Hitting "Hit Man" in the Pocketbook   

A suit seeks damages from the publisher of a murder-for-hire manual.

In 1993, James Edward Perry murdered a disabled boy, the boy's mother and his nurse at their home in Silver Spring, Maryland. The boy's father is accused of hiring Perry to kill his son so that he could collect the proceeds from a medical malpractice settlement.

During Perry's trial, prosecutors introduced passages from "Hit Man: A Technical Manual for Independent Contractors," a book they claim Perry used as his guide to carrying out the murders-for-hire.

Surviving family members have sued Paladin Press, a Boulder, Colorado-based book publishing house, in federal court in Greenbelt, Maryland. They claim that by publishing and marketing "Hit Man," Paladin conspired with Perry, aiding and abetting his crime. Paladin was negligent in selling the book to Perry, they contend, and should be held strictly liable for the deaths, under the theory that the book is an "unreasonably dangerous product" with no redeeming social value.

The value of "Hit Man" is difficult to discern, as the Washington Post suggested in an editorial supporting the suit. The book reads like it was written by an arrested adolescent, who goes by the nom de plume of Rex Feral. Its tone of breathless, cloak-and-dagger urgency, by turns smug, antisocial and misogynist, is punctuated with tough-guy clichés and illustrated with crude diagrams that look like rejects from a "Calvin and Hobbes" comic strip.

The book is full of improbable suggestions for doing away with one's "mark," such as asking the local pet shop to special order a blowfish for your aquarium so you can extract poison ("150,000 times more potent than curare") from the fish's bladder. It tells the reader how to disguise his or her identity, build a fertilizer bomb, ship weapons across the country and pick locks.

"Hit Man" isn't great literature. In fact, it hardly differs from many novels, movies and Internet postings that pass for popular culture these days. The author tacitly acknowledges this, encouraging his readers to turn to "almost any good mystery or murder story" for further ideas.

But "Hit Man" is unique, the plaintiffs contend, because Perry carried out the murders by following the "instructions" in the book. For example, "Hit Man" provides directions for choosing guns, shooting to kill, even for drilling the serial number off of a rifle, which Perry did, exactly as instructed. By providing this type of step-by-step direction, the plaintiffs argue, Paladin intended to encourage and facilitate murder.

While the plaintiffs' lawyers say they don't dispute Paladin's right to publish books like "Hit Man," they think that the publisher should be liable for damages when one of its readers actually acts on its instructions and harms someone.

Courts around the country have grappled with similar issues in the past. There have been many attempts to hold publishers or broadcasters liable for damages when a reader or viewer engages in harmful conduct they "incited."

Almost without exception, the courts have refused, finding that First Amendment protection does not vanish simply because an idea creates a potential hazard. The U.S. Supreme Court has held that "mere abstract teaching" that sanctions violence is not the same as inducing specific individuals to commit specific murders. A federal court has warned that if an article discussing a dangerous idea can be deemed the cause of a real injury, then all free speech is threatened.

Even when a publication is instructional rather than philosophical, courts have said that the kind of liability for injuries that is appropriate in product liability cases can't apply to "the unique characteristics of ideas and expression" in books. Mass-distribution publications do not pose a clear and present danger of inciting immediate lawless conduct. Allowing publishers to be held liable for bad acts would make it too easy for authorities to punish or prohibit political or religious dissent on the grounds that it might incite some unstable person to engage in conduct that harms others.

The Washington Post argues that exempting "disgusting" speech like "Hit Man" from First Amendment protection would be consistent with existing exceptions for obscenity, illegal advertising and libel. But such a vague standard could easily invite official abuse and chill unpopular speech in the name of public safety.

As federal appeals court Judge Frank Easterbrook has written, "Much speech is dangerous. Chemists whose work might help someone build a bomb, political theorists whose papers might start political movements that lead to riots, speakers whose ideas attract violent protesters, all these and more leave loss in their wake.

"Unless the remedy is very closely confined, it could be more dangerous to speech than all the libel judgments in history." l