kirsch, a publishing attorney based in Los Angeles, is general counsel of the Independent Book Publishers Association and a recipient of its Benjamin Franklin Award for excellence in publishing.


Bad facts make bad law, as the old saying goes, and never was it better illustrated than in the case of Rice v. Paladin Press.

The Paladin Press case stands for the unsettling proposition that a book publisher may be liable for damages if someone uses something he or she reads in a book to commit a crime. The case was ready to go to trial in Maryland in May 1999 when the publisher’s insurance company abruptly settled with the plaintiffs. As a result, no further appeals are possible, and the legal precedent of the Paladin Press case remains available for future litigants who may seek to sue publishers on much less inflammatory claims.

Bad Facts

The Paladin Press case reads like the scenario for a film noir. A career criminal and convicted felon named James Perry was allegedly hired by Lawrence Horn in 1992 to murder Horn’s wife and son, an eight-year-old quadriplegic. Horn’s motive for the contract murders was a $2 million medical malpractice settlement for the injuries that left the boy disabled for life. If both his wife and son were dead, Horn alone would inherit the $2 million.Once hired by the faithless father and husband, the contract killer purchased a copy of Hit Man from Paladin Press by mail order-his one and only point of contact with the publisher-and then, allegedly relying on what he learned from reading the book, Perry strangled the young quadriplegic and shot Horn’s wife and the boy’s duty nurse through the eyes.

For their crimes, Perry and Horn were prosecuted, convicted and sentenced-Perry is on Death Row, and Horn is serving life without parole. But the relatives of the three murder victims filed a wrongful death action against Paladin Press on the theory that the publisher “aided and abetted Perry in the commission of his murders through its publication of Hit Man’s killing instructions.”

In fact, Horn appears to have read Hit Man very carefully, and he allegedly followed much of the advice offered in the 130-page manual, including specific tips and technical instructions on how to solicit a contract murder, how to avoid detection by using a rental car with a stolen out-of-state license plate tag, how to manufacture a silencer, and how to kill without splattering blood on one’s clothing.

The First Amendment at Risk

At the outset of the case, a federal trial judge in Maryland threw out the lawsuit on the ground that the claims of the plaintiffs were “barred by the First Amendment as a matter of law.” On appeal, the Fourth Circuit Court of Appeals was asked to decide whether the First Amendment “absolutely bars the imposition of liability upon a publisher for assisting in the commission of criminal acts.” If so, Paladin Press argued, the First Amendment provides a “complete defense” and no trial would be necessary. If not, then the plaintiffs would be entitled to their day in court against the publisher.The Court of Appeals ruled in favor of the plaintiffs, reversing the trial court’s ruling, reinstating the lawsuit against Paladin Press, and holding that the publication of a book may be equivalent to “aiding and abetting” in the commission of a crime. Under such circumstances, a book publisher “does not enjoy the protection of the First Amendment.”

Just about every aspect of Hit Man worked against the First Amendment interests in the closely-watched case. Hit Man is not a murder mystery or a reference book for novelists who write murder mysteries. Rather, it is a “how-to” book, a self-proclaimed “technical manual” that provides detailed information and advice on how to commit murder-for-hire and get away with it. Indeed, the book itself seems to anticipate that its advice would be utilized exactly as James Perry used it on the night he committed the triple murder.”

A woman recently asked how I could, in good conscience, write an instruction book on murder,” writes the author of Hit Man. “‘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.”Indeed, the Court of Appeals in the Paladin Press case found Hit Man so repugnant that quotations from the book in its formal legal opinion were carefully censored “to minimize the danger to the public from their repetition herein.”

A Lightning Rod for Victims Rights and the First Amendment

The Paladin Press lawsuit quickly turned into a lightning rod for special interests on both sides of the case. The National Victim Center and the Victim Rights Political Action Committee, for example, lined up with the plaintiffs, and the American Civil Liberties Union and the Reporters Committee for Freedom of the Press joined on the side of the defendants. A long list of media companies and associations, including the Association of American Publishers, the Magazine Publishers of America, and the Newspaper Association of America filed amicus briefs in support of Paladin Press, and so did insurance companies that specialize in publisher’s errors and omissions policies.Paladin Press asked the United Supreme Court to hear an appeal from the decision of the Fourth Circuit Court of Appeals, but the Supreme Court declined the case without comment, which left the lower court’s opinion in effect unless and until a further appeal was filed after trial. Then, when the lawsuit was finally ready to go to trial, the publisher’s insurance company decided not to risk the wrath of a jury. After all, if a panel of sober judges was sickened and outraged by the facts of the case, a jury with the power to award a multi-million-dollar verdict was simply too great a risk.

Living with the Paladin Press Case

“Only time will tell how much damage this lawsuit has done to the First Amendment, which has always been the hallmark of American freedoms,” commented Paladin Press, which recently withdrew Hit Man from its catalogue, “and the once-vaunted ‘marketplace of ideas’ it has encouraged and protected from censors of all persuasions.”But all publishers will now have to live with the “chilling effect” of the Paladin Press case and the stern ruling of the Court of Appeals, which remains in effect until challenged in some other lawsuit. As a practical matter, of course, few publishers face the kind of risk that Paladin Press was willing to run in publishing a book like Hit Man. But every publisher whose books offer advice and information now faces at least the potential risk of a lawsuit if a reckless reader misuses what he or she reads in a book.


SIDEBAR

Important Reminder to Publishers on Copyright Registration

Starting July 1, 1999, the basic filing fee for a copyright application increases to $30. Other fees charged by the Copyright Office have also increased. Make sure you are using the current fee schedule, which is available at the Web site of the US Copyright Office at www.loc.gov/copyright.

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