Opinion

Braun v. Soldier of Fortune Magazine, Inc.

  • 968 F.2d 1110
  • 1992 WL 176640
Court
Court of Appeals for the Eleventh Circuit
Filed
Aug 13, 1992
Status
Published
Author
Eschbach
On the bench
Anderson, Dubina, Eschbach
Cited by
19 cases
Authority
More cited than 20.1%

holding that the purpose of First Amendment independent review is “to guarantee that the jury imposed no greater burden [on the defendant] than the Constitution permits”

How later courts described this case

  • holding that the purpose of First Amendment independent review is “to guarantee that the jury imposed no greater burden [on the defendant] than the Constitution permits”
  • affirming judgment for plaintiff under Georgia common law when defendants' published advertisement in which "mercenary" offered "[discreet] gun for hire," resulting in murder of plaintiffs' decedent
  • "Once a court finds that a legal duty exists, it generally leaves for the jury issues of negligence and proximate cause."
  • “Georgia courts recognize a general duty one owes to all the world not to subject them to an unreasonable risk of harm”

Written by the judges who cited it.

The opinion

ESCHBACH, Senior Circuit Judge,

dissenting:

This ease poses a difficult and specific question of law for which we have little guidance. The First Amendment imposes strict limits on states’ ability to subject publishers to tort liability for defamations they publish. Gertz v. Robert Welch, Inc., 418 U.S. 323 , 94 S.Ct. 2997 , 41 L.Ed.2d 789 (1974); New York Times v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964). While this case is broadly analogous in that it involves constitutional restrictions on state tort law as applied to publishers, it presents a number of tortuous twists. We must determine whether the First Amendment limits states’ ability to subject publishers to tort liability for wrongful death actions where the wrongful death was facilitated by a third-party’s commercial speech for which the publisher provided a forum or billboard. The majority’s thorough opinion does a remarkable job of tackling this unique question, and I fully agree with its imaginative interpretation of scant precedent. Nevertheless, I differ with the majority’s application of the law to the facts of this case. Specifically, in discharging our duty of independent first amendment review of the language of Savage’s ad, see ante at 1121-1122, I remain convinced that the language of the advertisement is ambiguous, rather than patently criminal as the majority believes. And although the majority has carefully culled the legal standards it applies from the jury instructions, I remain concerned over whether the instructions were clear enough that the jury could have done so as well. Because of the confluence of these two concerns — the ambiguity of both the advertisement and the jury instructions — I am not confident that the jury actually found that this advertisement was a clear solicitation for criminal activity. Under these circumstances, I am unable to uphold the crushing third-party liability the jury has imposed on Soldier of ■ Fortune Magazine. I respectfully dissent.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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