Taking exception to critics of the 'Hit Man' court ruling

November 24, 1997|By James S. Keat

CRITICS OF the recent federal court decision that said freedom of speech protections don't extend to the publisher of a ''how-to'' murder manual are overwrought. A careful reading of the opinion by the Fourth U.S. Circuit Court of Appeals discloses that it is not new law and hardly heralds the death of press freedom.

My esteemed former colleague, Ray Jenkins, wrote on this page (Nov. 17) that the Fourth Circuit ruling would cause ''incalculable'' harm to the First Amendment's guarantee of freedom of the press, if it is upheld by the U.S. Supreme Court. A lot of staunch defenders of the First Amendment (including The Sun) agree with him. Normally, I count myself in their company. Not this time.

Slippery slope

Essentially, the argument against the ruling is what lawyers call the first step down the slippery slope. Once you start down, you may not be able to stop until you hit bottom. If a despicable publisher of ''how-to'' murder manuals can be held liable in a lawsuit for three murders committed exactly according to its instructions, the argument goes, so could the publisher of any book that incidentally describes the making of a bomb or any other illegal device.

Not so. In fact, such stalwart protectors of the First Amendment as the late U.S. Supreme Court justices William O. Douglas and Hugo Black are quoted in support of the Fourth Circuit decision. So are other authorities such as Attorney General Janet Reno, constitutional scholar Lawrence Tribe and the Ninth Circuit Court of Appeals, generally regarded as the most liberal appellate bench.

The debate over the opinion written by Judge J. Michael Luttig hinges on the difference between advocating violence and actively participating in its commission. It has long been settled law in this country that urging the commission of a violent act, even the overthrow of the government by force, is protected under the Constitution.

But participating in a violent, illegal act is another matter. And that's where the publisher of the manual ''Hit Man'' lost its Bill of Rights shield. A contract killer murdered three people -- an 8-year-old quadriplegic, his mother and his nurse -- so the father could get control of a $2 million insurance settlement on his son. Step by step, the killer followed exactly the tactics spelled out in detail in the book ''Hit Man: A Technical Manual for Independent Contractors,'' published by Paladin Press of Colorado. The book did not advocate murder. However, it described, in excruciating detail, how it could be committed. That made the publisher an accessory, if not in a criminal sense at least under civil law.

Mr. Jenkins points out that authors sometimes find it necessary to describe criminal activities, including the making of a pipe bomb in the case of his biography. But authors like him are giving verisimilitude to works that have a valid informational purpose. Paladin made no such claim.

In its legal defense, the publisher conceded that it intended to help readers commit murders and that it actually aided the contract killer in this case. There is no pretense of redeeming social value.

Mr. Jenkins makes much of the fact that Judge Luttig himself quotes extensively from ''Hit Man'' in an opinion that quickly became available on the Internet. He argues that makes the judge vulnerable to the charge that he, too, is teaching potential killers how to commit murder. But the judge noted that he was omitting some details in order to minimize that risk. And certainly a judicial opinion that turns on the contents of a book must describe them with some specificity.

No one is arguing that Paladin is subject to criminal prosecution. (It wouldn't bother me if it were. No obscenity in my vocabulary is adequate to describe its deed.) The heirs of the victims are suing the publisher for abetting the murders. Paladin is trying to hide behind the First Amendment to avoid a civil trial. Mr. Jenkins argues that someone must give the orders to be legally responsible.

Judge Luttig goes on for more than a dozen pages of small print bolstering his constitutional reasoning. Where Mr. Jenkins quotes one Supreme Court decision that said publication of instructions on how to build a hydrogen bomb (which were publicly available elsewhere) was protected by the First Amendment, Judge Luttig cites several which support his interpretation.

The Ninth Circuit Court of Appeals said 15 years ago that there is ''no support in the law'' for the argument that a manual on making illegal drugs was protected by the First Amendment. Judge Luttig's court issued a similar ruling a dozen years ago in a tax fraud case. Earlier this year, the Clinton administration's Department of Justice advised Congress that publishers of bomb-making instructions have no First Amendment shield against ''successful efforts to assist others by detailing to them the means of accomplishing the crimes.''

Justice Black, an absolutist where the Bill of Rights was concerned, wrote 50 years ago, ''It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.''

By these standards, and others stretching back three decades, the First Amendment offers no protection to publishers who intentionally abet murder with no other purpose. Respected biographers like Ray Jenkins have nothing to fear from the Paladin decision. There is no slippery slope here. The real threat to the First Amendment is in eroding public confidence in it by stretching its protections to the breaking point.

James S. Keat is a retired Sun editor who is still active in freedom of information issues.

Pub Date: 11/24/97

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