Aiding and Abetting?: “Speech-Plus” and Qualified Immunity at the Reference Desk
Not long ago, while discussing my plan to review Eric Heinze’s recently-published book The Most Human Right: Why Free Speech is Everything, I was reminded of an almost-forgotten case of legal suppression of publishing rights in the United States. In the course of the conversation leading up to my research, I said, as I often do, that reading, hearing and knowing what as many of the variants of humanity out in the world are thinking is the best way for people to keep themselves safe from the worst ideas percolating and those who might latch onto them. How can we hear the jackboots coming, I always ask, if we aren’t allowed to hear them coming? To this someone said “Well, what about Hit Man?” Down the rabbit hole I went.
Hit Man: A Technical Manual for Independent Contractors was a book published in the early 80s during the heyday of Paladin Press, an independent publisher that specialized in books and other materials for survivalists and other self-styled “James Bond” types. Paladin’s forte was books and videos about revenge, self-defense, weapons (improvised and otherwise) and paramilitary tactics. The book, as might be guessed from the title, was presented as a how-to guide for people who might be interested in the murder-for-hire trade, complete with practical advice about the best weapons to use, how to hide one’s movements, where on the human body a gunshot would most likely to result in a “clean kill,” and how one might evade detection and apprehension after the fact.
Predictably, someone eventually put the information to use when, in 1993, James Perry was hired by Lawrence Horn to kill his ex-wife and paralyzed son in the hopes of inheriting money the family was awarded in the personal injury case related to his son’s paralysis. Perry traveled from Michigan to Maryland and killed Mildred and Trevor Horn (who was eight) as well as Janice Saunders, a nurse hired to care for the disabled child.
When Perry was caught, it emerged that he had committed the crime almost exactly as Hit Man suggested and the families of the victims sued Paladin, arguing that the publishers, by producing the book, had aided and abetted the killer. Interestingly, the families were represented by attorney and legal scholar Rodney Smolla, who specializes in First Amendment cases, often representing those arguing that their right to speak or publish was being infringed. Smolla later authored a book about the case.
A federal district court in Maryland decided in favor of Paladin Press on First Amendment grounds, finding that the contents of the book, as per Brandenberg v. Ohio (1969), despite being morally reprehensible, could be considered nothing more than a “theoretical advocacy” of criminal behavior and did not incite the reader to “imminent lawless action.” Nowhere in the book is the reader instructed TO kill anyone, just how to go about it. However, when the decision was appealed, The Fourth Circuit Court strongly disagreed, opining:
“Aid and assistance in the form of this kind of speech bears no resemblance to the ‘theoretical advocacy,’ the advocacy of ‘principles divorced from action.’ Indeed, this detailed, focused instructional assistance to those contemplating or in the throes of planning murder is the antithesis of speech protected under Brandenburg. It is the teaching of the ‘techniques’ of violence, the ‘advocacy and teaching of concrete action,’ the ‘preparation . . . for violent action and [the] steeling . . . to such action.’ As such, the murder instructions in Hit Man are, collectively, a textbook example of the type of speech that the Supreme Court has quite purposely left unprotected, and the prosecution of which, criminally or civilly, has historically been thought subject to few, if any, First Amendment constraints. Accordingly, we hold that the First Amendment does not pose a bar to the plaintiffs’ civil aiding and abetting cause of action against Paladin Press.”
In other words, the Court said, a book or other work the contents of which 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. In the decision the word “steeling” is used; an important element in the decision, according to the Court, was language in Hit Man meant to help the would-be reader/killer overcome nervous doubts or conscience before the act was complete.
Paladin Press was ordered to pay substantial damages and agreed not to print any more copies of Hit Man (which is still available as online samizdat, a pricey collector’s item and in unauthorized reprints). Book publishers and many First Amendment scholars did not appreciate the decision.
Being me, I began thinking about all of this in library terms. After this past summer and some of the negative feedback I got regarding the books in our collection about LGBTQ+ issues—especially books that are affirming of transgender rights or supportive of those undergoing the social and medical transition process—I began to wonder how susceptible to lawsuits public libraries and their staff might be if someone tried to make the case that a child became estranged from family or, even more to the tort-law point, did some self-harm and cited something they claimed to have learned from material obtained at the library as the reason. This is not a question addressed in the Intellectual Freedom Manual and I can’t find a case where a public library or its related municipal government was ever sued because someone checked out a book and subsequently applied some lethal or injurious bit of knowledge gained therefrom that might shed light on the matter.
When I raised the matter with Michael Giudicessi, a First Amendment attorney here in Iowa, he opined that the traditional doctrine of “governmental qualified immunity” and related state law protection for acts taken in an official capacity might well lend public libraries and their officers a great deal—if not complete –legal protection from a federal civil rights or a state law tort suit resulting from a library simply owning something and making it accessible for a patron to find independently. However, he said, the question becomes murkier when what he calls a “speech-plus” test is applied.
He posited a hypothetical situation wherein a patron approaches a reference desk and asks a librarian directly about issues of gender transition or hormones and the librarian researches and finds a work in the catalog and then walks the patron over to the shelf and hands the book to the patron or bookmarks the key passage—the “practical step”, he called it. “At that point,” Giudicessi says, “the question becomes ‘when does facilitating knowledge become aiding and abetting’? What if the individual librarian recommended the book? In my opinion, the law is not as clear at that point.” I didn’t think to ask about library-sponsored or hosted programs, but I’m sure the uncertainty of “speech-plus” is in that question somewhere, too.This is why, Giudicessi told me, librarians and library organizations should be aware of ongoing efforts to lessen governmental qualified immunity (a frequent point of discussion after high-profile police brutality cases or accidents attributable to public employee negligence). Librarians and library organizations should be willing to discuss all of this, says Giudicessi, because “people who are at the extremes of an issue often see imposing liability as a tactic.”
Darryl Eschete was born in South Louisiana into a Cajun family, raised in the Bayou region of the state. His undergraduate degree is in journalism and has a deep and serious interest in First Amendment issues, including censorship, compelled speech, institutional neutrality and professional ethics. He has 20+ years of library work experience, including 10+ as a public library director.