PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
VIVIAN RICE, Guardian and next friend of Tamielle Horn; MARILYN FARMER, Co-personal representatives of the estate of Mildred Horn; TIFFANI M. HORN, Co-personal representatives of the estate of Mildred Horn; MICHAEL D. SAUNDERS, Individually and next friend of Colin D. Saunders, a minor and personal representative of the estate of Janice Y. Saunders; COLIN D. SAUNDERS; JANICE Y. SAUNDERS, Plaintiffs-Appellants,
v. No. 96-2412 THE PALADIN ENTERPRISES, INCORPORATED, a/k/a The Paladin Press, Defendant-Appellee,
and
PETER C. LUND, Defendant.
DAVID CRUMP, Professor of Constitutional Law and Recipient of "Friend of the First Amendment" Award; NATIONAL VICTIM CENTER; STEPHANIE ROPER FOUNDATION, INCORPORATED; VICTIMS RIGHTS POLITICAL ACTION COMMITTEE; THE
HORROR WRITERS ASSOCIATION; THE THOMAS JEFFERSON CENTER FOR THE PROTECTION OF FREE EXPRESSION; AMERICAN CIVIL LIBERTIES UNION FOUNDATION; AMERICAN CIVIL LIBERTIES UNION OF THE NATIONAL CAPITOL AREA; AMERICAN CIVIL LIBERTIES UNION OF COLORADO; ABC, INCORPORATED; AMERICA ONLINE, INCORPORATED; ASSOCIATION OF AMERICAN PUBLISHERS; THE BALTIMORE SUN COMPANY; E.W. SCRIPPS COMPANY; FREEDOM TO READ FOUNDATION; MAGAZINE PUBLISHERS OF AMERICA, INCORPORATED; MCCLATCHY NEWSPAPERS, INCORPORATED; MEDIA GENERAL, INC.; MEDIA PROFESSIONAL INSURANCE; NATIONAL ASSOCIATION OF BROADCASTERS; NEWSPAPERS ASSOCIATION OF AMERICA; THE NEW YORK TIMES; THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS; SOCIETY OF PROFESSIONAL JOURNALISTS; THE WASHINGTON POST, Amici Curiae.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Alexander Williams, Jr., District Judge. (CA-95-3811-AW)
Argued: May 7, 1997
Decided: November 10, 1997
Before WILKINS, LUTTIG, and WILLIAMS, Circuit Judges.
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COUNSELARGUED: Rodney Alan Smolla, Marshall-Wythe School of Law, COLLEGE OF WILLIAM & MARY, Williamsburg, Virginia, for Appellants. Thomas Buchan Kelley, FAEGRE & BENSON, L.L.P., Denver, Colorado, for Appellee. ON BRIEF: John Marshall, MOL- DAWER & MARSHALL, Rockville, Maryland; Howard Siegel, Rockville, Maryland; Thomas L. Heeney, HEENEY, ARMSTRONG & HEENEY, Rockville, Maryland, for Appellants. Steven D. Zans- berg, FAEGRE & BENSON, L.L.P., Denver, Colorado; Lee Levine, Seth D. Berlin, LEVINE, PIERSON, SULLIVAN & KOCH, L.L.P., Washington, D.C., for Appellee. David Crump, UNIVERSITY OF HOUSTON LAW CENTER, Houston, Texas, for Amicus Curiae Crump. Neal Goldfarb, D. Thomas Nelson, Russell Butler, Charles G. Brown, INGERSOLL & BLOCH, Washington, D.C., for Amici Curiae National Victim Center, et al. Douglas E. Winter, BRYAN CAVE, L.L.P., Washington, D.C., for Amicus Curiae Horror Writers Association. Robert M. O'Neil, J. Joshua Wheeler, THE THOMAS JEFFERSON CENTER FOR THE PROTECTION OF FREE EXPRESSION, Charlottesville, Virginia; Dwight H. Sullivan, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND, Baltimore, Maryland; Arthur Spitzer, AMERICAN CIVIL LIBERTIES UNION OF THE NATIONAL CAPITAL AREA, Washington, D.C.; Mark Silverstein, AMERICAN CIVIL LIBERTIES UNION OF COLORADO, Denver, Colorado, for Amici Curiae Thomas Jefferson Center, et al. Bruce W. Sanford, Henry S. Hoberman, Michael J. Lorenger, BAKER & HOSTETLER, L.L.P., College Park, Maryland, for Amici Curiae ABC, et al.
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OPINIONLUTTIG, Circuit Judge:
To Those Who Think, To Those Who Do, To Those Who Succeed.
Success is nothing more than taking advantage of an opportunity.
A WOMAN RECENTLY ASKED HOW I could, in good conscience, write an instruction book on murder.
"How can you live with yourself if someone uses what you write to go out and take a human life?" she whined.
I am afraid she was quite offended by my answer.
It is my opinion that the professional hit man fills a need in society and is, at times, the only alternative for "personal" justice. Moreover, if my advice and the proven methods in this book are followed, cer- tainly no one will ever know.
[A]lmost every man harbors a fantasy of living the life of Mack Bolan or some other fictional hero who kills for fun and profit. They dream of living by their reflexes, of doing whatever is necessary with- out regard to moral or legal restrictions. But few have the courage or knowledge to make that dream a reality.
You might be like my friends -- interested but unsure, standing on the sidelines afraid to play the game because you don't know the rules. [But] within the pages of this book you will learn one of the most successful methods of operation used by an independent con- tractor. You will follow the procedures of a man who works alone, without backing of organized crime or on a personal vendetta. Step by step you will be taken from research to equipment selection to job preparation to successful job completion. You will learn where to find employment, how much to charge, and what you can, and cannot, do with the money you earn.
But deny your urge to skip about, looking for the "good" parts. Start where any amateur who is serious about turning professional will start -- at the beginning.
[And when] [y]ou've read all the suggested material, you [will have] honed your mind, body and reflexes into a precision piece of
professional machinery. You [will have] assembled the necessary tools and learned to use them efficiently. Your knowledge of dealing death [will have] increased to the point where you have a choice of methods. Finally, you [will be] confident and competent enough to accept employment.
[When you go to commit the murder, you will need] several (at least four or five pairs) of flesh-tone, tight-fitting surgical gloves. If these are not available, rubber gloves can be purchased at a reason- able price in the prescription department of most drug stores in boxes of 100. You will wear the gloves when you assemble and disassemble your weapons as well as on the actual job. Because the metal gun parts cause the rubber to wear quickly, it is a good practice to change and dispose of worn gloves several times during each operation.
[The bag you take to the kill also] should contain a few pairs of cheap handcuffs, usually available at pawn shops or army surplus stores.
Dress, as well as disguises, should be coordinated according to the job setting.
Black, dark brown or olive green clothes do not stand out and will probably appear at first glance to be a mechanic or delivery driver's uniform. . . . And underneath, you can wear your street clothes for a quick change after the job is completed.
The kill is the easiest part of the job. People kill one another every day. It takes no great effort to pull a trigger or plunge a knife. It is being able to do so in a manner that will not link yourself or your employer to the crime that makes you a professional.
[If you decide to kill your victim with a knife,] [t]he knife . . . should have a six-inch blade with a serrated edge for making effi- cient, quiet kills.
The knife should have a double-edged blade. This double edge, combined with the serrated section and six-inch length, will insure a deep, ragged tear, and the wound will be difficult, if not impossible, to close without prompt medical attention.
Make your thrusts to a vital organ and twist the knife before you withdraw it. If you hit bone, you will have to file the blade to remove the marks left on the metal when it struck the victim's bone.
Using your six inch, serrated blade knife, stab deeply into the side of the victim's neck and push the knife forward in a forceful move- ment. This method will half decapitate the victim, cutting both his main arteries and wind pipe, ensuring immediate death.
[You might also use an ice pick to murder your victim.] . . . An ice pick can . . . be driven into the victim's brain, through the ear, after he has been subdued. The wound hardly bleeds at all, and death is sometimes attributed to natural causes.
[If you plan to kill your victim with a gun,] you will learn [on the following pages] how to make, without need of special engineering ability or expensive machine shop tools, a silencer of the highest quality and effectiveness. The finished product attached to your 22 will be no louder than the noise made by a pellet gun. Because it is so inexpensive (mine cost less than twenty dollars to make), you can easily dispose of it after job use without any great loss. . . . Your first silencer will require possibly two days total to assemble . . . as you carefully follow the directions step by step. After you make a couple, it will become so easy, so routine, that you can whip one up in just a few hours.
The following items should be assembled before you begin [to build your silencer]:
- Drill rod, 7/32 inch (order from a machine shop if not obtainable locally)
- One foot of 1-1/2 inch (inside diameter) PVC tubing and two end caps
- One quart of fiberglass resin with hardener
- One yard thin fiberglass mat
[List continues]
[If you plan to kill your victim with a gun,][c]lose kills are by far preferred to shots fired over a long distance. You will need to know beyond any doubt that the desired result has been achieved.
When using a small caliber weapon like the 22, it is best to shoot from a distance of three to six feet. You will not want to be at point- blank range to avoid having the victim's blood splatter you or your clothing. At least three shots should be fired to ensure quick and sure death.
[If you plan to kill your victim from a distance,] use a rifle with a good scope and silencer and aim for the head -- preferably the eye sockets if you are a sharpshooter. Many people have been shot repeatedly, even in the head, and survived to tell about it.
The rifle has a ridge on top that will easily accept a scope, even though it is not cut for one. Put the scope in place, tighten it down, then sight it in. After sighting in, scratch a mark behind each scope clamp to allow remounting of the scope without resighting each time.
Extra clips are a must for both the rifle and pistol and should be carried as a precautionary measure. Hollow-point bullets are recom- mended because they deform on impact, making them nontraceable. As an added precaution, you can fill the hollows with liquid poison to insure success of your operation. . . . [Details follow]
To test your guns and ammunition, set up a sheet of quarter-inch plywood at distances of two to seven yards maximum for your pistol, and twenty to sixty yards maximum for your rifle. Check for penetra- tion of bullets at each range. Quarter-inch plywood is only a little stronger than the human skull.
If the serial number is on the barrel of the gun, grinding deeply enough to remove it may weaken the barrel to the point that the gun could explode in your face when fired. To make these numbers untraceable, [instructions follow].
[After shooting your victim] run a [specified tool] down the bore of the gun to change the ballistic markings. Do this even though you
intend to discard the crime weapon. . . . If, for some reason, you just can't bear to part with your weapon . . . alter the[specified parts of the gun according to the directions that follow].
Although several shots fired in succession offer quick and rela- tively humane death to the victim, there are instances when other methods of extermination are called for. The employer may want you to gather certain information from the mark before you do away with him. At other times, the assignment may call for torture or disfigure- ment as a "lesson" for the survivors.
There is no end to the various ways of torturing a mark until he would tell you what you want to know, and die just to get it over. Sometimes all it takes is putting a knife to his throat. Not from behind with the blade across the throat the way they do in the movies, but from the front with the tip of the blade creasing the soft hollow of the throat, where the victim can see the gleaming steel and realizes what damage it would do if fully penetrated.
The only time I can think of that explosives might be in order is when several marks will be together in one place at the same time, and you might be able to get them all with one shot. Notice that I stressed the word might . Shrapnel doesn't always kill. So in the after- math, it will be your responsibility to enter the area and make sure that the desired result was accomplished.
[If you plan to kill your victim with a fertilizer bomb,] purchase a fifty pound bag of regular garden fertilizer from your garden center [and follow these detailed instructions for constructing the bomb]. Extend the fuse and light . . . .
Arson is a good method for covering a kill or creating an "acci- dent."
Don't ever use gasoline or other traceable materials to start your fire. [Specified substance] is your best starter because it burns away all traces.
[In order to dispose of a corpse,] you can simply cut off the head after burying the body. Take the head to some deserted location,
place a stick of dynamite in the mouth, and blow the telltale dentition to smithereens! After this, authorities can't use the victim's dental records to identify his remains. As the body decomposes, fingerprints will disappear and no real evidence will be left from which to make positive identification. You can even clip off the fingertips and bury them separately.
[Or] you can always cut the body into sections and pack it into an ice chest for transport and disposal at various spots around the coun- tryside.
If you choose to sink the corpse, you must first make several deep stabs into the body's lungs (from just under the rib cage) and belly. This is necessary because gases released during decomposition will bloat these organs, causing the body to rise to the surface of the water.
The corpse should be weighted with the standard concrete blocks, but it must be wrapped from head to toe with heavy chain as well, to keep the body from separating and floating in chunks to the surface. After the fishes and natural elements have done their work, the chain will drag the bones into the muddy sediment. . . .
If you bury the body, again deep stab wounds should be made to allow the gases to escape. A bloating corpse will push the earth up as it swells. Pour in lime to prevent the horrible odor of decomposi- tion, and lye to make that decomposition more rapid.
[After you killed your first victim,] you felt absolutely nothing. And you are shocked by the nothingness. You had expected this moment to be a spectacular point in your life. You had wondered if you would feel compassion for the victim, immediate guilt, or even experience direct intervention by the hand of God. But you weren't even feeling sickened by the sight of the body.
After you have arrived home the events that took place take on a dreamlike quality. You don't dwell on them. You don't worry. You don't have nightmares. You don't fear ghosts. When thoughts of the hit go through your mind, it's almost as though you are recalling some show you saw on television.
By the time you collect the balance of your contract fee, the doubts and fears of discovery have faded. Those feelings have been replaced by cockiness, a feeling of superiority, a new independence and self- assurance.
[E]verything seems to have changed.
The people around you have suddenly become so aggravatingly ordinary. You start to view them as an irritating herd of pathetic sheep, doing as they are told, doing what is expected, following some- one, anyone, blindly. You can't believe how dumb your friends have become, and your respect diminishes for people you once held in awe.
You too have become different. You recognize that you made some mistakes, but you know what they were, and they will never plague you again. Next time (and you know there will be a next time), there will be no hesitation, no fear.
Your experience in facing death head-on has taught you about life. You have the power and ability to stand alone. You no longer need a reason to kill.
The things you have learned about life are important. You may wish to pass on your observations to someone you care about. When the bullshit starts to flow, you may feel compelled to set the record straight and tell those morons how it really is. When someone starts to brag, in confidence, about something he's done, the intimacy of the moment, the shared confessions, may inspire you to do a little brag- ging of your own. Or you may want to overawe some new woman in your life with your masculinity and you feel the urge to shock her just a little by hinting at your true profession.
Start now in learning to control your ego. That means, above all, keeping your mouth shut! You are a man. Without a doubt, you have proved it. You have come face to face with death and emerged the vic- tor through your cunning and expertise. You have dealt death as a professional. You don't need any second or third opinions to verify your manhood.
Then, some day, when you've done and seen it all; when there doesn't seem to be any challenge left or any new frontier left to con- quer, you might just feel cocky enough to write a book about it.
Selected passages from Hit Man: A Technical Manual for Indepen- dent Contractors . 1
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 subse- quently found in his apartment, James Perry brutally murdered Mil- dred 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 solicita- tion 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. State v. Perry , 344 Md. 204, 686 A.2d 274, 278 (1996), cert . denied , 117 S. Ct. 1318 (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 man- ual 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 con- cealing 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 mur- ders, 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 bur- glary 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 Mil- dred 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 Pal- adin Enterprises -- the publisher of Hit Man -- the relatives and rep- resentatives 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 civ- illy 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 com- plete 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 judg- ment 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 plain- tiffs' 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 appli- cable to speech that constitutes civil aiding and abetting of criminal conduct (at least where, as here, the defendant has the specific pur- pose 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 Mary- land law sufficient to withstand Paladin's motion for summary judg- ment. 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 (1969), the Supreme Court held that abstract advocacy of lawlessness is pro- tected speech under the First Amendment. Although the Court pro- vided 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 impas- sioned terms the most passionate disagreement with the laws them- selves, 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 legiti- mately 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 (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 free- dom 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 speak- ing 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, evi- denced, 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 agree- ments in restraint of trade as well as many other agreements and conspiracies deemed injurious to society.
336 U.S. 490, 498 , 502 (1949) (citations omitted). And as the Court more recently reaffirmed:
Although agreements to engage in illegal conduct undoubt- edly 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 con- stitutional 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 (1982); see also Osborne v. Ohio , 495 U.S. 103, 110 (1990) (quoting Giboney , 336 U.S. at 498 ); New York v. Ferber , 458 U.S. 747, 761-62 (1982) (same); Ohralik v. Ohio State Bar Ass'n , 436 U.S. 447, 456 (1978) (quoting Giboney , 336 U.S. at 502 ); 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 illegal- ity."); 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 Con- stitutional Law 837 (2d ed. 1988) ("[T]he law need not treat differ- ently 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 (Douglas, J., concurring), the government would be powerless to pro- tect the public from countless of even the most pernicious criminal acts and civil wrongs. See , e.g. , Model Penal Code § 223.4 (extortion or blackmail); id . § 240.2 (threats and other improper influences in official and political matters); id . § 241 (perjury and various cognate crimes); id . § 5.02 and § 2.06(3)(a)(i) (criminal solicitation); 18 U.S.C. § 871 (threatening the life of the President); Model Penal Code § 5.03 (conspiracy); id . § 250.4(harassment); id . § 224.1 (forgery); id . § 210.5(2) (successfully soliciting another to commit suicide); id . § 250.3 (false public alarms); and the like. As Professor Greenawalt succinctly summarized:
The reasons of ordinary penal policy for covering com- municative efforts to carry out ordinary crimes are obvious, and the criminal law sensibly draws no distinction between communicative and other acts. Although assertions of fact generally fall within a principle of freedom of speech, what these sorts of factual statements contribute to the general understanding of listeners is minimal, and the justifications for free speech that apply to speakers do not reach commu- nications that are simply means to get a crime successfully committed.
Greenawalt, Speech, Crime, and the Uses of Language at 85 (1989).
In particular as it concerns the instant case, the speech-act doctrine has long been invoked to sustain convictions for aiding and abetting the commission of criminal offenses. Indeed, every court that has addressed the issue, including this court, has held that the First Amendment does not necessarily pose a bar to liability for aiding and abetting a crime, even when such aiding and abetting takes the form of the spoken or written word.
Thus, in a case indistinguishable in principle from that before us, the Ninth Circuit expressly held in United States v. Barnett , 667 F.2d 835 (9th Cir. 1982), that the First Amendment does not provide pub- lishers a defense as a matter of law to charges of aiding and abetting a crime through the publication and distribution of instructions on how to make illegal drugs. In rejecting the publisher's argument that there could be no probable cause to believe that a crime had been committed because its actions were shielded by the First Amendment, and thus a fortiori there was no probable cause to support the search pursuant to which the drug manufacturing instructions were found, the Court of Appeals explicitly foreclosed a First Amendment defense not only to the search itself, but also to a later prosecution:
To the extent . . . that Barnett appears to contend that he is immune from search or prosecution because he uses the printed word in encouraging and counseling others in the commission of a crime, we hold expressly that the first amendment does not provide a defense as a matter of law to such conduct.
Id . at 843 (emphasis in original); see also id . at 842 ("The first amendment does not provide a defense to a criminal charge simply because the actor uses words to carry out his illegal purpose. Crimes, including that of aiding and abetting, frequently involve the use of speech as part of the criminal transaction."). The Ninth Circuit derided as a "specious syllogism" with "no support in the law" the publisher's argument that the First Amendment protected his sale of the instruction manual simply because the First Amendment protects the written word. Id . at 842.
The principle of Barnett , that the provision of instructions that aid and abet another in the commission of a criminal offense is unpro- tected by the First Amendment, has been uniformly accepted, and the principle has been applied to the aiding and abetting of innumerable crimes. Notably, then-Judge Kennedy, in express reliance upon Barnett , invoked the principle in United States v. Freeman to sustain convic- tions for the aiding and abetting of tax fraud. 761 F.2d 549, 552-53 (9th Cir. 1985), cert . denied , 476 U.S. 1120 (1986). In Freeman , the Ninth Circuit concluded that the defendant could be held criminally liable for counseling tax evasion at seminars held in protest of the tax laws, even though the speech that served as the predicate for the con- viction "spr[ang] from the anterior motive to effect political or social change." 761 F.2d at 551. Said the court:
[T]he First Amendment is quite irrelevant if the intent of the actor and the objective meaning of the words used are so close in time and purpose to a substantive evil as to become part of the ultimate crime itself. In those instances, where speech becomes an integral part of the crime, a First Amendment defense is foreclosed even if the prosecution rests on words alone.
Id . at 552 (citations omitted). Thus, the court held that a First Amend- ment instruction was required only for those counts as to which there was evidence that the speaker "directed his comments at the unfair- ness of the tax laws generally, without soliciting or counseling a vio- lation of the law in an immediate sense [and] made statements that, at least arguably, were of abstract generality, remote from advice to commit a specific criminal act." Id . at 551-52. For those counts as to which the defendant, through his speech, directly assisted in the prep- aration and review of false tax returns, the court held that the defen- dant was not entitled to a First Amendment instruction at all. Id . at 552. See also United States v. Mendelsohn , 896 F.2d 1183, 1186 (9th Cir. 1990) (holding Brandenburg inapplicable to a conviction for con- spiring to transport and aiding and abetting the interstate transporta- tion of wagering paraphernalia, where defendants disseminated a computer program that assisted others to record and analyze bets on sporting events; program was "too instrumental in and intertwined with the performance of criminal activity to retain first amendment protection").
Our own circuit, and every other circuit to address the issue, has likewise concluded that the First Amendment is generally inapplica- ble to charges of aiding and abetting violations of the tax laws. See , e.g. , United States v. Kelley , 769 F.2d 215 (4th Cir. 1985); United States v. Rowlee , 899 F.2d 1275 (2d Cir. 1990), cert . denied , 498 U.S. 828 (1990); United States v. Moss , 604 F.2d 569 (8th Cir. 1979), cert . denied , 444 U.S. 1071 (1980); United States v. Buttorff , 572 F.2d 619, 623-24 (8th Cir. 1978) (holding that tax evasion speeches were not subject to Brandenburg because, although they did not "incite the type of imminent lawless activity referred to in criminal syndicalism cases," they did "go beyond mere advocacy of tax reform"), cert . denied , 437 U.S. 906 (1978).
Thus, in Kelley , we held that a defendant who "participate[d]" in the preparation of false tax forms for others by telling listeners "what to do and how to prepare the forms" and by supplying forms and materials was not entitled to the protections of the First Amendment, 769 F.2d at 217, even though the defendant offered his advice in a meeting of a group concededly dedicated to the political belief "that the federal income tax is unconstitutional as applied to wages," id . at 216. We observed, as the Ninth Circuit did with respect to the claim made in Barnett , that,
[t]he claim of First Amendment protection of [Kelley's] speech is frivolous. His was no abstract criticism of income tax laws. His listeners were not urged to seek congressional action to exempt wages from income taxation. Instead, they were urged to file false returns, with every expectation that the advice would be heeded.
The cloak of the First Amendment envelops critical, but abstract, discussions of existing laws, but lends no protec- tion to speech which urges the listeners to commit violations of current law. Brandenburg v. Ohio , 395 U.S. 444 , 89 S. Ct. 1827; United States v. Buttorff , 572 F.2d 619 (8th Cir. 1978). It was no theoretical discussion of non-compliance with laws; action was urged; the advice was heeded, and false forms were filed.
Kelley , 769 F.2d at 217. Analogously, we held in United States v. Fleschner , 98 F.3d 155 (4th Cir. 1996), cert . denied , 117 S. Ct. 2484 (1997), that defendants who instructed and advised meeting attendees to file unlawful tax returns were not entitled to a First Amendment jury instruction on the charge of conspiracy to defraud the United States of income tax revenue because "[t]he defendants' words and acts were not remote from the commission of the criminal acts." 98 F.3d at 158-59.
Indeed, as the Department of Justice recently advised Congress, the law is now well established that the First Amendment, and Brandenburg 's "imminence" requirement in particular, generally poses little obstacle to the punishment of speech that constitutes crim- inal aiding and abetting, because "culpability in such cases is prem- ised, not on defendants' `advocacy' of criminal conduct, but on defendants' successful efforts to assist others by detailing to them the means of accomplishing the crimes." Department of Justice, "Report on the Availability of Bombmaking Information, the Extent to Which Its Dissemination is Controlled by Federal Law, and the Extent to Which Such Dissemination May Be Subject to Regulation Consistent with the First Amendment to the United States Constitution" 37 (April 1997) (footnote omitted) [ hereinafter "DOJ Report"]; see also id . ("[T]he question of whether criminal conduct is `imminent' is rele- vant for constitutional purposes only where, as in Brandenburg itself, the government attempts to restrict advocacy, as such."). 3 And, while there is considerably less authority on the subject, we assume that those speech acts which the government may criminally prosecute with little or no concern for the First Amendment, the government may likewise subject to civil penalty or make subject to private causes of action. Compare Garrison v. Louisiana , 379 U.S. 64 (1964) (applying the same "actual malice" standard to both criminal libel prosecutions and private defamation actions) with New York Times Co. v. Sullivan , 376 U.S. 254 (1964). Cf . Cohen , 501 U.S. 663 (find- ing in civil promissory estoppel case that First Amendment does not bar liability for newspaper's publication of confidential source's name); Zacchini v. Scripps-Howard Broadcasting Co. , 433 U.S. 562 (1977) (First Amendment does not bar liability for common law tort of unlawful appropriation of "right to publicity" where television sta- tion broadcast "human cannonball" act in its entirety without plain- tiff's authorization); Harper & Row, Publishers, Inc. v. Nation Enterprises , 471 U.S. 539 (1985) (rejecting First Amendment defense to copyright infringement action against magazine for printing unau- thorized presidential memoir excerpts). Even if this is not universally so, we believe it must be true at least where the government's interest in preventing the particular conduct at issue is incontrovertibly com- pelling.
B.
We can envision only two possible qualifications to these general rules, neither of which, for reasons that we discuss more extensively below, is of special moment in the context of the particular aiding and abetting case before us.
1.
The first, which obviously would have practical import principally in the civil context, is that the First Amendment may, at least in cer- tain circumstances, superimpose upon the speech-act doctrine a heightened intent requirement in order that preeminent values under- lying that constitutional provision not be imperiled. See , e.g. , New York Times , 376 U.S. 254 ; cf . United States v. Aguilar , 515 U.S. 593, 605 (1995) (rejecting defendant's First Amendment construction in part because "the statute here in question does not impose such a restriction [on the disclosure of wiretap authorizations] generally, but only upon those who disclose wiretap information` in order to [ob]struct, impede, or prevent' a wiretap interception" (emphasis added)); Haig v. Agee , 453 U.S. 280, 308-09 (1981) ("[The defen- dant's] disclosures, among other things, have the declared purpose of obstructing intelligence operations and the recruiting of intelligence personnel. They are clearly not protected by the Constitution." (emphasis added)); United States v. Featherston , 461 F.2d 1119, 1122 (5th Cir. 1972) (rejecting First Amendment challenge to federal stat- ute criminalizing the teaching or demonstration of the making of any explosive device after construing statute to require"intent or knowl- edge that the information disseminated would be used in the further- ance of a civil disorder"), cert . denied , 409 U.S. 991 (1972); National Mobilization Committee to End the War in Viet Nam v. Foran , 411 F.2d 934, 937 (7th Cir. 1969). That is, in order to prevent the punish- ment or even the chilling of entirely innocent, lawfully useful speech, the First Amendment may in some contexts stand as a bar to the imposition of liability on the basis of mere foreseeability or knowl- edge that the information one imparts could be misused for an imper- missible purpose. Where it is necessary, such a limitation would meet the quite legitimate, if not compelling, concern of those who publish, broadcast, or distribute to large, undifferentiated audiences, that the exposure to suit under lesser standards would be intolerable. See dis- cussion infra , Part IV. At the same time, it would not relieve from lia- bility those who would, for profit or other motive, intentionally assist and encourage crime and then shamelessly seek refuge in the sanctu- ary of the First Amendment. Like our sister circuits, at the very least where a speaker -- individual or media -- acts with the purpose of assisting in the commission of crime, we do not believe that the First Amendment insulates that speaker from responsibility for his actions simply because he may have disseminated his message to a wide audience. See , e.g. , Barnett , 667 F.2d 835 (holding that drug manu- facturing instructions mailed to countless customers with whom the defendant had no personal contact could give rise to aiding and abet- ting conviction); Mendelsohn , 896 F.2d 1183 (holding that First Amendment did not forbid prosecution of aiding and abetting inter- state transportation of wagering paraphernalia where computer pro- grams for recording and analyzing illegal wagers were distributed generally and widely to the public); Buttorff , 572 F.2d at 622-23 (affirming, despite First Amendment challenges, convictions for pro- viding tax-evasion information at "large public gatherings" to partici- pants whom the defendants did not personally meet); Kelley , 769 F.2d 215 (similar); Moss , 604 F.2d 569 (similar); Freeman , 761 F.2d 549 (similar). This is certainly so, we are satisfied, where not only the speaker's dissemination or marketing strategy, but the nature of the speech itself, strongly suggest that the audience both targeted and actually reached is, in actuality, very narrowly confined, as in the case before us. See discussion infra at 38-44. Were the First Amendment to offer protection even in these circumstances, one could publish, by traditional means or even on the internet, the necessary plans and instructions for assassinating the President, for poisoning a city's water supply, for blowing up a skyscraper or public building, or for similar acts of terror and mass destruction, with the specific, indeed even the admitted, purpose of assisting such crimes-- all with impu- nity.
We need not engage in an extended discussion of the existence or scope of an intent-based limitation today, however, because we are confident that the First Amendment poses no bar to the imposition of civil (or criminal) liability for speech acts which the plaintiff (or the prosecution) can establish were undertaken with specific, if not crimi- nal, intent. See DOJ Report at 42-43 (advising that "the government may punish publication of dangerous instructional information where that publication is motivated by a desire to facilitate the unlawful [conduct as to which the instructions inform, or] [a]t the very least, publication with such an improper intent should not be constitution- ally protected where it is foreseeable that the publication will be used for criminal purposes . . . ."). In fact, this conclusion would seem to follow a fortiori from the Supreme Court's holding in New York Times , 376 U.S. 254 , allowing the imposition of civil tort liability on a media defendant for reputational injury caused by mere reckless dis- regard of the truth of its published statements. And, here, as previ- ously noted, see also discussion infra at 36-38, Paladin has stipulated that it provided its assistance to Perry with both the knowledge and the intent that the book would immediately be used by criminals and would-be criminals in the solicitation, planning, and commission of murder and murder for hire, and even absent the stipulations, a jury could reasonably find such specific intent, see discussion infra at 38- 42. Thus, Paladin has stipulated to an intent, and a jury could other- wise reasonably find that Paladin acted with a kind and degree of intent, that would satisfy any heightened standard that might be required by the First Amendment prerequisite to the imposition of lia- bility for aiding and abetting through speech conduct. 4
2.
The second qualification is that the First Amendment might well (and presumably would) interpose the same or similar limitations upon the imposition of civil liability for abstract advocacy, without more, that it interposes upon the imposition of criminal punishment for such advocacy. In other words, the First Amendment might well circumscribe the power of the state to create and enforce a cause of action that would permit the imposition of civil liability, such as aid- ing and abetting civil liability, for speech that would constitute pure abstract advocacy, at least if that speech were not"directed to inciting or producing imminent lawless action, and . . . likely to incite or pro- duce such action." Brandenburg , 395 U.S. at 447 . The instances in which such advocacy might give rise to civil liability under state stat- ute would seem rare, but they are not inconceivable. Cf . Schenck v. United States , 249 U.S. 47 (1919) (criminal conspiracy prosecution predicated upon subversive advocacy); Frohwerk v. United States , 249 U.S. 204 (1919) (same); Debs v. United States , 249 U.S. 211 (1919) (criminal attempt prosecution predicated upon such advocacy). Again, however, an exhaustive analysis of this likely limitation is not required in this case.
Here, it is alleged, and a jury could reasonably find, see discussion infra Part III.A, that Paladin aided and abetted the murders at issue through the quintessential speech act of providing step-by-step instructions for murder (replete with photographs, diagrams, and nar- ration) so comprehensive and detailed that it is as if the instructor were literally present with the would-be murderer not only in the preparation and planning, but in the actual commission of, and follow-up to, the murder; there is not even a hint that the aid was pro- vided in the form of speech that might constitute abstract advocacy. As the district court itself concluded, Hit Man "merely teaches what must be done to implement a professional hit." J.A. at 218. Moreover, although we do not believe such would be necessary, we are satisfied a jury could readily find that the provided instructions not only have no, or virtually no, noninstructional communicative value, but also that their only instructional communicative "value" is the indisputably illegitimate one of training persons how to murder and to engage in the business of murder for hire. See id .; see also id . at 221 ("This Court, quite candidly, personally finds Hit Man "to be reprehensible and devoid of any significant redeeming social value").
Aid and assistance in the form of this kind of speech bears no resemblance to the "theoretical advocacy," Scales v. United States , 367 U.S. 203, 235 (1961), the advocacy of "principles divorced from action," Yates v. United States , 354 U.S. 298, 320 (1957), overruled on other grounds , Burks v. United States , 437 U.S. 1 (1978), the "doctrinal justification," id . at 321,"the mere abstract teaching [of] the moral propriety or even moral necessity for a resort to force and violence," Brandenburg , 395 U.S. at 448 ( quoting Noto v. United States , 367 U.S. 290, 297-98 (1961)), or any of the other forms of dis- course critical of government, its policies, and its leaders, which have always animated, and to this day continue to animate, the First Amendment. Indeed, this detailed, focused instructional assistance to those contemplating or in the throes of planning murder is the antithe- sis of speech protected under Brandenburg . It is the teaching of the "techniques" of violence, Scales , 367 U.S. at 233 , the "advocacy and teaching of concrete action," Yates , 354 U.S. at 320 , the "prepar[a- tion] . . . for violent action and [the] steeling . . . to such action," Brandenburg , 395 U.S. at 448 ( quoting Noto , 367 U.S. at 297 -98). It is the instruction in the methods of terror of which Justice Douglas spoke in Dennis v. United States , when he said, "If this were a case where those who claimed protection under the First Amendment were teaching the techniques of sabotage . . . I would have no doubts. The freedom to speak is not absolute; the teaching of methods of terror . . . should be beyond the pale . . . ." 341 U.S. 494, 581 (1951) (Douglas, J., dissenting). As such, the murder instructions in Hit Man are, col- lectively, 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. If, as precedent uniformly confirms, the states have the power to regulate speech that aids and abets crime, then certainly they have the power to regulate the speech at issue here.
III.
The district court's contrary conclusion, reached in an initial and then an amended opinion, must be attributed ultimately, we believe, to that court's failure at the time of its initial ruling to realize that Maryland does recognize a civil cause of action for aiding and abet- ting. Once the court's error with respect to the existence in Maryland of a civil aiding and abetting cause of action was brought to the court's attention by the parties on motion for reconsideration, it appears that the court was simply unprepared to revisit its decision, issued only the week before, in order to address the above-discussed cases, which the district court itself had observed are "factually simi- lar" to the case at hand, J.A. at 156, but which the court had distin- guished on the ground that they involved criminal prosecutions for aiding and abetting and Maryland does not provide a civil cause of action for aiding and abetting. J.A. at 155 ("Plaintiffs are asking the Court to allow the Defendants to be subjected to civil liability for murder, based on a theory of civil aiding and abetting - a claim that does not exist under Maryland law ." (emphases added)). Perhaps ironically, this unwillingness foreordained what was, as we explain below, the district court's second error in the interpretation of Mary- land law -- its holding, on reconsideration, that Maryland would not recognize aiding and abetting liability under the facts as stipulated by the parties to this litigation, or on the facts as they appear from the record.
Whatever doubts the district court may have harbored about its interpretation of Maryland aiding and abetting law were almost cer- tainly eased because it concluded alternatively (albeit in dicta ) that Hit Man is entitled to the protections of Brandenburg in any event because it is a mere instructional manual for, and not an incitement to, murder. However, in this conclusion the district court erred as well, misunderstanding the Supreme Court's decision in Brandenburg to protect not just abstract advocacy of lawlessness and the open criti- cism of government and its institutions, but also the teaching of the technical methods of criminal activity -- in this case, the technical methods of murder.
A.
In its initial memorandum opinion, the district court rejected the plaintiffs' principal argument, that the First Amendment does not bar the imposition of liability for the aiding and abetting of murder, on the ground that the State of Maryland does not recognize a civil cause of action for aiding and abetting:
Plaintiffs argue that Hit Man is not protected by the First Amendment because the First Amendment does not protect communication aiding and abetting murder. This argument must fail, however, because Plaintiffs do not cite, nor has the Court located, any reported decision that suggests that Maryland recognizes the tort of aiding and abetting. A fed- eral court sitting in diversity cannot create new causes of action. Therefore, the Court cannot create a cause of action for aiding and abetting under Maryland law . . . .
J.A. at 153-54 (footnote and citations omitted). In response to submis- sions by both parties filed the very next day informing the court that Maryland does recognize civil aiding and abetting, the district court was obliged to amend its memorandum opinion to acknowledge the overwhelming authority that Maryland does, in fact, recognize such a cause of action. However, rather than address then the numerous precedents holding that the First Amendment offers little protection against claims of aiding and abetting criminal conduct, which in its initial opinion the court had agreed were similar to the instant case, the district court thereafter merely added to its original memorandum opinion the single conclusory footnote sentence (together with the necessary conforming changes to the relevant paragraph from its ini- tial opinion 5 ) that, "[a]lthough Maryland appears to recognize aider and abetter tort liability, it has never been applied to support liability in this context." J.A. at 205 n.2 (internal citation deleted). 6 In this holding, as with its original holding that Maryland did not recognize a cause of action for civil aiding and abetting, the district court erred.
Maryland's highest court has held that a defendant may be liable in tort if he "by any means (words, signs, or motions) encourage[s], incite[s], aid[s] or abet[s] the act of the direct perpetrator of the tort." Alleco Inc. v. Harry & Jeanette Weinberg Foundation , 340 Md. 176, 665 A.2d 1038, 1049 (1995) ( quoting Duke v. Feldman , 245 Md. 454, 226 A.2d 345, 347 (1967)). It further appears that generally Maryland defines the tort of aiding and abetting in the same way that it defines the crime of aiding and abetting. The state defines"aider" as one who "assist[s], support[s] or supplement[s] the efforts of another," and defines "abettor" as "one who instigates, advises or encourages the commission of a crime." Anello v. State , 201 Md. 164, 93 A.2d 71, 72-73 (Md. 1952). The Court of Appeals has explained that in order for a conviction to stand, "it is not essential that there be a prear- ranged concert of action, although, in the absence of such action, it is essential that [the defendant] should in some way advocate or encourage the commission of the crime." Id . And, recently, the court has reiterated that criminal aiding and abetting"may be predicated upon counseling or encouraging" a criminal act, even if there is no agreement between the principal and the aider or abettor, and also that "[i]t is well settled that aiding and abetting does not always require a conspiracy." Apostoledes v. State , 323 Md. 456, 593 A.2d 1117, 1121 (1991).
The primary, and possibly only, difference between Maryland's civil and criminal laws of aiding and abetting is the intent require- ment. As Judge Learned Hand explained in discussing generally the difference between civil and criminal aiding and abetting laws, the intent standard in the civil tort context requires only that the criminal conduct be the "natural consequence of [one's] original act," whereas criminal intent to aid and abet requires that the defendant have a "pur- posive attitude" toward the commission of the offense. United States v. Peoni , 100 F.2d 401, 402 (2d Cir. 1938); see also Nye & Nissen v. United States , 336 U.S. 613, 619 (1949) (adopting Judge Hand's view of the criminal intent requirement). We assume that Maryland prescribes a higher intent standard for the imposition of criminal lia- bility than it does for civil liability.
Especially in light of the caselaw discussed above, we are satisfied not only that the Maryland courts would conclude that an aiding and abetting cause of action would lie in the circumstances of this case, but also that plaintiffs have, by way of stipulation and otherwise, established a genuine issue of material fact as to each element of that cause of action. Perhaps most importantly in this regard, we conclude that plaintiffs have more than met their burden of establishing a genu- ine issue of material fact as to Paladin's intent, even assuming that the First Amendment erects a heightened standard from that required under Maryland state law.
Paladin itself has stipulated that "Perry followed a number of instructions outlined in Hit Man " in preparing for and in murdering Mildred and Trevor Horn and Janice Saunders. J.A. at 61. In fact, as noted, the publisher has actually stipulated that it assisted Perry in the "perpetration of the murders." Id .
Even without these express stipulations of assistance, however, a reasonable jury could conclude that Paladin assisted Perry in those murders, from the facts that Perry purchased and possessed Hit Man and that the methods and tactics he employed in his murders of Mil- dred and Trevor Horn and Janice Saunders so closely paralleled those prescribed in the book. As discussed above, see discussion supra Part I, Perry followed, in painstaking detail, countless of the book's instructions in soliciting, preparing for, and carrying out his murders. Without repeating these in detail here, Perry faithfully followed the book's instructions in making a home-made silencer, using a rental car with stolen out-of-state tags, murdering the victims in their own home, using an AR-7 rifle to shoot the victims in the eyes from point blank range, and concealing his involvement in the murders. The number and extent of these parallels to the instructions in Hit Man cannot be consigned, as a matter of law, to mere coincidence; the cor- respondence of techniques at least creates a jury issue as to whether the book provided substantial assistance, if it does not conclusively establish such assistance.
A jury likewise could reasonably find that Perry was encouraged in his murderous acts by Paladin's book. Hit Man does not merely detail how to commit murder and murder for hire; through powerful prose in the second person and imperative voice, it encourages its readers in their specific acts of murder. It reassures those contemplat- ing the crime that they may proceed with their plans without fear of either personal failure or punishment. And at every point where the would-be murderer might yield either to reason or to reservations, Hit Man emboldens the killer, confirming not only that he should pro- ceed, but that he must proceed, if he is to establish his manhood. See discussion infra at 54-56. The book is so effectively written that its protagonist seems actually to be present at the planning, commission, and cover-up of the murders the book inspires. Illustrative of the nature and duration of the criminal partnership established between Hit Man and its readers who murder is the following "dialogue" that takes place when the murderer returns from his first killing:
I'm sure your emotions have run full scale over the past few days or weeks.
There was a fleeting moment just before you pulled the trigger when you wondered if lightning would strike you then and there. And afterwards, a short burst of panic as you looked quickly around you to make sure no witnesses were lurking.
But other than that, you felt absolutely nothing . And you are shocked by that nothingness. You had expected this moment to be a spectacular point in your life. . . .
The first few seconds of nothingness give you an almost uncontrollable urge to laugh out loud. You break into a wide grin. Everything you have been taught about life and its value was a fallacy.
Hit Man at 107. As this and other cases reveal, the book is arrestingly effective in the accomplishment of its objectives of counseling others to murder and assisting them in its commission and cover-up. Finally, and significantly, Paladin also has stipulated to an intent that readily satisfies that required under Maryland law or the First Amendment. Even if the First Amendment imposes a heightened intent-based limitation on the state's ability to apply the tort of aiding and abetting to speech, see discussion supra at II.B.1, we are confi- dent that, at the very least, the aiding and abetting of a malum in se crime such as murder with the specific purpose of assisting and encouraging another or others in that crime would satisfy such a limi- tation. Paladin has stipulated not only that it had knowledge that its publication would be used upon receipt by murderers and other crimi- nals in the commission of murder, but that it even intended that the book be so used. Thus, the publisher stipulated,"defendants intended and had knowledge that their publications 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. Paladin has even stipulated that it "engaged in a marketing strategy intended to attract and assist crim- inals and would-be criminals who desire information and instructions on how to commit crimes." Id . These stipulations are more than suffi- cient to foreclose an absolute First Amendment defense to plaintiffs' suit. See DOJ Report at 43 & 44-45 n.71 ("[W]e believe that the dis- trict court in Rice v. Paladin erred insofar as it concluded that Brandenburg bars liability for dissemination of[instructions on mur- der] regardless of the publisher's intent. . . . [Defendant Paladin's] concession[s] would, for purposes of summary judgment, seem to foreclose a constitutional defense . . .").
The district court was never required to consider the intent require- ment under Maryland's law of aiding and abetting, much less whether the First Amendment imposes a heightened intent standard in the con- text of authorizing liability for speech acts, because of its mistaken conclusion that Maryland does not recognize a civil cause of action for aiding and abetting. In analogizing this case to the copycat cases (and seemingly in order to permit the analogy), however, the district court accepted Paladin's post hoc "clarification" that it meant by its stipulation only that it was reasonably foreseeable to the publisher that, once the book was published and publicly available, it would be used by murderers to plan and to commit murder. Thus, in accepting the defendants' belated clarification, the district court said:
Defendants conceded that they intended that their publica- tions would be used by criminals to plan and execute murder as instructed in the manual. . . . However, Defendants clarify their concession by explaining that when they published, advertised and distributed both Hit Man and Silencers , they knew, and in that sense "intended," that the books would be purchased by all of the categories of readers previously described and used by them for the broad range of purposes previously described.
J.A. at 215-16 (citations omitted). Of course, the district court was without authority to allow Paladin to alter the parties' stipulation uni- laterally, particularly given that Paladin was the party moving for summary judgment. If anything, the stipulation should have been, and in any event must now be, interpreted in the light most favorable to the plaintiffs.
Furthermore, even if the stipulation only established knowledge, summary judgment was yet inappropriate because a trier of fact could still conclude that Paladin acted with the requisite intent to support civil liability. Wholly apart from Paladin's stipulations, there are four bases upon which, collectively, if perhaps not individually, a reason- able jury could find that Paladin possessed the intent required under Maryland law, as well as the intent required under any heightened First Amendment standard. Compare DOJ Report, at 45 n.71 ("[E]ven assuming arguendo that the defendants' own construction of the `intent' stipulation were correct, that still would not justify the grant of summary judgment, since it would leave unanswered the question whether Paladin also had the specific purpose of facilitating mur- der.").
First, the declared purpose of Hit Man itself is to facilitate murder. Consistent with its declared purpose, the book is subtitled "A Techni- cal Manual for Independent Contractors," and it unabashedly describes itself as "an instruction book on murder," Hit Man at ix. A jury need not, but plainly could, conclude from such prominent and unequivocal statements of criminal purpose that the publisher who disseminated the book intended to assist in the achievement of that purpose.
Second, the book's extensive, decided, and pointed promotion of murder is highly probative of the publisher's intent, and may be con- sidered as such, whether or not that promotion, standing alone, could serve as the basis for liability consistent with the First Amendment. See Wisconsin v. Mitchell , 508 U.S. 476, 489 (1993) ("The First Amendment . . . does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent."); cf . Noto , 367 U.S. at 299 . 7 After carefully and repeatedly reading Hit Man in its entirety, we are of the view that the book so overtly pro- motes murder in concrete, nonabstract terms that we regard as distur- bingly disingenuous both Paladin's cavalier suggestion that the book is essentially a comic book whose "fantastical" promotion of murder no one could take seriously, and amici 's reckless characterization of the book as "almost avuncular," see Br. of Amici at 8-9. The unique text of Hit Man alone, boldly proselytizing and glamorizing the crime of murder and the "profession" of murder as it dispassionately instructs on its commission, is more than sufficient to create a triable issue of fact as to Paladin's intent in publishing and selling the man- ual.
Third, Paladin's marketing strategy would more than support a finding of the requisite intent. Cf . Direct Sales v. United States , 319 U.S. 703, 712-13 (1943) (holding that jury may infer intent to assist a criminal operation based upon a drug distributor's marketing strat- egy). It is known through Paladin's stipulations that it "engaged in a marketing strategy intended to attract and assist criminals and would- be criminals who desire information and instructions on how to com- mit crimes." J.A. at 59. But an inference as to such a strategy would be permitted from Paladin's catalogue advertisement of Hit Man . The publisher markets the book as follows, invoking a disclaimer which, the district court's characterization notwithstanding, a jury could readily find to be transparent sarcasm designed to intrigue and entice:
Learn how a pro gets assignments, creates a false identity, makes a disposable silencer, leaves the scene without a trace, watches his mark unobserved and more. Feral reveals how to get in, do the job and get out without getting caught. For academic study only!
Paladin Press Catalog, Vol. 26, No. 2 at 41 (emphasis in original). See also infra note 10. From this statement by the publisher in its own promotional sales catalogue, a jury could conclude that Paladin mar- keted Hit Man directly and even primarily to murderers and would-be criminals, and, from this permissible conclusion, in turn conclude that Paladin possessed the requisite intent necessary to support liability.
Certainly, such a conclusion would be reasonable based upon this promotional description coupled with the singular character of Hit Man , which is so narrowly focused in its subject matter and presenta- tion as to be effectively targeted exclusively to criminals. In other words, despite the fact that Paladin may technically offer the book for sale to all comers, we are satisfied that a jury could, based upon Hit Man 's seemingly exclusive purpose to assist murderers in the com- mission of murder, reasonably conclude that Paladin essentially dis- tributed Hit Man only to murderers and would-be murderers -- that its conduct was not, at least in law, different from that of a publisher (or anyone else) who delivered Hit Man to a specific person or group of persons whom the publisher knew to be interested in murder. And even Paladin effectively concedes that it could be liable were such a finding permissibly made. Paladin's Memorandum in Support of Summary Judgment at 33 n.24.
A conclusion that Paladin directed Hit Man to a discrete group rather than to the public at large would be supported, even if not established, by the evidence that Hit Man is not generally available or sold to the public from the bookshelves of local bookstores, but, rather, is obtainable as a practical matter only by catalogue. Paladin Press is a mail order company, and for the most part does not sell books through retail outlets. In order to procure a copy of Hit Man ,
1. The foregoing passages have been selected by the court as representa- tive, both in substance and presentation, of the instructions in Hit Man . These are but a small fraction of the total number of instructions that appear in the 130-page manual. And the court has even felt it necessary to omit portions of these few illustrative passages in order to minimize the danger to the public from their repetition herein.
2. The full fact stipulation of the parties reads as follows: JOINT STATEMENT OF FACTS
The parties agree that the matters set forth below represent facts that the plaintiffs and/or defendants would be able to estab- lish by affidavit or otherwise in the context of defendants' motion for summary judgment under F.R.C.P. 56. These facts are offered only for the purposes of this motion and the parties specifically reserve the right to contest all statements which fol- low at any subsequent proceeding in this case. The parties agree that the sole issue to be decided by the Court in this motion 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 sub- sequent proceedings.
1. Prior to March 3, 1993, Lawrence Horn began plotting with James Perry of Detroit, Michigan, to have Perry murder his ex-wife, Mildred Horn, and his son, Trevor.
2. On or about January 24, 1992, James Perry responded to a catalogue solicitation by the defendant, Paladin, advertising Hit Man: A Technical Manual for Independent Contractors (herein- after referred to as " Hit Man "), and How to Make a Disposable Silencer, Volume 2 (hereinafter referred to as" Silencers "). Perry ordered both publications. Hit Man and Silencers were mailed to him by the defendants shortly thereafter.
3. Defendants had no other known contact with Perry and no contacts with Lawrence Horn.
4. Defendants concede, for purposes of this motion, and for no other purposes, that:
a. defendants engaged in a marketing strategy intended to attract and assist criminals and would-be criminals who desire information and instructions on how to commit crimes; and
b. in publishing, marketing, advertising and distributing Hit Man and Silencers , defendants intended and had knowledge that their publications would be used, upon receipt, by criminals and would-be criminals to plan and execute the crime of murder for hire, in the manner set forth in the publications.
c. The conditional factual concessions made in this * 4 relate only to the defendants' state of mind, and do not preclude defen- dants from contending that defendants' published words, in and of themselves, were neither directed at causing imminent unlaw- ful action nor likely to produce such action, for purposes of the doctrine of Brandenburg v. Ohio , 395 U.S. 444 (1969).
5. Plaintiffs concede, for purposes of this motion and for no other purposes, that:
a. defendants' marketing strategy was and is intended to maximize sales of its publications to the public, including sales to (i) authors who desire information for the purpose of writing books about crime and criminals, (ii) law enforcement officers and agencies who desire information concerning the means and methods of committing crimes, (iii) persons who enjoy reading accounts of crimes and the means of committing them for pur- poses of entertainment, (iv) persons who fantasize about com- mitting crimes but do not thereafter commit them, and (v) criminologists and others who study criminal methods and men- tality.
b. in publishing, marketing, advertising and distributing Hit Man and Silencers , as well as other publications, defendants intended and had knowledge that their publications would be purchased by members of the general public, including those persons and for those purposes listed in * 5(a).
c. The conditional factual concessions made in this * 5 shall not preclude the plaintiffs from contending that such facts are irrelevant to any issue before this court.
6. On March 3, 1993, James Perry traveled from Detroit, Michigan to Montgomery County, Maryland and murdered Mil- dred Horn, Trevor Horn, and Janice Saunders, Trevor's private duty nurse. Perry followed a number of instructions outlined in Hit Man and Silencers (set forth in* 7 below) in planning, exe- cuting and attempting to get away with the murders described in the complaint.
7. Defendants concede, for the purpose of this motion and for no other purposes, that in publishing, distributing and selling Hit Man and Silencers to Perry, defendants assisted him in the subsequent perpetration of the murders which are the subject of this litigation, in the ways set forth in paragraphs 18 and 19 of the Rice complaint and paragraphs 20 and 21 of the Saunders complaint which are incorporated by reference and are filed herewith as exhibit "D". 8. Hit Man was first published in 1983 and Silencers was first published in 1983. Approximately 13,000 copies of Hit Man and an unknown but not disproportionate number of copies of Silencers have been sold nationally.
9. At all relevant times, defendants had no specific knowl- edge (1) that either Perry or Horn planned to commit a crime; (2) that Perry and Horn had entered into a conspiracy for the pur- pose of committing a crime; and (3) that Perry had been retained by Horn to murder Mildred Horn, Trevor Horn, or Janice Saunders.
10. The defendants' current catalogue, and publications Hit Man and Silencers are filed herewith by the parties as exhibits A, B and C, respectively.
11. The parties may file affidavits or supplement but not alter the foregoing stipulation. Plaintiffs reserve the right to chal- lenge defendants' affidavits declarations with counter-affidavits or pursuant to F.R.C.P. 56.
J.A. at 58-62.
3. Congress, in the Antiterrorism and Effective Death Penalty Act of 1996 ["the AEDPA"], Pub. L. No. 104-132, 110 Stat. 1214, 1297, required the Attorney General to conduct a study concerning, inter alia , the extent to which there is available public access to materials instruct- ing on "how to make bombs, destructive devices, or weapons of mass destruction"; the application of then-existing federal laws to such materi- als; and the extent to which the First Amendment protects such materials and their private and commercial distribution. The statutory mandate to the Attorney General was prompted by legislation proposed by Senators Feinstein and Biden in the aftermath of the Oklahoma City bombing, which would criminalize the teaching or demonstration of the manufac- ture of explosive materials "if the person intends or knows that such explosive materials or information will likely be used for, or in further- ance of" specified criminal offenses.
The AEDPA required the Attorney General to submit to the Congress a report on these subjects and to make that report available to the public. Recognizing that the exhaustive legal analysis set forth in that report was directly relevant to the issues pending before us, the parties jointly moved for, and we granted them, permission to file the report with the court. The decision we reach today, which, as noted, was urged upon us by Attorney General Reno and the Department of Justice, follows from the principal conclusion reached by the Attorney General and the Depart- ment in that report:
The First Amendment would impose substantial constraints on any attempt to proscribe indiscriminately the dissemination of bombmaking information. The government generally may not, except in rare circumstances, punish persons either for advocat- ing lawless action or for disseminating truthful information -- including information that would be dangerous if used -- that such persons have obtained lawfully. However, the constitutional analysis is quite different where the government punishes speech that is an integral part of a transaction involving conduct the government otherwise is empowered to prohibit; such"speech acts" -- for instance, many cases of inchoate crimes such as aid- ing and abetting and conspiracy -- may be proscribed without much, if any, concern about the First Amendment, since it is merely incidental that such "conduct" takes the form of speech.
DOJ Report at 2 (emphasis added).
4. In addition to their aiding and abetting counts, which require that Pal- adin have acted knowingly or intentionally, the plaintiffs also brought claims sounding inter alia in negligence and strict liability. The district court did not address these claims and we do not do so herein. We leave to the district court on remand the task of addressing these counts in the first instance.
5. Thus, in relevant part, the amended opinion reads as follows:
Plaintiffs argue that Hit Man is not protected by the First Amendment because the First Amendment does not protect com- munication aiding and abetting murder. This argument, the Court believes, fails, however, because of the absence of any reported decision suggesting that Maryland extends the tort of aiding and abetting to the circumstances of this case. A federal court sitting in diversity cannot create new causes of action. Therefore, the Court cannot apply a new theory or extend the tort of aiding and abetting under Maryland law . . . .
J.A. at 205-06 (footnote and citations omitted; emphases added). As evi- dence of the haste with which the revised analysis was undertaken, the amended opinion elsewhere still includes a statement of the district court's initial conclusion that Maryland does not provide a civil cause of action for aiding and abetting. See id . at 207 ("Plaintiffs are asking the Court to allow the Defendants to be subjected to civil liability for mur- der, based on a theory of civil aiding and abetting- a claim that does not exist under Maryland law.").
6. The issue of whether, under the stipulated facts, Paladin could be held liable for aiding and abetting under Maryland law was not even before the district court. In fact, the parties had expressly stipulated that "[t]he
parties agree that the sole issue to be decided by the Court in this motion 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 proceed- ings." J.A. 58-59.7. Cf . DOJ Report at 30 & n.47 (citations omitted) ("Insofar as publica- tion of [bombmaking] manuals were criminalized on account of those manuals' advocacy of unlawful conduct, such a prohibition almost cer- tainly could not pass constitutional muster. The First Amendment would not, however, prohibit the evidentiary use of such advocacy to demon- strate a disseminator's intent in conveying bombmaking information . Therefore, insofar as criminal culpability for dissemination of such infor- mation depends upon the distributors' intent -- for example, upon whether a disseminator of bombmaking manuals had the conscious pur- pose of helping others to use the information to engage in unlawful con- duct -- the substance of the advocacy in such manuals could be used as material evidence of such intent.").