First Amendment Fight: It's Murder

In the 1995 motion picture "Money Train" there is a scene in which a character squirts gasoline into the cramped booth of a subway token clerk and then ignites the liquid.

That clerk's fiery ordeal became a blueprint for murder.

Within days of the movie's release in New York, a real subway token clerk died after assailants repeated the grizzly scene in his booth in Brooklyn.

The producers of "Money Train" condemned the violence, as critics suggested Hollywood bore responsibility for the attack.

Now, the same issue is at the heart of a Maryland federal court case that some First Amendment advocates say could make scriptwriters, authors, and journalists accessories to murder.

The Maryland case involves a book called "Hit Man," which bills itself as an instructional manual for apprentice assassins. Some 13,000 copies of the book have sold over the years, one of them to James Perry.

Mr. Perry is currently on death row in Maryland following his conviction for the triple murder of a woman, her quadriplegic son, and the son's nurse. Perry was hired for the contract killings by the woman's ex-husband, Lawrence Horn, who hoped that he would inherit $2 million. Mr. Horn was also convicted and is serving a life sentence in prison.

But the case doesn't end there. Surviving relatives filed suit against the publisher of "Hit Man," Paladin Enterprises, claiming Paladin aided and abetted the murders by providing Perry with a set of instructions, which he followed with deadly precision.

Lawyers for Paladin tried to have the case thrown out on grounds that publishers are protected by the First Amendment. In November, a federal court in Richmond refused to throw it out, saying that while political advocacy enjoys full protection of the First Amendment, there is no such privilege for anyone "teaching the techniques of violence."

The ruling set off alarm bells among free-speech advocates nationwide. And a whole new set of alarm bells went off last month when the US Supreme Court declined to hear the case. Free- speech advocates had hoped the Supreme Court would overturn the appeals court decision.

Innocent intentions?

Instead, Paladin must stand trial in Maryland, where a jury will determine whether the publisher intended that its book be used as a do-it-yourself guide to contract killing.

If the jury finds the publisher partly responsible for the deaths, Paladin would have to pay damages to the surviving relatives.

Attorneys for Paladin deny any wrongdoing and argue the publisher should be shielded from such litigation under the First Amendment because it had no knowledge that Perry and Horn were planning a triple murder. Attorneys for the surviving relatives say claims of First Amendment privilege are an abuse of US constitutional freedoms for a book such as "Hit Man."

They say the book played a key role in encouraging and instructing the killer even though there was no face-to- face contact between Paladin officials and the prospective killer. It is this aspect of the case that has many free speech advocates concerned that movies, novels, news reports, and nonfiction books might inspire copycat crimes that could land writers, editors, publishers, and producers in court.

"It seems to cast an ominous shadow over a wide range of expressive and creative activity," says Robert O'Neil, a constitutional law expert at the Thomas Jefferson Center for the Protection of Free Expression in Charlottesville, Va. "I suspect that a cautious editor, publisher, or author might now view differently material which a jury could conceivably find to be aiding and abetting under the Paladin standard," he says.

Douglas Winter represents the Horror Writers Association, where dark fantasies and scenes of gruesome terror are the bread- and-butter of a multimillion-dollar business. Mr. Winter says he's worried that the Paladin case is opening a new area of liability for writers who produce violent material. "Is the next step that the family of the next person who is knifed to death in a shower will sue Universal or whoever owns the rights to 'Psycho'?," Winter says, referring to the classic Hitchcock thriller.

"Every author who publishes a book with dark subject matter knows that some twisted mind might make use of it. But that shouldn't be enough to strip a publisher of First Amendment privileges," says Seth Berlin, an attorney for Paladin.

Watching words

David Crump teaches constitutional law at the University of Houston. He says books and films sometimes inspire copycat crimes, but that alone would not open up an author or scriptwriter to potential liability. Instead, the book or film would have to actively urge someone to commit a crime. If it merely described the steps of a crime, it would enjoy free speech protection, he says.

In addition to teaching, Mr. Crump is also the author of a recent legal thriller called "Conflict of Interest." He says he deliberately rewrote sections of his book, to avoid offering specific instructions to criminals who might read his novel. He says he made the revisions because of his ethical concern that he didn't want to help anyone commit a crime. But he says he knows his book would not be subject to a liability suit even if those changes hadn't been made because, unlike "Hit Man," the book in no way urges someone to take criminal action.