Rice v. Paladin Enterprises, Inc.

I.

On the night of March 3, 1993, readied by these instructions and steeled by these seductive adjurations from Hit Man: A Technical Manual for Independent Contractors, a copy of which was subsequently found in his apartment, James Perry brutally murdered Mildred Horn, her eight-year-old quadriplegic son Trevor, and Trevor's nurse, Janice Saunders, by shooting Mildred Horn and Saunders through the eyes and by strangling Trevor Horn. Perry's despicable crime was not one of vengeance; he did not know any of his victims. Nor did he commit the murders in the course of another offense. Perry acted instead as a contract killer, a "hit man," hired by Mildred Horn's ex-husband, Lawrence Horn, to murder Horn's family so that Horn would receive the $2 million that his eight-year-old son had received in settlement for injuries that had previously left him paralyzed for life. At the time of the murders, this money was held in trust for the benefit of Trevor, and, under the terms of the trust instrument, the trust money was to be distributed tax-free to Lawrence in the event of Mildred's and Trevor's deaths.

In soliciting, preparing for, and committing these murders, Perry meticulously followed countless of Hit Man 's 130 pages of detailed factual instructions on how to murder and to become a professional killer.

Perry, for example, followed many of the book's instructions on soliciting a client and arranging for a contract murder in his solicitation of and negotiation with Lawrence Horn. Cautioning against the placement of advertisements in military or gun magazines, as this might prompt "a personal visit from the FBI," Hit Man instructs that "as a beginner" one should solicit business "through a personal acquaintance whom you trust." Hit Man at 87. James Perry offered his services as a professional killer to Lawrence Horn through Thomas Turner, a "good friend" of Perry's, and Lawrence Horn's first cousin. Perry v. State, 344 Md. 204, 686 A.2d 274, 278 (1996), cert. denied, --- U.S. ----, 117 S.Ct. 1318, 137 L.Ed.2d 480 (1997).

Hit Man instructs to request "expense money" from the employer prior to committing the crime, advising the contract killer to get "all expense money up front. " Hit Man at 92 (emphasis added). The manual goes on to explain that this amount should generally range from five hundred to five thousand dollars, "depending on the type of job and the job location," and that the advance should be paid in cash. Id. Prior to commission of the murders, Lawrence Horn paid James Perry three thousand five hundred dollars through a series of wire transfers using phony names. Perry, 686 A.2d at 280.

Hit Man instructs that the victim's personal residence is the "initial choice" location for a murder and "an ideal place to make a hit," depending on its "layout" and "position." Hit Man at 81-82. James Perry murdered the Horns at their place of residence. Perry, 686 A.2d at 277.

Hit Man instructs its readers to use a rental car to reach the victim's location, Hit Man at 98, and to "steal an out-of-state tag" and use it to "replace the rental tag" on the car, explaining that "[s]tolen tags only show up on the police computer of the state in which they are stolen." Id. James Perry stole out-of-state tags and affixed them to his rental car before driving it to the Horns' residence on the night of the murders. Perry, 686 A.2d at 276.

Hit Man instructs the reader to establish a base at a motel in close proximity to the "jobsite" before committing the murders. Hit Man at 101. On the night that he killed Mildred and Trevor Horn and Janice Saunders, James Perry took a room at a Days Inn motel in Rockville, Maryland, a short drive from the Horns' residence. Perry, 686 A.2d at 276.

Hit Man instructs that one should "use a made-up [license] tag number" when registering at the motel or hotel. Hit Man at 102. James Perry gave a false license tag number when he registered at the Days Inn on the night of the murders. Perry, 686 A.2d at 276.

Hit Man instructs that a "beginner" should use an AR-7 rifle to kill his victims. Hit Man at 21. James Perry used an AR-7 rifle to slay Mildred Horn and Janice Saunders. Perry, 686 A.2d at 279.

Hit Man instructs its readers where to find the serial numbers on an AR-7 rifle, and instructs them that, prior to using the weapon, they should "completely drill[ ] out" these serial numbers so that the weapon cannot be traced. Hit Man at 23. James Perry drilled out the serial numbers of his weapon exactly as the book instructs. Perry, 686 A.2d at 280.

Hit Man instructs in "explicit detail" (replete with photographs) how to construct, "without [the] need of special engineering ability or machine shop tools," a homemade, "whisper-quiet" silencer from material available in any hardware store. Hit Man at 39-51. James Perry constructed such a homemade silencer and used it on the night that he murdered Mildred and Trevor Horn and Janice Saunders. J.A. at 24.

Perry also followed any number of Hit Man 's instructions on how to commit the murder itself. The manual, for example, instructs its readers to kill their "mark" at close range, so that they will "know beyond any doubt that the desired result has been achieved." Hit Man at 24. The book also cautions, however, that the killer should not shoot the victim at point blank range, because "the victim's blood [will] splatter [the killer] or [his] clothing." Id. Ultimately, the book recommends that its readers "shoot [their victims] from a distance of three to six feet." Id. James Perry shot Mildred Horn and Janice Saunders from a distance of three feet. J.A. at 24.

Hit Man specifically instructs its audience of killers to shoot the victim through the eyes if possible:

At least three shots should be fired to insure quick and sure death.... [A]im for the head--preferably the eye sockets if you are a sharpshooter.

Hit Man at 24. James Perry shot Mildred Horn and Janice Saunders two or three times and through the eyes. Perry, 686 A.2d at 277.

Finally, Perry followed many of Hit Man 's instructions for concealing his murders. Hit Man instructs the killer to "[p]ick up those empty cartridges that were ejected when you fired your gun." Hit Man at 104. Although Perry fired his rifle numerous times during the murders, no spent cartridges were found in the area. Compare Perry, 686 A.2d at 277, with id. at 280.

Hit Man instructs the killer to disguise the contract murder as burglary by "mess[ing] the place up a bit and tak[ing] anything of value that you can carry concealed." Hit Man at 104. After killing Mildred and Trevor Horn and Janice Saunders, James Perry took a Gucci watch, as well as some credit cards and bank cards from Mildred Horn's wallet. Perry, 686 A.2d at 278. According to the police report, a few areas of the Horns' residence appeared "disturbed" or "slightly tossed," and "a rug and cocktail table in the living room had been moved." Id. at 277.

Hit Man instructs that, after murdering the victims, the killer should break down the AR-7 in order to make the weapon easier to conceal. Hit Man at 105. James Perry disassembled his weapon after the murders, in accordance with the instructions in Hit Man. Perry, 686 A.2d at 280.

Hit Man instructs killers to use specified tools to alter specified parts of the rifle. Hit Man at 25. The author explains that the described alterations will prevent the police laboratory from matching the bullets recovered from the victims' bodies to the murder weapon. James Perry altered his AR-7 in accordance with these instructions. Perry, 686 A.2d at 280.

Hit Man also instructs the killer to dispose of the murder weapon by scattering the disassembled pieces of the weapon along the road as he leaves the crime scene. Hit Man at 105. And, after killing Mildred and Trevor Horn and Janice Saunders, Perry scattered the pieces of his disassembled AR-7 rifle along Route 28 in Montgomery County. Perry, 686 A.2d at 280.

In this civil, state-law wrongful death action against defendant Paladin Enterprises--the publisher of Hit Man --the relatives and representatives of Mildred and Trevor Horn and Janice Saunders allege that Paladin aided and abetted Perry in the commission of his murders through its publication of Hit Man 's killing instructions. For reasons that are here of no concern to the court, Paladin has stipulated to a set of facts which establish as a matter of law that the publisher is civilly liable for aiding and abetting James Perry in his triple murder, unless the First Amendment absolutely bars the imposition of liability upon a publisher for assisting in the commission of criminal acts. As the parties stipulate: "The parties agree that the sole issue to be decided by the Court ... is whether the First Amendment is a complete defense, as a matter of law, to the civil action set forth in the plaintiffs' Complaint. All other issues of law and fact are specifically reserved for subsequent proceedings." J.A. at 58.

Paladin, for example, has stipulated for purposes of summary judgment that Perry followed the above-enumerated instructions from Hit Man, as well as instructions from another Paladin publication, How to Make a Disposable Silencer, Vol. II, in planning, executing, and attempting to cover up the murders of Mildred and Trevor Horn and Janice Saunders. J.A. at 61. Paladin has stipulated not only that, in marketing Hit Man, Paladin "intended to attract and assist criminals and would-be criminals who desire information and instructions on how to commit crimes," J.A. at 59, but also that it "intended and had knowledge" that Hit Man actually "would be used, upon receipt, by criminals and would-be criminals to plan and execute the crime of murder for hire." J.A. at 59 (emphasis added). Indeed, the publisher has even stipulated that, through publishing and selling Hit Man, it assisted Perry in particular in the perpetration of the very murders for which the victims' families now attempt to hold Paladin civilly liable. J.A. at 61.2

Notwithstanding Paladin's extraordinary stipulations that it not only knew that its instructions might be used by murderers, but that it actually intended to provide assistance to murderers and would-be murderers which would be used by them "upon receipt," and that it in fact assisted Perry in particular in the commission of the murders of Mildred and Trevor Horn and Janice Saunders, the district court granted Paladin's motion for summary judgment and dismissed plaintiffs' claims that Paladin aided and abetted Perry, holding that these claims were barred by the First Amendment as a matter of law.

Because long-established caselaw provides that speech--even speech by the press--that constitutes criminal aiding and abetting does not enjoy the protection of the First Amendment, and because we are convinced that such caselaw is both correct and equally applicable to speech that constitutes civil aiding and abetting of criminal conduct (at least where, as here, the defendant has the specific purpose of assisting and encouraging commission of such conduct and the alleged assistance and encouragement takes a form other than abstract advocacy), we hold, as urged by the Attorney General and the Department of Justice, that the First Amendment does not pose a bar to a finding that Paladin is civilly liable as an aider and abetter of Perry's triple contract murder. We also hold that the plaintiffs have stated against Paladin a civil aiding and abetting claim under Maryland law sufficient to withstand Paladin's motion for summary judgment. For these reasons, which we fully explain below, the district court's grant of summary judgment in Paladin's favor is reversed and the case is remanded for trial.

II.

A.

In the seminal case of Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969), the Supreme Court held that abstract advocacy of lawlessness is protected speech under the First Amendment. Although the Court provided little explanation for this holding in its brief per curiam opinion, it is evident the Court recognized from our own history that such a right to advocate lawlessness is, almost paradoxically, one of the ultimate safeguards of liberty. Even in a society of laws, one of the most indispensable freedoms is that to express in the most impassioned terms the most passionate disagreement with the laws themselves, the institutions of, and created by, law, and the individual officials with whom the laws and institutions are entrusted. Without the freedom to criticize that which constrains, there is no freedom at all.

However, while even speech advocating lawlessness has long enjoyed protections under the First Amendment, it is equally well established that speech which, in its effect, is tantamount to legitimately proscribable nonexpressive conduct may itself be legitimately proscribed, punished, or regulated incidentally to the constitutional enforcement of generally applicable statutes. Cf. Cohen v. Cowles Media Co., 501 U.S. 663, 669, 111 S.Ct. 2513, 2518, 115 L.Ed.2d 586 (1991) (noting "well-established line of decisions holding that generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news"). As no less a First Amendment absolutist than Justice Black wrote for the Supreme Court almost fifty years ago in Giboney v. Empire Storage & Ice Co., in rejecting a First Amendment challenge to an injunction forbidding unionized distributors from picketing to force an illegal business arrangement:

It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute. We reject the contention now....

...

... It is true that the agreements and course of conduct here were as in most instances brought about through speaking or writing. But it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed. Such an expansive interpretation of the constitutional guaranties of speech and press would make it practically impossible ever to enforce laws against agreements in restraint of trade as well as many other agreements and conspiracies deemed injurious to society.

336 U.S. 490, 498, 502, 69 S.Ct. 684, 688-89, 691, 93 L.Ed. 834 (1949) (citations omitted). And as the Court more recently reaffirmed:

Although agreements to engage in illegal conduct undoubtedly possess some element of association, the State may ban such illegal agreements without trenching on any right of association protected by the First Amendment. The fact that such an agreement necessarily takes the form of words does not confer upon it, or upon the underlying conduct, the constitutional immunities that the First Amendment extends to speech. [W]hile a solicitation to enter into an agreement arguably crosses the sometimes hazy line distinguishing conduct from pure speech, such a solicitation, even though it may have an impact in the political arena, remains in essence an invitation to engage in an illegal exchange for private profit, and may properly be prohibited.

Brown v. Hartlage, 456 U.S. 45, 55, 102 S.Ct. 1523, 1529-30, 71 L.Ed.2d 732 (1982); see also Osborne v. Ohio, 495 U.S. 103, 110, 110 S.Ct. 1691, 1696-97, 109 L.Ed.2d 98 (1990) (quoting Giboney, 336 U.S. at 498, 69 S.Ct. at 688-89); New York v. Ferber, 458 U.S. 747, 761-62, 102 S.Ct. 3348, 3356-57, 73 L.Ed.2d 1113 (1982) (same); Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456, 98 S.Ct. 1912, 1918-19, 56 L.Ed.2d 444 (1978) (quoting Giboney, 336 U.S. at 502, 69 S.Ct. at 690-91); National Organization for Women v. Operation Rescue, 37 F.3d 646, 656 (D.C.Cir.1994) ("That 'aiding and abetting' of an illegal act may be carried out through speech is no bar to its illegality."); United States v. Varani, 435 F.2d 758, 762 (6th Cir.1970) ("[S]peech is not protected by the First Amendment when it is the very vehicle of the crime itself."); Laurence H. Tribe, American Constitutional Law 837 (2d ed. 1988) ("[T]he law need not treat differently the crime of one man who sells a bomb to terrorists and that of another who publishes an instructional manual for terrorists on how to build their own bombs out of old Volkswagen parts.").

Were the First Amendment to bar or to limit government regulation of such "speech brigaded with action," Brandenburg, 395 U.S. at 456, 89 S.Ct. at 1834 (Do