Some time ago in another thread, I heard of a case where IIRC, someone wrote a book on how to properly commit murder so as to avoid getting caught. Someone read the book, used the information contained therein, and got caught anyway. The victim’s family sued the author, who claimed protection under the First Amendment, but the court ruled in favor of the victim’s family.
So, do you agree with the decision? Under what circumstances, if any, does instructions on how to do illegal things constitute “harmful speech” that would be exempt from First Amendment protection?
Let me start out by saying that I agree with the decision. However, I recognize that it raises huge questions.
IIRC, the reason that such “speech” is considered unprotected is that it is not intended to promote an idea to be considered or rejected in the “marketplace of ideas”. How to murder someone is not an idea - it is an instruction manual. As such, it is valueless. It doesn’t put an idea out there, even such a one as “murder is good”. It simply tells someone how to commit an act - and acts (with rare exceptions) are not protected.
Of course, the problem is that an instruction manual does indeed put out an idea - how to do something. Inherently, finding such books unprotected means that we do not value such an idea, and thus puts us in the role of censor. I think the way we can rationalize this problem is that the intent of such a book is to demonstrate how to commit a crime, and we (quite validly) give no value to the act of murder. If the purpose of an idea is to promote a valueless act, we are (relatively) safe in censoring it.
It’s really simple: If it tramples on someone else’s rights, it’s not protected.
“How To Commit Murder” is an idea that, if put into action, violates someone else’s rights. Ergo, unprotected.
Shouting fire in a crowded theatre (the classic example)… feeds misinformation and causes panic in an environment where panic is extremely and obviously detrimental to others. Ergo: unprotected.
Cartoon shows with coyotes falling off of cliffs… only someone with no other sources of information would be negatively influenced by this. Ergo: protected.
Nope. If we go that route, we have to ban all forensics textbooks as well. Murdering someone is certainly a violation of rights. An instructional book on said topic is not a violation of anyone’s rights, unless a reader puts the instructions into action.
I disagree with the decision. The book must be protected.
We discussed this case at some length in my Mass Media law class. For those too lazy to read the text, here’s the gist: it’s a wrongful death action (or, more precisely, the plaintiff claims that publisher Paladin aided and abetted in the commission of murder). A man named Perry bought two “how to be a hitman” books from publisher Paladin and was subsequently hired by a man to kill the man’s wife, his quadriplegic son, and the son’s nurse.
The books not only gave instructions on murder but also made multiple assurances that “no one will ever know” if the cover-up methods were followed and assured the reader that he would feel no remorse after killing.
Now, here’s the point on which the case turns, quoted from the text of the case:
So, do you get what happened? In essence, Paladin admitted, for purposes of summary judgment, to every charge. Why would they do such a thing? It appears that they were testing the limits of the First Amendment. And, they got burned, quite badly, for their arrogance.
Notably, this is the first time a publisher has been held liable for a crime committed by a reader, and there is little doubt in my mind that the result would have been different had Paladin not made their extensive stipulations. Paladin more or less dared the court to find them guilty, and the court obliged.
I agree. I should have pointed out that I was simply outlining the train of thought that led to the decision as stated in the OP (editing and re-editing left that out, sorry). Personally, I’d say that anyone mentally unstable enough to actually try to get away with murder by following a textbook has problems that range much deeper than sociopathic tendencies.
The crucial difference is that in the second case, virtually no outcome is possible (theoretically) other than causing a panic. There is no time for rational thought or decision-making; freaking out will be the instinctive response of everyone in the theatre, and a panic is an inevitable consequence. Hence, this is a case of speech being inextricably linked to action.
Obviously this is not true in the first case as anyone can read such a book, but it is still up to the individual to decide whether or not to act on it, and no sane person would do so just because the book gave him/her that idea. The only reason to ban such a book would be to prevent it becoming a catalyst (not a cause) for psychopaths to commit murder - but to paraphrase Justice Frankfurter (who was no great civil libertarian), we cannot pass laws that reduce the sane population to reading only material which is fit for psychopaths.
Where national security was breached, I suppose. I.e. if someone published an instruction manual detailing how to hack into the Pentagon and set off rocket launchers, I don’t think they’d find a very sympathetic audience in SCOTUS.
I watch a lot of TLC and Discovery channel and it isn’t uncommon for them to have programs about forensic evidence techniques used by law enforcement. ALthough they don’t directly tell me how to murder someone I believe, based on what I’ve learned, that I could plan a murder more efficently.
I have a fuzzy memory here. Was the case of Getlow vs New York similar?
IIRC he was preaching in public the violent overthrow of the goverment.
let me go dig up my notes on this…
Osip
As others have noted, the book in question was Hitman. There was also a book written by one of the plaintiff’s attorneys, Rod Smolla, Deliberate Intent: A Lawyer Tells the True Story of Murder by the Book. Smolla has generally been an attorney who fights on the side of the First Amendment, but was “converted” by the arguments that in this case, First Amendment protection should not apply.
Quoting myself from a review I did (which is also posted at Themestream.com, but you’ll need to e-mail me for the link or go there and search) :
*Smolla says that this case may have been one of a kind. In other forms, the information contained in Hit Man may have been protected. Indeed, Smolla himself gives away some of the information in describing the case!
So why is it okay for Smolla to explain what kind of gun to use and from what distance, but it’s not okay for Paladin to publish a book containing the same information? Hit Man was, as one investigator described it, a “blueprint for murder,” but did that make the publishers legally liable? *
I wasn’t able to come up with any easy answers for this one. As others have pointed out here, the material may be out there in different forms. But it was specifically the way Paladin packaged it in this case that made the courts look at it in a different light.
An idea can not violate someone’s rights. The purpose of the first amendment is to protect the expression of thought no matter how unpopular it is, period. Once you start making exceptions to the first amendment then no speach can be protected. Information can do no harm. Its the what you do with this information. The benefits of the free flow of thoughts and ideas far out wiegh a single murder case, a hundred murder cases, thousand murder cases. If we are going going to follow this line of thought then we must ban all chemistry books, may learn how to make explosives, must ban all physics books, may learn how projectiles work and make a gun to kill someone, ban all biology books, may learn how to make a poison, ban all physiology books, may learn where to hit someone. Hell I propose we ban all thought, you might think of hurting someone.
IANAL, so someone correct me if I’m wrong, but doesn’t the First Amendment apply to prior restraint by the government (the government couldn’t prohibit Paladin from publishing the book) and not to a civil suit based on the results of the speech? I mean, the First Amendment generally keeps the government from being able to make speech a criminal offense , but it doesn’t prohibit a lawsuit for slander or libel.
Does this now mean we can ban movies like Gone in 60 Seconds and Pulp Fiction, which quite blatantly glamorized car thieves, hit men and drug dealers? The likes of which have no inherent value to an orderly society?
IMHO: That would suit me just fine, personally, but in the larger picture, I’m not quite so comfortable with the idea, and am genuinely concerned about certain right-wingers and fundies wh might like to hijack the process into banning and censorship on anything and everything that doesn’t quite fit their view of what’s right and proper.
Treason:
While I recognoze that the action [on an idea] is separate from the espousing of that idea, IMO the dissemination of certain ideas are of no useful benefit to humane (and human) society in general.
That ideas/information can greatly influence lots of people to heinous mischief is not a controversial or preposterous proposition. Like how it would be great to exterminate 6 million Jews and other assorted and sundry undesirables in order to strengthen and purify your society.
Something on the order of 14 million other people died trying to lay that idea to rest, either as victims, combatants, or as innocent bystnaders, and we still have a modern day legacy to that really bad idea who still carry a torch for that sick son-of-a-bitch.
And I think that all it would take to bring back that idea to the forefront of social thought would be an economic downturn leading to social displacement to send millions of discouraged/disheartened people searching for some scapegoats to blame their miserable existence on.
Maybe not here in the U.S. of A. But I hesitate to say “Never Again” when history has shown us repeatedly it’s cyclical nature.
And us Americans are exceedingly myopic when it comes to History, due to the great good fortune we’ve been blessed (or cursed) with.
Yes, ideas may be judged good or bad by human society at large, but there are always the outcasts and rabble rousing demagouges waiting in the wings to jump at any excuse to implement ideas into actions using the misery and misfortune of others as their spring board to attract followers.
The link between idea and action is more fragile than many intellignet and generally rational people with good jobs and loving homes and families may be willing to acknowoledge.
If you doubt this, just look to the recent upsurge in acts of mass violence here in America. Even in a time when, overall, violent crime is at its lowest rate since 1966-67, the occurence of acts of mass violence are rising.
The law disagrees with you. Certain speech is unprotected. Examples include child porn, “fighting words”, and speech that presents a clear and present danger of imminent harm. The First Amendment has survived these exceptions.
Ex-Tank glamorization of crime is qualitatively different from precise instructions on how to commit a crime. I (unfortunately) saw Gone in 60 Seconds, but I didn’t learn how to hot-wire a car.
In any event, Max Torque’s analysis of the case is most likely correct - had not Paladin stipulated that they intended the book to be used by hit men, etc., they wouldn’t have been found liable. I withdraw my earlier post and adopt Max’s POV.
IMO, such instructions only constitute “harmful speech” when the author clearly and deliberately presents them in a manner that is intended to encourage the reader to follow them, or when they contain classified information.
As others have said, methods for commiting all sorts of crimes can be derived from perfectly legitimate sources
On a related note, I once saw a copy of “The Cheating Student’s Handbook”(or something like that) placed in the “Humor” section. I looked at it, and although I had never cheated on an exam, I could tell that its instructions might actually work. Apparently, they thought it was all a joke.
Is anyone trying to suggest that Perry would not have killed that family for money were it not for the book? If the book had not been written, those people would still be dead.
The book was written for entertainment. I probably would have found it entertaining. IMHO, the only people who would use it for ‘an instruction manuel’ are people who have already decided to kill someone. Banning the book, as a means to stop a killer from killing, is a useless exercise.
The Paladin case was not about banning the book to stop a killer from killing, but about whether Paladin was in any way liable for damages. Had Paladin not stipulated the following:
the case would have been mostly about whether Paladin intended to assist criminals , and whether Paladin assisted this one in particular.Paladin basically said “We did everything you accused us of-we intended to assist criminals, we knew it would be used by criminals and in fact we assisted this particular criminal, but we’re not liable”.It’s kind of like saying " I gave X a gun, I knew X was going to kill Y,I intended to assist X in killing Y,and in fact I did assist X in killing Y ,but I can’t be held responsible". Had Paladin not stipulated to thses facts, it would have been difficult,if not impossible to prove them.
The only case I remember being somewhat close to this was a magazine running ads looking for people willing to do murder for hire. Sure, someone might have found a hit man some other way, just as Perry might have killed the people even if the book hadn’t been published, and if I don’t drive the getaway car, my friends the armed robbers might have still done the robbery.It doesn’t mean that either Paladin,the magazine or I have absolutely no responsibility for what happens simply because it could have happened without the assistance that was intended to be assistance. It would have been a different issue if Paladin had said it was published for entertainment purposes and that they had no intent to assist in murders.
Being the insanely liberal (but not libertarian) style guy I am, I was sorry to hear that that book was no longer available. They made a tv movie about it, though.
Other informational books that have gone the wayside are books on explosives. One of the big publishers of such informational literature is loompanics, and yeah they got a website. A huge catalogue is only $5, at least last time I got one.
They quit selling the Hitman book because of the Palidin case, and quit selling the explosives books because of some other BS case. Almost quit selling their how-to drug books, as well, but the “Methamphetamine Anti-Proliferation Act” was stalled before making it into a law.
Sua, I think you’re wrong. We’ve decided that we can breach the first amendment, now its a matter of propaganda. The way these “informational” books are banned is through a sort of slippery law about giving the information knowing that the individual would use it illegally. Loompanics quit the exposioves books because that’s tough to defend, but I can see that it would also be tough to prosecute. Not worth the effort in either case, and the information gets effectively banned without breaching the 1st. This is worse than sneaky, IMO.
To make it a law that information on illegal things is in itself illegal is to destroy the idea that a law could ever be overturned because there could be no one to legally even defend it! I agree Paladin made a legal boo-boo, but as time tells its tale that has done some more damage to freedom of speech.
As far as this Palidin case goes, as well, lets replace the word Paladin with Law Enforcement Officers. Entrapment anyone? But clearly legal…
Ahh, privilege…
