First Principles - CJR, September/October 1999

September/October 1999 | Contents

books
First Principles

By Tom Goldstein
Goldstein is dean of the Columbia University Graduate School of Journalism. Ariel Hart, who graduated from the school in 1999, assisted in this review.

For the past several years, courts – not editors, not reporters, not owners – have played a pivotal role in establishing the professional standards that journalists must meet in doing their jobs. Because judges, particularly federal judges, have become the prime formulators of journalistic standards, news organizations – which feel compelled to defend themselves and their sister organizations in just about any circumstance – are often in awkward legal postures, defending unappetizing (and sometimes horrific) facts.

In a recent example of this, Paladin Press, publisher of Hit Man: A Technical Manual for Independent Contractors, was sued for aiding and abetting three murders. The big media weighed in on the side of the publisher and the First Amendment. And the big media lost.

"That the national media organizations would feel obliged to vigorously defend Paladin’s assertion of a constitutional right to intentionally and knowingly assist murderers with technical information which Paladin admits it intended and knew would be used immediately in the commission of murder and other crimes against society is, to say the least, breathtaking," Judge J. Michael Luttig of the Fourth Circuit Court of Appeals wrote in 1997, in permitting the suit against Paladin to go forward.

It is this lawsuit that forms the backdrop for Deliberate Intent, whose author, Rod Smolla, a law professor who considered himself a member of what he calls the "First Amendment in-crowd," rejected his roots and made pathbreaking law.

Early in the morning of March 3, 1993, Mildred Horn, a flight attendant for American Airlines, her severely disabled eight-year-old son Trevor, who required a life support system and round-the-clock care, and the child’s nurse, Janice Saunders, were executed in Silver Spring, Maryland. The three were murdered by a contract killer hired by Mildred’s ex-husband, Lawrence, a one-time recording engineer for Motown Records, who hoped to inherit money paid to Trevor in settlement of a malpractice suit.

In separate trials, Lawrence Horn and the contract killer, James Edward Perry, an ex-convict from Detroit who described himself as "Spiritual Adviser, Case-Buster, Independent Contractor," were found guilty of the murders. At Perry’s trial, the prosecutor showed the jury a chart listing twenty-two steps, taken directly from Hit Man, that were used to commit the murders, including tips on which gun to use, why it is important to shoot the victims in the eyes, and how far away to stand from the targets in order to avoid the spattering of blood.

Ultimately, relatives of the three dead people sued the publisher of Hit Man in a civil suit. Their lead lawyer, Howard Siegel, who had negotiated the malpractice settlement for Trevor Horn, reached out for help to Rod Smolla, then teaching at the Marshall-Wythe School of Law at the College of William and Mary. A well-known First Amendment advocate, Smolla had written an amicus brief arguing that Hustler magazine had a constitutional right to publish a parody portraying Jerry Falwell having sex with his mother in an outhouse. That argument had been upheld by the Supreme Court.

First Amendment lawyers are a special breed. Unlike many other lawyers who take on whatever cause is at hand, they are blessed with an almost messianic fervor for their cause. (They are also tightly knit: not long ago, the Libel Defense Resource Center, an important group of libel defense lawyers, suspended Martin Garbus for switching sides and representing a plaintiff in her suit against a reporter.)

So it was natural that at first Smolla resisted Siegel’s request to become co-counsel in the Paladin suit. "To be sure, I felt emotionally drawn to the families, impelled to their cause by the pulls of sympathy and empathy. Their grief was devastating. Their outrage overpowering. But this was asking too much. All my life I had defended the rights of publishers. This felt like nothing less than betrayal."

Still, viscerally – "in my heart," he writes – he knew that the First Amendment could not be interpreted to protect a book like Hit Man. "We would not be attempting to punish Paladin Press for publishing unpopular or offensive ideas," Smolla writes, almost as if he is not yet fully convinced of the correctness of his position. "We would simply be attempting to hold it responsible for aiding and abetting murder by training, counseling, encouraging, and inciting hit men, with deliberate intent." And so, his moral dilemma, his fear of being branded "a traitor" notwithstanding, Smolla signed on with Siegel.

As it turned out, the suit against Paladin Press and its publisher, Peder Lund (whose former partner, Robert Brown, founded Soldier of Fortune magazine) for aiding and abetting the murders never went to trial. A settlement was reached last May 21. Paladin agreed to stop selling Hit Man and to pay millions of dollars to the victims’ families.

Smolla and his co-counsel had won a major victory. But his book leaves the reader with an insufficient idea of why he was so bothered about suing a publisher or why defenders of the First Amendment had any case at all. (For purposes of the trial, Paladin conceded Hit Man would be used by murderers for hire.)

In a conversation with Siegel, Smolla remarks: "There’s this constitutional conceit you sometimes sense within the First Amendment in-crowd, a holy certitude that suits against magazines, newspapers, and publishers are always wrong, and in the end are usually doomed. First Amendment zealots start believing so much in the First Amendment that they can start to imbue it with an aura of invincibility."

But he does not elaborate on other circumstances in which the media should lose, and, perhaps because he is a bit defensive about the switch in his allegiance, he gives shorter shrift than he should to the arguments of his opponents. Airily dismissing the amicus briefs as containing "no knockout punches," he provides no quotes from the brief of the major news organizations that Judge Luttig of the Fourth Circuit found so "breathtaking" in its audacity.

Inspecting that brief, filed in 1997 on behalf of many big media companies and organizations – among them, ABC, America Online, the Magazine Publishers of America, the National Association of Broadcasters, the Newspaper Association of America, The New York Times Company, and the Washington Post Company – one finds potent (if ultimately unsuccessful) arguments.

On a rhetorical level, the brief reminds the court that "it is most often the speech at the fringes of American life that defines the freedoms for those at the center." On a factual level, it notes that Perry waited more than a year after purchasing Hit Man before he carried out the contract killing, "providing ample time for reflection and reconsideration on his part." Smolla did not include this inconvenient fact in his book.

The brief recites a list of books and movies on "lethal subjects." The Godfather, for instance, includes a scene that describes how to remove serial numbers from guns; The Exterminator instructs moviegoers how to fill hollow-point bullets with mercury "to increase deadly efficiency." The brief then warns that if the plaintiffs prevail, "no expression – music, video, books, even newspaper articles – would be safe from civil liability." (That prediction has not yet come to pass.)

Besides failing to give First Amendment absolutists their due, the book has other shortcomings. Smolla includes far too many lengthy passages in which he and his students engage in spirited colloquies about the law. These conversations, which clearly are not verbatim even if they are bracketed in quotation marks, come across as contrived and hokey.

As for the author, Smolla has changed teaching jobs, winding up at the University of Richmond. Despite all his hand-wringing about being ostracized from his first calling, near the end he tells how he was approached by The New York Times about the possibility of writing an amicus brief on behalf of a number of news organizations in a case involving press access to sealed court records.