Brooklyn Museum, ‘Hit Man’ cases attract legal analysis

Friday, October 8, 1999

NEW YORK — “These are busy days for the First Amendment,” lawyer Floyd Abrams began at a Columbia University Graduate School of Journalism First Amendment breakfast Oct. 7 on “Violence and the Media.”

Abrams is often at the front lines of the battle to uphold First Amendment protections, most recently defending the Brooklyn Museum of Art against a funding-cutoff threat by New York Mayor Rudy Giuliani.

Abrams led a discussion with four prominent legal minds about the future of the First Amendment and the effects that the recent settlement in the Hit Man case might have on freedom of press.

He noted that First Amendment cases in one area often overlap into others: “There’s a tendency when doing First Amendment press work to cite (only) cases involving the press, and not to look broadly enough at the impact on free speech or freedom of expression,” Abrams said.

“Yet when you get a case like the Brooklyn Museum of Art, there are broad First Amendment rulings that come from a wide variety of areas,” Abrams said. “Some happen to involve press, some (involve) speech of oppressed minorities … and I’m struck in this case … (by) how many different doctrines we have created in First Amendment law.”

“The interesting thing about the Brooklyn case [is that it] brings many strands of the First Amendment together,” Abrams said, “since what the city has done violates the First Amendment in so many different ways.”

At the core of the case, Abrams said, is the impact of public funding on the First Amendment. “Even the mayor has come to agree that no one could do anything about this exhibit if there were not funding by the city,” Abrams said. He added that there had been at least four occasions in which the Supreme Court, in the course of rendering opinions “which were not especially friendly to First Amendment interests,” had said the outcome would have been different if the government funding process was being used to manipulate speech or coerce it.

“We have precisely that in the Brooklyn Museum case — first to seek silence, then to punish,” Abrams said. “We may find out the degree to which the Supreme Court really means what it says when it talks about manipulation and coercion. The language is there, they said it, and it’s one of the horses we’re riding on.”

As for the ramifications of the Hit Man case on the First Amendment, Abrams has called the case “one of the best portrayals ever of how cases with horrible facts lead to discomforting law.”

In that case, publisher Paladin Press agreed to stop selling the book, Hit Man: A Technical Manual for Independent Contractors, and settled a federal lawsuit on May 21 with two families who claimed a hired assassin followed the manual’s instructions to kill their loved ones.

Rodney Smolla represented the plaintiffs in the case and then wrote a book about it, Deliberate Intent: A Lawyer Tells the True Story of a Murder by the Book. He contends that the case, had it gone to trial, would not have had a chilling effect on free speech because the decision would “have to be contained and limited to the kind of rare, highly dangerous material” the Hit Man manual discloses.

“Throughout the process, we presented the argument that you could define a legal principle that would limit the case, a principle defined partly by the intent of the speaker and partly by the level of detail of the publication,” Smolla said. “I think that line will hold — the court of appeals in our case was very aware of the line and said this is very different from things like movies, novels, thrillers, real crime reportage, where the intent of the author is different.”

Smolla did point out that Paladin Press has removed 70 other books from its “burn and blow” series, which includes books on how to make bombs, dispose of bodies, etc., since the settlement. “One consequence of our victory is that a plaintiff can allege there was intent and the defendant will have to go through the process of negating that allegation,” Smolla said. This is the situation in the ongoing “Natural Born Killers” case, Smolla said.

But Sandra Baron, executive director of the Libel Defense Resource Center, said the process of showing there was no intent to incite violence had now become lengthy and expensive. In the case involving the “Natural Born Killers” movie, she said, the plaintiffs are demanding any instance in which “the subject of violence in the media generally and generically has been brought up.”

She said this process becomes a practical matter because it can cripple small media. “It’s one thing with Time Warner,” she said, but much more difficult for small presses and independent filmmakers to defend themselves.

“The reason the Hit Man case poses such an enormous danger,” Baron said, “is that it knocks out some fundamental struts in the incitement formula,” referring to landmark case Brandenberg v. Ohio, which determined that speech can be suppressed only if it is intended and likely to incite “imminent lawless action.”

That test of proving the advocating of imminent violent behavior is intentionally difficult to meet, according to Baron. There’s a lot of confusion in the text of the Hit Man case, she said, and the case “poses enormous danger to free speech.”

Attorney John Walsh, who often represents the plaintiff’s side in First Amendment cases, said First Amendment cases are searches for limits, the government’s right to limit expression, as with libel law and privacy law. “The Hit Man case is a search for limits in an extreme situation,” he said.

Walsh and Baron agreed that it would be difficult to prove intent to incite violence in the “Natural Born Killers” case.

Adam Liptak, senior counsel at The New York Times, said he hoped the Hit Man case was unique. “I am disturbed that the principles (established in the Hit Man case) might come back to bite us,” he said. “The only limiting thing left is intent.”

Liptak said that courts hostile to the press will punish the press by characterizing speech as conduct, such as characterizing the dissemination of information as conduct rather than speech. “The principles established (in Hit Man) will do more harm than good,” Liptak said.

Liptak said there was a “lawyerly literal-mindedness” in the Hit Man case in determining, as Smolla and the judge did, that the words of the how-to manual could be interpreted only in a certain way and that evidence of the intent could be divined from the face of the text.

But Smolla disagreed, saying that indeterminacy of meaning is a constant free-speech issue, that texts strike people differently, and that the “shading” of a text would make a difference in individual cases.

Which led to a question from the audience: Will all information in the future have to have disclaimers? Abrams said using disclaimers is a catch-22 situation in which you may be damned if you don’t have one, but if you do, it’s considered titillating.

Baron ended the discussion by noting that it was becoming more widely accepted that “bad TV causes bad acts,” and that the “scariest part is going to be, ‘What is the intent that has to be proven and how will it be proven?’ ” If simple “reckless disregard” becomes the normal burden of proof, she said, “we will find enormous censorship in broadcast TV and entertainment.”