The Hitman

Great Debates
1

Aprpos of the gun control thread, and the attendant debate about the Second Amendment… I thought it was worthwhile to ask about another constitutional guaranty. And since there don’t seem to be many troop quartering controversies lately…

A few years ago, there was much debate over a book called, “The Hitman.” This was a publication that offered itself as a guide for the would-be professional murderer. It included chapters on different methods of killing, on covering one’s tracks, evading capture, and the like. In short, it was a how-to book for killers.

It gained national prominance when the publisher was sued for damages by the family of two murder victims who had been killed by someone who had purchased the book and meticulously followed the instructions therein. They wanted monetary damages and an injunction forcing the publisher to stop printing the book.

The publisher asserted, inter alia, that his right to publish any book was protected by the First Amendment, even if the book gives explicit advice to would-be murderers.

In the gun control thread, there have been suggestions that the Second Amendment doesn’t apply to the states, or that its protections are outmoded and no longer appropriate to this dangerous society.

In light of “The Hitman,” how about the First Amendment? Does it apply to the states? Are its protections outmoded in this day and age?

  • Rick
2

Regardless of The Hitman, the First Amendment definitely does apply to the states. Not because it explicitly says so – in fact, the First Amendment only states that “Congress shall make no law …”.

No, the First Amendment applies to the States because of a seemingly innocent little clause in the Fourteenth Amendment. Now, the 14th Amendment is pretty long, and was passed primarily to clear up some lingering issues from the Civil War. But one little clause states that no State shall “deny to any of its citizens the equal protection of the laws.”

This “equal protection clause” has been interpreted by the U.S. Supreme Court to mean that the personal protections of most of the Bill of Rights – including the 1st, 4th, 5th, and 6th Amendments – limit not only Federal power but also State power.

The truth, as always, is more complicated than that.

3

The Equal Protection Clause of the 14th Amendment is NOT the basis for selective incorporation of the Bill of Rights.

Those rights which ARE made applicable to the states are considered to be selectively incorporated into the meaning of the word “liberty” in the Due Process Clause of the same amendment.

A mild digression while I explain how this came about:

The US Supreme Court (hereafter USSC) ruled very early that the Bill of Rights (amendments 1-10) did not apply to the states; specifically, that they did not prohibit state actions (Barron v. The Mayor and City Council of Baltimore, 32 U.S. (7 Pet.) 243 (1833)). This is undoubtedly correct as to the First Amendment, as can be seen from the very wording of the amendment (“Congress shall not abridge…”), and was historically correct as to the others (I leave the exercise of confirming this to the reader; in general, read the Constitution and understand its plan). Until the ratification of the 14th Amendment 7/9/1868, there was no check on state action regarding individual rights in the Constitution.

Shortly after the passage of the Fourteenth Amendment, various claims were made asserting that the language of either the Privileges and Immunities clause or the Due Process clause found in Section 1 should be construed to totally incorporate the rights found in the first 8 amendments (amendments 9 and 10 don’t involve individual rights). In the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), the USSC refused to construe the P & I clause to incorporate those rights, preferring to read that clause as guaranteeing only those rights peculiar to citizens of the United States, as opposed to citizens of the various states within the U.S. (e.g., the right to petition Congress, the right of interstate travel, etc.). As to the Due Process clause, a different approach was taken by the USSC. Instead of incorporating rights from the earlier amendments, the court started striking down state legislation that violated a person’s interest in “liberty.” This interpretation of “substantive due process” by the court was used repeatedly for sixty years to reject attempts by the state to legislate areas of economic importance, on the theory that the legislation arbitrarily violated the due process rights of the people. For example, the state of New York was prevented from enforcing legislation that limited the number of hours bakers could work during a week or a day (60 and 10!) on the theory that it was an arbitrary and unnecessary interference with the “liberty” of employers and employees to enter into contracts (Lochner v. New York, 198 U. S. 45 (1905)). As the court established in Allgeyer v. Louisiana, 165 U.S. 578 )(1897), the “liberty” protected by the 14th Amendment was a more extensive right than the freedom of a person to be able to go where he pleased.

Substantive due process was used liberally from 1896 to 1937 to strike down a variety of laws that regulated economic activity. It substituted the court’s own opinions about the needs of the people for the determinations of the legislatures of the various states. But, it also was used to uphold individual rights, as when Nebraska was prevented from prohibiting the teaching of foreign languages in private schools (Meyer v. Nebraska, 262 U.S. 390 (1923)). When it was used to uphold individual rights, the Court did not usually refer to the specific rights protected in the first 8 amendments.

As the mid-20’s arrived, and substantial questions about the validity of the substantive due process interpretation were raised, the court began to rely more on individual rights previously referred to in the Bill of Rights. In 1925, for the first time, the USSC applied the protection for free speech found in the First Amendment to the states via the Due Process clause of the 14th Amendment. Eventually, the Court decided to reject the use of its “substantive due process” interpretation, and instead began to decide whether each specific right found in the Bill of Rights was “so rooted in the traditions and conscience of our people as to be as fundamental.” (Palko v. Connecticut, 302 U.S. 319, 325 (1937)). All of the provisions of the First Amendment have been “selectively incorporated” into the Due Process clause of the 14th Amendment.

One should note for completeness’ sake that the Court has continued to expand the meaning of “liberty” beyond the rights found in the first 8 amendments. When a right is deemed “fundamental” enough, it gets protection under the 14th amendment. This has been held to include the “freedom of association” (see the thread discussing the Boy Scouts), the right to vote and participate in the electoral process, interstate travel, and a “right to privacy” that includes freedom of choice in marital decisions, child bearing, and child rearing. It is the right to privacy that gave rise to Roe v. Wade.

Also, though I can’t get FindLaw to divulge its name today, there was a case not too long ago in which the USSC struck down a state law using the P & I clause, which has been a dead letter since the Slaughter-House Cases. It quite shocked everyone, and no one is certain if it will open a new avenue to restraining states from legislating in ways that interfere with personal rights.

4

Before this thread takes off, I just want to know one thing.

If the guy followed the book to the letter, then how did he get caught?

5

He wasn’t terribly smart–nor was the guy who hired him.

Anyway, I reviewed the book written by one of the lawyers who did the suing. See below. The article is Copyright 1999.

Author Tests Boundaries of the First Amendment
by David Bloomberg

Rod Smolla was a First Amendment attorney who was always on the defense side of the courtroom. At least, that is, until he was asked to join a lawsuit against Paladin Press over their publication of the book “Hit Man” and the use of information from that book to commit a triple-murder.

Smolla’s previous books, such as “Free Speech in an Open Society” and “Jerry Falwell v. Larry Flynt: The First Amendment on Trial,” are all about defending free speech and a free press. But his newest book, “Deliberate Intent: A Lawyer Tells the True Story of Murder by the Book” (Crown Publishers, $23) instead addresses the limits of free speech.

Smolla shares his internal wrestling over deciding to take this case and fight against his usual First Amendment companions. He uses an interesting style to compare his own thoughts on the case to the subject matter in the classes he was simultaneously teaching. As his class is progressively learning about the ins and outs of First Amendment law, so Smolla is trying to figure out how he should proceed in drawing a distinction between what is allowed by the First Amendment and what is not allowed due to criminal statutes and previous court decisions.

By allowing his students to give voice to his own thoughts and questions, and by giving details about the crime originally causing the case, Smolla takes an abstract First Amendment case and turns it into a story.

It is a story about a man who is so desperate for money that he is willing to murder his own crippled son, along with his ex-wife and his son’s nurse – all innocent victims of his greed. It is the story of another man who is willing to become a hit man for hire, and who followed a “how-to” book almost to the letter. And it is the story of a book publisher who thought he could use the First Amendment as a shield to print a book that not only explains how to get away with murder, but also, in the opinion of Smolla, incited the reader to do exactly that.

All of these stories converge as Smolla gives each participant a human face that is generally missing from legal briefings and court decisions. His writing style brings the story home to the reader, and in doing so, may easily win them over to his way of thinking about this case.

But should the reader agree? Should the First Amendment be limited in the way Smolla thinks? Was he wrong to switch sides?

These questions do not have easy answers. Smolla does a good job of explaining Paladin’s defense strategy and his counters to it. His emotional reasons for joining this suit are obvious early on, but it is not until later in the book that the reader fully understands what made Smolla feel that “Hit Man” fell outside the protection of the First Amendment. When he discusses his oral arguments in front of the appellate court, the reader finally understands the legal reasons explaining why he felt the way he did.

Along the way, the reader gains an understanding of some First Amendment distinctions. For example, Smolla and his companions discussed the differences between an abstract political message that people should break unfair laws and the specific instruction and encouragement to engage in unlawful activity. One example used is that of tax protestors who feel the IRS has no place in the United States. It is legal to preach such a message; it is not necessarily legal, in the opinions of the courts, to explain how to break tax laws and get away with it.

But Paladin thought they were protected. To that end, they suggested moving straight to the free speech issue, rather than going through the jury trial on the suit against them first and then appealing on First Amendment grounds. They were so certain of their protection that they even agreed to state in a court document that they “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.” According to Smolla, they knew this would be used by real hit men, and they just didn’t care, figuring they could always use the First Amendment for protection.

Others who have written articles about this case have noted that Paladin employees were not as uncaring as Smolla makes it seem, but that they simply felt, “books don’t kill people; people kill people.” In one such article for an anti-censorship publication, author Peter Huston reported that Paladin employees believed that “most Paladin readers purchase the books for a variety of generally innocuous reasons, very few misuse the knowledge, and those who do should be punished for their individual actions.”

This is the central issue to the “deliberate intent” of the book’s title. Is “Hit Man” like the movie, “Natural Born Killers,” for example? The victims of a crime similar to one portrayed in that movie did sue the movie’s producers. In that way, the cases were similar. However, Smolla makes the distinction by noting that the producers never meant to assist or encourage a crime; he believes that is exactly what Paladin knew they were doing.

Even Smolla himself admits near the book’s end 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, plus more? “Hit Man” was, as one investigator described it, a “blueprint for murder,” but did that make the publishers legally liable? If the First Amendment does not protect the speech society finds repugnant, what good is it?

Some people take the First Amendment for granted, as Paladin did here, while others may try to censor opinions that do not match their own. A reader may disagree with the outcome of this suit, or they may disagree with Smolla’s position on the entire situation, but they cannot help but at least think about these important issues while reading this well-written book.
6

What happened in the appeal? Who won???

First Amendment cases are ALWAYS fascinating, because they usually tug at your emotions from two directions.

7

Sorry – I forgot that I’d left that out in the review (don’t want to give away the end of the story!). The family won, based on the idea that it was not just free speech but specific instructions on how to commit a crime (I’m going a bit by memory now, as I’ve since donated the book to the library). Paladin Press then settled out of court (the family won the First Amendment part of the case, but they would have still had to go thru the regular lawsuit if Paladin hadn’t settled).