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I had read Smolla's books and came to know him while he was teaching at William and Mary School of Law in Williamsburg, Virginia. He used to invite journalists who covered the Supreme Court to take the roles of the actual justices in a mock court and "decide" forthcoming cases. Those were the only times I have worn black robes.
Many lawyers with whom Smolla had worked on key First Amendment cases were shocked when he decided to sue a book publisher for complicity in three murders. He thereby became a heretic, scorned by practically every First Amendment attorney and journalist. Good lord, books can't kill people, they said. And they feared that if Smolla won the case, the creators and distributors of any book, movie, or TV show offering information on how to commit a crime could be hauled into court.
I was surprised too; but I knew Smolla was, first of all, principled and, second, would never endanger his reputation just to pick up a legal fee. So I read both the book Hit Man and the court papers, especially the unanimous Fourth Circuit Court of Appeals ruling by Judge Michael Luttig. That decision declared that the First Amendment did not protect Paladin Press or its owner, Peter Lund, from responsibility for publishing Hit Man.
In his decision, Judge Luttig went line by line, paragraph by paragraph, underlining exact parallels between the precise instructions in the bookon how to commit a murder and get away with itand the precise killing methods allegedly employed by James Perry, who had indeed read the book.
I could fill weeks of columns with examples, but here's one provided by Judge Luttig, as summarized by Rod Smolla in his book Deliberate Intent: A Lawyer Tells the True Story of Murder by the Book (Crown):
"Hit Man instructs in explicit detail, including photographs and diagrams, how to construct, without [the] need of special engineering ability or machine tools, a homemade, whisper-quiet silencer from material available in any hardware store. James Perry constructed such a homemade silencer and used it the night he murdered Mildred and Trevor Horn and Janice Saunders."
Is this technical manual on how to commit a murder to be protected by the First Amendment? Consider the hypothetical publication of a manual for homicidal pedophiles. Imagine that the book describesas clearly as Hit Man didhow and where to best attack and kill a child, and with what means; how to remove any possible traces of the murderer's presence once the rape and murder are committed; and how to construct a foolproof alibi for the time that all of this took. Imagine that an eight-year-old girl becomes the victim of a reader who follows the book exactly.
Would that book be protected by the First Amendment if an actual abduction and murder were committed as meticulously instructed by that book?
Rod Smolla was further redeemed for his courage in taking this case by the following passage in Judge Luttig's decision saying that Peter Lund, owner of Paladin Press, could be held liable for those three murders:
"Paladin Press in this case has stipulated [in other words, admitted, in answers to questions by Smolla and other lawyers in pretrial depositions] that it specifically targeted the market of murderers, would-be murderers, and other criminals for sale of its murder manual.
"Paladin has stipulated both that it had knowledge and that it intended Hit Man would immediately be used by criminals and would-be criminals in the solicitation, planning, and commission of murder for hire.
"And Paladin has stipulated that, through publishing and selling Hit Man, it 'assisted' Perry . . . in the perpetration of the brutal triple murders."
Therefore, continued Judge Luttig, "as a matter of law, the publisher is civilly liable for aiding and abetting the murders."
Furthermore, Luttig emphasized, "Paladin's astonishing stipulations, coupled with the extraordinary comprehensiveness and clarity of Hit Man's instructions . . . for murder [and] the boldness of its palpable exhortation to murder . . . renders this case unique in the law. . . .
"The First Amendment does not erect the absolute bar to the imposition of civil liability for which Paladin Press and amici contend."
Accordingly, it was not surprisingafter the United States Supreme Court refused to review Luttig's decisionthat as Peter Lund and Paladin Press were about to go on trial for civil liability, they settled the case for an amount that was not disclosed at the time but that 60 Minutes reported was $5 million. I have confirmed that figure.
I recommend Rod Smolla's Deliberate Intent, not only for its account of this "case unique in the law," but also because of its reporting on clashes between lawyers, both on the same team and on opposing teams. His insider's account reveals a lot about the strategies of the highly competent lawyers on both sides of this case.
Floyd Abrams, a justly renowned litigator for First Amendment rights, says of Deliberate Intent: "A jewel of a book . . . one of the best portraits ever of how cases with horrible facts lead to discomforting law. As a portrayal of lawyers at work, this book is superb."
And so is Rod Smolla, who notes that "freedom to speak is not freedom to kill."