# Braun v. Soldier of Fortune Magazine, Inc.

> Court of Appeals for the Eleventh Circuit · August 13, 1992 · 968 F.2d 1110

URL: https://www.frixlaw.com/law-library/cases/9001785

## Case

- **Full name:** Michael F. BRAUN v. SOLDIER OF FORTUNE MAGAZINE, INC. and Omega Group, Ltd., Defendants-Appellants Michael F. BRAUN and Ian Braun v. SOLDIER OF FORTUNE MAGAZINE, INC. and Omega Group, Ltd.
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** August 13, 1992
- **Citations:** 968 F.2d 1110; 1992 WL 176640
- **Precedential status:** Published
- **Opinion:** Dissent by Eschbach
- **Judges:** Anderson, Dubina, Eschbach
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9001785

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9001785. Public record. Not legal advice.