29 Aug Freedom of Speech… Just Watch What You Read

There are few things that unite people as much as the idea that Freedom is a self-evident right. And yet the large-scale misunderstanding of what constitutes the concept of freedom under law is perhaps the greatest social divide of our era. People who may fundamentally agree on most other things can disagree vehemently about what an individual’s rights actually are and even about what constitutes an individual.

While I have no inclination of getting involved in a partisan discussion that would inevitably result in a comment section with the civility of a Jerry Springer episode, I thought it might be a good idea to delve into a somewhat obscure court case that resulted in a controversial ruling that is now legal precedent. And if this seems out of place in a blog that centers mostly around comic books and pop culture, the likelihood that most people who will read this were previously completely unaware of it is reason enough for doing so –mostly because this landmark decision affects one of the most championed and taken-for-granted freedoms: the Freedom of Speech.

The idea that a little knowledge is a dangerous thing has never been more central nor more controversial than in the case of Rice v. Paladin, because the judgment by the 4^th Circuit Court of Appeals ruled that a book (and therefore its publisher) could be held accountable for crimes committed by someone who read and acted upon the words printed therein.

The fact that few civil cases (and even less criminal cases) have successfully litigated a victory using Rice v. Paladin for restitution or punishment by NO means suggests that it couldn’t be used in a case against a comic, book, movie, videogame, or blog post.

For those under the impression that the first amendment protects ALL speech, I will point out the five well-defined and narrowly limited exceptions:

• Obscenity
• Fighting words
• Libel
• Commercial speech
• Words likely to incite imminent lawless action

This of course does not infer protection for speech (whether written, spoken, or pantomimed) that falls outside those categories but which formulates part of a criminal act or conspiracy, or which constitutes an attempt to break the law.  In other words, you can say, “I want to rob a bank,” and that isn’t illegal, but if you take steps to actually rob a bank, those words could be used to convict you. Furthermore, if you involve others in the enterprise of attempting to rob a bank, you may be collectively guilty of Conspiracy to commit a crime.

Most cases involving free speech involve the loosely-defined term Obscenity, which is generally accepted as “depicting or describing in a patently offensive way, sexual conduct.” The most famous challenger to that exception was Hustler Publisher, Larry Flynt, and if you haven’t seen the excellent, Oscar-nominated film The People vs. Larry Flynt, I highly recommend it.

Abbie Hoffman and Larry Flynt were two very different advocates of Free Speech

Fighting Words must  “by their very utterance inflict injury or tend to incite an immediate breach of the peace,” while Libel must demonstrate “injury to the reputation of any particular individual (or entity).” Commercial Speech is not protected if it “does no more than propose a commercial transaction,” or merely “provides information for purposes of inviting or enticing one to buy goods or services.” Basically this criminalizes making false claims about the efficacy of any product or service for financial gain.

That leaves Inciting Imminent Lawless Action, the most recognized example of which would be shouting, “Fire!” in a crowded movie theater –an act with the potential of causing a riot that might result in bodily harm to individuals in that audience. This particular exemption to the First Amendment has been in the news a lot lately as it has been used in the successful prosecution of many January 6^th rioters. Though it is most recognizably associated with in-person incitement, the case of Rice v. Paladin is a very important (if unusual) interpretation of “imminent.”

If Paladin sounds familiar, it’s because Paladin Press was the publisher of dozens of paramilitary texts, including The Anarchist Cookbook. One of the few “banned books” with few defenders even among first amendment advocates, William Powell’s notorious instruction manual guided readers on the construction of explosives, man-traps, poisons, surveillance and other lethal and non-lethal weapons. It has been found among the personal effects of Timothy McVey, the Columbine shooters, Croation hijackers, and numerous other terror cells and lone-wolf mass-murderers.

The book was reviewed by the Department of Justice, the White House, and the FBI, who concluded that it could not be regulated as it was published through mass media, and notably does not incite “forcible resistance to any law of the United States” and is therefore protected under the First Amendment. Much of that legal view was based upon the landmark Brandenberg v. Ohio case of 1969, in which the Supreme Court established that speech advocating illegal conduct is protected under the First Amendment unless the speech is likely to incite “imminent lawless action.” This was a major referendum on 1919’s Schenck v. United States in which Justice Oliver Wendell Holmes Jr. had ruled that the government could punish speech if it posed “a clear and present danger of bringing about the substantive evils that Congress may prohibit.”

Ironically, Abbie Hoffman’s Steal This Book (published in 1971, the same year as The Anarchist Cookbook) was never prosecuted for imminent lawless action even thought it advocated such in its title. In any event, the standard established by Brandenburg v. Ohio was deemed enough to protect any book (and publisher) that didn’t outright advocate and encourage the commission of a crime for the next twenty-five years.

Fast forward to 1993, when former Motown record producer, Lawrence Horn, hired a man named James Perry to kill his ex-wife and disabled, eight-year-old son in an inheritance scheme. When Perry was caught and interrogated, he confessed that he had followed instructions from the book Hit Man: A Technical Manual for Independent Contractors. The families of the victims sued publisher Paladin Press, alleging that by virtue of printing and selling the book, Paladin had aided and abetted the murderer. A second Paladin Press book titled, How to Make a Disposable Silencer, Vol. II was also named in court documents.

All of these are available for purchase now at Amazon.com and linked in the bolded, corresponding text above

A federal district court in Maryland initially judged in favor of Paladin Press –citing Brandenburg v. Ohio in their decision, and finding that the contents of the book provided “theoretical advocacy” but did not incite the reader to “imminent lawless action.” While the book provided instructions on how to kill it didn’t command anyone to do so. In that court’s ruling (issued September 6, 1996) Judge Williams opined:

“The Court read Hit Man in its entirety. Its content is enough to engender nausea in many readers. This Court, quite candidly, personally finds the book to be reprehensible and devoid of any significant redeeming social value. Nevertheless, however loathsome one characterizes the publication, Hit Man simply does not fall within the parameters of any of the recognized exceptions to the general First Amendment principles of freedom of speech. The Court, likewise, declines Plaintiffs invitation to create a new category of speech unprotected by the First Amendment speech that arguably aids and abets murder.

“The Court finds, therefore, applying the standard in Brandenburg, and considering the content and the context of the speech in Hit Man, that the book does not constitute incitement to imminent lawless action. While the books have proven to contain information which, when it makes its way into the wrong hands, can be fatal, First Amendment protection is not eliminated simply because publication of an idea creates a potential hazard. It is simply not acceptable to a free and democratic society to limit and restrict creativity in order to avoid dissemination of ideas in artistic speech, which may adversely affect emotionally troubled individuals.”

In November 1997, however, The U.S. 4^th District Court of Appeals ruled 3–0 that Hit Man was not protected by the free speech/free press clause of the First Amendment and thus Paladin Enterprises could be held liable for a triple murder committed by one of its readers. The Maryland decision was overturned, with the legal opinion redefining “aiding and abetting” and drawing particular attention to the act of “steeling,” as synonymous with “encouraging”:

“In summary, a reasonable jury clearly could conclude… from the text of Hit Man itself and the other facts of record, that Paladin aided and abetted in Perry’s triple murder by providing detailed instructions on the techniques of murder and murder for hire with the specific intent of aiding and abetting the commission of these violent crimes.

“In particular, the district court seems to have misunderstood the Court in Brandenburg as having distinguished between ‘advocating or teaching’ lawlessness on the one hand, and ‘inciting or encouraging’ lawlessness on the other. In particular, the Court unmistakably draws the distinction between ‘the mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence’ on one hand, and the ‘preparation of a group for violent action and steeling it to such action’ on the other.

“Distinction between ‘mere abstract teaching’ and ‘preparing and steeling’ is
unconstitutional under the First Amendment. [This] Court distinguishes between mere advocacy’ and ‘incitement to imminent lawlessness.’”

In other words, the Court ruled that a book or any other work in which the contents argue the moral propriety of murder as a theoretical act is protected under the First Amendment, but a book demonstrating precisely how to kill someone (and possibly get away with it) is not.

I am not a fear monger, but terms like “Advocacy and Teaching” are as easily reinterpreted and eventually redefined (legally) as are “Inciting and Encouraging” – especially as relates to “lawlessness,” depending upon the ruling body. This could lead to the legal liability of any comic, or book, or movie, or article that provides a convincing procedural narrative that can be connected back to an actual crime.

While I can understand and even support appropriate acts of censure as well as advocate on behalf of accountability and demand consequences for speech made in bad faith, I think that criminalizing information impedes a progressive society. This obscure ruling from twenty-five years ago has repercussions the likes of which are unimaginable. While we can argue about the conscientiousness of promoting costumed vigilantes as role models, the potential of either point of view drawing down legal liability is ever after greater than zero.