John Stuart Mill wrote in On Liberty: “An opinion that corn dealers are starvers of the poor, or that private property is robbery ought to be unmolested when simply circulated in the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of the corn dealer.” So what about a book that encourages and incites people to become hitmen.
Rodney Smolla, who has written several interesting books related to the Supreme Court, was faced with a dilemma. As a strong advocate of the First Amendment, he was being asked to help sue a publisher for publishing a book. That the book had a nefarious history made it more problematic. In 1983 Paladin Press had published a book on how to become a professional hit man and the book provided a recipe of instructions on just how to do it. James Perry followed those instructions after being hired by Lawrence Horn to kill his crippled child and ex-wife. The question was whether the publisher had any liability for the actions of the thug.
Trevor was extremely disabled thanks to a mistake at the hospital where a machine he was on was accidentally knocked loose causing brain damage and a host of other problems. The hospital was successfully sued for the millions estimated to provide long-term care.
Smolla uses discussions (most likely invented) from his First Amendment class to bring the issues into focus: natural rights, Hobbes v Locke, etc. The question at the bottom of the suit was expressed well by Judge Bork who asked whether “freedom of speech is something inside or outside the social contract.” Freedom of speech derives from the social contract, so, in Bork’s view, freedom of speech cannot include the right to advocate overthrowing the social contract. Does freedom of speech permit one to encourage “people to be vigilantes, to go outside the formal governmental justice system and commit individual acts of ‘justice’ for revenge or retribution.” That was the legal question facing the publisher and his opponents.
The case bore similarities to the Hustler case and Jerry Falwell (see my review of Jerryn Falwell v Larry Flynt, also by Smolla at https://www.goodreads.com/book/show/218410.Jerry_Falwell_v_Larry_Flynt) Just how far does the First Amendment take us in protecting the truly distastful. (Personally, I found the parody Compari ad in Hustler to be hysterical and clever, but certainly distasteful.) The Brandenburg v Ohio case was also cited. Brandenburg was a Ku Klux Klan leader who was arrested under an Ohio syndicalism law that prohibited incitement to violence. Brandenburg was convicted but his conviction was overturned by the Supreme Court as a violation of his free speech rights. A more recent case coming after the book was written that might have applied would be Snyder v Phelps in which Phelps’ Westboro Baptist Church was engaged in picketing the funerals of dead soldiers as a protest against gay rights policies.
Generally, the courts have always held that copycat behavior or emulation of a violent scene in a movie did not leave the creator or producer of the scene at risk of being held responsible for the actions that resulted from watching the depiction. The rationale behind those decisions was that the programs did not encourage such behavior. So what about a book that did?
The case of United States v Progressive might be pertinent except for the classified nature of the material in question. Progressive magazine was enjoined from publishing an article on how to build a hydrogen bomb. They had used only publicly available information. The case itself was interesting in that there were two: one in public and the other in camera, the latter one which the defendants could not attend since they refused security clearances. Their lawyers were but they were forbidden to reveal what went on in the closed session to their clients. Ultimately the suit was withdrawn by the DOE because other “secret” information had been published elsewhere and the Progressive republished their article. The issue of intent remained crucial since in the case of the Progressive and the imitative violence cases the intent of the authors was certainly not to be imitated.
The strategy of the publisher’s legal team was to stipulate that the content of the book was clearly to instruct how to kill people for profit, but both teams also agreed to stipulate that the book was available to others who might have an interest in learning about these techniques such as authors, police, etc. So rather than have a jury trial first, in an unusual move, Smolla had to argue the First Amendment issues first, rather than wait and argue them on appeal, an appeal that would have occurred no matter which side won the jury trial.
The penultimate part of the book concerned the oral arguments before the 4th Circuit in the case of Rice v Paladin. I found this section particularly interesting not only because I like the ripostes inherent in the back-and-forth arguing between advocates and justices, but also because it gave me some insight into the mind of the lawyers pleading a case while they are in front of the court. Smolla became intrigued at the way Justice Luttig seemed to be steering him toward a particular argument so he did some research into the background and culture of the justice following their presentation. That led to an extremely interesting discussion of a legal philosophy expounded by Judge Jerome Frank in Law and the Modern Mind. Frank proposed that contrary to the “judge as umpire” position adopted by Justice Roberts during his confirmation hearings, and if the law consists of the decisions of judges, then “whatever produces the judges’ hunches makes the law.” So what are these “hunch-producers?” Frank argued “one must look at the individual judge’s past to find out.” Smolla suggests Justice Luttig had “brooded” about the case before the arguments were even made and had a well-formed opinion before a word was spoken in open court. Now I would assume part of that might be because Luttig had digested the briefs before the arguments. Certainly that appears to be the case in the Supreme Court oral arguments I listen to, but another case in Luttig’s background may have also played a part, that of the murder of Major Shirley Russell by her husband Robert Russell. Fascinating. (An interesting law review article can be found here.
The penultimate part of the book concerned the oral arguments before the 4th Circuit in the case of Rice v Paladin. I found this section particularly interesting not only because I like the ripostes inherent in the back-and-forth arguing between advocates and justices, but also because it gave me some insight into the mind of the lawyers pleading a case while they are in front of the court. Smolla became intrigued at the way Justice Luttig seemed to be steering him toward a particular argument so he did some research into the background and culture of the justice following their presentation. That led to an extremely interesting discussion of a legal philosophy expounded by Judge Jerome Frank in Law and the Modern Mind. Frank proposed that contrary to the “judge as umpire” position adopted by Justice Roberts during his confirmation hearings, and if the law consists of the decisions of judges, then “whatever produces the judges’ hunches makes the law.” So what are these “hunch-producers?” Frank argued “one must look at the individual judge’s past to find out.” Smolla suggests Justice Luttig had “brooded” about the case before the arguments were even made and had a well-formed opinion before a word was spoken in open court. Now I would assume part of that might be because Luttig had digested the briefs before the arguments. Certainly that appears to be the case in the Supreme Court oral arguments I listen to, but another case in Luttig’s background may have also played a part, that of the murder of Major Shirley Russell by her husband Robert Russell. Fascinating. (An interesting law review article can be found here.
The book didn’t start off well for me. I found the insertions of class discussions irritating at first, but since the issue was fascinating, I persevered and it really took hold. Smolla does a good job of integrating the memoir of his own “come to Jesus” moment with that of Howard Spiegel and why they decided to take the case. Smolla thinks very highly of himself, a negative, but the "inside" view of how their strategy developed and the personality clashes of the lawyers add an interesting dimension to the book. I won’t reveal the outcome of the case, but my personal take on the case is that Smolla was on the wrong side.
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