Can a Book Murder?
In her December 28 Press Clips column, Cynthia Cotts, writing of lawsuits threatening press freedom, cites the 'Hit Man' case. It involved Paladin Press's being sued for publishing 'Hit Man,' a book thought to have been instrumental in three murders. An alleged hit man, James Perry, was charged with killing three people by following the instructions in the book.
Cotts reports that Paul McMasters, first Amendment ombudsman for the Freedom Forum, views this case of murder by a book as one of the darkest developments of the year for the First Amendment, and she agrees. Cotts is the best press critic the Voice has ever had, but we differ on this one. The First Amendment has not been endangered.
Paul McMasters and I often share leads on egregious violations of the First Amendment, along with other research, but, as I've told him, he too is wrong on this case.
First of all, Cotts writes that James Perry was "recently acquitted" of the murders. Not so. The conviction was overturned by the Maryland Court of Appeals because the prosecution had introduced a tape recording on which it claimed Perry could be heard implying, in a conversation with the man who allegedly hired him to do the killings, that the job had been done. Perry did not know he was being taped, and as Linda Tripp has discovered, in Maryland, both parties engaged in a conversation have to know it's being recorded.
But Perry has not been acquitted. The rest of the mountain of evidence against him remains, and a new trial is likely in the summer or fall. That is, unless Perry takes a plea and accepts life without parole.
Perry was accused of sticking to the details of this murder manualsometimes line by linein preparing for the alleged act, executing it, and covering up the traces. (As for the latter section of the book, he should, if finally convicted, sue the publisher for consumer fraud.)
The story of this lawsuit is important because it reveals how the press, at times, reacts automatically to cries that the First Amendment sky is fallingwithout fully investigating the facts of the case. So far as I know, the only journalists who did not share this fear in the Hit Man case were Mike Wallace of 60 Minutes and this contrary columnist. The whole story is told by Rod Smolla, an attorney who sued Paladin Press, in his book Deliberate Intent (Crown Publishers).
In this case, Paladin Enterprises v. Rice, the prosecution charged that James Perry, allegedly a contract killer from Detroit, had smothered Trevor Horn, an eight-year-old quadriplegic, in his bed in Silver Spring, Maryland, and also murdered the boy's mother, Mildred Horn, and his nurse, Janice Saunders.
Lawrence Horn, the former husband of Mildred Horn and the father of Trevor, was accused of employing James Perry to terminate the three victims so that he could collect the $1.7 million in a malpractice settlement resulting from his son's brain damage. (Horn is now serving a life sentence without parole.)
In preparing the case against Perry, the prosecution emphasized that he had carefully followed an instruction book on how to commit a murder and get away with it.
The book, Hit Man: A Technical Manual for Independent Contractorskeep that title in mind as we proceedwas published by Paladin Press in Boulder, Colorado.
Vivian Elaine Rice, the sister of the murdered Mildred Horn, and other family members sued Paladin Press and its owner, Peter Lund, for civil damages.
The lords of the press filed amicus briefs supporting Paladin Press and its owner. They believed that iffor the first timea book could be found liable for murder, among other crimes, the First Amendment would be in constant, serious danger. Books, movies, plays, television dramasall forms of expressioncould be sued for motivating people to commit terrible crimes.
Among the defenders of Paladin Press and Hit Man were The New York Times, The Washington Post, The Baltimore Sun, ABC and the Walt Disney Company, the American Library Association's Freedom to Read Foundation, the Society of Professional Journalists, the Magazine Publishers of America, the National Association of Broadcasters, America Online, and the Reporters Committee for Freedom of the Press.
I am on the steering committee of the Reporters Committee for Freedom of the Press, and I publicly dissented from its stand. I was the only member to do so. Therefore, when Cynthia Cotts writes that "everyone agrees the media lost out in Hit Man," she is not exactly right.
The case went before a federal district judge, Alexander Williams, who ruled that the lawsuit should not go forward because the book, Hit Man, and its publisher were protected by the First Amendment. Cheers resounded all around from the press and its lawyers.
The cheers turned to groans, however, when a three-judge panel for the Fourth Circuit Court of Appeals unanimously reversed the district court and sent the case back for trial. Judge Michael Luttig wrote the 65-page opinion for the Fourth Circuit.
He wrote that in "soliciting, preparing for, and committing these murders of Mildred Horn, Trevor Horn, and Janice Saunders, Perry meticulously followed countless of Hit Man's 130 pages of detailed factual instructions on how to murder and to become a professional killer."
Judge Luttig proceeded to show the precise correlations between what Perry did and what the book told aspiring contract killers to do. Next week I will show some of these instructions that faithful reader James Perry followed.
The judge concluded: "This book constitutes the archetypical example of speech which, because it methodically and comprehensively prepares and steels its audience to specific criminal conductthrough exhaustively detailed instructions on the planning, commission, and concealment of criminal conductfinds no preserve in the First Amendment."
As for the liability of Paladin Press in these murders, Luttig's decision contained a huge smoking gun. Stay tuned. On April 20, 1998, the Supreme Court of the United States refused to review Judge Luttig's decision.
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