The First Amendment and murder manuals.

• Author: Zer-Ilan, Avital T.

Rice v. Paladin Enterprises, Inc., 940 F. Supp. 836 (D. Md. 1996).

I

On March 3, 1993, James Perry brutally murdered Mildred Horn, her quadriplegic son, and his nurse. Perry closely followed twenty-two instructions on how to plan and execute such murders, provided in graphic and explicit detail by two books he purchased from Paladin Enterprises: How to Make a Disposable Silencer, Vol. II(1) and Hit Man: A Technical Manual for Independent Contractors.(2) Following Perry's conviction and death sentence for the triple murder, the families of the victims sued Paladin for tortious aiding and abetting and negligence.(3) For purposes of summary judgment, Paladin stipulated that it had intentionally marketed its books to ax-convicts and would-be criminals, knowing full well that many would rely on the detailed step-by-step instructions therein to commit heinous murders.(4) Although the district court found the books to be "reprehensible and devoid of any significant redeeming social value,"(5) it nevertheless held that, under Brandenburg v. Ohio,(6) the First Amendment barred recovery of damages.(7)

The question posed by this case is significant in light of recent state(8) and federal(9) legislation designed to curb the distribution, especially via the Internet, of instructional information about bomb-making and the construction of other dangerous weapons. I argue in this Case Note that government regulation of speech that provides these kinds of detailed, step-by-step instructions about how to commit violent felonies should be considered presumptively constitutional.

II

Scholars and jurists have relied on a number of theories to explain the value of free speech. The marketplace of ideas theory rests on the notion that free speech leads to the ascertainment of truth and that the best way to convince people of the falsehood of ideas is not by suppressing speech, but by encouraging more of it.(10) The Meiklejohnian theory of free speech places more emphasis on free speech as a means to public deliberation and a well-informed electorate, essential to democratic self-governance.(11) The libertarian model values free speech as an end in and of itself, viewing people as autonomous and rational decisionmakers, with a right to control their own thoughts and beliefs without government interference or manipulation.(12) Essentially, all of these theories are "designed to guard against the danger that the government is only pretending to be concerned about noise, litter, offensiveness, or a hostile audience reaction but in fact is reacting to the feared persuasiveness of the speech that it seeks to suppress."(13) The First Amendment prevents the government from stifling dissident political views by resorting to pretextual allegations that such speech will cause harm or violence.(14)

Brandenburg v. Ohio provides a paradigmatic example of the use of such pretext by the government. In that case, a Ku Klux Klan leader was prosecuted for making a reference to possible future lawlessness in a speech before a number of Klan members. The Court recognized that the then-predominant clear and present danger test(15) allowed the government to suppress undesirable political views simply by invoking the speech's "tendency to lead to violence."(16) In order to ensure greater protection of political speech and less opportunity for government pretext, the Brandenburg Court abandoned the manipulable "danger" test and replaced it with a new rule: The state cannot proscribe speech that it alleges could or will lead to lawlessness unless such speech was "directed to inciting or producing imminent lawless action and [was] likely to incite or produce such action."(17)

The Brandenburg test was obviously intended to make it more difficult for the government to restrict or suppress political speech. It did not, however, establish an absolute bar to government regulation. Rather, it created a strong presumption that the First Amendment protects the mere advocacy of lawlessness. It implicitly assumes that government fears of erupting violence, even if not pretextual, are usually exaggerated, and that the balance of interests therefore favors protecting individuals' self-expression.

This presumption, however, is inverted when the advocacy in question is directed to producing imminent violence and is likely to produce such violence.(18) The question, of course, is: why? Why is state regulation of speech that incites imminent lawlessness presumptively valid? After all, restricting speech because of its communicative impact, even speech directed to inciting imminent lawlessness, still implicates certain core First Amendment values such as self-expression and listener autonomy.(19) Regulating such speech might also curtail public deliberation and limit the quantity of speech disseminated in the marketplace.

The answer lies in the Court's general suspicion of government motives. While...