Rice v. Paladin Enter.

Filed: December 4, 1997

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-2412

(CA-95-3811-AW)

Vivian Rice, etc., et al,

Plaintiffs - Appellants,

versus

The Paladin Enterprises, etc.,

Defendant - Appellee.

O R D E R

The Court amends its opinion filed November 10, 1997, as follows:

On page 28, first paragraph, line 29 -- the cross-reference is corrected to read "infra at 39-44."

On page 29, first paragraph, line 14 -- the cross-reference is corrected to read "infra at 37-38."

On page 30, first full paragraph, line 18 -- the opening quotation mark before the phrase "to be represehensible" is deleted.

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-2412

(CA-95-3811-AW)

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- Appellants,

THE PALADIN ENTERPRISES,

INCORPORATED, a/k/a The Paladin

Press,

Defendant- Appellee,

and

PETER C. LUND,

Defendant.

DAVID CRUMP, Professor of

Constitutional Law and Recipient of

"Friend of the First Amendment"

Award; NATIONAL VICTIM CENTER;

STEPHANIE ROPER FOUNDATION,

INCORPORATED; VICTIMS RIGHTS

POLITICAL ACTION COMMITTEE; THE

HORROR WRITERS ASSOCIATION; THE

THOMAS JEFFERSON CENTER FOR THE

PROTECTION OF FREE EXPRESSION;

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION; AMERICAN CIVIL

LIBERTIES UNION OF THE NATIONAL

CAPITOL AREA; AMERICAN CIVIL

LIBERTIES UNION OF COLORADO; ABC,

INCORPORATED; AMERICA ONLINE,

INCORPORATED; ASSOCIATION OF

AMERICAN PUBLISHERS; THE

BALTIMORE SUN COMPANY; E.W.

SCRIPPS COMPANY; FREEDOM TO READ

FOUNDATION; MAGAZINE PUBLISHERS

OF AMERICA, INCORPORATED;

MCCLATCHY NEWSPAPERS,

INCORPORATED; MEDIA GENERAL, INC.;

MEDIA PROFESSIONAL INSURANCE;

NATIONAL ASSOCIATION 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.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Luttig wrote the

opinion, in which Judges Wilkins and Williams joined.

_________________________________________________________________

COUNSEL

ARGUED: Rodney Alan Smolla, Marshall- Wythe School of Law,

COLLEGE OF WILLIAM & MARY, Williamsburg, Virginia, for

Appellants. Thomas Buchan Kelley, FAEGRE & BENSON, L.L.P.,

Denver, Colorado, for Appellee. ON BRIEF: John Marshall, MOL-

DAWER & MARSHALL, Rockville, Maryland; Howard Siegel,

Rockville, Maryland; Thomas L. Heeney, HEENEY, ARMSTRONG

& HEENEY, Rockville, Maryland, for Appellants. Steven D. Zans-

berg, FAEGRE & BENSON, L.L.P., Denver, Colorado; Lee Levine,

Seth D. Berlin, LEVINE, PIERSON, SULLIVAN & KOCH, L.L.P.,

Washington, D.C., for Appellee. David Crump, UNIVERSITY OF

HOUSTON LAW CENTER, Houston, Texas, for Amicus Curiae

Crump. Neal Goldfarb, D. Thomas Nelson, Russell Butler, Charles G.

Brown, INGERSOLL & BLOCH, Washington, D.C., for Amici

Curiae National Victim Center, et al. Douglas E. Winter, BRYAN

CAVE, L.L.P., Washington, D.C., for Amicus Curiae Horror Writers

Association. Robert M. O'Neil, J. Joshua Wheeler, THE THOMAS

JEFFERSON CENTER FOR THE PROTECTION OF FREE

EXPRESSION, Charlottesville, Virginia; Dwight H. Sullivan,

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF

MARYLAND, Baltimore, Maryland; Arthur Spitzer, AMERICAN

CIVIL LIBERTIES UNION OF THE NATIONAL CAPITAL

AREA, Washington, D.C.; Mark Silverstein, AMERICAN CIVIL

LIBERTIES UNION OF COLORADO, Denver, Colorado, for Amici

Curiae Thomas Jefferson Center, et al. Bruce W. Sanford, Henry S.

Hoberman, Michael J. Lorenger, BAKER & HOSTETLER, L.L.P.,

College Park, Maryland, for Amici Curiae ABC, et al.

_________________________________________________________________

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.

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, cer-

tainly 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 with-

out 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 con-

tractor. 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 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 reason-

able price in the prescription department of most drug stores in boxes

of 100. You will wear the gloves when you assemble and disassemble

your weapons as well as on the actual job. Because 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 according to the

job setting.

Black, dark brown or olive green clothes do not stand out and will

probably appear at first glance to be a mechanic or delivery driver's

uniform. . . . And underneath, 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 trigger or plunge a knife. It is

being able to do so in a manner that will not link yourself or your

employer to the crime that makes you a professional.

[If you decide to kill your victim with a knife,] [t]he knife . . .

should have a six- inch blade with a serrated edge for making effi-

cient, 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.

Using your six inch, serrated blade knife, stab deeply into the side

of the victim's neck and push the knife forward in a forceful move-

ment. 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 victim.] . . . An ice

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 attributed 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 inexpensive (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- 1/2 inch (inside diameter) PVC tubing and two end

caps

- One quart of fiberglass resin with hardener

- One yard thin fiberglass mat

[List continues]

[If you plan to kill your victim with a gun,][c]lose kills are by far

preferred to shots fired over a long distance. 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.

[If 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 sharpshooter. 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 remounting 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 recom-

mended because they deform on impact, making them nontraceable.

As an added precaution, you can fill the hollows with liquid poison

to insure success of your operation. . . . [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 maximum for your rifle. Check for penetra-

tion of bullets at each range. Quarter- inch plywood is only a little

stronger than the human skull.

If the serial number is on the barrel of the gun, grinding 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 rela-

tively humane death to the victim, there are instances when other

methods of extermination are called for. The employer may want you

to gather certain information from the mark before you do away with

him. At other times, the assignment may call for torture or disfigure-

ment 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 after-

math, it will be your responsibility to enter 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 instructions for constructing the bomb].

Extend the fuse and light . . . .

Arson is a good method for covering a kill or creating an "acci-

dent."

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, fingerprints

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 coun-

tryside.

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 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. . . .

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 prevent the horrible odor of decomposi-

tion, and lye to make that decomposition more rapid.

[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 intervention 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 superiority, a new independence and self-

assurance.

[E]verything seems to have changed.

The people around you have suddenly become so aggravatingly

ordinary. You start to view them as an irritating herd of pathetic

sheep, doing as they are told, doing what is expected, following some-

one, 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 hesitation, 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 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 brag-

ging of your own. Or you may want to overawe some new woman in

your life with your masculinity 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 vic-

tor 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 con-

quer, you might just feel cocky enough to write a book about it.

Selected passages from Hit Man: A Technical Manual for Indepen-

dent Contractors.1

_________________________________________________________________

On the night of March 3, 1993, readied by these instructions and

steeled by these seductive adjurations from Hit Man: A Technical

Manual for Independent Contractors, a copy of which was subse-

quently found in his apartment, James Perry brutally murdered Mil-

dred 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 instead 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 instrument, 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 murders, Perry

meticulously followed countless of Hit Man's 130 pages of detailed

factual instructions on how to murder and to become a professional

killer.

_________________________________________________________________

1 The foregoing passages have been selected by the court as representa-

tive, 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 passages in order to minimize

the danger to the public from their repetition herein.

Perry, for example, followed many of the book's instructions on

soliciting a client and arranging for a contract murder in his solicita-

tion of and negotiation with Lawrence Horn. Cautioning against the

placement of advertisements 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 contract killer to get "all

expense money up front." Hit Man at 92 (emphasis added). The man-

ual goes on to explain that this amount should generally range from

five hundred to five thousand dollars, "depending on the type of job

and the job location," and that the advance should be paid in cash. Id.

Prior to commission of the murders, Lawrence Horn paid James Perry

three thousand five hundred dollars through a series of wire transfers

using phony names. Perry, 686 A.2d at 280.

Hit Man instructs 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 "position." 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 committing 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 Rockville,

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 102.

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

Mildred Horn and Janice Saunders. Perry, 686 A.2d at 279.

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 numbers 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 homemade, "whisper- quiet" silencer from

material available in any hardware store. Hit Man at 39- 51. James

Perry constructed 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 instructions 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 Mildred 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]im 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.

Finally, Perry followed many of Hit Man's instructions for con-

cealing 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 mur-

ders, 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 murder as bur-

glary 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." Id. 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 instructions.

Perry, 686 A.2d at 280.

Hit Man also instructs the killer to dispose of the murder 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 Mil-

dred and Trevor Horn and Janice Saunders, Perry scattered the pieces

of his disassembled 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 Pal-

adin Enterprises - - the publisher of Hit Man - - the relatives and rep-

resentatives 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 reasons

that are here of no concern to the court, Paladin has stipulated to a

set of facts which establish as a matter of law that the publisher is civ-

illy 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 criminal 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 com-

plete 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." J.A. at 58.

Paladin, for example, has stipulated for purposes of summary judg-

ment that Perry followed the above- enumerated instructions from Hit

Man, as well as instructions from another Paladin publication, How

to Make a Disposable Silencer, Vol. II, in planning, executing, and

attempting to cover up the murders of Mildred and Trevor Horn and

Janice Saunders. J.A. at 61. Paladin has stipulated not only that, in

marketing Hit Man, Paladin "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 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 stipulated that, through publishing and selling Hit Man, it

assisted Perry in particular in the perpetration of the very murders for

which the victims' families now attempt to hold Paladin civilly liable.

J.A. at 61.2

_________________________________________________________________

2 The full fact stipulation of the parties reads as follows:

Notwithstanding Paladin's extraordinary stipulations that it not

only knew that its instructions might be used by murderers, but that

_________________________________________________________________

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 estab-

lish 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 fol-

low 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 sub-

sequent 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 (herein-

after 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 thereafter.

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 defen-

dants from contending that defendants' published words, in and

of themselves, were neither directed at causing imminent unlaw-

it actually intended to provide assistance to murderers and would- be

murderers which would be used by them "upon receipt," and that it

_________________________________________________________________

ful 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 writing

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 pur-

poses of entertainment, (iv) persons who fantasize about com-

mitting crimes but do not thereafter commit them, and (v)

criminologists and others who study criminal methods and men-

tality.

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 3, 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, exe-

cuting and attempting to get away with the murders described 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".

in fact assisted Perry in particular in the commission of the murders

of Mildred and Trevor Horn and Janice Saunders, the district court

granted Paladin's motion for summary judgment and dismissed plain-

tiffs' 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 appli-

cable to speech that constitutes civil aiding and abetting of criminal

conduct (at least where, as here, the defendant has the specific pur-

pose of assisting and encouraging commission of such conduct and

the alleged assistance and encouragement 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 that the plaintiffs have

stated against Paladin a civil aiding and abetting claim under Mary-

_________________________________________________________________

8. Hit Man was first published in 1983 and Silencers was

first published in 1983. Approximately 13,000 copies of Hit Man

and an unknown but not disproportionate number of copies of

Silencers have been sold nationally.

9. At all relevant times, defendants had no specific knowl-

edge (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 retained

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.

land law sufficient to withstand Paladin's motion for summary judg-

ment. 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.

In the seminal case of Brandenburg v. Ohio, 395 U.S. 444 (1969),

the Supreme Court held that abstract advocacy of lawlessness is pro-

tected speech under the First Amendment. Although the Court pro-

vided little explanation 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 paradoxically, 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 impas-

sioned terms the most passionate disagreement with the laws them-

selves, the institutions of, and created by, law, and the individual

officials 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 legiti-

mately 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 applicable 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 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 free-

dom for speech and press extends its immunity to speech or

writing used as an integral part of conduct in violation of a

valid criminal statute. We reject the contention now. . . .

. . .

. . . It is true that the agreements and course of conduct

here were as in most instances brought about through speak-

ing or writing. But it has never been deemed an abridgment

of freedom of speech or press to make a course of conduct

illegal merely because the conduct was in part initiated, evi-

denced, or carried out by means of language, either spoken,

written, or printed. Such an expansive interpretation of the

constitutional guaranties of speech and press would make it

practically impossible ever to enforce laws against agree-

ments 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 undoubt-

edly possess some element of association, the State may ban

such illegal agreements without trenching on any right of

association protected by the First Amendment. The fact that

such an agreement necessarily takes the form of words does

not confer upon it, or upon the underlying conduct, the con-

stitutional immunities that the First Amendment extends to

speech. [W]hile a solicitation to enter into an agreement

arguably crosses the sometimes hazy line distinguishing

conduct from pure speech, such a solicitation, 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 v. 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 illegal-

ity."); United States v. Varani, 435 F.2d 758, 762 (6th Cir. 1970)

("[S]peech is not protected by the First Amendment when it is the

very vehicle of the crime itself."); Laurence H. Tribe, American Con-

stitutional Law 837 (2d ed. 1988) ("[T]he law need not treat differ-

ently the crime of one man who sells a bomb to terrorists and that of

another who publishes an instructional manual for terrorists on how

to build their own bombs out of old Volkswagen parts.").

Were the First Amendment to bar or to limit government regulation

of such "speech brigaded with action," Brandenburg, 395 U.S. at 456

(Douglas, J., concurring), the government would be powerless to pro-

tect 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 alarms); and the like. As Professor Greenawalt

succinctly summarized:

The reasons of ordinary penal policy for covering com-

municative 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

understanding of listeners is minimal, and the justifications

for free speech that apply to speakers do not reach commu-

nications 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 offenses. 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 v. Barnett, 667 F.2d

835 (9th Cir. 1982), that the First Amendment does not provide pub-

lishers a defense as a matter of law to charges of aiding and abetting

a crime through the publication and distribution of instructions on

how to make illegal drugs. In rejecting the publisher'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 instructions were found,

the Court of Appeals explicitly foreclosed a First Amendment defense

not only to the search itself, but also to a later prosecution:

To the extent . . . that Barnett appears to contend that he is

immune from search or prosecution because 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 provide 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 because the First Amendment protects

the written word. Id. at 842.

The principle of Barnett, that the provision of instructions that aid

and abet another in the commission of a criminal offense is unpro-

tected 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. Freeman to sustain convic-

tions 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 criminally

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 con-

viction "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 intent of the

actor and the objective meaning of the words used are so

close in time and purpose to a substantive evil as to become

part of the ultimate crime itself. In those instances, where

speech becomes an integral part of the crime, a First

Amendment defense is foreclosed even if the prosecution

rests on words alone.

Id. at 552 (citations omitted). Thus, the court held that a First Amend-

ment instruction was required only for those counts as to which there

was evidence that the speaker "directed his comments at the unfair-

ness of the tax laws generally, without soliciting or counseling a vio-

lation 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 prep-

aration and review of false tax returns, the court held that the defen-

dant was not entitled to a First Amendment instruction at all. Id. at

552. See also United States v. Mendelsohn, 896 F.2d 1183, 1186 (9th

Cir. 1990) (holding Brandenburg inapplicable to a conviction for con-

spiring to transport and aiding and abetting the interstate transporta-

tion of wagering paraphernalia, where defendants disseminated a

computer 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 inapplica-

ble to charges of aiding and abetting violations of the tax laws. See,

e.g., United States v. Kelley, 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 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 "participate[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 entitled 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 advice would be heeded.

The cloak of the First Amendment envelops critical, but

abstract, discussions of existing laws, but lends no protec-

tion to speech which urges the listeners 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 "[t]he defendants' words and

acts were not remote from the commission of the criminal acts." 98

F.3d at 158- 59.

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 punishment of speech that constitutes crim-

inal aiding and abetting, because "culpability in such cases is prem-

ised, not on defendants' `advocacy' of criminal conduct, but on

defendants' successful efforts to assist others by detailing to them the

means of accomplishing the crimes." Department of Justice, "Report

on the Availability of Bombmaking Information, the Extent to Which

Its Dissemination is Controlled by Federal Law, and the Extent to

Which Such Dissemination May Be Subject to Regulation Consistent

with the First Amendment to the United States Constitution" 37

(April 1997) (footnote omitted) [hereinafter "DOJ Report"]; see also

id. ("[T]he question of whether criminal conduct is `imminent' is rele-

vant for constitutional purposes only where, as in Brandenburg itself,

the government attempts to restrict advocacy, as such.").3 And, while

_________________________________________________________________

3 Congress, in the Antiterrorism and Effective Death Penalty Act of

required the Attorney General to conduct a study concerning, inter alia,

the extent to which there is available public access to materials instruct-

ing on "how to make bombs, destructive devices, or weapons of mass

destruction"; the application of then- existing federal laws to such materi-

als; and the extent to which the First Amendment protects such materials

and their private and commercial distribution. 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 manufac-

ture of explosive materials "if the person intends or knows that such

explosive materials or information will likely be used for, or in further-

ance 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 available 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

there is considerably less authority on the subject, we assume that

those speech acts which the government 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 (find-

ing 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 appropriation of "right to publicity" where television sta-

tion broadcast "human cannonball" act in its entirety without plain-

tiff's 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 unau-

thorized presidential memoir excerpts). Even if this is not universally

_________________________________________________________________

moved for, and we granted them, permission to file the report with the

court. The decision we reach today, which, as noted, was urged upon us

by Attorney General Reno and the Department of Justice, follows from

the principal conclusion reached by the Attorney General and the Depart-

ment 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 advocat-

ing lawless action or for disseminating truthful information - -

including information that would be dangerous if used - - that

such persons have obtained lawfully. However, the constitutional

analysis is quite different where the government punishes speech

that is an integral part of a transaction involving conduct the

government otherwise is empowered to prohibit; such"speech

acts" - - for instance, many cases of inchoate crimes such as aid-

ing and abetting and conspiracy - - 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).

so, we believe it must be true at least where the government's interest

in preventing the particular conduct at issue is incontrovertibly com-

pelling.

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.

The first, which obviously would have practical import principally

in the civil context, is that the First Amendment may, at least in cer-

tain circumstances, superimpose upon the speech- act doctrine a

heightened intent requirement in order that preeminent values under-

lying that constitutional 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 Amendment construction in

part because "the statute here in question does not impose such a

restriction [on the disclosure of wiretap authorizations] generally, but

only upon those who disclose wiretap information`in order to

[ob]struct, impede, or prevent' a wiretap interception" (emphasis

added)); Haig v. Agee, 453 U.S. 280, 308- 09 (1981) ("[The defen-

dant's] disclosures, among other things, have the declared purpose of

obstructing intelligence operations and the recruiting of intelligence

personnel. They are clearly not protected by the Constitution."

(emphasis added)); United States v. Featherston, 461 F.2d 1119, 1122

(5th Cir. 1972) (rejecting First Amendment challenge to federal stat-

ute 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 further-

ance of a civil disorder"), cert. denied, 409 U.S. 991 (1972); National

Mobilization Committee to 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 contexts stand as a bar to the

imposition of liability on the basis of mere foreseeability or knowl-

edge that the information 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, concern of those who publish,

broadcast, or distribute to large, undifferentiated audiences, that the

exposure to suit under lesser standards would be intolerable. See dis-

cussion infra, Part IV. At the same time, it would not relieve from lia-

bility those who would, for profit or other motive, intentionally assist

and encourage crime and then shamelessly seek refuge in the sanctu-

ary of the First Amendment. Like our sister circuits, at the very least

where a speaker - - individual or media - - acts with the purpose 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, e.g., Barnett, 667 F.2d 835 (holding that drug manu-

facturing instructions mailed to countless customers with whom the

defendant had no personal contact could give rise to aiding and abet-

ting conviction); Mendelsohn, 896 F.2d 1183 (holding that First

Amendment did not forbid prosecution of aiding and abetting inter-

state transportation of wagering paraphernalia where computer pro-

grams for recording and analyzing illegal wagers were distributed

generally and widely to the public); Buttorff, 572 F.2d at 622- 23

(affirming, despite First Amendment challenges, convictions for pro-

viding tax- evasion information at "large public gatherings" to partici-

pants whom the defendants 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 strategy, but the nature of the

speech itself, strongly suggest 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 circumstances, 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 impu-

nity.

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 Amendment poses no bar to the imposition of

civil (or criminal) liability for speech acts which the plaintiff (or the

prosecution) can establish were undertaken with specific, if not crimi-

nal, intent. See DOJ Report at 42- 43 (advising that "the government

may punish publication of dangerous 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 constitution-

ally 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 dis-

regard of the truth of its published statements. And, here, as previ-

ously 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 commission of

murder and murder for hire, and even absent the stipulations, a jury

could reasonably find such specific intent, see discussion infra at 38-

42. Thus, Paladin has stipulated to an intent, and a jury could other-

wise reasonably 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 lia-

bility for aiding and abetting through speech conduct.4

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 might well

circumscribe the power of the state to create and enforce a cause of

_________________________________________________________________

4 In addition to their aiding and abetting counts, which require that Pal-

adin 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.

action that would permit the imposition of civil liability, such as aid-

ing 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 pro-

duce such action." Brandenburg, 395 U.S. at 447. The instances in

which such advocacy might give rise to civil liability under state stat-

ute 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); Frohwerk 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 limitation is not

required in this case.

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 murder (replete with photographs, diagrams, and nar-

ration) so comprehensive and detailed that it is as if the instructor

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 pro-

vided 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 indisputably

illegitimate one of training persons how to murder 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 U.S. 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 in the throes of planning murder is the antithe-

sis 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[a-

tion] . . . 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, col-

lectively, a textbook example 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.

III.

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 abet-

ting. 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 reconsideration, it

appears that the court was simply unprepared to revisit its decision,

issued only the week before, in order to address the above- discussed

cases, which the district court itself had observed are "factually simi-

lar" to the case at hand, J.A. at 156, but which the court had distin-

guished on the ground that they involved criminal prosecutions for

aiding and abetting and Maryland 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." (emphases added)). Perhaps

ironically, this unwillingness foreordained what was, as we explain

below, the district court's second error in the interpretation of Mary-

land 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 cer-

tainly eased because it concluded alternatively (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 decision in Brandenburg

to protect not just abstract advocacy of lawlessness and the open criti-

cism of government and its institutions, but also the teaching of the

technical methods of criminal activity - - in this case, the technical

methods of murder.

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:

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 recognizes the tort of aiding and abetting. A fed-

eral court sitting in diversity cannot create new causes of

action. 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 response to submis-

sions 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, recognize such

a cause of action. However, rather than address then the numerous

precedents holding that the First Amendment offers little protection

against claims of aiding 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 original memorandum

opinion the single conclusory footnote sentence (together with the

necessary conforming changes to the relevant paragraph from its ini-

tial opinion5) that, "[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 citation deleted).6 In this

_________________________________________________________________

5 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 com-

munication aiding and abetting murder. This argument, the Court

believes, fails, however, because of the absence of any reported

decision suggesting that Maryland extends the 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 evi-

dence of the haste with which the revised analysis was undertaken, the

amended opinion elsewhere still includes a statement of 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 subjected to civil liability for mur-

der, based on a theory of civil aiding and abetting - a claim that does not

exist under Maryland law.").

6 The issue of whether, under the stipulated facts, Paladin could be held

liable for aiding and abetting under Maryland law was not even before

holding, as with its original holding that Maryland did not recognize

a cause of action for civil aiding and abetting, the district court erred.

Maryland'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 aiding and abetting. The state defines"aider" as one who

"assist[s], support[s] or supplement[s] the efforts of another," and

defines "abettor" as "one who instigates, advises or encourages the

commission of a crime." Anello v. State, 201 Md. 164, 93 A.2d 71,

72- 73 (Md. 1952). The Court of Appeals has explained that in order

for a conviction to stand, "it is not essential that there be a prear-

ranged 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 crime." Id. 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." Apostoledes v. 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 require-

ment. As Judge Learned Hand explained 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 "pur-

________________________________________________________________

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 specifically reserved for subsequent proceed-

ings." J.A. 58- 59.

posive 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 standard for the imposition of criminal lia-

bility than it does for civil liability.

Especially in light of the caselaw discussed above, we are satisfied

not only that the Maryland courts would conclude that an aiding and

abetting cause of action would lie in the circumstances of this case,

but also that plaintiffs 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 burden of establishing a genu-

ine 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.

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 Janice Saunders. J.A. at 61. In fact, as

noted, the publisher has actually stipulated that it assisted Perry in the

"perpetration of the murders." Id.

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 Mil-

dred 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 detail, countless of the book's

instructions in soliciting, preparing for, and carrying out his murders.

Without repeating 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 victims in their own

home, using an AR- 7 rifle to shoot the victims in the eyes from point

blank range, and concealing his involvement in the murders. The

number and extent of these parallels to the instructions in Hit Man

cannot be consigned, as a matter of law, to mere coincidence; the cor-

respondence of techniques at least creates a jury issue as to whether

the book provided substantial assistance, 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 contemplat-

ing 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 emboldens the killer, confirming not only that he should pro-

ceed, 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

nature and duration of the criminal partnership established between

Hit Man and its readers who murder is the following "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 lightning 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 objectives 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 Maryland 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 abetting to speech, see discussion supra at II.B.1, we are confi-

dent that, at the very least, the aiding and abetting of a malum in se

crime such as murder with the specific purpose of assisting and

encouraging another or others in that crime would satisfy such a limi-

tation. Paladin has stipulated 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 intended that the

book be so used. Thus, the publisher stipulated, "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." J.A. at 59. Paladin has even stipulated that

it "engaged in a marketing strategy intended to attract and assist crim-

inals and would- be criminals who desire information and instructions

on how to commit crimes." Id. These stipulations are more than suffi-

cient to foreclose an absolute First Amendment defense to plaintiffs'

suit. See DOJ Report at 43 & 44- 45 n.71 ("[W]e believe that the dis-

trict court in Rice v. Paladin erred insofar as it concluded that

Brandenburg bars liability for dissemination of[instructions on mur-

der] regardless 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 require-

ment under Maryland's law of aiding and abetting, much less whether

the First Amendment imposes a heightened intent standard in the con-

text of authorizing liability for speech acts, because of its mistaken

conclusion 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 clarification, the district court said:

Defendants conceded that they intended that their publica-

tions would be used by criminals to plan and execute murder

as instructed in the manual. . . . However, Defendants clarify

their concession by explaining 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 previously

described and used by them for the broad range of purposes

previously described.

J.A. at 215- 16 (citations omitted). Of course, the district court was

without authority to allow Paladin to alter the parties' stipulation uni-

laterally, 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 because 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 reason-

able 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 unanswered the question

whether Paladin also had the specific purpose of facilitating mur-

der.").

First, the declared purpose of Hit Man itself is to facilitate murder.

Consistent with its declared purpose, the book is subtitled "A Techni-

cal Manual for Independent Contractors," and it unabashedly

describes itself as "an instruction book on murder," Hit Man at ix. A

jury 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 promotion of

murder is highly probative of the publisher's intent, and may be con-

sidered as such, whether or not that promotion, standing alone, could

serve as the basis for liability consistent with the First Amendment.

See Wisconsin v. 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 299.7 After carefully and repeatedly reading Hit

Man in its entirety, we are of the view that the book so overtly pro-

motes murder in concrete, nonabstract terms that we regard as distur-

bingly disingenuous both Paladin's cavalier suggestion that the book

is essentially a comic book whose "fantastical" promotion of murder

no one could take seriously, and amici's reckless characterization of

the book as "almost avuncular," see Br. of Amici at 8- 9. The unique

text of Hit Man alone, boldly proselytizing and glamorizing 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 Paladin's intent in publishing and selling the man-

ual.

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 strat-

egy). 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 com-

mit 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

_________________________________________________________________

7 Cf. DOJ Report at 30 & n.47 (citations omitted) ("Insofar as publica-

tion of [bombmaking] manuals were criminalized on account of those

manuals' advocacy of unlawful conduct, such a prohibition almost cer-

tainly could not pass constitutional muster. The First Amendment would

not, however, prohibit the evidentiary use of such advocacy to demon-

strate a disseminator's intent in conveying bombmaking information.

Therefore, insofar as criminal culpability for dissemination of such infor-

mation depends upon the distributors' intent - - for example, upon

whether a disseminator of bombmaking manuals had the conscious pur-

pose of helping others to use the information to engage in unlawful con-

duct - - the substance of the advocacy in such manuals could be used as

material evidence of such intent.").

publisher markets the book as follows, invoking a disclaimer which,

the district court's characterization notwithstanding, a jury could

readily find to be transparent sarcasm 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!

also infra note 10. From this statement by the publisher in its own

promotional sales catalogue, a jury could conclude that Paladin mar-

keted 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 necessary to support liability.

Certainly, such a conclusion would be reasonable based upon this

promotional description coupled with the singular character of Hit

Man, which is so narrowly focused in its subject matter and presenta-

tion 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 murderers in the com-

mission of murder, reasonably conclude that Paladin essentially dis-

tributed Hit Man only to murderers and would- be murderers - - that

its conduct was not, at least in law, different from that of a publisher

(or anyone else) who delivered Hit Man to a specific person or group

of persons whom the publisher knew to be interested in murder. And

even Paladin effectively concedes that it could be liable were such a

finding permissibly made. Paladin's Memorandum in Support of

Summary Judgment at 33 n.24.

A conclusion that Paladin directed Hit Man to a discrete group

rather than to the public at large would be supported, even if not

established, by the evidence that Hit Man is not generally available

or sold to the public from the bookshelves of local bookstores, but,

rather, is obtainable as a practical matter only by catalogue. Paladin

Press is a mail order company, and for the most part does not sell

books through retail outlets. In order to procure a copy of Hit Man,

the prospective reader must first obtain a copy of Paladin's catalogue,

typically by 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 descriptions. Once the reader finds

the book he desires, he must then complete and mail another form to

order the book.

From the requirements of this process, together with the book's

character, a jury need not, but could, permissibly find that Hit Man

is not at all distributed to the general public and that, instead, it is

available only to a limited, self- selected group of people interested in

learning from and being trained by a self- described professional killer

in various methods of killing for money, individuals who are then

contemplating or highly susceptible to the commission of murder.

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 facilitating such murders.8 Cf. J.A. at 221 (obser-

vation by district court that Hit Man is "devoid of any significant

redeeming social value"). Although before us Paladin attempts 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 likeli-

hood 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) (dis-

tinguishing obscene from nonobscene material in part on basis of

"whether the work, taken as a whole, lacks serious literary, artistic,

_________________________________________________________________

8 Paladin contends that plaintiffs have stipulated "that the defendant'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.

political, or scientific value"). Thus, for example, a jury would cer-

tainly not be unreasonable in dismissing (in fact, it arguably would be

unreasonable in accepting) Paladin's contention that Hit Man has sig-

nificant social value in that the book, in the course of instructing mur-

derers how to murder, incidentally informs law enforcement on the

techniques that the book's readers will likely employ in the commis-

sion of their murders. Likewise, a reasonable jury could simply refuse

to accept Paladin's contention that this purely factual, instructional

manual on murder has entertainment value to law- abiding citizens.

And, just as a permissible inference as to Paladin's marketing strategy

would be supportable 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.

Any argument that Hit Man is abstract advocacy entitling 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

protected 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 (discuss-

ing "instructive nature" of book). Indeed, Paladin's protests notwith-

standing, 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, commission, and concealment

of criminal conduct, finds no preserve in the First Amendment. To the

extent that confirmation of this is even needed, given the book's con-

tent and declared purpose to be "an instruction book on murder," Hit

Man at ix, that confirmation is found in the stark contrast between this

assassination manual and the speech heretofore held to be deserving

of constitutional protection.

Through its stipulation that it intended Hit Man to be used by crim-

inals and would- be criminals to commit murder for hire in accor-

dance 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 Amend-

ment.

The cover of Hit Man states that readers of the book will "[l]earn

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 iden-

tity, makes a disposable silencer, leaves the scene without

a trace of evidence, watches his mark unobserved, 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 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 suc-

cessful 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.

Hit Man at x- xi (emphasis in original). And, faithful to these prom-

ises, in the successive chapters of the 130 pages that follow, Hit Man

systematically and in meticulous detail instructs on the gruesome par-

ticulars of every possible aspect of murder and murder for hire. The

manual instructs 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 surveillance of, a potential victim's

house, and it instructs on the use of a fake driver's license and regis-

tration at a motel, the placement of stolen out- of- state license plates

on rental cars, and the deception of the postal service into delivering

weapons to the murder scene. The book instructs the reader in murder

methods, explaining in dispassionate and excruciatingly graphic detail

how to shoot, stab, poison, and incinerate people, and in gory detail

it expounds 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 bal-

listics markings of that weapon, stealing and switching license plates,

and disguising 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 instructions, one need only con-

sider 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 "[b]ooks on subjects related to the professional hit

man are hard to find [and that] there are[only] a few publishers out

there who have the backbone to provide those . . . who take life seri-

ously with the necessary educational materials." Hit Man at 9- 10. The

book goes on to recommend 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 inventions as they become

available." Hit Man at 9. It also encourages the reader to comb fic-

tional accounts of murder, 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 dis-

posal." Id. 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." Id. The book provides in- depth

advice on using a variety of publicly available reference materials to

locate weapons and other "equipment," gather information about vic-

tims, and plan murders 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."

Id. at 12. Similarly, 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 example by obtaining law

enforcement handbooks, and it provides practical advice on how to

obtain these books, either 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 ability to kill are first

choice instructors." Id. 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- - Selection 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, disposable 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 instruc-

tions on how to kill, using each of the various weapons. The manual

recommends "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 clothing. At least three shots

should be fired to ensure quick and sure death.

You can judge when death has occurred by observing 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 recommended 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 powder 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 efficiently 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 medi-

cal 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- - pref-

erably the eye sockets if you are a sharpshooter. Many peo-

ple have been shot repeatedly, even in the head, and

survived to tell about it.

Id. at 24. Finally, the chapter includes a host of other instructions on

how to use basic tools, ranging from handcuffs, to lock picks, to sur-

veillance equipment, in the commission of murder. For instance, the

book teaches the need for a hit man to always wear gloves and it dis-

cusses glove choice, recommending surgical gloves because,

[l]eather 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 convict 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 con-

struct a "whisper- quiet," "inexpensive," and "effective" disposable

silencer that is "reusable for over four hundred rounds." Id. at 47, 51.

These directions are designed to allow the "amateur" to construct dis-

posable silencers, which, the book explains, are "one of the most

important tools a professional will ever have." Id. at 38. As the book

explains, these "same directions can be followed successfully to con-

struct a silencer for any weapon, with only the size of the drill rod

used for alignment changed. . . ." Id. 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 dis-

cursive 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 fertil-

izer 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 arson, admonishing and instructing,

"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." Id. at 56. In addition, the chapter includes instructions such

as that, "[a] fire victim will have smoke present in his lungs. There-

fore, 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." Id. Later in the chapter, Hit

Man discusses poisons. After teaching an elaborate method for

obtaining hard- to- find poisons through impersonation, the manual

explains how one can successfully use substances such as tetrodo-

toxin, 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." Id. 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.

. . .

. . . Suddenly 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 pop-

ping sound as blood spurted from the wound for a second,

then stopped.

. . .

Several stabs later, the [victim] was quivering like a jelly-

fish, his body like a pin cushion, while the Indian was get-

ting more and more excited and more and more into his

work.

. . . 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 [victim]

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, providing 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 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 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 ele-

ments 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 - - Map-

ping a Plan and Checking It for Accuracy," instructs on how to obtain

information about the victim from the client. It explains the impor-

tance of finding out information such as whether the victim has a dog

or other pet that might provide a warning of the impending assassina-

tion, the layout of the victim's residence, and whether the victim has

roommates or neighbors. The chapter includes a lengthy "sample

information sheet" that may be used in planning a first kill. Id. at 73-

80.

Chapter Six, entitled "Opportunity Knocks - - Finding Employ-

ment, 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 politi-

cal 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 contract that

pays less than $30,000, and that is working mighty cheap.

To work for any amount less would be amateurish. . ..

There are two good reasons for setting a $30,000 mini-

mum 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 employment

opportunities are limited, the money you earn should be suf-

ficient to carry you over until your next job comes along.

Id. at 90- 91. The chapter also provides instructions on how to com-

municate with the employer after the hit, explaining, for example, that

it is best to develop a code for informing the employer that the con-

tract 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.

In the following chapter, titled "Getting the Job Done Right - -

Why the Described Hit Went Down the Way It Did," Hit Man pro-

vides 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 direc-

tions 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 car-

tridge, 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 blood-

stains. 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 sanitization 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 fil-

ter . . . .

Id. at 106.

Chapter 8, entitled "Danger: Ego, Women, and Partners - - Con-

trolling Your Situation" instructs the reader on 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 commit-

ting professional killings without getting caught. Thus, after explain-

ing that the "deceitful, `game- playing' natures" of women make them

potentially better professional killers than men, the book goes on to

say that,

[f]ortunately for the world, a woman usually makes only

one man her target, and the nesting instinct 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 someday 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 crea-

tures. 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 participate in imper-

sonal one- night- stands. His involvement 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.

. . .

As a man, I appreciate as much as anyone a good- looking

body and a warm, willing smile on a woman. As a profes-

sional, 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, warning that,

Unless you have additional sources of income to justify

large expenditures like a new home, paying off an old mort-

gage 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.

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 on 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 corpora-

tion 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 pre-

viously set up. . . .

Let's say your legal American corporation is a land devel-

opment company, because you want to invest your laun-

dered monies into real estate. . . .

[Instructions continue].

Id. at 124. The book concludes by offering advice on how to escape

punishment by exploiting legal technicalities in