Incitement: Hit Men, Hit Lists, and Hit Movies
Political speech in America has often been rough and
personal. Recent debate over impeachment of the President,
given the context from which charges against him arose, was
intensely personal--with public disclosures about not only
the sex life of the President, but those of key Congressional
opponents and attacks on the integrity and motives of the
independent counsel and others. While the impeachment debate
may have seemed particularly strident, personal attacks in
American politics are nothing new.
George Washington, though a heroic figure revered by
many, was hardly immune from virulent criticism, and the
election of Thomas Jefferson was heralded by at least one
newspaper with dire predictions that "the soil [would] be
soaked with blood" and that "murder, robbery, rape, adultery
and incest [would] openly be taught and practiced" in
America.1 Abraham Lincoln touched emotions deeply enough
that his election ignited long-festering divisions between
North and South into open war.
At the foundation of American political discourse
is the Declaration of Independence--an eloquent call to arms
that is largely a personal attack on George III. The
document lists more than two dozen in the "long train of
abuses"2 attributed to the king--who is depicted as having
"sent hither swarms of Officers to harass our people and eat
out their substance."3 The tyrant described and denounced
in the Declaration is hardly better than a beast, and he
personally is held to blame for the suffering of the
colonists and their justifiably bloody break with British
rule.
In another age, the elegant Declaration would be
shortened still further by the Cuban "exilios" of Miami to
bumper sticker brevity: "No Castro, no problem." The intent
and effect of the Declaration and the four-word slogan are
not so much different--politics (and persecution) are
personal--and grievances are given life and focus by
identification with a flesh and blood enemy. It is something
of the same convenient hyperbole invoked by statesmen
seeking a simple explanation of the complicated decision to
bomb a foreign capital by the powerful equation of that
nation's leader with Hitler: the characterization eliminates
the need for details. The debate is over, and the cause
presumed just.
Fair or not, the tradition of personal attack runs deep
in American political persuasion. If the First Amendment is
to protect vigorous political debate, it thus must protect
even vigorous criticism of individuals. Protection of
vilification is not without cost. While most of the
population no doubt understands the difference between
intense verbal attacks on individuals and a literal call for
physical harm to those same individuals, at least some of the
population may be willing to take what seems to them the
next logical step from character assassination to literal
assassination. There is no way to insure that a President
characterized as immoral or criminal can be kept completely
safe from a physical attack by an extremist who, driven by
religious or other convictions, believes that violence is
justified or required if the system fails to bring a
miscreant to justice. However, few would argue that the
appropriate remedy is to limit or ban debate over the
important issue of a President's integrity, or verbal attacks
on that integrity--even at the serious risk that such
criticism might precipitate a physical attack. It is a price
that American society has been willing to pay for the freedom
to criticize and to personalize political differences.
Brandenburg v. Ohio
It is with the understanding that political debate can
be rough and can create the potential for violence that the
courts have fashioned a narrow exemption to First Amendment
protection of speech. Such protection is denied to speech
that amounts to incitement. It is instructive to look back
at the case in which current standards for finding incitement
(and thus limiting First Amendment protection) were
articulated: the 1969 Supreme Court decision in Brandenburg
v. Ohio.4
Lest anyone assume that the Court in deciding
Brandenburg inhabited a peaceful and orderly world free from
the violence and terrorism that many would say infests our
own, it is important to remember the nature of the times.
The sixties were a violent era, the civil rights debate
marred by bombings, murders and brutality. The Court knew
all too well that a climate of violence hung over the
political debate. The evils against which the state of Ohio
sought to invoke its criminal syndicalism law were real, not
hypothetical. And Clarence Brandenburg, if one can judge
from the information provided in the Court's decision, was
not a pleasant man.
From the facts set out in the Supreme Court's opinion,
Brandenburg appears to have been a marginal character in the
civil rights drama, whose major mistake--and only claim to
fame--was making the network news. Brandenburg was
identified at trial as the caller who had tipped a Cincinnati
television station off to a Ku Klux Klan rally to be held on
a farm in Hamilton County, Ohio and invited an announcer-
reporter at the station to attend. The reporter did
attend, taking along a cameraman. They filmed the rally, and
portions of the film were broadcast on the Cincinnati station
and later on network television. It appeared from the news
film that, except for a dozen or so Klansmen, no one but the
television reporter and cameraman bothered to show up to
listen to what Brandenburg had to say.
The film showed twelve hooded figures, some carrying
guns, gathered around a large wooden cross, which they
burned. According to the Court, most of what was said at the
rally was "incomprehensible when the film was projected."5
However, enough was understandable from scattered phrases to
know that what was said was "derogatory of Negroes and, in
one instance, of Jews."6
One scene from the film did capture Brandenburg, in Klan
regalia, making the following speech:
This is an organizers' meeting. We have had quite a
few members here today which are--we have hundreds,
hundreds of members throughout the State of Ohio. I
can quote from a newspaper clipping from the Columbus,
Ohio Dispatch, five weeks ago Sunday morning. The Klan
has more members in the State of Ohio than does any
other organization. We're not a revengent organization,
but if our President, our Congress, our Supreme Court,
continues to suppress the white, Caucasian race, it's
possible that there might have to be some revengeance
taken.
We are marching on Congress July the Fourth, four
hundred thousand strong. From there we are dividing
into two groups, one group to march on St. Augustine,
Florida, the other group to march into Mississippi.
Thank you.7
A second film showed Brandenburg repeating a similar speech
to an even smaller group of hooded figures. In the second
speech, Brandenburg didn't talk about "revengeance." However,
he did opine, "Personally, I believe the nigger should be
returned to Africa, the Jew returned to Israel." While some
of the other hooded figures in the film carried weapons,
Brandenburg had only words.8
Ohio's Criminal Syndicalism law made it a crime to
"[advocate] the duty, necessity, or propriety of crime,
sabotage, violence or unlawful methods of terrorism as a
means of accomplishing industrial or political reform" or to
"voluntarily [associate] with any society, group or
assemblage of persons formed to teach or advocate the
doctrines of criminal syndicalism."9 Brandenburg was found
guilty of both, fined $1,000 and sentenced to one to ten
years in prison. He challenged the Ohio law as a violation
of his First and Fourteenth Amendment rights.
The Supreme Court noted that criminal syndicalism laws
like that in Ohio had been passed by many states and that the
Court had upheld the constitutionality of a similar
California law some years earlier in Whitney v. California.10
However, the Court further noted that Whitney had been
"thoroughly discredited by later decisions."11 In ruling the
Ohio statute unconstitutional, the Supreme Court expressly
overruled Whitney.12
According to the Court, the constitutional principle of
free speech fashioned in cases decided subsequent to Whitney
held that government may not "forbid or proscribe advocacy of
the use of force or of law violation except where such
advocacy is directed to inciting or producing imminent
lawless action and is likely to incite or produce such
action."13 Simply teaching that violence was appropriate or
even morally necessary could not be equated with incitement.
A failure by the Ohio statute to distinguish between advocacy
and incitement to imminent lawless action was fatal to its
constitutionality.
The Supreme Court in Brandenburg appears to have arrived
at the end of a journey that began with decisions upholding
World War I era convictions of war protestors under federal
sedition laws.14 In his concurrence in Brandenburg, Justice
Douglas traced that progression--in which Justice Holmes over
time had had second thoughts about whether and under what
circumstances the state could criminalize speech critical of
the government. According to the concurring opinions in
Brandenburg of Justices Douglas and Black, both of whom
agreed with the majority that Brandenburg's conviction had
violated his Constitutional rights, the "clear and present
danger" doctrine enunciated by Holmes in 1918 in Schenck v.
United States,15 "should have no place in the interpretation
of the First Amendment."16 Justice Douglas noted that,
despite Justice Holmes's articulation of the clear and
present danger test in 1918, and his adherence to it in the
two similar cases decided in that term, by 1919 both Justice
Holmes and Justice Brandeis joined in dissenting from the
majority opinions affirming the convictions of other World
War I dissidents in three cases decided that term. Even if
the "clear and present danger" test might be sustained in
time of war--a proposition Justice Douglas was not at all
ready to admit--its application in time of peace seemed to
him completely unacceptable as a justification for
governmental intrusions restricting First Amendment rights.
By the time the Supreme Court decided Whitney v.
California in 1927--holding a state statute criminalizing
speech and assembly that advocated force as a means to
political change--Justices Brandeis and Holmes concurred, but
not without expressing serious reservations about the Court's
lack of a "fixed standard by which to determine when a danger
shall be deemed clear; how remote the danger may be and yet
be deemed present; and what degree of evil shall be deemed
sufficiently substantial to justify resort to abridgment of
free speech and assembly as a means of protection."17
Justice Brandeis reminded his colleagues, in an eloquent
concurrence that has outlasted the majority ruling, of the
founders' belief in liberty as an end in itself, not just as
a means to an end.18 Government exists not simply to serve
the common welfare, but to "make men free to develop their
faculties."19 Reminding his brethren that "[m]en feared
witches and burned women," Justice Brandeis contended:
Fear of serious injury cannot alone justify suppression
of free speech and assembly. . . To justify suppression
of free speech, there must be reasonable ground to fear
that serious evil will result if free speech is
practiced. There must be reasonable ground to believe
that the danger apprehended is imminent. . . .The wide
difference between advocacy and incitement, between
preparation and attempt, between assembling and
conspiracy, must be borne in mind."20
By the time the Supreme Court arrived at Brandenburg more
than forty years later, it was clear that the need for
distinguishing between advocacy and incitement was firmly
established. The Court was unwilling to allow the
state to suppress speech unless the likelihood of
imminent violence was established. While the majority
was unwilling to go so far as Justice Douglas, the result in
Brandenburg was clearly in line with his concurrence: "The
line between what is permissible and not subject to control
and what may be made impermissible and subject to regulation
is the line between ideas and overt acts."21 Recognizing
that in prior cases dissent alone had been punished, the
Court seemed to agree with Douglas that threats like those
Brandenburg voiced, speaking mostly to the camera and a
handful of the faithful, were "often loud but always puny
and made serious only by judges so wedded to the status quo
that critical analysis made them nervous."22 Had Brandenburg
not alerted a television reporter to his rally, it seems
doubtful that anyone would even have known about his words,
let alone to have grounds to fear them. Moreover, words
fearful only in the abstract are fully protected; it is only
"speech . . brigaded with action"23 that may be regulated or
prosecuted despite the First Amendment.
Incitement and Mass Media
Speech about violence, even advocacy of violence,
under Brandenburg is protected unless it amounts to
incitement. Decisions since Brandenburg have reinforced this
principle: "only speech which intentionally provokes
immediate violence is unprotected."24 This is particularly
the case with representations of violence and speech about
violence on mass media, which is rarely if ever disseminated
with any actual intent of causing imminent violence25 or any
realistic prospect of causing immediate retaliation, as a
provocative face-to-face exchange might.26 With few
exceptions, courts have been unwilling to allow juries to
consider claims against media defendants for damage inflicted
by others allegedly inspired to act by media content. That
has been true whether the damage was inflicted by a media-
inspired individual on other victims27 or only on himself.28
The Nuremberg Files
In the spring of 1999, a jury in Portland, Oregon handed
down a verdict with the potential for profound impact on
First Amendment protection of speech that might lead to
violence. In a civil suit in federal district court,
plaintiffs including the Oregon chapter of Planned Parenthood
and abortion clinics and providers won damages of $107
million dollars for what the jury found was threatening
speech on a Web site and in posters circulated by anti-
abortion activists. Of the damages awarded, less than a
million dollars was compensatory. Over $106 million was
punitive--a reflection of the jury's outrage at the
defendants' particular mode of expression and content.
The suit was brought under a 1994 federal statute that
allows civil suits for damages caused by threats of force
against abortion providers. Several of the defendants had
said that violence was justifiable to prevent abortion, but
none was accused of actually taking violent action against
any of the plaintiffs.29 According to the plaintiffs, the
defendants, including two anti-abortion organizations and
twelve individual activists, had created a "hit list" that
allowed and encouraged violent extremists to target abortion
providers. Posters prepared and distributed by some of the
defendants listed a "deadly dozen" doctors who provided
abortions. One poster singled out a particular obstetrician.
These "wanted posters" had been handed out at rallies and in
the doctors' neighborhoods, offering cash rewards for
information about abortion providers.
The Web site, "The Nuremberg Files," listed the
names and addresses of more than 200 doctors. Its purpose
was to solicit personal information about the doctors, said
its creators, so that the doctors could be brought to justice
if abortion were ever banned. The doctors were accused of
committing "crimes against humanity." Readers were invited to
send in doctors' license plate numbers and the names of their
children. Particularly disturbing to the plaintiffs and the
jury was the fact that after the fatal shootings of several
doctors listed in the Nuremberg Files, their names had been
crossed out, almost like items on a grocery list.30
At the trial, abortion providers testified as to their
fears of violence. One Portland physician testified that she
had lived in terror since 1995 when her name appeared on a
poster as one the "deadly dozen."31 Other doctors testified
about using disguises, bodyguards and bullet proof vests and
teaching their children to "crouch in the bathroom if they
heard gunfire."32
The defendants argued that they were simply political
protestors collecting data in the hope that one day doctors
providing abortions could be put on trial in the style of
Nazi war criminals after World War II.33 They argued that
neither the Web site nor the posters contained explicit
threats. In fact, the creator of the Web site, a Georgia
computer programmer, was not named as a defendant. He
claimed in his testimony as a witness that he alone--and not
any of the defendants--had control over the site. "This is
between me and God. . . I don't even know these people."34
Did naming names of abortion providers constitute a
threat? The history of American political debate and the
express language of the materials would argue against such a
conclusion. It would seem hard to understand how a jury,
applying the requirements of Brandenburg that speech must
incite imminent violence, could have come to the conclusion
they reached. However, the judge's instructions were that
the posters and Web site should be considered threats if they
could be taken as such by a reasonable person considering the
context of nationwide violence against clinics and abortion
doctors.35 That seems a much different standard which, had
it been applied to a Klansman in the context of the 1960s
civil rights struggle, might have resulted in a much
different outcome in Brandenburg. Surely it would seem
likely, if Brandenburg still controls, that the Supreme Court
would not uphold the Nuremberg Files verdict and award.
It is important to note that none of the defendants
was accused of a physical attack against any of the
plaintiffs, even though there had been a history of attacks
on clinics and doctors. The defendants were being sued
solely on the basis of speech about a political issue.
Admittedly that speech was specific, personal and rough. It
identified the doctors as the personification of the problem.
If no names had been mentioned, it is hard to see how any
threat could have been found. Does the fact that names are
mentioned in the context of political speech alter its basic
character, given the history in America of rough and critical
personal attacks as a tactic in political debate? It is hard
to see how.
If the courts on appeal apply the Brandenburg standard
to the Nuremberg verdict, one might expect the verdict to be
overturned. However, several recent decisions by the United
States Supreme Court in cases involving claims of third-party
liability based on provocative speech need to be considered.
Do they signal a shift in the willingness of the courts to
shelter controversial speakers from plaintiffs impatient with
violent media content and its alleged real-life impact.
Might the Supreme Court carve a new "public interest"
exception in the First Amendment for verbal attacks, even in
the context of political speech, that could provoke physical
attacks? Or will the high court stand firm in its insistence
on a tight fit between expression and action before even a
speaker who advocates violence loses his right to speak?
Hit Man
In 1993, Lawrence Horn, who stood to inherit a multi-
million dollar injury settlement if his son died, hired a hit
man, James Perry, to kill his former wife, the boy and his
nurse. Perry, about a year before the murders, had bought
himself a how-to book distributed by a Colorado publisher,
Paladin Enterprises. Its title? Hit Man: A Technical Manual
for Independent Contractors. The 130-page book provided
detailed instructions on how to commit a murder and get away
with it. Perry, however, appeared not to have read the part
about not checking into a hotel near the murder scene using
one's real name and address. He was arrested when police
placed him in the town where the murders were committed
because of his registration at a motel near the murder scene
on the day of the crime. After his arrest, police found Hit
Man in his apartment. The estates of the murder victims
subsequently sued Paladin and its owner, Peter Lund, for the
wrongful deaths for which they claimed the book was
responsible.36
Had the Brandenburg standard been applied, it seems
clear the case against the publisher would have been
dismissed. The book, while a detailed set of instructions on
how to commit a murder, was not an incitement to commit the
murders in question. And Perry had the book long before he
committed the murders, so there appears to have been no
imminent action resulting from his having read the manual.
Instead, the Fourth Circuit Court of Appeals found that the
publisher could be held liable for wrongful death if the
facts at trial showed that the publisher had, by making the
book available, "aided and abetted" in the murder. As in an
earlier case in which a lower court had allowed a wrongful
death action against a publication that had printed the
classified ad of a hit man offering his services for
hire,37 the United States Supreme Court declined to hear an
appeal of the decision. According to critics, the Supreme
Court's willingness to let these decisions stand "cracks the
door for nuisance lawsuits that threaten moviemakers and
publishers."38 There is some evidence of that. Recently,
the Supreme Court let proceed a lawsuit seeking to hold Time
Warner and actress Sharon Stone liable for shootings
plaintiffs claimed occurred because a couple saw Natural Born
Killers.39 It is hard to see how precedent could support
such a result.
How might these cases affect a future Supreme Court
decision if it hears an appeal of the verdict in the
Nuremberg Files? There are, of course, some distinctions.
While the abortion debate falls squarely within the
definition of political speech, it might be argued that a
how-to manual for hired killers does not. However, language
from Hit Man quoted by the appellate court suggests
otherwise.
Analysts of the Paladin case point to what they consider
a blunder by the publisher, who stipulated in a motion for
summary judgment that it intended for criminals to use its
book to plot murders for hire and that the book helped hired
killer James Perry to commit murder.40 Perhaps it was a
carelessly provocative move on the part of the defendant.
However, it underscores a political themes that permeates the
manual: There are times when it is necessary and honorable
to take the law into one's own hands. The idea may seem
extreme to many, but it is a political theory commonly
espoused by militant militias and others. Hit Man may be a
how-to book, "a training book for assassins,"41 but it is a
why-to book as well. In fact, the Fourth Circuit opinion
opens with this quotation from Hit Man:
A WOMAN RECENTLY ASKED HOW I could, in good conscience,
write an instruction book on murder.
"How can you live with yourself if someone uses what
you write to go out and take a human life," she whined.
I am afraid she was quite offended by my answer.
It is my opinion that the professional hit man fills a
need in society and is, at times, the only alternative
for "personal" justice. . . .
By the time you collect the balance of your contract
fee, the doubts and fears of discovery have faded.
Those feelings have been replaced by cockiness, a
feeling of superiority, a new independence and
self-assurance.
[E]verything seems to have changed.
The people around you have suddenly become so
aggravatingly ordinary. You start to view them as an
irritating herd of pathetic sheep, doing as they are
told, doing what is expected, following someone,
anyone, blindly. You can't believe how dumb your
friends have become, and your respect diminishes for
people you once held in awe.
You too have become different. You recognize that you
made some mistakes, but you know what they were, and
they will never plague you again. Next time (and you
know there will be a next time), there will be no
hesitation, no fear.
Your experience in facing death head-on has taught you
about life. You have the power and ability to stand
alone. You no longer need a reason to kill.
. . . . You are a man. Without doubt, you have proved
it. You have come face to face with death and emerged
the victor through your cunning and expertise. You have
dealt death as a professional. You don't need any
second or third opinions to verify your manhood.42
Offensive as many may find them, the opinions expressed in
Hit Man are political expression. It could be argued that
for most of the readers, such publications provide a
vicarious experience of manhood, defined in this way, akin to
what another reader might take from a Hemingway novel.
Despite the Fourth Circuit's equating the instructions in Hit
Man with instructions supplied by a tax protestor who also
acted to assist others in filling out false tax forms, the
court, if true to Brandenburg, would have distinguished Hit
Man's speech from the speech brigaded with action of the tax
protestor turned tax preparer.43
Given the graphic nature of many fictional works about
murder, it is hard to see how Hit Man is any more likely to
aid and abet in the commission of a crime than many other
publications, videos and films. Perhaps the provocative
nature of the how-to title and the use of the imperative help
to explain the court's willingness to consider a publisher's
liability for acts committed by a stranger without the
publisher's knowledge or assent. One wonders how a book
similar in substance to Hit Man, but with a different title
and written in third person might have fared. Suppose this
had been called "Diary of a Hit Man," or "Memories of a Hit
Man," or "A Day in the Life of a Hit Man" or "Murder, He
Wrote." Would the court so readily have found potential
liability for the publisher of such a work? The court makes
much of its need, in selecting illustrative examples from the
manual, to "omit portions of these few illustrative passages
in order to minimize the danger to the public from their
repetition herein."44 Yet for all the court's melodramatic
footnoting, it is hard to see how Hit Man is any more likely
to provide suggestions or trigger a decision to kill than
many other works of fiction and drama.
Surely, the graphic portrayal of violence in Natural
Born Killers is as likely to be instructive of how one might
attack a victim as Hit Man. But if these works create
liability for their authors and distributors, it is hard to
imagine a work of fiction or art dealing with similar themes
that would not. And the courts have consistently held that
the right of the public to have access to creative works and
the right of creators to produce and distribute those works
should not be inhibited by those members of the public who
"are particularly sensitive or insensitive."45
Neither Natural Born Killers nor Hit Man names names--
identifying potential victims as it is contended did the
Nuremberg Files. But should anti-abortion activists be
prohibited from naming names of those on the other side of
the debate because such lists might become hit lists in the
hands of troubled extremists? The profile of the violent
anti-abortion terrorist is not that of the typical anti-
abortion activist.46 Yet the verdict in the Nuremberg Files
case would seem to allow the potential response of the
extremist to control the terms of the debate. Given current
concerns about terrorism in many other contexts, it is hard
to see how a prohibition on naming names could be restricted
to the abortion debate. And while some would argue that
eliminating negative personal attacks could only serve to
civilize political discourse, our history tells us the
opposite: we as a people value the freedom to criticize
individuals and personalize issues. If advocacy of violence
and force is to remain protected speech, along the lines of
Brandenburg, and the freedom to criticize individuals
including political leaders is to retain its historic
importance, it is hard to see how the Nuremberg Files verdict
could stand on appeal.
Yet the recent line of "aiding and abetting" decisions
is troubling--for it might be argued that providing ready
access to a list of names and personal information of doctors
and clinics in a climate of terrorism and violence is nothing
less than aiding and abetting terrorism, whatever the motives
or intent of those collecting the data. Before drifting
further in this direction, the Supreme Court ought to
consider again the evolution of the law from Schenck to
Brandenburg, giving special attention to the concurring
opinions of Justices Holmes, Brandeis, Black and Douglas that
helped to clarify and narrow the concept of incitement--
and the line between punishing illegal action and preserving
belief and conscience as "sanctuaries which government could
not invade."47
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