Fear of violence making media the scapegoat, lawyer says

Friday, December 10, 1999

Click microphone to hear Webcast.
First Amendment Roundtable: The Media and Violence. Archived Webcast.

ARLINGTON, Va. — People are so worried about the effects of media
violence that they have created an ‘era of cultural McCarthyism — treating (the depiction of) violence much as the government treated the
discussion of communism’ in the 1950s, a First Amendment lawyer says.

Robert Corn-Rev...
Robert Corn-Revere

Robert Corn-Revere, a partner with the Washington office of Hogan &
Hartson who spoke yesterday at a panel on media violence, cited as an
example the recently defeated legislation known as the Hyde Amendment that called for criminal
penalties for people who distributed to children pictures, drawings, video games, movies, books, recordings or other materials containing certain
‘explicit sexual material or explicit violent material’ — a
description so broad, it was a blatant violation of free-speech rights,
he said.

This climate of making the media the scapegoat for fears about violence
has led to a case that has set a dangerous new precedent in First
Amendment law, Corn-Revere said. He was referring to a 4th Circuit Court of Appeals ruling reversing a lower court decision to dismiss a lawsuit against Paladin Press for publishing Hit Man: A Technical Manual for Independent Contractors.

In a May settlement, Paladin agreed to stop selling the book on how to
be a hit man and to pay $5 million to two families who claimed
a hired assassin followed the manual’s instructions to kill their loved

Even though the case was settled, the legal arguments used already have begun
to erode First Amendment protection for publishers, filmmakers and
others, Corn-Revere said.

In this case, the question was, ‘In a free society, when can you turn
people into criminals because of their speech? My opinion is that [this
case] went too far,’ he said.

Rodney A. Smoll...
Rodney A. Smolla
But Rodney A. Smolla, the lawyer for the plaintiffs in the case, said
the Hit Man manual shouldn’t have been protected by the First
Amendment because clearly it gave explicit instructions on how to
murder. The situation was different than in other First Amendment cases,
and so he was able to argue the case using different legal standards, he
said. For example:

  • Smolla argued that although Paladin Press didn’t cause the
    murder, it aided and abetted the murderer. Under this argument,
    plaintiffs’ lawyers didn’t have to prove that the publisher’s book directly led to the killings — a high burden of proof in many First Amendment cases.

  • Under previous First Amendment case law, Smolla would have had to
    prove that the book caused imminent lawless action. At first glance, he
    said, it would seem that the mere act of publishing a book would not
    meet this standard. But Smolla argued imminence in another way — that
    the publisher knew that, upon receipt, criminals would use the book to
    plan murder.

    Smolla, who teaches law at the University of Richmond, also said that one of the biggest hurdles he faced was trying to
    dispute the argument that a ruling against Paladin would lead to suits
    against other publishers or filmmakers who depicted violence.

    ‘But this book was not like a movie or a novel,’ he said. ‘The book was
    [composed] of technical instructions, engineering formulas, checklists,
    the techniques of killing.’ That standard would not apply to other forms
    of speech that merely described or depicted violence.

    But Corn-Revere said Smolla’s arguments already are being applied in
    such cases. The Louisiana Supreme Court cited the 4th Circuit’s Paladin ruling in allowing a lawsuit to proceed against director Oliver Stone and his film ‘Natural Born Killers.’ The suit was brought by the family of a convenience store clerk who was shot and paralyzed.

    ‘We have categories of speech that are not protected,’ Corn-Revere said.
    ‘But when you expand those categories, you open the door’ for
    limitations on what should be constitutionally protected speech.