Setting Limits on Free Speech

Rod Smolla's Deliberate Intent: A Lawyer Tells the True Story of Murder by the Book

01.03.00 | reviewed by Franklyn S. Haiman

Rod Smolla, a professor of law at the University of Richmond, is one of the country's most able and articulate First Amendment experts. In this engrossing narrative, he explains how and why- contrary to his pro-free-speech impulses and after much agonizing- he came to join a team of lawyers suing a book publisher for having aided and abetted a murder.

The U.S. Supreme Court has yet to deal directly with the recent spate of free speech issues raised by extremely inflammatory messages, which these days are not just in books and peri odicals but also in cyberspace. The still-prevailing precedent for this kind of communication is its unanimous 1969 opinion involving a KKK rally in Ohio. The Court stated then, in Brandenburg v. Ohio, that provocative speech is protected by the First Amendment unless it "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

During the three decades following that pronouncement, the Supreme Court has decided no case in which a defendant has been found to have crossed the Brandenburg line. But in the spring of 1998, it left standing, by its abstention, a U.S. Circuit Court of Appeals ruling that had found that boundary transgressed in the case Rod Smolla describes in Deliberate Intent. The Supreme Court thus implicitly allowed that there are indeed limits to what people of unsound judgment or dubious sanity may lawfully say or write.

Rice v. Paladin Enter prises was technically a wrongful death suit for monetary damages against Paladin Press for its publication of Hit Man: A Tech nical Manual for Inde pen dent Contract ors, a volume containing in explicit and horrifying detail instructions on how to commit a contract murder. The plaintiffs were the families of a woman, her 8-year- old brain-damaged son, and his nurse, who had been murdered in a contract killing. The hit man, who had studied the book, was sentenced to death, and the ex-husband who had hired him was imprisoned for life.

The decisive question for Smolla in deciding to represent these plaintiffs was whether Paladin Press had deliberately intended that some reader of Hit Man would actually follow the manual. For that there was abundant evidence, both circumstantial and testimonial, to convince him the answer was yes. But for many other First Amendment scholars, myself included, there is a second question that must also be answered affirmatively before they embrace a restriction on such speech: whether any book or other mass medium of communication addressed to the public at large and not directed to a particular target at a particular time and place can ever fail to qualify for First Amendment protection. My inclination is to say no. The reason is that there is simply no way that is compatible with freedom of speech and press to ensure, for example, that some psychologically disturbed person, by reading Hitler's Mein Kampf, necessarily available in any public library, will not be motivated to go out and kill Jews, or that some alienated teenager, viewing legitimate TV news coverage of the Colum bine High School massacre, will not attempt to copycat that crime. Those who commit such crimes of violence should be severely punished, but not the communicators of ideas or information that among a multitude of other possible causes may or may not have contributed, deliberately or otherwise, to the enactment of their deeds.

Smolla has presented as compelling and eloquent a justification as I have ever read for "going over to the other side." Though his chilling story caused me to re-examine my own beliefs on this issue, as he so profoundly thought about his, it left me ultimately unconvinced. I suspect, however, that many other readers will side with Smolla and decide that even mass media messages should sometimes be punishable.