Appendix — Paladin Enterprises, Inc. v. Rice ex rel. Horn

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APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-2412

VIVIAN Rice, Guardian and next friend of Tamielle Horn:

MARILYN FARMER, Co-personal representatives of the

estate of Mildred Horn; TIFFANI M. Horn, Co-personal

representatives of the estate of Mildred Horn; MICHAEL

D. SAUNDERS, Individually and next friend of Colin D.

Saunders, a minor and personal representative of the

estate of Janice Y. Saunders; CoLIn D. SAUNDERS;

JANICE Y. SAUNDERS,

Plaintiffs-A ppellants,

Vv.

THE PALADIN ENTERPRISES, INCORPORATED,

a/k/a The Paladin Press,

Defendant-A ppellee,

and

PETER C. LuND,

Defendant,

Davip Crump, Professor of Constitutional Law and Re-

cipient of “Friend of the First Amendment” Award:

NATIONAL VICTIM CENTER; STEPHANIE ROPER FOUN-

DATION, INCORPORATED; VICTIMS RIGHTS POLITICAL

ACTION COMMITTEE; THE HorRROR WRITERS ASSOCIA-

TION; THE THOMAS JEFFERSON CENTER FOR THE

PROTECTION OF FREE EXPRESSION; AMERICAN CIVIL

LIBERTIES UNION FOUNDATION; AMERICAN Crvit LIp-

ERTIES UNION OF THE NATIONAL CAPITOL AREA;

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AMERICAN Civi_ LIBERTIES UNION OF COLORADO;

ABC, INCORPORATED; AMERICAN ONLINE, INCORPO-

RATED; ASSOCIATION OF AMERICAN PUBLISHERS; THE

BALTIMORE SUN COMPANY; E.W. ScRIPPS COMPANY;

FREEDOM TO READ FOUNDATION; MAGAZINE PuB-

LISHERS OF AMERICA, INCORPORATED; MCCLATCHY

NEWSPAPERS, INCORPORATED; MEDIA GENERAL, INC.;

MEDIA PROFESSIONAL INSURANCE; NATIONAL ASSOCIA-

TION OF BROADCASTERS; NEWSPAPERS ASSOCIATION OF

AMERICA; THE NEW YORK TIMES; THE REPORTERS

COMMITTEE FOR FREEDOM OF THE PRESS; SOCIETY OF

PROFESSIONAL JOURNALISTS; THE WASHINGTON POST,

Amici Curiae.

Appeal from the United States District Court

for the District of Maryland, at Baltimore

Alexander Williams, Jr., District Judge

(CA-95-3811-AW)

Argued: May 7, 1997

Decided: November 10, 1997

Before WILKINS, LUTTIG, and WILLIAMS,

Circuit Judges.

OPINION

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.

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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.

[A]lmost 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] [y]ou’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

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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 pre-

scription department of most drug stores in boxes of 100.

You will wear the gloves when you assemble and disas-

semble your weapons as well as on the actual job. Be-

cause 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 ac-

cording to the job setting.

Black, dark brown or olive green clothess do not stand

out and will probably appear at first glance to be a

mechanic or delivery driver’s uniform. . . . And under-

neath, 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 trig-

ger or plunge a knife. It is being able to do so in a man-

ner that will not link yourself or your employer to the

crime that makes you a professional.

.. Lf you decide to kill your victim with a knife,] [t]he

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

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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 for-

ward 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 vic-

tim.]... Anice 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 at-

tributed 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 in-

expensive [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% inch ( inside diameter) PVC tubing

and two end caps

6a

—One quart of fiberglass resin with hardener

One yard thin fiberglass mat

[List continues]

[(7f you plan to kill your victim with a gun,] [c]lose

kills are by far preferred to shots fired over a long dis-

tance. 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.

[7f 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 sharp-

shooter. 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 re-

mounting 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 precau-

tion, you can fill the hollows with liquid poison to insure

success of your operations. ... [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 maxi-

mum for your rifle. Check for penetration of bullets at

each range. Quarter-inch plywood is only a little stronger

than the human skull.

Ta

If the serial number is on the barrel of the gun, grind-

ing 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 in-

stances when other methods of extermination are called

for. The employer may want you to gather certain infor-

mation from the mark before you do away with him. At

other times, the assignment may call for torture or dis-

figurement 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 enier 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 in-

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structions 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, finger-

prints 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 con-

crete blocks, but it must be wrapped from head to toe

with heavy chains as well, to keep the body from separat-

ing 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 pre-

vent the horrible odor of decomposition, and lye to make

that decomposition more rapid.

—

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[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 in-

tervention 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 su-

periority, a new independence and self-assurance.

[E]verything seems to have changed.

The people around you have suddenly become so ag-

gravatingly ordinary. You start to view them as an irritat-

ing 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 hesita-

tion, 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

|

10a

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 mascu-

linity 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.’

I.

On the night of March 3, 1993, readied by these in-

structions and steeled by these seductive adjurations from

Hit Man: A Technical Manual for Independent Con-

tractors, a copy of which was subsequently found in his

1 The foregoing passages have been selected by the court as repre-

sentative, 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 pas-

sages in order to minimize the danger to the public from their

repetition herein.

————————————

11a

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 in-

stead 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 in-

strument, 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 mur-

ders, Perry meticulously followed countless of Hit Man’s

130 pages of detailed factual instructions on how to mur-

der and to become a professional killer.

Perry, for example, followed many of the book’s in-

structions on soliciting a client and arranging for a con-

tract murder in his solicitation of and negotiation with

Lawrence Horn. Cautioning against the placement of ad-

vertisement 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. State v.

Perry, 344 Md. 204, 686 A.2d 274, 278 (1996), cert.

denied, 117 S. Ct. 1318 (1997).

Hit Man instructs to request “expense money” from the

employer prior to committing the crime, advising the con-

tract killer to get “all expense money up front.” Hit Man

at 92 (emphasis added). The manual goes on to explain

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that this amount should generally range from five hun-

dred to five thousand dollars, “depending on the type of

job and the job location,” and that the advance should

be paid in cash. Jd. Prior to commission of the murders,

Lawrence Horn paid James Perry three thousand five hun-

dred dollars through a series of wire transfers using phony

names. Perry, 686 A.2d at 280.

Hit Man instucts 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 “posi-

tion.” Hit Man at 81-82. James Perry murdered the

Horns at their place of residence. Perry, 686 A.2d at 277.

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 “[s]tolen tags only show up on

the police computer of the state in which they are stolen.”

Id. 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. Perry, 686 A.2d at 276.

Hit Man instructs the reader to establish a base at a

motel in close proximity to the “jobsite” before commit-

ting 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 Rock-

ville, Maryland, a short drive from the Horns’ residence.

Perry, 686 A.2d at 276.

Hit Man instructs that one should “use a made-up

[license] tag number” when registering at the motel or

hotel. Hit Man at i02. James Perry gave a false license

tag number when he registered at the Days Inn on the

night of the murders. Perry, 686 A.2d at 276.

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 Mildren Horn and Janice Saunders.

Perry, 686 A.2d at 279.

errata

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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 num-

bers of his weapon exactly as the book instructs. Perry,

686 A.2d at 280.

Hit Man instructs in “explicit detail” (replete with

photographs) how to construct, “without [the] need of

special engineering ability or machine shop tools,” a home-

made, “whisper-quiet” silencer from material available in

any hardware store. Hit Man at 39-51. James Perry con-

structed such a homemade silencer and used it on the night

that he murdered Mildred and Trevor Horn and Janice

Saunders. J.A. at 24.

Perry also followed any number of Hit Man’s instruc-

tions 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.”

Id. Ultimately, the book recommends that its readers

“shoot [their victims] from a distance of three to six feet.”

Id. James Perry shot Milded Horn and Janice Saunders

from a distance of three feet. J.A. at 24.

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. . . . [A]Jim 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.

Perry, 686 A.2d at 277.

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Finally, Perry followed many of Hit Man’s instructions

for concealing his murders. Hit Man instructs the killer

to “[p]ick 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. Compare

Perry, 686 A.2d at 277, with id. at 280.

Hit Man instructs the killer to disguise the contract mur-

der as burglary by “mess[ing] the place up a bit and tak-

[ing] 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. Perry, 686 A.2d at 278. 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.” /d. at 277.

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. Perry, 686 A.2d at 280.

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 instruc-

tions. Perry, 686 A.2d at 280.

Hit Man also instructs the killer to dispose of the mur-

der 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 dis-

ee ee ee Oe yep eee

ee ey

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assembled AR-7 rifle along Route 28 in Montgomery

County. Perry, 686 A.2d at 280.

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 rea-

sons that are here of no concern to the court, Paladin

has stipulated to a set of facts which establish as a mat-

ter 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 crim-

inal 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 plain-

tiffs’ Complaint. All other issues of law and fact are spe-

cifically reserved for subsequent proceedings.” J.A. at 58.

Paladin, for example, has stipulated for purposes of

summary judgment that Perry followed the above-enum-

erated instructions from Hit Man, as well as instructions

from another Paladin publication, How to Make a Dis-

posable Silencer, Vol. II, in planning, executing, and at-

tempting to cover up the murders of Mildred and Trevor

Horn and Janice Saunders. J.A. at 61. Paladin has stip-

ulated not only that, in marketing Hit Man, Paladin “in-

tended to attract and assist criminals and would-be crim-

inals who desire information and instructions on how to

commit crimes,” J.A. at 59, 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.” J.A. at 59

(emphasis added). Indeed, the publisher has even stipu-

lated that, through publishing and selling Hit Man, it as-

sisted Perry in particular in the perpetration of the very

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murders for which the victims’ families now attempt to

hold Paladin civilly liable. J.A. at 61.?

2 The full fact stipulation of the parties read as follows:

JOINT STATEMENT OF FACTS

The parties agree that the matters set forth below represent

facts that the plaintiffs and/or defendants would be able to

establish by affidavit or otherwise in the context of defendants’

motion for summary judgment under F.R.C.P. 56. These facts

are offered only for the purposes of this motion and the parties

specifically reserve the right to contest all statements which

follow at any subsequent proceeding in this case. The parties

agree that the sole issue to be decided by the Court in this

motion 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.

1. Prior to March 3, 1993, Lawrence Horn began plotting

with James Perry of Detroit, Michigan, to have Perry murder

his ex-wife, Mildred Horn, and his son, Trevor.

2. On or about January 24, 1992, James Perry responded to

a catalogue solicitation by the defendant, Paladin, advertising

Hit Man: A Technical Manual for Independent Contractors

(hereinafter referred to as “Hit Man”), and How to Make a

Disposable Silencer, Volume 2 (hereinafter referred to as :

“Silencers’”’). Perry ordered both publications. Hit Man and

Silencers were mailed to him by the defendants shortly there-

after.

3. Defendants had no other known contact with Perry and

no contacts with Lawrence Horn.

4. Defendants concede, for purposes of this motion, and for

no other purposes, that:

a. defendants engaged in a marketing strategy intended to

attract and assist criminals and would-be criminals who desire

information and instructions on how to commit crimes; and

b. in publishing, marketing, advertising and distributing Hit

Man and Silencers, defendants intended and had knowledge that

their publications would be used, upon receipt, by criminals and

would-be criminals to plan and execute the crime of murder for

hire, in the manner set forth in the publications.

c. The conditional factual concessions made in this § 4 relate

only to the defendants’ state of mind, and do not preclude de-

fendants from contending that defendants’ published words, in

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Notwithstanding Paladin’s extraordinary stipulations

that it not only knew that its instructions might be used

and of themselves, were neither directed at causing imminent

unlawful action nor likely to produce such action, for purposes

of the doctrine of Brandenburg v. Ohio, 395 U.S. 444 (1969).

5. Plaintiffs concede, for purposes of this motion and for no

other purposes, that:

a. defendants’ marketing strategy was and is intended to

maximize sales of its publications to the public, including sales

to (i) authors who desire information for the purpose of writ-

ing books about crime and criminals, (ii) law enforcement

officers and agencies who desire information concerning the

means and methods of committing crimes, (iii) persons who

enjoy reading accounts of crimes and the means of committing

them for purposes of entertainment, (iv) persons who fantasize

about committing crimes but do not thereafter commit them,

and (v) criminologists and others who study criminal methods

and mentality.

b. in publishing, marketing, advertising and distributing Hit

Man and Silencers, as well as other publications, defendants

intended and had knowledge that their publications would be

purchased by members of the general public, including those

persons and for those purposes listed in {[ 5(a).

c. The conditional factual concessions made in this { 5 shall

not preclude the plaintiffs from contending that such facts are

irrelevant to any issue before this court.

6. On March 8, 1993, James Perry traveled from Detroit,

Michigan to Montgomery County, Maryland and murdered Mil-

dred Horn, Trevor Horn, and Janice Saunders, Trevor’s private

duty nurse. Perry followed a number of instructions outlined

in Hit Man and Silencers (set forth in § 7 below) in planning,

executing and attempting to get away with the murders de-

scribed in the complaint.

7. Defendants concede, for the purpose of this motion and

for no other purposes, that in publishing, distributing and

selling Hit Man and Silencers to Perry, defendants assisted him

in the subsequent perpetration of the murders which are the

subject of this litigation, in the ways set forth in paragraphs 18

and 19 of the Rice complaint and paragraphs 20 and 21 of the

Saunders complaint which are incorporated by reference and

are filed herewith as exhibit “D”.

8. Hit Man was first published in 1983 and Silencers was

first published in 1988. Approximately 13,000 copies of Hit

18a

by murderers, but that it actually intended to provide as-

sistance 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 dis-

trict court granted Paladin’s motion for summary judg-

ment 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 con-

duct (at least where, as here, the defendant has the spe-

cific purpose of assisting and encouraging commission of

such conduct and the alleged assistance and encourage-

ment 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

Man and an unknown but not disproportionate number of copies

of Silencers have been sold nationally.

9. Atall relevant times, defendants had no specific knowledge

(1) that either Perry or Horn planned to commit a crime: (2)

that Perry and Horn had entered into a conspiracy for the pur-

pose of committing a crime; and (3) that Perry had been re-

tained by Horn to murder Mildred Horn, Trevor Horn, or Janice

Saunders.

10. The defendants’ current catalogue, and publications Hit

Man and Silencers are filed herewith by the parties as exhibits

A, B, and C, respectively.

11. The parties may file affidavits or supplement but not alter

the foregoing stipulation. Plaintiffs reserve the right to chal-

lenge defendants’ affidavits declarations with counter-affidavits

or pursuant to F.R.C.P. 56.

J.A. at 58-62.

19a

that the plaintiffs have stated against Paladin a civil aid-

ing 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.

II.

A.

In the seminal case of Brandenburg v. Ohio, 395 U.S.

444 (1969), the Supreme Court held that abstract ad-

vocacy of lawlessness is protected speech under the First

Amendment. Although the Court provided little explana-

tion 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 paradoxi-

cally, 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 in-

stitutions of, and created by, law, and the individual offi-

cials 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. Cf. Cohen v. Cowles

Media Co., 501 U.S. 663, 669 (1991) (noting “well-

established line of decisions holding that generally ap-

plicable laws do not offend the First Amendment simply

because their enforcement against the press has incidental

effects on its ability to gather and report the news”). As

no less a First Amendment absolutist than Justice Black

20a

wrote for the Supreme Court almost fifty years ago in

Giboney v. Empire Storage & Ice Co., in rejecting a

First Amendment challenge to an injunction forbidding

unionized distributors from picketing to force an illegal

business arrangement:

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 con-

duct in violation of a valid criminal statute. We re-

ject 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 abridgement of freedom of speech or press

to make a course of conduct illegal merely because

the conduct was in part initiated, evidenced, or car-

ried out by means of language, either spoken, writ-

ten, 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.

336 U.S. 490, 498, 502 (1949) (citations omitted). 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 trench-

ing on any right of association protected by the First

Amendment. The fact that such an agreement neces-

sarily 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 agree-

ment arguably crosses the sometimes hazy line dis-

Zla

tinguishing conduct from pure speech, such a solicita-

tion, 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.

Brown Vv. Hartlage, 456 U.S. 45, 55 (1982); see also

Osborne v. Ohio, 495 U.S. 103, 110 (1990) (quoting

Giboney, 336 U.S. at 498); New York v. Ferber, 458

U.S. 747, 761-62 (1982) (same); Ohralik v. Ohio State

Bar Ass'n, 436 U.S. 447, 456 (1978) (quoting Giboney,

336 U.S. at 502); National Organization for Women v.

Operation Rescue, 37 F.3d 646, 656 (D.C. Cir. 1994)

(“That ‘aiding and abetting’ of an illegal act may be

carried out through speech is no bar to its illegality’);

United States v. Varani, 435 F.2d 758, 762 (6th Cir.

1970) (“{S]peech is not protected by the First Amend-

ment when it is the very vehicle of the crime itself.”);

Laurence H. Tribe, American Constitutional Law 837

(2d ed. 1988) (“[T]he law need not treat differently the

crime of one man who sells a bomb to terrorists and that

of another who publishes an instructional manual for ter-

rorists on how to build their own bombs out of old Volks-

wagen parts.”).

Were the First Amendment to bar or to limit govern-

ment regulation of such “speech brigaded with action,”

Brandenburg, 395 U.S. at 456 (Douglas, J., concurring),

the government would be powerless to protect the public

from countless of even the most pernicious criminal acts

and civil wrongs. See, e.g., Model Penal Code § 223.4

(extortion or blackmail); id. § 240.2 (threats and other

improper influences in official and political matters); id.

§ 241 (perjury and various cognate crimes); id. § 5.02

and § 2.06(3)(a)(i) (criminal solicitation); 18 U.S.C.

§ 871 (threatening the life of the President); Model Penal

Code § 5.03 (conspiracy); id. § 250.4 (harassment); id.

§ 224.1 (forgery); id. §210.5(2) (successfully soliciting

another to commit suicide); id. § 250.3 (false public

22a

alarms); and the like. 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 under-

standing 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.

Greenawalt, Speech, Crime, and the Uses of Language at

85 (1989).

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 of-

fenses. 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.

Thus, in a case indistinguishable in principle from that

before us, the Ninth Circuit expressly held in United

States Vv. Barnett, 667 F.2d 835 (9th Cir. 1982), that the

First Amendment does not’ provide publishers a defense

as a matter of law to charges of aiding and abetting a

crime through the publication and distribution of instruc-

tions on how to make illegal drugs. In rejecting the pub-

lisher’s argument that there could be no probable cause

to believe that a crime had been committed because its

actions were shielded by the First Amendment, and thus

a fortiori there was no probable cause to support the

search pursuant to which the drug manufacturing instruc-

tions were found, the Court of Appeals explicitly fore-

closed a First Amendment defense not only to the search

itself, but also to a later prosecution:

23a

To the extent . . . that Barnett appears to contend

that he is immune from search or prosecution be-

cause he uses the printed word in encouraging and

counseling others in the commission of a crime, we

hold expressly that the first amendment does not pro-

vide a defense as a matter of law to such conduct.

Id. at 843 (emphasis in original); see also id. at 842

(“The first amendment does not provide a defense to a

criminal charge simply because the actor uses words to

carry out his illegal purpose. Crimes, including that of

aiding and abetting, frequently involve the use of speech

as part of the criminal transaction.”). The Ninth Circuit

derided as a “specious syllogism” with “no support in the

law” the publisher’s argument that the First Amendment

protected his sale of the instruction manual simply be-

cause the First Amendment protects the written word. /d.

at 842.

The principle of Barnett, that the provision of instruc-

tions that aid and abet another in the commission of a

criminal offense is unprotected by the First Amendment,

has been uniformly accepted, and the principle has been

applied to the aiding and abetting of innumerable crimes.

Notably, then-Judge Kennedy, in express reliance upon

Barnett, invoked the principle in United States v. Free-

man to sustain convictions for the aiding and abetting of

tax fraud. 761 F.2d 549, 552-53 (9th Cir. 1985), cert.

denied, 476 U.S. 1120 (1986). In Freeman, the Ninth

Circuit concluded that the defendant could be held crim-

inally liable for counseling tax evasion at seminars held

in protest of the tax laws, even though the speech that

served as the predicate for the conviction “spr[ang] from

the anterior motive to effect political or social change.”

761 F.2d at 551. Said the court:

{T]he First Amendment is quite irrelevant if the in-

tent of the actor and the objective meaning of the

words used are so close in time and purpose to a

24a

substantive evil as to become part of the ultimate

crime itself. In those instances, where speech be-

comes an integral part of the crime, a First Amend-

ment defense is foreclosed even if the prosecution

rests on words alone.

Id. at 552 (citations omitted). Thus, the court held that

a First Amendment instruction was required only for those

counts as to which there was evidence that the speaker

“directed his comments at the unfairness of the tax laws

generally, without soliciting or counseling a violation of

the law in an immediate sense [and] made statements that,

at least arguably, were of abstract generality, remote from

advice to commit a specific criminal act.” Id. at 551-52.

For those counts as to which the defendant, through his

speech, directly assisted in the preparation and review of

false tax returns, the court held that the defendant was

not entitled to a First Amendment instruction at all. Jd.

at 552. See also United States v. Mendelsohn, 896 F.2d

1183, 1186 (9th Cir. 1990) (holding Brandenburg in-

applicable to a conviction for conspiring to transport and

aiding and abetting the interstate transportation of wager-

ing paraphernalia, where defendants disseminated a com-

puter program that assisted others to record and analyze

bets on sporting events; program was “too instrumental in

and intertwined with the performance of criminal activity

to retain first amendment protection” ).

Our own circuit, and every other circuit to address the

issue, has likewise concluded that the First Amendment is

generally inapplicable to charges of aiding and abetting

violations of the tax laws. See, e.g., United States v. Kel-

ley, 769 F.2d 215 (4th Cir. 1985); United States v.

Rowlee, 899 F.2d 1275 (2d Cir. 1990), cert. denied, 498

U.S. 828 (1990); United States v. Moss, 604 F.2d 569

(8th Cir. 1979), cert. denied, 444 U.S. 1071 (1980);

United States v. Buttorff, 572 F.2d 619, 623-24 (8th Cir.

1978) (holding that tax evasion speeches were not subject

to Brandenburg because, although they did not “incite the

type of imminent lawless activity referred to in criminal

25a

syndicalism cases,” they did “go beyond mere advocacy

of tax reform”), cert. denied, 437 U.S. 906 (1978).

Thus, in Kelley, we held that a defendant who “par-

ticipate[d]” in the preparation of false tax forms for others

by telling listeners “what to do and how to prepare the

forms” and by supplying forms and materials was not en-

titled to the protections of the First Amendment, 769 F.2d

at 217, even though the defendant offered his advice in a

meeting of a group concededly dedicated to the political

belief “that the federal income tax is unconstitutional as

applied to wages,” id. at 216. We observed, as the Ninth

Circuit did with respect to the claim made in Barnett, that,

[t]he claim of First Amendment protection of

[Kelley’s] speech is frivolous. His was no abstract

criticism of income tax laws. His listeners were not

urged to seek congressional action to exempt wages

from income taxation. Instead, they were urged to

file false returns, with every expectation that the ad-

vice would be heeded.

The cloak of the First Amendment envelops crit-

ical, but abstract, discussions of existing laws, but

lends no protection to speech which urges the listen-

ers to commit violations of current law. Brandenburg

v. Ohio, 395 U.S. 444, 89 S. Ct. 1827; United States

V. Buttorff, 572 F.2d 619 (8th Cir. 1978). It was

no theoretical discussion of non-compliance with

laws; action was urged; the advice was heeded, and

false forms were filed.

Kelley, 769 F.2d at 217. Analogously, we held in United

States v. Fleschner, 98 F.3d 155 (4th Cir. 1996), cert.

denied, 117 S. Ct. 2484 (1997), that defendants who

instructed and advised meeting attendees to file unlawful

tax returns were not entitled to a First Amendment jury

instruction on the charge of conspiracy to defraud the

United States of income tax revenue because “(tlhe de-

fendants’ words and acts were not remote from the com-

mission of the criminal acts.” 98 F.3d at 158-59.

26a

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 punish-

ment of speech that constitutes criminal aiding and abet-

ting, because “culpability in such cases is premised, not

on defendants’ ‘advocacy’ of criminal conduct, but on de-

fendants’ successful efforts to assist others by detailing

to them the means of accomplishing the crimes.” Depart-

ment of Justice, “Report on the Availability of Bombmak-

ing Information, the Extent to Which Its Dissemination

is Controlled by Federal Law, and the Extent to Which

Such Dissemination May Be Subject to Regulation Con-

sistent with the First Amendment to the United States

Constitution” 37 (April 1997) (footnote omitted) [here-

inafter “DOJ Report”]; see also id. (“[T]he question of

whether criminal conduct is ‘imminent’ is relevant for con-

Stitutional purposes only where, as in Brandenburg itself,

the government attempts to restrict advocacy, as such.”).°

3 Congress, in the Antiterrorism and Effective Death Penalty Act

of 1996 [“the AEDPA”], Pub. L. No. 104-132, 110 Stat. 1214, 1297,

required the Attorney General to conduct a study concerning, inter

alia, the extent to which there is available public access to materials

instructing on “how to make bombs, destructive devices, or weapons

of mass destruction”; the application of then-existing federal laws

to such materials; and the extent to which the First Amendment

protects such materials and their private and commercial distribu-

tion. The statutory mandate to the Attorney General was prompted

by legislation proposed by Senators Feinstein and Biden in the

aftermath of the Oklahoma City bombing, which would criminalize

the teaching or demonstration of the manufacture of explosive ma-

terials “if the person intends or knows that such explosive materials

or information will likely be used for, or in furtherance of” specified

criminal offenses.

The AEDPA required the Attorney General to submit to the

Congress a report on these subjects and to make that report avail-

able to the public. Recognizing that the exhaustive legal analysis

set forth in that report was directly relevant to the issues pending

before us, the parties jointly moved for, and we granted them, per-

mission to file the report with the court. The decision we reach

today, which, as noted, was urged upon us by Attorney General

27a

And, while there is considerably less authority on the sub-

ject, we assume that those speech acts which the govern-

ment 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. Compare Garrison v. Louisiana, 379 U.S. 64

(1964) (¢ applying the same “actual malice” standard to

both criminal libel prosecutions and private defamation

actions) with New York Times Co. v. Sullivan, 376 U.S.

254 (1964). Cf. Cohen, 501 U.S. 663 (finding in civil

Promissory estoppel case that First Amendment does not

bar liability for newspaper’s publication of confidential

source’s name); Zacchini v. Scripps-Howard Broadcasting

Co., 433 U.S. 562 (1977) (First Amendment does not

bar liability for common law tort of unlawful appropria-

tion of “right to publicity” where television station broad-

cast “human cannonball” act in its entirety without plain-

tiffs authorization); Harper & Row, Publishers, Inc. v.

Nation Enterprises, 471 U.S. 539 (1985) (rejecting First

Amendment defense to copyright infringement action

against magazine for printing unauthorized presidential

Reno and the Department of Justice, follows from the principal con-

clusion reached by the Attorney General and the Department in that

report:

The First Amendment would impose substantial constraints

on any attempt to proscribe indiscriminately the dissemination

of bombmaking information. The government generally may

not, except in rare circumstances, punish persons either for

advocating lawless action or for disseminating truthful infor-

mation—including information that would be dangerous if used

—that such persons have obtained lawfully. However, the con-

stitutional analysis is quite different where the government

punishes speech that is an integral part of a transaction involv-

ing conduct the government otherwise is empowered to prohibit;

such “speech acts”—for instance, many cases of inchoate crimes

such as aiding and abetting and consptracy—may be proscribed

without much, if any, concern about the First Amendment, since

it is merely incidental that such “conduct” takes the form of

speech.

DOJ Report at 2 (emphasis added).

28a

memoir excerpts). Even if this is not universally so, we

believe it must be true at least where the government's

interest in preventing the particular conduct at issue is in-

controvertibly compelling.

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.

1.

The first, which obviously would have practical import

principally in the civil context, is that the First Amend-

ment may, at least in certain circumstances, superimpose

upon the speech-act doctrine a heightened intent require-

ment in order that preeminent values underlying that con-

stitutional provision not be imperiled. See, e.g., New York

Times, 376 U.S. 254; cf. United States v. Aguilar, 515

U.S. 593, 605 (1995) (rejecting defendant’s First Amend-

ment construction in part because “the statute here in

question does not impose such a restriction [on the dis-

closure of wiretap authorizations] generally, but only upon

those who disclose wiretap information ‘in order to [ob]-

struct, impede, or prevent’ a wiretap interception” (em-

phasis added)); Haig v. Agee, 453 U.S. 280, 308-09

(1981) (“[The defendant’s] disclosures, among other

things, have the declared purpose of obstructing intelli-

gence operations and the recruiting of intelligence per-

sonnel. They are clearly not protected by the Constitu-

tion.” (emphasis added) ); United States v. Featherston,

461 F.2d 1119, 1122 (Sth Cir. 1972) (rejecting First

Amendment challenge to federal statute criminalizing the

teaching or demonstration of the making of any explosive

device after construing statute to require “intent or knowl-

edge that the information disseminated would be used in

the furtherance of a civil disorder”), cert. denied, 409

U.S. 991 (1972); National Mobilization Committee to

29a

End the War in Viet Nam v. Foran, 411 F.2d 934, 937

(7th Cir. 1969). That is, in order to prevent the punish-

ment or even the chilling of entirely innocent, lawfully

useful speech, the First Amendment may in some con-

texts stand as a bar to the imposition of liability on the

basis of mere foreseeability or knowledge that the in-

formation one imparts could be misused for an imper-

missible purpose. Where it is necessary, such a limitation

would meet the quite legitimate, if not compelling, con-

cern of those who publish, broadcast, or distribute to

large, undifferentiated audiences, that the exposure to suit

under lesser standards would be intolerable. See discus-

sion infra. Part IV. At the same time, it would not re-

lieve 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 pur-

pose 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. See,

€.g., Barnett, 667 F.2d 835 (holding that drug manv-

facturing instructions mailed to countless customers with

whom the defendant had no personal contact could give

rise to aiding and abetting conviction); Mendelsohn, 896

F.2d 1183 (holding that First Amendment did not forbid

prosecution of aiding and abetting interstate transporta-

tion of wagering paraphernalia where computer programs

for recording and analyzing illegal wagers were distrib-

uted generally and widely to the public); Buttorff, 572

F.2d at 622-23 (affirming, despite First Amendment chal-

lenges, convictions for providing tax-evasion information

at “large public gatherings” to participants whom the de-

fendants did not personally meet); Kelley, 769 F.2d 215

(similar); Moss, 604 F.2d 569 (similar); Freeman, 761

F.2d 549 (similar). This is certainly so, we are Satisfied,

where not only the speaker’s dissemination or marketing

30a

strategy, but the nature of the speech itself, strongly sug-

gest that the audience both targeted and actually reached

is, in actuality, very narrowly confined, as in the case

before us. See discussion infra at 39-44. Were the First

Amendment to offer protection even in these circum-

stances, 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 Amend-

ment poses no bar to the imposition of civil (or criminal)

liability for speech acts which the plaintiff (or the pros-

ecution) can establish were undertaken with specific, if

not criminal, intent. See DOJ Report at 42-43 (advis-

ing that “the government may punish publication of dan-

gerous instructional information where that publication is

motivated by a desire to facilitate the unlawful [conduct

as to which the instructions inform, or] [a]t the very least,

publication with such an improper intent should not be

constitutionally protected where it is foreseeable that the

publication will be used for criminal purposes ... .”).

In fact, this conclusion would seem to follow a fortiori

from the Supreme Court’s holding in New York Times,

376 U.S. 254, allowing the imposition of civil tort liability

on a media defendant for reputational injury caused by

mere reckless disregard of the truth of its published state-

ments. And here, as previously noted, see also discussion

infra at 37-38, 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 com-

mission of murder and murder for hire, and even absent

the stipulations, a jury could reasonably find such specific

3la

intent, see discussion infra at 38-42. Thus, Paladin has

stipulated to an intent, and a jury could otherwise rea-

sonably 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.*

r S

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 mignt

well circumscribe the power of the state to create and

enforce a cause of action that would permit the imposi-

tion 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,

395 U.S. at 447. The instances in which such advocacy

might give rise to civil liability under state statute would

seem rare, but they are not inconceivable. Cf. Schenck v.

United States, 249 U.S. 47 (1919) (criminal conspiracy

prosecution predicated upon subversive advocacy); Froh-

werk v. United States, 249 U.S. 204 (1919) (same);

Debs v. United States, 249 U.S. 211 (1919) (criminal

attempt prosecution predicated upon such advocacy).

Again, however, an exhaustive analysis of this likely lim-

itation is not required in this case.

*In addition to their aiding and abetting counts, which require

that Paladin have acted knowingly or intentionally, the plaintiffs

also brought claims sounding inter alia in negligence and strict

liability. The district court did not address these claims and we do

not do so herein. We leave to the district court on remand the task

of addressing these counts in the first instance.

32a

Here, it is alleged, and a jury could reasonably find,

see discussion infra Part III.A, that Paladin aided and

abetted the murders at issue through the quintessential

speech act of providing step-by-step instructions for mur-

der (replete with photographs, diagrams, and narration)

so comprehensive and detailed that it is as if the instruc-

tor 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.” J.A.

at 218. 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 in-

disputably illegitimate one of training persons how to mur-

der and to engage in the business of murder for hire.

See id.; see also id. at 221 (“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.” Scales

v. United States, 367 U.S. 203, 235 (1961), the advocacy

of “principles divorced from action,” Yates v. United

States, 354 U.S. 298, 320 (1957), overruled on other

grounds, Burks v. United States, 437 U.S. 1 (1978), the

“doctrinal justification,” id. at 321, “the mere abstract

teaching [of] the moral propriety or even moral necessity

for a resort to force and violence,” Brandenburg, 395

U.S. at 448 (quoting Noto v. United States, 367 US.

290, 297-98 (1961)), or any of the other forms of dis-

course critical of government, its policies, and its leaders,

which have always animated, and to this day continue to

animate, the First Amendment. Indeed, this detailed,

focused instructional assistance to those contemplating or

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33a

in the throes of planning murder is the antithesis of speech

protected under Brandenburg. It is the teaching of the

“techniques” of violence, Scales, 367 U.S. at 233, the

“advocacy and teaching of concrete action.” Yates, 354

U.S. at 320, the “prepar[ation] . . . for violent action and

[the] steeling . . . to such action,” Brandenburg, 395 U.S.

at 448 (quoting Noto, 367 U.S. at 297-98). It is the

instruction in the methods of terror of which Justice

Douglas spoke in Dennis v. United States, when he said,

“If this were a case where those who claimed protection

under the First Amendment were teaching the techniques

of sabotage . . . I would have no doubts. The freedom

to speak is not absolute; the teaching of methods of terror

. . Should be beyond the pale... .” 341 U.S. 494, 581

(1951) (Douglas, J., dissenting). As such, the murder

instructions in Hit Man are, collectively, a textbook exam-

ple 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.

ITT.

The district court’s contrary conclusion, reached in an

initial and then an amended opinion, must be attributed

ultimately, we believe, to that court’s failure at the time

of its initial ruling to realize that Maryland does recognize

a civil cause of action for aiding and abetting. Once the

court’s error with respect to the existence in Maryland

of a civil aiding and abetting cause of action was brought

to the court’s attention by the parties on motion for re-

consideration, it appears that the court was simply un-

prepared to revisit its decision, issued only the week

before, in order to address the above-discussed cases,

34a

which the district court itself had observed are “factually

similar” to the case at hand, J.A. at 156, but which the

court had distinguished on the ground that they involved

criminal prosecutions for aiding and abetting and Mary-

land does not provide a civil cause of action for aiding

and abetting. J.A. at 155 (“Plaintiffs are asking the Court

to allow the Defendants to be subjected to civil liability

for murder, based on a theory of civil aiding and abetting

—a claim that does not exist under Maryland law.” (em-

phasis added)). Perhaps ironically, this unwillingness

foreordained what was, as we explain below, the district

court’s second error in the interpretation of Maryland law

—its holding, on reconsideration, that Maryland would

not recognize aiding and abetting liability under the facts

as stipulated by the parties to this litigation, or on the

facts as they appear from the record.

Whatever doubts the district court may have harbored

about its interpretation of Maryland aiding and abetting

law were almost certainly eased because it concluded al-

ternatively (albeit in dicta) that Hit Man is entitled to

the protections of Brandenburg in any event because it is

a mere instructional manual for, and not an incitement

to, murder. However, in this conclusion the district court

erred as well, misunderstanding the Supreme Court’s deci-

sion in Brandenburg to protect not just abstract advocacy

of lawlessness and the open criticism of government and

its institutions, but also the teaching of the technical meth-

ods of criminal activity—in this case, the technical

methods of murder.

A.

In its initial memorandum opinion, the district court

rejected the plaintiffs’ principal argument, that the First

Amendment does not bar the imposition of liability for

the aiding and abetting of murder, on the ground that

the State of Maryland does not recognize a civil cause

of action for aiding and abetting:

ee

35a

Plaintiffs argue that Hit Man is not protected by

the First Amendment because the First Amendment

does not protect communication aiding and abetting

murder. This argument must fail, however, because

Plaintiffs do not cite, nor has the Court located, any

reported decision that suggests that Maryland recog-

nizes the tort of aiding and abetting. A federal court

sitting in diversity cannot create new causes of ac-

tion. Therefore, the Court cannot create a cause of

action for aiding and abetting under Maryland law

J.A. at 153-54 (footnote and citations omitted). In re-

sponse to submissions by both parties filed the very next

day informing the court that Maryland does recognize

civil aiding and abetting, the district court was obliged

to amend its memorandum opinion to acknowledge the

overwhelming authority that Maryland does, in fact, rec-

ognize such a cause of action. However, rather than ad-

dress then the numerous precedents holding that the First

Amendment offers little protection against claims of aid-

ing and abetting criminal conduct, which in its initial

opinion the court had agreed were similar to the instant

case, the district court thereafter merely added to its orig-

inal memorandum opinion the single conclusory footnote

sentence (together with the necessary conforming changes

to the relevant paragraph from its initial opinion *) that,

* Thus, in relevant part, the amended opinion reads as follows:

Plaintiffs argue that Hit Man is not protected by the First

Amendment because the First Amendment does not protect

communication aiding and abetting murder. This argument,

the Court believes, fails, however, because of the absence of

any reported decision suggesting that Maryland extends tho

tort of aiding and abetting to the circumstances of this case,

A federal court sitting in diversity cannot create new causes of

action. Therefore, the Court cannot apply a new theory or

extend the tort of aiding and abetting under Maryland law .

J.A. at 205-06 (footnote and citations omitted; emphases added).

As evidence of the haste with which the revised analysis was under-

taken, the amended opinion elsewhere still includes a statement of

36a

“[a]lthough Maryland appears to recognize aider and

abetter tort liability, it has never been applied to support

liability in this context.” J.A. at 205 n.2 (internal cita-

tion deleted).* In this holding, as with its original hold-

ing that Maryland did not recognize a cause of action for

civil aiding and abetting, the district court erred.

Mayland’s highest court has held that a defendant may

be liable in tort if he “by any means (words, signs, or

motions) encourage[s], incite[s], aid[s] or abet[s] the act

of the direct perpetrator of the tort.” Alleco Inc, v. Harry

& Jeanette Weinberg Foundation, 340 Md. 176, 665 A.2d

1038, 1049 (1995) (quoting Duke v. Feldman, 245 Md.

454, 226 A.2d 345, 347 (1967)). It further appears

that generally Maryland defines the tort of aiding and

abetting in the same way that it defines the crime of aid-

ing and abetting. The state defines “aider” as one who

“assist[s], support[s] or supplement[s] the efforts of an-

other,” and defines “abettor” as “one who instigates, ad-

vises or encourages the commission of a crime.” Anello

Vv. State, 201 Md. 164, 93 A.2d 71, 72-73 (Md. 1952).

The Court of Appeals has explained that in order for a

conviction te stand, “it is not essential that there be a

prearranged concert of action, although, in the absence

of such action, it is essential that [the defendant] should

in some way advocate or encourage the commission of the

the district court’s initial conclusion that Maryland does not provide

a civil cause of action for aiding and abetting. See id. at 207

(“Plaintiffs are asking the Court to allow the Defendants to be sub-

jected to civil liability for murder, based on a theory of civil aiding

and abetting—a claim that does not exist under Maryland law.”’).

®* The issue of whether, under the stipulated facts, Paladin could

be held liable for aiding and abetting under Maryland law was not

even before the district court. In fact, the parties had expressly

stipulated that [t]he parties agree that the sole issue to be decided

by the Court in this motion 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 specifi-

cally reserved for subsequent proceedings.” J.A. 58-59.

Oe

37a

crime.” Jd. And, recently, the court has reiterated that

criminal aiding and abetting “may be predicated upon

counseling or encouraging” a criminal act, even if there

is no agreement between the principal and the aider or

abettor, and also that “[i]t is well settled that aiding and

abetting does not always require a conspiracy.” Apos-

toledes Vv. State, 323 Md. 456, 593 A.2d 1117, 1121

(1991).

The primary, and possibly only, difference between

Maryland’s civil and criminal laws of aiding and abetting

is the intent requirement. As Judge Learned Hand ex-

plained in discussing generally the difference between civil

and criminal aiding and abetting laws, the intent standard

in the civil tort context requires only that the criminal

conduct be the “natural consequence of [one’s] original

act,” whereas criminal intent to aid and abet requires

that the defendant have a “purposive attitude” toward the

commission of the offense. United States v. Peoni, 100

F.2d 401, 402 (2d Cir. 1938); see also Nye & Nissen v.

United States, 336 U.S. 613, 619 (1949) (adopting

Judge Hand’s view of the criminal intent requirement).

We assume that Maryland prescribes a higher intent stand-

ard for the imposition of criminal liability than it does

for civil liability.

Especially in light of the caselaw discussed above, we

are satisfied not only that the Maryland courts would con-

clude that an aiding and abetting cause of action would

lie in the circumstances of this case, but also that plain-

tiffs have, by way of stipulation and otherwise, established

a genuine issue of material fact as to each element of that

cause of action. Perhaps most importantly in this regard,

we conclude that plaintiffs have more than met their bur-

den of establishing a genuine issue of material fact as to

Paladin’s intent, even assuming that the First Amendment

erects a heightened standard from that required under

Maryland state law.

38a

Paladin itself has stipulated that “Perry followed a

number of instructions outlined in Hit Man” in preparing

for and in murdering Mildred and Trevor Horn and Jan-

ice Saunders. J.A. at 61. In fact, as noted, the publisher

has actually stipulated that it assisted Perry in the “per-

petration of the murders.” /d.

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, see

discussion supra Part I, Perry followed, in painstaking de-

tail, countless of the book’s instructions in soliciting, pre-

paring for, and carrying out his murders. Without repeat-

ing 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 vic-

tims in their own home, using an AR-7 rifle to shoot the

victims in the eyes from point blank range, and conceal-

ing his involvement in the murders. The number and ex-

tent of these parallels to the instructions in Hit Man can-

not 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 assist-

ance, 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 contem-

plating 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 em-

boldens the killer, confirming not only that he should

TT

39a

proceed, but that he must proceed, if he is to establish

his manhood. See discussion infra at 54-56. 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 na-

ture and duration of the criminal partnership established

between Hit Man and its readers who murder is the fol-

lowing “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 lighting

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.

Hit Man at 107. As this and other cases reveal, the book

is arrestingly effective in the accomplishment of its ob-

jectives 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 Mary-

land 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 abet-

ting to speech, see discussion supra at II.B.1, we are con-

fident that, at the very least, the aiding and abetting of a

malum in se crime such as murder with the specific pur-

40a

pose of assisting and encouraging another or others in that

crime would satisfy such a limitation. Paladin has stipu-

lated not only that it had knowledge that its publication

would be used upon receipt by murderers and other crimi-

nals in the commission of murder, but that it even in-

tended that the book be so used. Thus, the publisher

Stipulated, “defendants intended and had knowledge that

their publications would be used, upon receipt, by crimi-

nals and would-be criminals to plan and execute the crime

of murder for hire.” J.A. at 59. Paladin has even stipu-

lated that it “engaged in a marketing strategy intended

to attract and assist criminals and would-be criminals who

desire information and instructions on how to commit

crimes.” Jd. These stipulations are more than sufficient

to foreclose an absolute First Amendment defense to

plaintiffs’ suit. See DOJ Report at 43 & 44-45 n.71

(“[Wle believe that the district court in Rice v. Paladin

erred insofar as it concluded that Brandenburg bars liabil-

ity for dissemination of [instructions on murder] regard-

less of the publisher’s intent. . . . [Defendant Paladin’s]

concession[s] would, for purposes of summary judgment,

seem to foreclose a constitutional defense . . .”).

The district court was never required to consider the

intent requirement under Maryland’s law of aiding and

abetting, much less whether the First Amendment imposes

a heightened intent standard in the context of authorizing

liability for speech acts, because of its mistaken con-

clusion that Maryland does not recognize a civil cause of

action for aiding and abetting. In analogizing this case to

the copycat cases (and seemingly in order to permit the

analogy), however, the district court accepted Paladin’s

post hoc “clarification” that it meant by its stipulation

only that it was reasonably foreseeable to the publisher

that, once the book was published and publicly available,

it would be used by murderers to plan and to commit

murder. Thus, in accepting the defendants’ belated clari-

fication, the district court said:

4la

Defendants conceded that they intended that their

publications would be used by criminals to plan and

execute murder as instructed in the manual... .

However, Defendants clarify their concession by ex-

plaining that when they published, advertised and

distributed both Hit Man and Silencers, they knew,

and in that sense “intended,” that the books would

be purchased by all of the categories of readers pre-

viously described and used by them for the broad

range of purposes previously described.

J.A. at 215-16 (citations omitted). Of course, the dis-

trict court was without authority to allow Paladin to alter

the parties’ stipulation unilaterally, particularly given that

Paladin was the party moving for summary judgment. If

anything, the stipulation should have been, and in any

event must now be, interpreted in the light most favorable

to the plaintiffs.

Furthermore, even if the stipulation only established

knowledge, summary judgment was yet inappropriate be-

cause a trier of fact could still conclude that Paladin

acted with the requisite intent to support civil liability.

Wholly apart from Paladin’s stipulations, there are four

bases upon which, collectively, if perhaps not individually,

a reasonable jury could find that Paladin possessed the

intent required under Maryland law, as well as the intent

required under any heightened First Amendment standard.

Compare DOJ Report, at 45 n.71 (“[E]ven assuming

arguendo that the defendants’ own construction of the

‘intent’ stipulation were correct, that still would not justify

the grant of summary judgment, since it would leave un-

answered the question whether Paladin also had the

specific purpose of facilitating murder.”).

First, the declared purpose of Hit Man itself is to fa-

cilitate 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,” Hit Man at ix. A jury

42a

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.

Second, the book’s extensive, decided, and pointed pro-

motion of murder is highly probative of the publisher’s

intent, and may be considered as such, whether or not

that promotion, standing alone, could serve as the basis for

liability consistent with the First Amendment. See Wis-

consin *. Mitchell, 508 U.S. 476, 489 (1993) (“The First

Amendment . . . does not prohibit the evidentiary use of

speech to establish the elements of a crime or to prove

motive or intent.”); cf. Noto, 367 U.S. at 299." 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 sugges-

tion that the book is essentially a comic book whose “fan-

tastical” promotion of murder no one could take seriously,

and amici’s reckless characterization of the book as “al-

most avuncular,” see Br. of Amici at 8-9. The unique

text of Hit Man alone, boldly proselytizing and glamoriz-

ing 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 Pala-

din’s intent in publishing and selling the manual.

7Cf. DOJ Report at 30 & n.47 (citations omitted) (“Insofar as

publication of [bombmaking] manuals were criminalized on account

of those manuals’ advocacy of unlawful conduct, such a prohibition

almost certainly could not pass constitutional muster. The First

Amendment would not, however, prohibit the evidentiary use of

such advocacy to demonstrate a disseminator’s intent in conveying

bombmaking information. Therefore, insofar as criminal culpability

for dissemination of such information depends upon the distributors’

intent—for example, upon whether a disseminator of bombmaking

manuals had the conscious purpose of helping others to use the in-

formation to engage in unlawful conduct—-the substance of the

advocacy in such manuals could be used as material evidence of

such intent.”).

43a

Third, Paladin’s marketing strategy would more than

support a finding of the requisite intent. Cf. Direct Sales

v. United States, 319 U.S. 703, 712-13 (1943) (holding

that jury may infer intent to assist a criminal operation

based upon a drug distributor’s marketing strategy). It

is known through Paladin’s stipulations that it “engaged

in a marketing strategy intended to attract and assist

criminals and would-be criminals who desire information

and instructions on how to commit crimes.” J.A. at 59.

But an inference as to such a strategy would be permitted

from Paladin’s catalogue advertisement of Hit Man. The

publisher markets the book as follows, invoking a dis-

claimer which, the district court’s characterization notwith-

standing, a jury could readily find to be transparent sar-

casm designed to intrigue and entice:

Learn how a pro gets assignments, creates a false

identity, makes a disposable silencer, leaves the scene

without a trace, watches his mark unobserved and

more. Feral reveals how to get in, do the job and

get out without getting caught. For academic study

only!

Paladin Press Catalog, Vol. 26, No. 2 at 41 (emphasis

in original). See also infra note 10. From this statement

by the publisher in its own promotional sales catalogue,

a jury could conclude that Paladin marketed Hit Man

directly and even primarily to murderers and would-be

criminals, and, from this permissible conclusion, in turn

conclude that Paladin possessed the requisite intent neces-

Sary to support liability.

Certainly, such a conclusion would be reasonable based

upon this promotional description coupled with the sing-

ular character of Hit Man, which is so narrowly focused

in its subject matter and presentation as to be effectively

targeted exclusively to criminals. In other words, despite

the fact that Paladin may technically offer the book for

sale to all comers, we are satisfied that a jury could, based

upon Hit Man's seemingly exclusive purpose to assist mur-

44a

derers in the commission of murder, reasonably conclude

that Paladin essentially distributed Hit Man only to mur-

derers and would-be murderers—that its conduct was not,

at least in law, different from that of a publisher (or ary-

one else) who delivered Hit Man to a specific person or

group of persons whom the publisher knew to be inter-

ested in murder. And even Paladin effectively conceces

that it could be liable were such a finding permissilly

made. Paladin’s Memorandum in Support of Summary

Judgment at 33 n.24.

A conclusion that Paladin directed Hit Man to a ds-

crete group rather than to the public at large would de

supported, even if not established, by the evidence that

Hit Man is not generally available or sold to the pubic

from the bookshelves of local bookstores, but, rather, is

obtainable as a practical matter only by catalogue. Paa-

din Press is a mail order company, and for the most pirt

does not sell books through retail outlets. In order to

procure a copy of Hit Man, the prospective reader mist

first obtain a copy of Paladin’s catalogue, typically »y

completing a request form reprinted in one of Paladin’s

advertisements in specialized magazines such as Soldier of

Fortune. After obtaining that catalogue, the reader must

scan the list of book titles and read the accompanying ¢e-

scriptions. Once the reader finds the book he desires, 1¢

must then complete and mail another form to order he

book.

From the requirements of this process, together wth

the book's character, a jury need not, but could, perms-

sibly find that Hit Man is not at all distributed to he

general public and that, instead, it is available only toa

limited, self-selected group of people interested in lean-

ing from and being trained by a self-described professioral

killer in various methods of killing for money, indivd-

uals who are then contemplating or highly susceptible to

the commission of murder.

45a

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 facilitat-

ing such murders." Cf. J.A. at 221 (observation by dis-

trict court that Hit Man is “devoid of any significant re-

deeming social value”). Although before us Paladin at-

tempts 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. Cf. Miller v. California, 413 U.S. 15

(1973) (distinguishing obscene from nonobscene material

in part on basis of “whether the work, taken as a whole,

lacks serious literary, artistic, political. or scientific

value”). 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, inci-

dentally 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 fac-

tual, instructional manual on murder has entertainment

* Paladin contends that plaintiffs have stipulated “that the de-

fendant’s book has substantial informational value unrelated to the

facilitation of crime.” Appellee’s Br. at 29 (footnote omitted). But

they have not; they have stipulated only that Paladin’s “marketing

strategy” was intended to reach audiences beyond criminals and

would-be criminals. J.A. at 60.

46a

value to law-abiding citizens. And, just as a permissible

inference as to Paladin’s marketing strategy would be sup-

portable by evidence as to the specialized process by

which one acquires Hit Man, either of these conclusions

as to the absence of lawful purpose could be reinforced

by the same evidence.

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.

B.

Any argument that Hit Man is abstract advocacy en-

titling the book, and therefore Paladin, to heightened

First Amendment protection under Brandenburg is, on its

face, untenable. Although the district court erred in its

alternative conclusion that the speech of Hit Man is pro-

tected advocacy, see discussion infra at III.B.2. even that

court expressly found that “the book merely teaches what

must be done to implement a professional hit.” J.A. at

217-18; id. at 218 n.4 (discussing “instructive nature” of

book). 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, com-

mission, and concealment of criminal conduct, finds no

preserve in the First Amendment. To the extent that con-

firmation of this is even needed, given the book’s content

and declared purpose to be “an instruction book on mur-

der.” Hit Man at ix, that confirmation is found in the

stark contrast between this assassination manual and the

speech heretofore held to be NS of constitutional

protection.

a eS

47a

1.

Through its stipulation that it intended Hit Man to be

used by criminals and would-be criminals to commit mur-

der 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 “[l]Jearn 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 unob-

served, 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 proce-

dures 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 comple-

tion. 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 seri-

48a

ous about turning professional will start—at the

beginning.

Hit Man at x-xi (emphasis in original). And, faithful to

these promises, in the successive chapters of the 130 pages

that follow, Hit Man systematically and in meticulous de-

tail instructs on the gruesome particulars of every possible

aspect of murder and murder for hire. The manual in-

structs 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 surveil-

lance 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 deliver-

ing weapons to the murder scene. The book instructs the

readers in murder methods, explaining in dispassionate

and excruciatingly graphic detail how to shoot, stab,

poison, and incinerate people, and in gory detail it ex-

pounds 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 dis-

guising the reader’s physical appearance. And it counsels

on how to manipulate the legal system, if caught.

At the risk of belaboring the obvious, but in order to

appreciate the encyclopedic character of Hit Man's in-

structions, one need only consider the following chapter-

by-chapter synopsis.

Chapter One of Hit Man, entitled “The Beginning—

Mental and Physical Preparation,” starts by outlining the

“essential” steps to becoming a professional killer. Hit

Man at 9. The book urges the reader to read other books

from publishers such as Paladin Press, but it cautions that

ee ee eee eee ee ee eee

49a

“[blooks on subjects related to the professional hit man

are hard to find [and that] there are [only] a few publish-

ers out there who have the backbone to provide those . . .

who take life seriously with the necessary educational

materials.” Hit Man at 9-10. The book goes on to recom-

mend that one read articles in magazines such as Soldier

of Fortune, and military newsletters in order to “[s]tay

abreast of new trends and developments [in weapons and

techniques of killing] as well as new gadgets and inven-

tions as they become available.” Hit Man at 9. It also

encourages the reader to comb fictional accounts of mur-

der, on the off chance that, for example, “the warped

imagination of a fiction writer will point out an obvious

but somehow never before realized method of pacification

or body disposal.” Jd. at 10. It instructs its readers to

study their local newspapers carefully “to see who in your

area might be your next employer . . . or victim,” and to

use the classified advertisements, among other things, to

find ‘new toys and pick them up from private owners to

avoid registering your weapons.” Jd. The book provides

in-depth advice on using a variety of publicly available

reference materials to locate weapons and other “equip-

ment,” gather information about victims, and plan mur-

ders for hire. For example, the book instructs its readers

to go to the auto tag department of the county courthouse

and “[l]ook up the mark by last name or tag number for

address,” because books containing such information are

often “left out for public use.” Jd. at 12. Similary, the

book instructs the readers in how to use the postal service

to “track[ ] down the last known address of anyone you

choose as a function of the Freedom of Information Act.”

id. at 14, and to send weapons safely to the location of a

planned murder, id. at 13.

In addition, Hit Man instructs its readers to become

familiar with local law enforcement techniques, for exam-

ple by obtaining law enforcement handbooks. and it pro-

vides practical advice on how to obtain these books, either

50a

from “any college bookstore where law enforcement

courses are taught,” id. at 14, or by theft. The book also

offers the readers practical tips on diet, fitness, combat

training, (“Veterans with wartime experience and the abil-

ity to kill are first choice instructors.” Jd. at 17), and

observational skills. Although much of the information

in this chapter is not explicit in outlining the methods of

terror, it is explicit in advising the would-be assassin

where to turn for additional information beyond that

found between the covers of the book.

Chapter Two of the book, entitled “Equipment—Selec-

tion and Purpose,” imparts a wealth of information on the

“basic equipment” the “beginner” will need as tools of his

trade, id. at 21, and provides detailed instructions as to

the equipment’s use. For example, the book first instructs

the reader to obtain, inter alia, an AR-7 rifle, hollow-

point bullets, disposable silencers, liquid poison, dispos-

able rubber gloves, a double-edged knife with a six-inch

blade, handcuffs, and a ski mask. See id. at 21-22. The

book next provides precise instructions on how to kill,

using each of the various weapons. The manual recom-

mends “close kills,” and teaches that:

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 cloth-

ing. At least three shots should be fired to ensure

quick and sure death.

You can judge when death has occurred by ob-

serving the wound. When the blood ceases to flow,

the heart has stopped working. Check for pulse at

both the wrist and throat as an added precaution.

Id. at 24. The book goes on to teach which weapons to

avoid and why, explaining, for example, that,

[a]lthough revolvers are often depicted as being a

favorite tool among hit men, they are not recom-

Sla

mended by this pro. Revolvers cannot be effectively

silenced. The open cylinder allows gases to escape,

thus making noise. When fired, gas is forced around

the cylinder in a 360 degree circle, thereby throwing

powder all over the person who fires the gun.

An automatic, on the other hand, is tightly sealed

so that when it is fired almost all the power residue

is forced into the silencer, where it is trapped. This

prevents the powder from escaping and covering the

person who fired the shot. . . . If a shell catcher is

used, the powder residue will become trapped inside

the catch bag.

Id. at 26. The manual further instructs how to kill effi-

ciently at close-range with a knife:

The knife you carry should have a six-inch blade

with a serrated section 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.

Id. at 27-28. The book also instructs on alternatives to

the close-range kill, including instructions such as the

following:

If you must do your shooting 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 sharp-

shooter. Many people have been shot repeatedly,

even in the head, and survived to tell about it.

52a

Td. at 24. Finally, the chapter includes a host of other

instructions on how to use basic tools, ranging from hand-

cuffs, to lock picks, to surveillance equipment, in the com.

mission of murder. For instance, the book teaches the

need for a hit man to always wear gloves and it discusses

glove choice, recommending surgical gloves because.

[ljeather gloves are not to be considered as a job

tool. The leather has the same individual, distinct

characteristics as the human fingerprint. If you have

to use leather gloves, destroy them immediately after

the job. If found in your possession, they can con-

vict you as quickly as a set of your own fingerprints.

Id. at 27. The chapter continues in like vein.

Chapter Three, entitled “The Disposable Silencer—A

Poor Man’s Access to a Rich Man’s Toy,” teaches the

reader, with step-by-step instructions and accompanying

photographic illustration, how to contruct a “whisper-

quiet,” “inexpensive,” and “effective” disposable silencer

that is “reusable for over four hundred rounds.” /d. at

47, 51. These directions are designed to allow the “ama-

teur” to construct disposable silencers, which, the book

explains, are “one of the most important tools a profes-

sional will ever have.” Jd. at 38. As the book explains,

these “same directions can be followed successfully to

construct a silencer for any weapon, with only the size

of the drill rod used for alignment changed. .. .” 7d.

at 39.

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. Id.

at 54-55. The chapter teaches the reader how to kill by

sc caeceneeeeseiiiiieiaieiiaaamuiaiieaiiaaaail

53a

arson, admonishing and instructing, “Don’t ever use gaso-

line or other traceable materials to start your fire. [Speci-

fied substance] is your best starter because it burns away

all traces.” Jd. at 56. 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.” Jd. Later in the chapter,

Hit Man discusses poisons. After teaching an elaborate

method for obtaining hard-to-find poisons through imper-

sonation, the manual explains how one can successfully

use substances such as tetrodotoxin, oleander, nicotine,

and jessamine to kill his victims. See id. at 58-63. 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.” Jd. at 64. 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.

. .. Suddently 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.

EE SS eee

54a

. . . 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 [vic-

tim] began to cry like a baby and spill his guts.

Id. at 65-66. The chapter concludes with instructions

for disposing of human corpses without detection, provid-

ing 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 be-

cause 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.

Id. at 67. And the instructions we repeat here are but

a few of the methods of inflicting torture and death taught

in the chapter.

The next chapter, entitled “Homework and Surveillance

—Mapping a Plan and Checking It for Accuracy,” in-

structs on how to obtain information about the victim

from the client. It explains the importance of finding out

information such as whether the victim has a dog or

other pet that might provide a warning of the impending

assassination, the layout of the victim’s residence, and

55a

whether the victim has roommates or neighbors. The

chapter includes a lengthy “sample information sheet”

that may be used in planning a first kill. Jd. at 73-80.

Chapter Six, entitled “Opportunity Knocks—Finding

Employment, What to Charge, What to Avoid,” teaches

readers how to find someone who will hire their services

as professional killers. The chapter explains where to

find potential employers, what to look for in such persons,

and what to charge for each murder.

Prices vary according to the risk involved, social

or political prominence of the victim, difficulty of the

assignment, and other factors. A federal judge

[Judge Wood, slain in Texas in 1978] recently

brought a price of $250,000, for example. A county

sheriff might bring $75,000 to $100,000.

. . . It is not recommended that you take any con-

tract that pays less than $30,000, and that is work-

ing mighty cheap. To work for any amount less

would be amateurish... .

There are two good reasons for setting a $30,000

minimum for your services. First, the risks involved

are high... . A fee of $5,000 or even $10,000 will

be of little consolation as you wait helplessly behind

bars.

Second, because the risks are so high and employ-

ment opportunities are limited, the money you earn

should be sufficient to carry you over until your next

job comes along.

Id. at 90-91. The chapter also provides instructions on

how to communicate with the employer after the hit,

explaining, for example, that it is best to develop a code

for informing the employer that the contract has been

fulfilled, such as calling the employer’s residence and

asking to speak with a fictitious individual, whose name

signals to the employer that the victim is dead. See id.

at 93-94.

56a

In the following chapter, titled “Getting the Job Done

Right—Why the Described Hit Went Down the Way It

Did,’ Hit Man provides instructions for reaching the

victim’s location, transporting tools, preparing to commit

the murder, and cleaning up the crime scene and escaping

after the killing. Illustrative of the chapter’s directions for

preparing to commit the murder:

Wipe down your weapons as you assemble them.

Even the inner parts of your guns must be wiped to

remove any prints that were left behind during the

last cleaning.

Wipe down each bullet and wear rubber gloves as

you load the clip. Just in case you leave behind an

empty cartridge, you don’t want your fingerprint

emblazoned on the casing.

Id. at 103. Similarly, the manual instructs on how best

to discard the clothes worn to commit the killing:

The first thing you should do when you reach the

car [after killing your victims] is change into another

disguise and get out of those work clothes. Check

them for bloodstains. If there are none, you can toss

them into a charity collection box or trash can. If

the victim’s blood is on those clothes, they must be

burned or buried.

Id. at 105. And it explains, with respect to sanitation

of the rental car:

[S]top and wipe the car for prints and wear driving

gloves as you return the car to the rental agency... .

[W]ash the car and vacuum the interior immediately

when you arrive at your destination [because] foreign

soil from the [crime scene] is now imbedded in the

car’s interior [and its] air filter... .

Id. at 106.

Chapter 8, entitled “Danger: Ego, Women, and Part-

ners—Controlling Your Situation” instructs the reader on

57a

how, as a professional killer, to use money, women, and

partners. This chapter of the book, for example, instructs

the reader on how to use women while committing pro-

fessional killings without getting caught. Thus, after ex-

plaining that the “deceitful, ‘game-playing’ natures” of

women make them potentially better professional killers

than men, the book goes on to say that,

[fJortunately for the world, a woman _ usually

makes only one man her target, and the nesting in-

stinct quickly takes her off the street and ties her

down to the little world of babies, laundry and

housework she creates and protects for her own.

Unfortunately, even a hit man cannot deny that what

women have to offer is a basic necessity.

[Cautioning against marriage], if [your wife]

knows too much, she could someday become [your]

worst enemy on the face of the earth and may some-

day have to be eliminated in the name of self-

preservation.

And if she knows too little, her suspicious, jealous

nature could lead to more snooping and following

and conjecture on her part than is healthy—for

either of [you].

. . . Women are highly emotional, rarely rational

creatures. Is ten minutes of pleasure worth your life

at the hands (or tongue) of an irate spouse?

Ideally, a professional hit man will remain single.

He will either purchase his sexual pleasures or par-

ticipate in impersonal one-night-stands. His involve-

ment with women will only be on a sexual level. He

will not live with them, nor will he let them invade

his privacy .... In most cases, they won’t even know

his real name.

‘rai ii iil

58a

As a man, I appreciate as much as anyone a good-

looking body and a warm, willing smile on a woman.

As a professional, however, that seems to have lost

some of its thrill as I’ve moved on to bigger, more

exciting and more dangerous prey.

Id. at 114-17. The chapter also advises the reader on how

to enjoy the fruits of crime without getting caught, warn-

ing that,

Unless you have additional sources of income to

justify large expenditures like a new home, paying

off an old mortgage or a new sports car, don’t spend

any of your earnings on big items of this type. Big

expenditures arouse suspicion, not only of your

friends and family, but of the IRS and the authorities

if you should ever come under investigation.

Id. at 113.

Id. at 113.

The final chapter of Hit Man, entitled “Legally Illegal,”

includes various sections instructing the reader on how

and where to purchase false identification, how to make

false identification, how to launder illegal money, and

how to act in encounters with law enforcement officers.

For example, the book instructs how to “launder” “illegal

money” through the use of a tax haven in the Cayman

Islands:

The procedure is really quite simple: You form a

corporation in [an offshore Island country] and put

your illegal monies into that corporation. Then you

form a legal U.S. corporation as your business and

borrow the money you need to get going from the

foreign corporation you have previously set up... .

Let’s say your legal American corporation is a

land development company, because you want to in-

vest your laundered monies into real estate... .

{Instructions continue].

<<

59a

Id. at 124. The book concludes by offering advice on

how to escape punishment by exploiting legal technicali-

ties in the event that the reader is arrested by the police,

including how to avoid jailhouse snitches and undercover

agents.

As Hit Man instructs, it also steels its readers to the

particular violence it explicates, instilling in them the re-

solve 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 un-

canny 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 pre-

pared 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

.... [Y]Jou are not fit to be a part of organized

society.

Id. at 66, 100, 111, 127 (second emphasis added).

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, remnoving 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 “[e]verything you have been

taught about life and its value was a fallacy[,] [a] dirty

a

60a

rotten lie.” Id. at 107.. To those who fear guilt or re-

morse, 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] [Y]ou felt abso-

lutely nothing. And you are shocked by that noth-

ingness. You had expected this moment to be a

specular point in your life. You had wondered if

you would feel compassion for the victim, immedi-

ate guilt, or even experience direct intervention by

the hand of God. But you weren’t even feeling sick-

ened by the sight of the body.

Id. at 106-07. And the book allays the natural apprehen-

sion 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 con-

tract fee, the doubts and fears of discovery have

faded. Those feelings have been replaced by cocki-

ness, a feeling of superiority, a new independence

and self-assurance.

Id. at 108. 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 com-

passionate towards the elderly or disabled” or “even...

religious in his own way.” Id. at 106. And for those who

fear only that they will be caught, comes the ominous

6la

pledge that “the American Justice System is so bogged

down in technicalities, over-crowded 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,” see id. at 125, that a “true” “professional”

‘won’t ever have to face [various] legal predicaments.”

Id. at 130.

Indeed, one finds in Hit Man little, if anything, even

remotely characterizable as the abstract criticism that

Brandenburg jealously protects. Hit Man’s detailed, con-

crete 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 Klans-

man’s chilling, but protected, statement in Brandenburg

itself that, “[the Ku Klux Klan is] not a revengent organi-

zation, 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,” 395 U.S. at 446; the protestor’s inciteful, but pro-

tected, chant in United States v. Hess, 414 U.S. 105, 108

(1973) that “[w]e’ll take the fucking street again”; the

NAACP speaker’s threat, rhetorical in its context, to boy-

cott violators that “[i]f 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, 902 (1982); or the draft

protestor’s crude, but protected, blustering in Watts that

“[i]f 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, 706 (1969).

Plaintiffs observed in their submissions before the dis-

trict court that,

Hit Man is not political manifesto, not revolutionary

diatribe, not propaganda, advocacy, or protest, not

62a

an outpouring of conscience or credo.

It contains no discussion of ideaz, no argument, no

information about politics, religion, science, art, or

culture . . . it offers no agenda for self-governance,

no insight into the issues of the day....

Appellant’s Br. at 32; Memorandum of Points and Au-

thorities in Support of Plaintiffs’ Opposition to Defend-

ant’s Motion for Summary Judgment at 31-32. And, this

is apt observation. Hit Man is none of this. 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 ad-

vocacy, iose sentences are so very few in number and

isolated as to be legally of no significance whatsoever.®

Cf. Kois v. Wisconsin, 408 U.S. 229, 231 (1972) (“A

quotation from Voltaire in the flyleaf of a book will not

constitutionally redeem an otherwise obscene publica-

tion.”); see also Miller, 413 U.S. at 24; Penhouse Inter-

national, Ltd. v. McAuliffe, 610 F.2d 1353 (Sth Cir.

1980), cert. dismissed, 447 U.S. 931 (1980). Hit Man

is, pure and simple, a step-by-step murder manual, a train-

ing book for assassins. There is nothing even arguably

® This circuit and others have repeatedly rejected Paladin’s argu-

ment that speech can be punished under the speech act doctrine,

without regard to the strictures of Brandenburg, only when that

speech has no purpose or value other than to facilitate a specific

wrongful act. See Appellee’s Supp. Br. at 9. Thus, in Kelley, we

found the defendant’s concrete promotion of, and provision of in-

structions for, tax evasion unprotected by the First Amendment,

even though the defendant offered his advice in a meeting of a

group indisputably dedicated to the political belief that the federal

income tax is unconstitutional as applied to wages. 769 F.2d at

216-17. And in Freeman, the Ninth Circuit upheld a similar convic-

tion, even though the defendant’s speech “spr[ang] from the anterior

motive to effect political or social change.” 761 F.2d at 551. See

also Agee, 453 U.S. at 308-09 (holding that a former Central In-

telligence Agency employee’s disclosure of intelligence information

was unprotected by the First Amendment even though the employee

was “also engaged in criticism of the Government’).

63a

tentative or recondite in the book’s promotion of, and in-

struction 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 ex-

plicit in its palpable entreaties to violent crime.

2.

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 Branden-

burg is protected under the First Amendment. In particu-

lar, 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 Amend-

ment 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.” J.A.

at 212. And, finding that Hit Man “merely teaches” in

technical fashion the fundamentals of murder, it con-

cluded that “[t]he book does not cross that line between

permissible advocacy and impermissible incitation to

crime or violence.” /d. at 218.

10 The several brief “disclaimers” and “warnings” in Hit Man’s

advertisement description and on its cover, that the book’s instruc-

tions are “for informational purposes only!” and “for academic

study only!,” and that “[nJeither the author nor the publisher as-

sumes responsibility for the use or misuse of the information con-

tained in this book,” are plainly insufficient in themselves to alter

the objective understanding of the hundreds of thousands of words

that follow, which, in purely factual and technical terms, tutor the

book’s readers in the methods and techniques of killing. These

“disclaimers” and “warnings” obviously were affixed in order to

titillate, rather than “to dissuade readers from engaging in the

activity [the book] describes,” as the district court suggested they

might be understood, J.A. at 219.

a t

A A te

64a

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, id. at 447-48 (quoting Noto, 367 U.S. at

297-98) (emphasis added), and “mere advocacy,” 395

U.S. at 448-49 (emphasis added), 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. See J.A. at 217 (defining “ad-

vocacy” as “mere teaching” rather than “mere abstract

teaching” but citing to Brandenburg, 395 U.S. at 448

(quoting Noto, 367 U.S. at 297-98)). As the Supreme

Court’s approving quotation from its opinion in Noto

confirms, it is not teaching simpliciter, but only “the mere

abstract teaching . . . of the moral propriety or even

moral necessity” for resort to lawlessness, or its equiv-

alent, that is protected under the commands of Branden-

burg, 367 U.S. at 297-98 (emphasis added) .”

Although we believe the district court’s specific mis-

reading 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 Branden-

burg is, by any measure, elliptical.

11 Even if the district court were correct in its holding that Hit

Man is speech somehow deserving of the protections of Branden-

burg, we would yet be constrained to reverse the court’s judgment.

Given Paladin’s remarkable stipulations that it knew that its murder

manual would be used by murderers, would-be murderers, and other

criminals “upon receipt” to assist them in the planning, commission,

and cover up of their crimes, that the publisher intended that the

manual would be so used, and that Hit Man actually assisted Perry’s

commission of the crime of murder, we could not conclude as a

matter of law that Hit Man is not directed to inciting and likely

to incite imminent lawlessness.

65a

In particular, the Court unmistakably draws the distinc-

tion discussed above, between “the mere abstract teaching

. . Of the moral propriety or even moral necessity for a

resort to force and violence” on one hand, 395 U.S. at

448, and the “prepar[ation] [of] a group for violent ac-

tion and steeling it to such action” on the other. 7d.

And it then recites in the very next sentence that “[a]

statute which fails to draw this distinction,” id. (em-

phasis added)—a seeming reference to the distinction be-

tween “mere abstract teaching” and “preparing and steel-

ing”—is unconstitutional under the First Amendment. In

the suceeding paragraph and a later footnote, however,

the Court distinguishes between “mere advocacy” and

“incitement to imminent lawless action,” a distinction

which, as a matter of common sense and common par-

lance, appears different from the first distinction drawn,

because “preparation and steeling” can occur without “in-

citement,” and vice-versa. See id. at 448 (“Neither the

indictment nor the trial judge’s instructions to the jury

in any way refined the statute’s bald definition of the

crime in terms of mere advocacy not distinguished from

incitement to imminent lawless action.” (footnote

omitted) ); id. at 449 n.4 (“Statutes affecting the right of

assembly, like those touching on freedom of speech, must

observe the established distinctions between mere ad-

vocacy and incitement to imminent lawless action... .”).

It would have been natural, based upon its prior cases,

for the Court actually to have contemplated and intended

both distinctions, and to have developed the latter only,

because the case before it turned exclusively on that dis-

tinction. It is more likely, however, that the Court did

not focus at all on the seeming facial incongruity between

the first and the latter two of these distinctions. The

Court, therefore, may well have intended to equate the

preparation and steeling of a group to violent action with

speech that is directed to inciting imminent lawless ac-

tion and likely to produce such action. In other words,

the Court may well have meant to imply that one pre-

66a

pares and steels another or others for violent action only

when he does so through speech that is “directed to incit-

ing or producing imminent lawless action and . . . [that

is] likely to incite or produce such action,” id. at 447,

and thus that preparation and steeling is not per se un-

protected. Compare id. at 447-48 (“As we said in Noto

....”) with Noto, 367 U.S. at 298 (describing prepara-

tion and steeling through “a call to violence”). Assuming

that it did so mean to imply, however, we are confident

it meant to do so only in the context of advocacy—speech

that is part and parcel of political and social discourse—

which was the only type of speech at issue in Branden-

burg, Noto, and the other cases relied upon by the Court.

See, e.g., 44 Liquormart v. Rhode Island, 116 S. Ct.

1495, 1505 (1996) (Stevens, J., for plurality) (describ-

ing Brandenburg as setting forth “test for suppressing

political speech”). The Court even so defined its own

holding: “These later decisions have fashioned the prin-

ciple that the constitutional guarantees of free speech and

free press do not permit a State to forbid or proscribe

advocacy of the use of force or of law violation except

where such advocacy is directed to inciting or producing

imminent lawless action and is likely to incite or produce

such action.” 395 U.S. at 447 (footnote omitted; em-

phases added). For, as this case reveals, and as the Court

itself has always seemed to recognize, one obviously can

prepare, and even steel, another to violent action not only

through the dissident “call to violence,” but also through

speech, such as instruction in the methods of terror or

other crime, that does not even remotely resemble ad-

vocacy, in either form or purpose. And, of course, 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 de-

mands 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

67a

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, suffi-

cient 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.

IV.

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. See

Br. of Amici at 3, 22 (“Allowing this lawsuit to survive

will disturb decades of First Amendment jurisprudence

and jeopardize free speech from the periphery to the core.

. . . No expression—music, video, books, even newspaper

articles—would be safe from civil liability.”). That the

national media organizations would feel obliged to vigor-

ously defend Paladin’s assertion of a constitutional right

to intentionally and knowingly assist murderers with tech-

nical 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 impor-

tant First Amendment values that Paladin and amici ar-

gue 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’ ac-

tion against Paladin to proceed. In fact, neither the ex-

tensive briefing by the parties and the numerous amici in

this case, nor the exhaustive research which the court it-

Self has undertaken, has revealed even a single case that

we regard as factually analogous to this case.

i

68a

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 rea-

sonably 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 mur-

derers and other criminals, will there be evidence extrane-

ous 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 pub-

lishers they have a unique constitutional right to aid and

abet murder.” Appellant’s Reply Br. at 20. Moreover,

in contrast to the case before us, in virtually every “copy-

cat” case, there will be lacking in the speech itself any

basis for a permissible inference that the “speaker” in-

tended to assist and facilitate the criminal conduct de-

scribed or depicted. Of course, with few, if any, excep-

tions, the speech which gives rise to the copycat crime

will not directly and affirmatively promote the criminal

conduct, even if, in some circumstances, it incidentally

glamorizes and thereby indirectly promotes such conduct.

69a

Additionally, not only will a political, informational,

educational, entertainment, or other wholly legitimate pur-

pose for the description or depiction be demonstrably ap-

parent; but the description or depiction of the criminality

will be of such a character that an inference of imper-

missible intent on the part of the producer or publisher

would be unwarranted as a matter of law. So, for ex-

ample, for almost any broadcast, book, movie, or song

that one can imagine, an inference of unlawful motive

from the description or depiction of particular criminal

conduct therein would almost never be reasonable, for

not only will there be (and demonstrably so) a legitimate

and lawful purpose for these communications, but the

contexts in which the descriptions or depictions appear

will themselves negate a purpose on the part of the pro-

ducer or publisher to assist others in their undertaking of

the described or depicted conduct. Compare Miller, 413

US. 15.

Paladin contends that exposing it to liability under the

circumstances presented here will necessarily expose

broadcasters and publishers of the news, in particular, to

liability when persons mimic activity either reported on

or captured on film footage and disseminated in the form

of broadcast news. Appellee’s Br. at 26 n.17. This con-

tention, as well, is categorically wrong. News reporting,

we Can assume, no matter how explicit it is in its descrip-

tion or depiction of criminal activity, could never serve

as a basis for aiding and abetting liability consistent with

the First Amendment. It will be self-evident in the con-

text of news reporting, if nowhere else, that neither the

intent of the reporter nor the purpose of the report is to

facilitate repetition of the crime or other conduct reported

upon, but, rather, merely to report on the particular

event, and thereby to inform the public.

A decision that Paladin may be liable under the cir-

cumstances of this case is not even tantamount to a hold-

ing that all publishers of instructional manuals may be

liable for the misconduct that ensues when one follows the

cient

70a

instructions which appear in those manuals. Admittedly,

a holding that Paladin is not entitled to an absolute de-

fense to the plaintiffs’ claims here may not bode well for

those publishers, if any, of factually detailed instructional

books, similar to Hit Man, which are devoted exclusively

to teaching the techniques of violent activities that are

criminal per se. But, in holding that a defense to liability

may not inure to publishers for their dissemination of

such manuals of criminal conduct, we do not address our-

selves to the potential liability of a publisher for the crim-

inal use of published instructions on activity that is either

entirely lawful, or lawful or not depending upon the cir-

curs‘ances of its occurrence. Assuming, as we do, that

lia® *y could not be imposed in these circumstances on

a finding of mere foreseeability or knowledge that the in-

structions might be misused for a criminal purpose, the

chances that claims arising from the publication of in-

structional manuals like these can withstand motions for

summary judgment directed to the issue of intent seem to

us remote indeed, at least absent some substantial con-

firmation of specific intent like that that exists in this case.

Thus, while the “horribles” paraded before us by

Paladin and amici have quite properly prompted us to

examine and reexamine the established authorities on

which plaintiffs’ case firmly rests, we regard them ulti-

mately as but anticipatory of cases wholly unlike the one

we must decide today.

Paladin Press in this case has stipulated that it specifi-

cally targeted the market of murderers, would-be mur-

derers, and other criminals for sale of its murder manual.

Paladin has stipulated both that it had knowledge and

that it intended that Hit Man would immediately be used

by criminals and would-be criminals in the solicitation,

planning, and commission of murder and murder for hire.

And Paladin has stipulated that, through publishing and

selling Hit Man, it “assisted” Perry in particular in the

perpetration of the brutal triple murders for which plain-

tiffs now seek to hold the publisher liable. Beyond these

pecan aan ta se hance a

CB A AAO AION BE ALTE LT ETON

Tla

Startling stipulations, it is alleged, and the record would

support, that Paladin assisted Perry through the quintes-

sential speech act of providing Perry with detailed factual

instructions on how to prepare for, commit, and cover up

his murders, instructions which themselves embody not

so much as a hint of the theoretical advocacy of principles

divorced from action that is the hallmark of protected

speech. And it is alleged, and a jury could find, that

Paladin’s assistance assumed the form of speech with little,

if any, purpose beyond the unlawful one of facilitating

murder.

Paladin’s astonishing stipulations, coupled with the ex-

traordinary 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 promo-

tion 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 Amend-

ment 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 con-

duct—and even some speech—fundamentally incompati-

ble with the liberties they have secured unto themselves.

The judgment of the district court is hereby reversed,

and the case remanded for trial.

It is so ordered

72a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

SOUTHERN DIVISION

Case No: AW-95-3811

VIVIAN Rice, Guardian and Next Friend

of TAMIELLE Horn, A minor, et al.,

Plaintiffs,

Vv.

PALADIN ENTERPRISES, INC., ef al.,

Defendants.

Case No. AW-96-444

MICHAEL D. SAUNDERS, et al.,

Plaintiffs,

vs.

PALADIN ENTERPRISES, INC., et al.,

Defendants.

SECOND AMENDED ORDER

UPON CONSIDERATION OF the Motion for Sum-

mary Judgment filed by Defendant Paladin Enterprises,

Inc. and the Plaintiffs’ Opposition thereto, and, further,

upon consideration of Plaintiff's Motion to Amend Judg-

ment, or Alternatively, for Relief from Judgment, and

Defendant’s Opposition thereto, and for the reasons set

forth in this Court’s Amended Memorandum Opinion

dated September 6, 1996, it is this 11th day of September,

1996,

ORDERED, that Defendant’s Motion for Summary

Judgment be, and hereby is, GRANTED; and it is further

73a

ORDERED, that Plaintiffs’ Motion to Amend Judg-

ment, or Alternatively, for Relief from Judgment be, and

hereby is, DENIED, and it is further

ORDERED, that. pursuant to F.R.P. Rule 54(b), upon

the Court’s express determination that there is no just

reason for delay, final judgment be, and hereby is entered

on behalf of Defendant Paladin Enterprises, Inc. and

against the Plaintiffs herein and it is further

ORDERED, that the Clerk of the Court enter final

judgment on behalf of the defendant Paladin Enterprises,

Inc. and that said case be CLOSED.

/s/ Alexander Williams, Jr.

ALEXANDER WILLIAMS, JR.

United States District Judge

74a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

SOUTHERN DIVISION

Civil Action No. AW 95-3811

(consolidated )

VIVIAN RICE, et al.,

Plaintiffs,

Vv.

PALADIN ENTERPRISES, INC., ef al.,

Defendants.

Civil Action No. AW 96-444

(consolidated )

MICHAEL D. SAUNDERS, et al.,

Plaintiffs,

We

PALADIN ENTERPRISES, INC., ef al.,

Defendants.

AMENDED MEMORANDUM OPINION

Plaintiffs filed wrongful death and survival actions

against the Defendants Paladin Enterprises, Inc.

(“Paladin”), a book publishing company, and its Presi-

dent, Peter Lund, for the triple murder committed by con-

victed killer, James Perry, who had purchased two of the

Defendants’ books prior to committing the murders.’ Fed-

1 James Perry was convicted in Montgomery County Circuit Court

and sentenced to death for killing Mildred Horn, her 8 year old

75a

eral jurisdiction is properly invoked pursuant to 28 U.S.C.

§ 1332(a)(1) because the parties are from different states

and the amount in controversy exceeds $50,000. Accord-

ing to the Plaintiffs, the Defendants aided and abetted the

murders of the three decedents by publishing two books

which James Perry consulted to commit the murders: Hit

Man: A Technical Manual for Independent Contractors

(“Hit Man”) and How to Make a Disposable Silencer,

Vol. II (“Silencers”). The Plaintiffs are also seeking

damages in their survival and wrongful death actions

based on theories of civil conspiracy, strict liability, and

negligence.

Pending before the Court is the Defendants’ motion for

summary judgment. The Defendants argue, at the outset,

that they cannot be held liable for civil damages because

they have a First Amendment right to publish these books.

The Court has considered the parties respective memo-

randa and the entire record. The Court has also per-

mitted oral argument by counsel at a hearing conducted

on July 22, 1996. For the reasons that follow, the Court

will grant the Defendants’ motion for summary judgment.

I. Background

For the purposes of this motion, the parties have stipu-

lated to the following set of facts. Hit Man and Silencers

were both published in 1983 and, since then, approxi-

mately 13,000 copies of each book have been sold na-

tionally. Paladin advertises the book in its mail order

catalogue which has the following description:

HIT MAN

A Technical Manual for Independent Contractors

by Rex Feral

quadriplegic son, Trevor, and the boy’s nurse, Janice Saunders.

Lawrence Horn was also convicted in Montgomery County Circuit

Court and sentenced to life without the possibility of parole for

hiring Perry to commit the murders.

76a

Rex Feral kills for hire. Some consider him a

criminal. Others think him a hero. In truth, he is a

lethal weapon aimed at those he hunts. He is a last

recourse in these times when laws are so twisted that

justice goes unserved. He is a man who feels no

twinge of guilt at doing his job. He is a professional

killer.

Learn how a pro gets assignments, creates a false

identity, makes a disposable silencer, leaves the scene

without a trace, watches his mark unobserved and

more. Feral reveals how to get in, do the job and

get out without getting caught. For academic study

only. 5Y2 x 8%, softcover, 19 photos, illus., 144 pp.

ISBN 0-87364-276-7 $10.00

Def.’s Ex. 1 at 41.

On the page preceding the table of contents, the following

disclaimer appears:

WARNING

IT IS AGAINST THE LAW TO manufacture a

silencer without an appropriate license from the

federal government. There are state and local laws

prohibiting the possession of weapons and their ac-

cessories in many areas. Severe penaliies are pre-

scribed for violations of these laws. Neither the

author nor the publisher assumes responsibility for

the use or misuse of information contained in this

book. For informational purposes only!

Def.’s Ex. B at v.

It is undisputed that prior to March 3, 1992, Lawrence

Horn began plotting with James Perry of Detroit, Michi-

gan to have Perry murder his ex-wife, Mildred Horn, and

his son, Trevor. On or about January 24, 1992, James

Perry responded to a catalogue solicitation by the defend-

ant, Paladin, advertising Hit Man and Silencers. Perry

T7a

ordered and received both publications. Paladin had no

other contact with Perry nor with Lawrence Horn.

On March 3, 1993, James Perry traveled from Detroit,

Michigan to Montgomery County, Maryland and mur-

dered Mildred Horn, Trevor Horn, and Janice Saunders,

Trevor’s private duty nurse. Perry followed a number of

instructions outlined in Hit Man and Silencers in planning,

executing and attempting to get away with the murders.

However, Defendants had no specific knowledge that

either Perry or Horn planned to commit a crime; that

Perry and Horn had entered into a conspiracy for the

purpose of committing a crime; nor that Perry had been

retained by Horn to murder Mildred Horn, Trevor Horn,

or Janice Saunders.

Defendants concede, for the purposes of this motion,

that in publishing, distributing and selling Hit Man and

Silencers to Perry, they assisted him in the subsequent

perpetration of the murders which are the subject of this

litigation. For example, each of the excerpts from Hit

Man listed below was followed by Perry in the planning

and execution of the murders for which he was convicted:

“What other basic equipment will the beginner need

as essential tools of his trade? . . . [an] AR-7 rifle.”

(p. 21)

James Perry used an AR-7 rifle to commit the murders

of Mildred Horn and Janice Saunders.

“The AR-7 rifle is recommended because it is both

inexpensive and accurate. The barrel breaks down

for storage inside the stock with the clip. It is light-

weight and easy to carry or conceal when disassem-

bled.” (p. 22)

After the murders, James Perry disassembled the AR-7

rifle as instructed by the Defendants.

|

78a

“The AR-7 has a serial number stamped on the case,

just above the clip port. This number should be com-

pletely drilled out. The hole left will be unsightly but

will not interfere with the working mechanism of the

gun or the clip feed.” (p. 23)

James Perry drilled out the serial number of the AR-7

rifle exactly as instructed by the Defendants.

“The directions and photographs that follow show in

explicit detail how to construct a silencer for a Ruger

10/22 rifle. The same directions can be followed

successfully to construct a silencer for any weapon,

with only the size of the drill rod used for alignment

changed to fit the inside dimension of the barrel.”

(p. 39)

James Perry used a home made silencer which he used

to silently kill Mildred Horn and Janice Saunders.

“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 a point blank range to avoid

having the victim’s blood splatter you or your cloth-

ing. At least three shots should be fired to insure

quick and sure death . . . aim for the head—prefer-

ably the eye sockets if you are a sharpshooter.”

(p. 24)

James Perry shot Mildred Horn and Janice Saunders

from a distance of three feet. He shot them each three

times in the eyes.

“Use a rat-tail file, alter the gun barrel, the shell

chamber, the loading ramp, the firing pin and the

ejector pin. Each one of these items leaves its own

definite mark and impression on the shell casing,

which if any shells happened to be left behind, can

19a

be matched up to the gun under a microscope in a

police laboratory. (p. 25) . . . Of primary impor-

tance now too, is changing the rifling of the murder

weapon. This should be done even before you leave

the crime scene. That way, even if you get picked

up or stopped with the weapon in your possession,

its ballistics will not match the bullets you left be-

hind in the mark.” (p. 105)

James Perry filed down the parts of the AR-7 Rifle.

Perry followed additional instructional references from

Hit Man in planning and executing the murders, in-

cluding how to solicit for and obtain prospective clients in

need of murder for hire services; requesting up-front

money for expenses; how to register at a motel in the

vicinity of the crime, paying with cash and using a fake

license tag number; committing the murders at the vic-

tims’ home; how to make the crime scene look like a

burglary; reminding to clean up and carry away the

ejected shells; breaking down the gun and discarding

the pieces along the roadside after the murders; and using

a rental car, a stolen tag on the rental car and the dis-

carding of the tag after the murders.

Paladin engaged in a marketing strategy intended to

attract and assist criminals and would-be criminals who

desire information and instructions on how to commit

crimes. In publishing, marketing, advertising and dis-

tributing Hit Man and Silencers, Paladin intended and had

knowledge that their publications would be used, upon

receipt, by criminals and would-be criminals to plan and

execute the crime of murder for hire, in the manner set

forth in the publications.

All parties agree that Paladin’s marketing strategy is

intended to maximize sales to the public, including authors

who desire information for the purpose of writing books

about crime and criminals, law enforcement officers and

80a

agencies who desire information concerning the means and

methods of committing crimes, persons who enjoy reading

accounts of crimes and the means of committing them for

purposes of entertainment, persons who fantasize about

committing crimes but do not thereafter commit them,

and criminologists and others who study criminal methods

and mentality.

II. Legal Standard

A. Summary Judgment Principles

Summary judgment will be granted when there is no

genuine dispute of material fact and the moving party is

entitled to judgment as a matter of law. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). While

the Court views the underlying facts and all reasonable

inferences drawn therefrom in the light most favorable

to the opposing party, Matsushita Electrical Industrial Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), the

mere existence of a “scintilla of evidence” is not enough

to frustrate the motion. To defeat a motion for summary

judgment, a party must present evidence of specific facts

from which the finder of fact could reasonably find for

him. Anderson, 477 U.S. at 252; Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986).

B. First Amendment Freedom of Speech

The First Amendment to the United States Constitution

states that Congress shall make no law abridging the

freedom of speech, or of the press. The First Amendment

applies to the states through the Fourteenth Amendment.

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 n.2

(1980) (Stewart, J., concurring). The imposition of tort

liability constitutes state action, so the First Amendment

is applicable in this case. New York Times v. Sullivan,

376 U.S. 254, 265 (1964) (“The test is not the form in

which state power has been applied but, whatever the

form, whether such power has in fact been exercised”).

bot ee PAA AAS bles BRE i PS eet | Me ae a

Cy ee ee

8la

Simply stated, if the Court finds that Hit Man is pro-

tected by the First Amendment, the Plaintiffs are barred

from maintaining tort claims against Paladin. Admittedly,

the Court’s task is both novel and awesome; the Court

must balance society’s interest in compensating injured

parties against the freedom of speech guaranteed by the

First Amendment. The First Amendment bars the imposi-

tion of civil liability on Paladin unless Hit Man falls

within one of the well-defined and narrowly limited classes

of speech that are unprotected by the First Amendment.

Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72

(1942).

Those classes of speech which receive limited or no

First Amendment protection include: (1) obscenity,

Miller v. California, 413 U.S. 15, 24 (1973); (2) fight-

ing words, Chaplinsky, 315 U.S. at 572; (3) libel, New

York Times Co. v. Sullivan, 376 U.S. 254, 267 (1964);

(4) commercial speech, Ohralik v. Ohio State Bar Assn.,

436 US. 447, 456 (1978) and; (5) words likely to

incite imminent lawless action, Brandenburg v. Ohio, 395

U.S. 444 (1969).

Hit Man cannot be characterized as obscenity because

it does not “depict[t] or describfe], in a patently offensive

way, sexual conduct .. .” Miller, 413 U.S. at 24. Nor

can it be categorized as fighting words since the words

in the book do not, “by their very utterance inflict injury

or tend to incite an immediate breach of the peace.”

Chaplinsky, 315 U.S. at 572. Hit Man clearly is not

libelous since it does not tend to injure the reputation of

any particular individual. New York Times, 376 US.

at 267.

Hit Man does not fall into the category of commercial

speech. It is well settled that commercial speech is speech

which does “no more than propose a commercial transac-

tion.” Pittsburgh Press Co. v. Pittsburgh Comm'n on

Human Relations, et al., 413 U.S. 376, 385 (1973).

Commercial speech also provides information for pur-

82a

poses of inviting or enticing one to buy goods or services.

Virginia State Bd. of Pharmacy v. Virginia Citizens Con-

sumer Council, Inc., 425 U.S. 748 (1976) (noting the

informational function of commercial speech). Although

Hit Man is published for profit, the book itself cannot be

considered an effort to achieve the type of commercial

result that an advertisement is designed to achieve. There-

fore, the book cannot be characterized as commercial

speech.

The Court believes that the only category of unpro-

tected speech under which Hit Man could conceivably be

placed is incitement to imminent, lawless activity under

Brandenburg. Therefore, as will be discussed shortly, the

Court will conduct its analysis of whether the book is

protected by the First Amendment under the Brandenburg

standard.

III. Discussior

Plaintiffs have essentially advanced five arguments to

support its assertion that summary judgment should not

be granted in this case. First, Plaintiffs argue that the

First Amendment does not protect speech aiding and

abetting murder. Paper No. 22 at 2. Plaintiffs’ second

argument is that the “knowing or reckless disregard for

human life” standard of New York Times is the appro-

priate standard to be applied to this case. Paper No. 22

at 26. Third, Plaintiffs contend that the Brandenburg

standard does not apply. Paper No. 22 at 23. Fourth, they

argue that even if the Court finds that Brandenburg ap-

plies, that standard does not bar liability in this action.

Paper No. 22 at 7. Finally, Plaintiffs urge the Court to

be guided by the decisions in the Soldier of Fortune cases.

The Court will address each of these arguments in turn.

A. Aiding and Abetting

A brief history of aiding and abetting will serve to

guide the Court in its analysis. Aiding and abetting is an

83a

ancient criminal law doctrine. Central Bank v. First In-

terstate Bank, 114 S.Ct. 1439, 1450 (1994) (citing

United States v. Peoni, 100 F.2d 401, 402 (CA2 1938);

1 M. Hale, Pleas of the Crown 615 (1736)). Though

there is no federal common law of crimes, Congress in

1909 enacted what is now 18 U.S.C. § 2, a general aid-

ing and abetting statute applicable to all federal criminal

offenses. Central Bank, 114 S.Ct. at 1450. The statute

decrees that those who provide knowing aid to persons

committing federal crimes, with the intent to facilitate

the crime, are themselves committing a crime. Id. (citing

Nye & Nissen v. United States, 336 USS. 613, 619

(1949).

The Restatement of Torts, under a concert of action

principle, accepts a doctrine similar to criminal aiding

and abetting. Central Bank, 114 S.Ct. at 1450. An actor

is liable for harm resulting to a third person from the

tortious conduct of another “if he . . . knows that the

other’s conduct constitutes a breach of duty and gives sub-

stantial assistance or encouragement to the other...”

Central Bank, 114 S.Ct. at 1450 (citing Restatement

(Second) of Torts § 876(b) (1977)). However, the

doctrine has been at best uncertain and limited in applica-

tion. The concept of tortious aiding and abetting has

turned up frequently in the evaluation of secondary liabil-

ity for securities law violations, principally in the area of

fraud. Halberstam vy. Welch, 705 F.2d 472, 485 (D.C.

Cir. 1983) (citations omitted).

In some states, it is still unclear whether there is aiding

and abetting tort liability of the kind set forth in § 876(b)

of the Restatement. Central Bank, 114 S.Ct. at 1450

(citing FDIC v. S. Prawer & Co., 829 F. Supp. 453, 457

(D. Maine 1993) (in Maine, “i]t is clear. . . that

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