VIVIAN RICE, Guardian and next friend of Tamielle Horn v. THE PALADIN ENTERPRISES, INCORPORATED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
128 F.3d 233 (Cert. denied, 118 Supreme Ct. 1515 (1998))
November 10, 1997, Decided
Before WILKINS, LUTTIG, and WILLIAMS, Circuit Judges. Judge Luttig wrote the opinion, in which Judges Wilkins and Williams joined.
LUTTIG, Circuit Judge:
To Those Who Think,
To Those Who Do,
To Those Who Succeed.
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, certainly no one will ever know.
Almost 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 without 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 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 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] you've read all the suggested material, you [will have] honed your mind, body and reflexes into a precision piece of 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 reasonable 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,] the knife . . . should have a six-inch blade with a serrated edge for making efficient, 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.
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 movement. 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
[If you plan to kill your victim with a gun,]close 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 recommended 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 penetration 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 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 relatively 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 disfigurement 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 aftermath, 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 "accident."
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, 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 countryside.
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 decomposition, 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.
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.
Everything 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 someone, 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 bragging 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 victor 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.
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 conquer, you might just feel cocky enough to write a book about it.
Selected passages from Hit Man: A Technical Manual for Independent Contractors.
[The foregoing passages have been selected by the court as representative,
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.]
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 subsequently found in his apartment, James Perry brutally murdered Mildred 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.
Perry, for example, followed many of the book's instructions on soliciting a client and arranging for a contract murder in his solicitation 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.
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. The manual 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. 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.
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.
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 "stolen tags only show up on the police computer of the state in which they are stolen." 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.
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, Maryland, a short drive from the Horns' residence.
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.
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.
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.
Hit Man instructs in "explicit detail" 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.
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." Ultimately, the book recommends that its readers "shoot [their victims] from a distance of three to six feet." James Perry shot Mildred Horn and Janice Saunders from a distance of three feet.
Hit Man specifically instructs its audience of killers to shoot the
victim through the eyes if possible: At least three shots should be fired
to insure quick and sure death. . . . Aim 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.
Finally, Perry followed many of Hit Man's instructions for concealing his murders. Hit Man instructs the killer to "pick 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 murders, no spent cartridges were found in the area.
Hit Man instructs the killer to disguise the contract murder as burglary by "messing the place up a bit and taking 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. 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."
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.
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.
Hit Man also instructs the killer to dispose of the murder weapon by scattering the disassembled pieces of the weapon along the road as he leaves the crime scene. Hit Man at 105. And, after killing Mildred and Trevor Horn and Janice Saunders, Perry scattered the pieces of his disassembled AR-7 rifle along Route 28 in Montgomery County.
In this civil, state-law wrongful death action against defendant Paladin Enterprises -- the publisher of Hit Man -- the relatives and representatives 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 civilly 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 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 proceedings."
Paladin, for example, has stipulated for purposes of summary judgment 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. 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," 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." 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.
Notwithstanding Paladin's extraordinary stipulations that it not only knew that its instructions might be used by murderers, but that it actually intended to provide assistance to murderers and would-be murderers which would be used by them "upon receipt," and that it 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 plaintiffs' 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 applicable to speech that constitutes civil aiding and abetting of criminal conduct (at least where, as here, the defendant has the specific purpose 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 Maryland law sufficient to withstand Paladin's motion for summary judgment. 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.
In the seminal case of Brandenburg v. Ohio (1969), the Supreme Court held that abstract advocacy of lawlessness is protected speech under the First Amendment. Although the Court provided 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 impassioned terms the most passionate disagreement with the laws themselves, 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 legitimately proscribable nonexpressive conduct, may itself be legitimately proscribed, punished, or regulated incidentally to the constitutional enforcement of generally applicable statutes. As no less a First Amendment absolutist than Justice Black wrote for the Supreme Court almost fifty 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. We reject the contention now. . .. . .. . . It is true that the agreements and course of conduct here were as in most instances brought about through speaking 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, evidenced, 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 agreements in restraint of trade as well as many other agreements and conspiracies deemed injurious to society.And as the Court more recently reaffirmed:
Although agreements to engage in illegal conduct undoubtedly 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 constitutional immunities that the First Amendment extends to speech. While 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.Were the First Amendment to bar or to limit government regulation of such "speech brigaded with action," the government would be powerless to protect the public from countless of even the most pernicious criminal acts and civil wrongs. As Professor Greenawalt succinctly summarized:
The reasons of ordinary penal policy for covering communicative 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 communications that are simply means to get a crime successfully committed.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 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.
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 criminal aiding and abetting, because "culpability in such cases is premised, 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." The question of whether criminal conduct is 'imminent' is relevant for constitutional purposes only where, as in Brandenburg itself, the government attempts to restrict advocacy, as such. And, while 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. 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.
The first, which obviously would have practical import principally in the civil context, is that the First Amendment may, at least in certain circumstances, superimpose upon the speech-act doctrine a heightened intent requirement in order that preeminent values underlying that constitutional provision not be imperiled. That is, in order to prevent the punishment 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 knowledge that the information one imparts could be misused for an impermissible 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. At the same time, it would not relieve from liability those who would, for profit or other motive, intentionally assist and encourage crime and then shamelessly seek refuge in the sanctuary 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. 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. 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 impunity.
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 civil (or criminal) liability for speech acts which the plaintiff (or the prosecution) can establish were undertaken with specific, if not criminal, intent. And, here, as previously noted, 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. Thus, Paladin has stipulated to an intent, and a jury could otherwise 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 liability for aiding and abetting through speech conduct.
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 action that would permit the imposition of civil liability, such as aiding 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 produce such action." Brandenburg. The instances in which such advocacy might give rise to civil liability under state statute would seem rare, but they are not inconceivable.
Here, it is alleged, and a jury could reasonably find, 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 narration) 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 provided 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." 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. 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," the advocacy of "principles divorced from action." Indeed, this detailed, focused instructional assistance to those contemplating or in the throes of planning murder is the antithesis of speech protected under Brandenburg. It is the teaching of the "techniques" of violence, the "advocacy and teaching of concrete action," the "preparation . . . for violent action and [the] steeling . . . to such action." As such, the murder instructions in Hit Man are, collectively, 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....
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 Mildred and Trevor Horn and Janice Saunders so closely paralleled those prescribed in the book. As discussed above, 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 correspondence of techniques at least creates a jury issue as to whether 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 contemplating 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 proceed, but that he must proceed, if he is to establish his manhood. 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.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.
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, we are confident 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 limitation.
The declared purpose of Hit Man itself is to facilitate murder. Consistent with its declared purpose, the book is subtitled "A Technical Manual for Independent Contractors," and it unabashedly describes itself as "an instruction book on murder." 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....
After carefully and repeatedly reading Hit Man in its entirety, we are of the view that the book so overtly promotes murder in concrete, nonabstract terms that we regard as disturbingly 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." 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 manual.
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. 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 likelihood 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. Thus, for example, a jury would certainly not be unreasonable in dismissing (in fact, it arguably would be unreasonable in accepting) Paladin's contention that Hit Man has significant social value in that the book, in the course of instructing murderers how to murder, incidentally informs law enforcement on the techniques that the book's readers will likely employ in the commission 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.
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.
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. Indeed, Paladin's protests notwithstanding, 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 content and declared purpose to be "an instruction book on murder," that confirmation is found in the stark contrast between this assassination manual and the speech heretofore held to be deserving of constitutional protection.
Through its stipulation that it intended Hit Man to be used by criminals and would-be criminals to commit murder for hire in accordance 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 Amendment....
The cover of Hit Man states that readers of the book will "learn 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 identity, 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 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, faithful to these promises, in the successive chapters of the 130 pages that follow, Hit Man systematically and in meticulous detail instructs on the gruesome particulars 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 registration 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 ballistics 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....
[For example,] Hit Man's Chapter Four, entitled "More Than One Way To Kill a Rabbit -- The Direct Hit is Not Your Only Alternative," includes discursive 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 fertilizer bomb, and it goes on to teach the reader, through step-by-step instructions, how to build such a bomb.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." In addition, the chapter includes instructions such as that, "[a] fire victim will have smoke present in his lungs. Therefore, 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." 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 tetrodotoxin, oleander, nicotine, and jessamine to kill his victims. 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." 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.. . .. . . 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 popping sound as blood spurted from the wound for a second, then stopped.. . .Several stabs later, the [victim] was quivering like a jellyfish, his body like a pin cushion, while the Indian was getting 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.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 elements have done their work, the chain will drag the bones into the muddy sediment.And the instructions we repeat here are but a few of the methods of inflicting torture and death taught in the chapter....
As Hit Man instructs, it also steels its readers to the particular violence 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 language 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 professional.. . .. . . 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 performing cold-blooded murder for a fee . . . . You are not fit to be a part of organized society.Speaking directly to the reader in the second person, like a parent to a child, Hit Man 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 "life is not robust and precious and valuable" and that "everything you have been taught about life and its value was a fallacy[,] [a] dirty rotten lie." To those who fear guilt or remorse, the book reassures:
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] You 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 intervention by the hand of God. But you weren't even feeling sickened by the sight of the body.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.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." 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, overcrowded 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," that a "true" "professional" "won't ever have to face [various] legal predicaments.".
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 politically or socially motivated violence that have historically been considered 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 organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken"; the protestor's inciteful, but protected, chant in United States v. Hess, that "we'll take the fucking street again"; the NAACP speaker's threat, rhetorical in its context, to boycott violators that "if 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 (1982); or the draft protestor's crude, but protected, blustering in Watts that "if 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 (1969).
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 sentences are so very few in number and isolated as to be legally of no significance whatsoever. Hit Man is, pure and simple, a step-by-step murder manual, a training book for assassins. There is nothing even arguably tentative or recondite in the book's promotion of, and instruction in, murder. To the contrary, the book directly and unmistakably urges concrete violations 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.
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 misunderstood the Court in Brandenburg as having distinguished between "advocating 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." And, finding that Hit Man "merely teaches" in technical fashion the fundamentals of murder, it concluded that "the book does not cross that line between permissible advocacy and impermissible incitation to crime or violence."
The Court in Brandenburg, however, did not hold that "mere teaching" is protected; the Court never even used this phrase. And it certainly 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, and "mere advocacy," 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.
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....
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 withstand 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.
Paladin, joined by a spate of media amici, including many of the major networks, newspapers, and publishers, contends that any decision recognizing even a potential cause of action against Paladin will have far-reaching chilling effects on the rights of free speech and press. 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 information which Paladin admits it intended and knew would be used immediately 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 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 extensive 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 subject broadcasters and publishers to liability whenever someone imitates 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 broadcaster or publisher actually intends, through its description or depiction, 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 difficult to overstate the significance of this difference insofar as the potential liability to which the media might be exposed by our decision herein is concerned.
And, perhaps most importantly, there will almost never be evidence 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...."
Paladin's astonishing stipulations, coupled with the extraordinary comprehensiveness, detail, and clarity of Hit Man's instructions for 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.