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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2210%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 1074

## Text

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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

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—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

|

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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.

————————————

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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

l3a

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.

l4a

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

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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

16a

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

17a

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].

This standard applies even where the federal crime being
assisted involves the unlawful use of explosives. See, e.g., United
States v. Hewitt, 663 F.2d 1381, 1385 (11th Cir. 1981) (describing
elements of aiding and abetting a violation of 18 U.S.C § 844(h)).

*6 Judge Hand’s view of the intent required for criminal aiding
and abetting was not shared by all courts, some of which argued
that it was sufficient that the aider and abettor knew of the purpose
of the principal—+.e., that the crime was a natural consequence of
the assistance. The classic statement of this position is found in
Backun v. United States, 112 F.2d 635, 636-37 (4th Cir. 1940).
The Supreme Court, in Nye & Nissen, nominally resolved the debate
by adopting Judge Hand’s view. But see United States v. Ortega,
44 F.3d 505, 508 (7th Cir. 1995) (defendant could be culpable
of aiding and abetting even in the absence of evidence that he
wanted the unlawful act to succeed, if defendant “rendered assist-
ance that he believed would (whether or not he cared that it would)
make the principal’s success more likely”) ; United States v. Zafiro,
945 F.2d 881, 887-88 (7th Cir. 1991) (dicta) (aiding and abetting
should be established even absent intent to assist illegal activity, if

on ee Ee eee n

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17la

Finally, under the plain terms of §2, the underlying
offense must in fact be committed (though the govern-
ment need not prove by whom it was committed); section
2 merely makes aiders and abettors culpable for their
principles’ commission of an offense.” There is no fed-
eral statute generally proscribing an attempt to aid and
abet a federal offense (though the Model Penal Code
recommended that such a prohibition be codified).”
Therefore, if a crime has not been committed, the general
federal aiding and abetting statute cannot be invoked.

2. AEDPA Section 323. Section 323 of the AEDPA,
110 Stat. at 1255 (to be codified as amended section
2339A(a) of Title 18) makes it unlawful to provide
“material support or resources” to another person, “know-
ing or intending that they are to be used in preparation
for, or in carrying out,” various federal offenses relating
to terrorism, or in preparation for, or in carrying out, the
concealment from the commission of any such violation.
Id. (to be codified at 18 U.S.C. § 2339A(a)).” Notably,
the statute defines the term “material support or resources”

abettor “knowingly provides essential assistance” that cannot readily
be obtained from other sources), aff’d on other grounds, 506 U.S.
534 (1993).

27 See, e.g., Superior Growers, 982 F.2d at 177-78; United States
v. Campa, 679 F.2d 1006, 1013 (1st Cir. 1982).

28 See United States v. Giovannetti, 919 F.2d 1223, 1227 (7th
Cir. 1990) (citing American Law Institute, Model Penal Code
§ 2.06(3) (a) (ii)). Although attempted aiding and abetting is not
a crime, the converse is not true: it is unlawful to aid and abet an
attempted crime, provided the underlying attempt is itself an
unlawful act.

29 The substantive crimes that may not be “support[ed]” under
section 323 are: 18 U.S.C. §§ 32, 37, 81, 175, 351, 831, 842(m) and
(n), 844(f) and (i), 956, 1114, 1116, 1203, 1361, 1362, 1363, 1366,
1751, 2155, 2156, 2280, 2281, 2332, 2332a, 2332b, and 2340A, and
49 U.S.C. § 46502.

a

172a

to include, inter alia, “training, . . . and other physical
assets.” Id. (to be codified at 18 U.S.C. § 2339A(b)).”

Section 323 essentially is a prohibition on certain forms
of knowing or intentional facilitation of particular terror-
ist crimes. In two respects, it is broader in scope than
the general aiding and abetting statute. First, the facilita-
tor can be culpable even if the underlying offense is not in
fact committed. Second, the scienter provision is a bit
broader than the “intent” requirement in 18 U.S.C. § 2.
Under AEDPA section 323, specific intent to facilitate
the underlying offense is not necessary: *’ the person pro-
viding the support or resources can be culpable so long as
he “know[s]” that the resources provided “are to be used”
to prepare for or commit a specified offense. In effect,
however, this “knowledge” provision will rarely be of use
to a prosecutor, because where—as in section 323—the
element of “knowledge” refers to a possible future result
of a defendant’s conduct, typically the government must
prove that the defendant was “aware” that that result is
practically certain to follow from his conduct.’” United
States v. Bailey, 444 U.S. 394, 404 (1980) (emphasis
added) (quoting United States v. United States Gypsum |
Co., 438 US. 422, 445 (1978) (internal citation
omitted ) ).” |

30 The full definition of “material support or resources” is: “cur-
rency or other financial securities, financial services, lodging, train-
ing, safehouses, false documentation or identification, communica-
tions equipment, facilities, weapons, lethal substances, explosives,
personnel, transportation, and other physical assets, except medicine
or religious materials.” Jd.

31 See H.R. Conf. Rep. No. 482, 103d Cong., 2d Sess. 232 (1994)
(noting that, under the original version of 18 U.S.C. § 2339A, it
would not be necessary to prove that the facilitator had a “specific
intent to commit the underlying action”).

32 Accord Model Penal Code § 2.02(2)(b) (ii) (Official Draft and
Revised Comments, 1985); itd., Explanatory Note on § 2.02, at
236-37 n.13; United States v. Meling, 47 F.3d 1546, 1558 (9th Cir.),
cert. denied, 116 S. Ct. 180 (1995); United States v. Powell, 929

173a

Furthermore, whatever the scope of the “knowledge”
provision, the use of section 323 to address distribution
of bombmaking information might nonetheless be limited,
for two other reasons. First, section 323 covers facilita-
tion of only certain enumerated crimes. See supra note
29. Second, it is not clear whether courts would find that
information on how to manufacture or use explosives is
“material support or resources.” In the case of an actual
physical demonstration of the techniques in question, or
a one-to-one sale of printed information to someone who
purports to be planning a crime, transfer of such informa-
tion might constitute “training.” Otherwise, it is open to
question whether a manual on explosives would constitute
a “physical asset[]” under § 2339A.*

D. 18 U.S.C. §231(a)(1). For the most part, the fed-
eral statutes discussed in the previous sections are not di-
rected at dissemination of information, as such. Instead,
they are general prohibitions on conduct that can, in par-
ticular cases, be violated by providing information to
another person.

By contrast, 18 U.S.C. §231(a)(1)—like the pro-
posed Feinstein Amendment—arguably could be charac-
terized as a prohibition on certain forms of speech. Sec-
tion 231(a)(1) provides that:

F.2d 724, 726, 728 (D.C. Cir. 1991). The government need not prove
that the defendant had this level of knowledge with respect to all
of the particular details of the future result, such as the identity
of those who are harmed. Meling, 47 F.3d at 1558. Thus, under
section 323, for example, if a defendant was virtually certain that
particular recipients would in fact use the provided resources to
commit a terrorist crime, it would be immaterial whether the defend-
ant knew precisely when or where the criminal conduct would occur.

33 Insofar as it can be argued that Congress intended that “train-
ing” be considered a “physical asset’? for purposes of the statute, a
strong argument could be made that a book containing the substance
of such “training” also should be considered a “physical asset.”
But it is unclear whether a court would adopt this reasoning with
respect to a book containing information oth

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2210%3A2. Public record. Not legal advice.