The courts take out a contract on free speech

By David B. Kopel - Reason.com

August/September 1999

Is a publisher legally responsible for the crimes perpetrated by one of its readers? In America, the answer now is "yes."

After serving several years in Michigan's Jackson State Prison for violent felonies, James Perry was released and soon went into business for himself--soliciting clients who wanted someone killed.

Later, Perry ordered two books from Paladin Press, How to Make Disposable Silencers and Hit Man: A Technical Manual for Independent Contractors.

Perry eventually met up with Lawrence Horn, who took out a contract on his ex-wife, Mildred Horn, and their quadriplegic son, Trevor. Trevor had won $1.7 million in a medical malpractice lawsuit, and Lawrence wanted the money for himself.

On March 3, 1993, Perry murdered Mildred, Trevor, and Trevor's nurse, Janice Saunder.

Perry had done a poor job of covering his tracks, and when investigators searched his home they found a Paladin Press catalog. Contacted by the police, Paladin could have invoked the First Amendment. That's what Kramerbooks and Barnes & Noble did in 1998, when Kenneth Starr subpoenaed them to discover whether Monica Lewinsky had bought the novel Vox. But Paladin did not even ask for the formality of a subpoena. It immediately turned Perry's purchase order over to the police.

Lawrence Horn was sentenced to life in prison; Perry was sentenced to death. Then Mildred's relatives hired attorney Howard Siegel for a civil case. Siegel had won the huge malpractice award for Trevor that had prompted the murders. He was more famous, however, for a 1985 case, Kelley v. R.G. Industries, in which he convinced the Maryland Court of Appeals to hold manufacturers of small, inexpensive handguns "strictly liable" for injuries resulting from their criminal misuse. (The decision was later voided by the Maryland legislature.)

The actual killer, James Perry, wasn't much of a lawsuit target; his check for Hit Man had bounced. Thus was born the case of Rice v. Paladin. Calling Paladin Press "despicable," Siegel announced that his suit was aimed at destroying the publisher.

What made Paladin so odious? The Boulder-based press has long published practical books for anti-establishmentarians, teaching such skills as how to build a rural home without connecting to the electricity grid, how to survive disasters, how to pass drug tests, and how to defend yourself. A lot of its books make an overt appeal to do-it-yourselfers but sell mostly to Walter Mittys. For instance, the new Paladin title Contingency Cannibalism: Superhardcore Survivalism's Dirty Little Secret would not have much economic viability if it sold only to cannibals. Rather, its market includes people interested in reading about an unusual topic, people interested in speculating about unlikely circumstances, and the like.

Similarly, Paladin has sold over 20,000 copies of Hit Man: A Technical Manual for Independent Contractors. The book's pseudonymous author, "Rex Feral" (King of the Beasts), is not, as the book pretends, an actual hit man. She is a divorced mother of two who needed money to pay her property taxes. When she submitted a fictional manuscript about a hit man to Paladin, the press asked her to change the style to a "how to."

Yet the book's commercial success was not with persons who actually wanted to do a contract murder. Other than James Perry, the only customer known to have used Hit Man in a crime was a killer who followed some of the book's suggestions about how to dispose of a dead body. The other 20,000 buyers were apparently people interested in reading a "true crime" book, or getting tips for writing such a book. Perhaps some hyper-vigilant readers wanted to know how contract killers operate, so as to take precautions against them. Some, no doubt, were simply attracted by the book's notoriety: The title's sales rate doubled in the years following the lawsuit. And there were certainly some readers who liked to imagine perpetrating a crime. (They would be similar to the audience for books like Perfectly Criminal, from the British Crime Writers Association: "Discover the secrets of the perfect crime...COULD YOU COMMIT THE PERFECT MURDER?...If you find you need help, here are some tips from the masters of the art." No one as yet has sued the BCWA.)

Despite Siegel's claim that "Paladin Press has established itself as a correspondence school for crime," there isn't enough money to be made in a mail-order bookstore whose main customers are hit men and cannibals. Indeed, if Paladin were marketing mainly to criminals, it would not retain records of who buys its books and would not voluntarily turn those records over to law enforcement when asked about a particular crime.

The plaintiffs in Rice v. Paladin claimed Perry used 22 techniques he had learned from Hit Man. On closer examination, the number shrank. For example, Hit Man discusses client solicitation by the contract killer, and Perry did solicit clients. But he started soliciting long before he read the book. Another dubious parallel: The book said to use a .22 caliber AR-7 rifle, and to shoot the adult victims in the eye to reduce blood splatter. Perry did this. But even if we assume that Perry chose an AR-7 because of Hit Man (rather than because Perry, as a convicted felon, could buy only on the black market and had to take what was available), what difference did that detail ultimately make? Perry was going to commit the crime anyway. If Perry had chosen some other gun, the victims would still be dead.

If anything, Perry didn't read Hit Man carefully enough. The main reason he was caught was because he registered under his own name at the Day's Inn where he stayed the night before the murders, despite the book's advice to use a pseudonym. A few hours after the murders, Perry called Lawrence Horn long distance, thus providing another key piece of evidence against himself--and disregarding Hit Man once more.

Initially, the federal trial judge threw Siegel's case out on summary judgment, ruling that there was no need for a trial. The 1969 Supreme Court decision in Brandenburg v. Ohio had held that the government cannot "forbid advocacy of the use of force or of law violation" unless "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." To meet this standard, Siegel had to argue that Perry's murders were imminent when he bought Hit Man, even though 14 months had elapsed before he carried them out.

But in November 1997, the U.S. Court of Appeals for the 4th Circuit reversed the decision and said the trial against Paladin should go forward. How could the 4th Circuit reconcile their decision with the clear Brandenburg standards about protection of free speech? It couldn't.

Instead, it asserted that because Hit Man contained no express political or social advocacy, the book was not protected by the Brandenburg test--even though many other courts have applied Brandenburg to apolitical speech. Further, claimed the court, a jury could find that the book's only "communicative value" was "training persons how to murder." This was obviously false, given that only two of the book's buyers are known to be criminals. There is simply no analogy between Hit Man and a document intended solely for crime (e.g., bank blueprints drawn up for a robbery).

The 4th Circuit ruling in Rice v. Paladin is inconsistent with many cases from other federal courts finding that the First Amendment prohibits suits against authors or publishers of various instruction manuals for illegal activity such as drug smuggling or marijuana cultivation. The defendants appealed to the Supreme Court, which denied certiorari--as the Court usually does before a factual record has been developed through a trial. The case was set for trial on May 25, 1999. A few days before then, Paladin's insurance company decided to settle, paying several million dollars to Mildred and Trevor Horn's family. Paladin agreed to cease publishing the book and its remaining stock of 700 copies sold out within a day.

The Utopian Anarchist Party promptly posted the full text of Hit Man on its Web site (www.overthrow.com/hitmanonline. html), where the book is now available for free. Thus, the perverse result of Siegel's lawsuit has been to make Hit Man more widely available than ever.

But an ominous precedent has been set, paving the way for more censorship by lawsuit. It was this fear that prompted The Washington Post, the Society of Professional Journalists, and the Horror Writers Association to file amicus briefs in support of Paladin. Already, Oliver Stone is being sued for making Natural Born Killers, under the theory that the movie caused a robber to shoot and paralyze a clerk in a Louisiana convenience store. Refusing to dismiss the suit, the Louisiana Court of Appeals cited the 4th Circuit's Paladin decision. Thus litigation will go forward to discover what Stone's "intent" was in creating Natural Born Killers.

Who loses from such censorship? More people than you'd think. After all, a book that's useful to criminals can also be useful to law enforcement. Paladin's The Ultimate Sniper is used at the U.S. Army Sniper School in Fort Benning, Georgia, and by police SWAT teams all over the country. (If it can be proven that FBI sniper Lon Horiuchi read The Ultimate Sniper sometime before he killed Vicki Weaver at Ruby Ridge, Idaho, should her children have a right to sue Paladin?)

If Paladin is to blame for the murders, who else might find themselves in the dock? The U.S. Army, which trained Perry to kill people with the M-16 rifle (similar to the AR-7) and deliberately put him through a training regimen to desensitize him to the taking of human life? The State of Michigan, which let Perry out of prison after only a few years, despite two separate armed robbery convictions and an attempt to murder a police officer? (Michigan needed the space for drug users.) Or perhaps Jackson State Prison itself? Almost all the techniques mentioned in Hit Man could be learned from prisoners there, according to a guard on Perry's unit.

Or should we blame Mildred Horn? She knew her ex-husband was a murderer: He had bragged to her that during his Navy service, he shoved a sailor off a ship's deck into the ocean and made it look like an accident. She also said that Horn had tried to kill her more than once, and she warned relatives that if she were killed, Horn would be responsible. But there is no evidence that she took protective steps, beyond having a burglar alarm installed and warning Saunder, Trevor's nurse, not to open the door to strangers when Mildred was away. Nor was there any evidence that Saunder, before she accepted her job, was warned that she might be putting her life at risk.

Is it realistic to claim that a book, which at most affected a few details of how the crime was committed, is more responsible than anyone except the actual criminals? State legislatures in Louisiana, Texas, Nevada, Georgia, Maine, and elsewhere have passed laws to stop cities from filing suits designed to destroy Second Amendment rights. Rep. Bob Barr (R-Ga.) has introduced similar legislation in Congress. The Hit Man case suggests that even broader reforms are needed, to protect the First Amendment as well as the Second.