A How-To Manual for Hit Men Makes Free Speech a Target

Deliberate Intent: A Lawyer Tells the True Story of Murder by the Book , by Rod Smolla. Crown Publishers, 276 pages, $23.

Rod Smolla is a turncoat. A respected First Amendment scholar and author, he violated the fundamental taboo of the media law bar–never work for the enemy–and sued the publisher of a book called Hit Man: A Technical Manual for Independent Contractors . This caused Mr. Smolla to be expelled, metaphorically speaking, from the little guild of media lawyers (of which I should say I am a member, as a lawyer at The New York Times ). Martin Garbus suffered a similar fate when he dared to sue the Daily News and Mike McAlary on behalf of a woman whom Mr. McAlary had accused of fabricating her own rape.

It is not a little ironic that a group of lawyers devoted to free speech should get so prickly about dissent, particularly where the cases aren’t easy ones. To this reader, then, Rod Smolla’s book is a fascinating examination of his struggle to answer the accusation that he abandoned principle for money.

Other readers will see other things in Deliberate Intent , which is in large part an account of a horrible crime and its aftermath, in juiced-up true-crime prose. Here are the barebones:In1992,amannamed Lawrence Horn hired a hit man to kill his ex-wife, his 8-year-old son and a nurse–the idea was to collect an insurance settlement. The murderer, who used methods suggested by Hit Man , got the death penalty; Mr. Horn was sentenced to life in prison.

Mr. Smolla also offers up well-presented litigation war stories in the style of Jonathan Harr’s A Civil Action . And there are hoked-up scenes in which Mr. Smolla discusses First Amendment doctrine with various articulate students, who spout eloquent yards of dialectical argument. Mr. Smolla probably thought that dramatizing all this doctrine would make it more palatable to the general reader. The effect, though, is to cheapen it.

Too bad, because Mr. Smolla is one of our most readable scholars of First Amendment law. He is the author–as Rodney A. Smolla, not racy Rod Smolla–of an important work of theory, Free Speech in an Open Society , and two solid accounts of big First Amendment cases. His views in these books are well within the mainstream, with perhaps some added emphasis on the value of protecting speech for its self-affirming qualities (as opposed to emphasis on the marketplace of ideas or the importance of free speech to self-governance). Mr. Smolla has a tendency to get a little mushy and New Agey: “[F]reedom to speak without restraint provides the speaker with an inner satisfaction and realization of self-identity essential to individual fulfillment.”

What caused a party-line man like Mr. Smolla to take this case? He says it was mainly outrage and a “moral bond” with the families of the murder victims–the aggrieved parties who hired him to bring suit. He also concedes, with almost too much candor, that he was “financially destitute,” maxed out on his credit cards, and “the idea of making some money on a case was attractive.” The idea seems to have paid off: The case was recently settled, and Mr. Smolla presumably took a share of what the parties called a “multimillion-dollar settlement.” Mr. Smolla may also expect to make a couple of bucks from DeliberateIntent ,the marketing and mock-pulp presentation of which arenotwithout,uh, mercenaryaspects. The publisher of Hit Man ,ontheother hand,wasmadeto withdraw the book.

In another fit of candor, Mr. Smolla tells us he took the case before he really had a theory. “But I knew in my heart,” he writes, “that the First Amendment simply could not plausibly be interpreted to protect a book like Hit Man .” Well, it’s pretty clear that James Perry, whom Mr. Horn hired to kill three people, followed closely the instructions in Hit Man : There was his choice of weapon, the home-made silencer, the drilled-out serial number on the gun–and the fact that he shot his victims through the eyes at close but not point-blank range (minimizes the blood spatter on your clothes). It’s also clear that the publisher of Hit Man , Paladin Press, cranks out a vast array of similarly disturbing books.

But different readers saw different things in Hit Man . Scholars, criminologists and law enforcement officials read it to learn about criminals and their methods, and crime buffs who get off on this sort of stuff read it for pleasure. The book itself, which was first published in 1983, sent off mixed signals. Aspects of it, including its lurid cover and overheated tone, were ripe if not comic. It was written by a woman who submitted it to the publisherasa work of fiction.

Who is to say thatonebook leads inexorably to crime while another does not? What is the principle that allows the “multimillion-dollar”punishment of the publisher of Hit Man while Bret Easton Ellis mingles at Moomba?

The Sorrows of Young Werther indisputablyencouragedany number of young men to kill themselves, the novel lying open by the dead body. It was for a time widely banned. Are we really prepared to ban Goethe? Or does the question turn on esthetic merit? On the publisher? The presentation? The context? The intent of the author or publisher? Perhaps Oscar Wilde’s aphorism makes for sound legal principle: “There is no such thing as a moral or an immoral book. Books are well written, or badly written. That is all.”

There will always be a point at which the heartless elegance of pure theory must give way to palpable human suffering and sadness, but where is that point? When Yale Law professor Alexander Bickel, a giant of First Amendment law, argued the Pentagon Papers case for The New York Times , he was pressed repeatedly about whether the paper could be stopped from publishing the papers if it were certain that 100 American soldiers would die as a result. He ducked; he weaved. But finally he said: “I am afraid that my inclinations to humanity overcome the somewhat more abstract devotion to the First Amendment.” He insisted, though, that the link between publication and death must be “obvious, direct, immediate.”

That would seem to be the right answer, and if that standard had been applied in Mr. Smolla’s case, Hit Man would have escaped unscathed. Mr. Smolla convinced an appellate court that a substantially lower standard was required. With this, he did grave damage to the cause of free speech.

It has long been thought by most First Amendment lawyers, based on the leading Supreme Court case, that “imminence” was required before inciting speech could be subjected to liability–the bad act must closely follow the bad speech. Mr. Smolla himself has written that speech should not be punished “because of the reactive disturbances it causes … at some indeterminate future time.” The appellate court, with an assist from the Clinton Justice Department, agreed with Mr. Smolla’s revised view and declared that timing is irrelevant. Only the words themselves, the acts they encouraged and the publisher’s intent matter. The appellate court reversed the decision of a lower court that had dismissed the case before trial. And the prospect of a jury trial in the wake of the Littleton, Colo., massacre pushed the publisher to settle.

The Hit Man decision has already, Mr. Smolla sheepishly admits, wreaked some havoc. A Louisiana court has foolishly allowed a case involving allegations of copycat killings suggested by the movie Natural Born Killers to go forward, based in large part on the precedent Mr. Smolla helped establish.

Mr. Smolla was lucky in the appellate judges he drew. The author of the decision, J. Michael Luttig, had suffered a ghastly tragedy himself. His father was killed in a carjacking. This caused Judge Luttig, understandably, to read Hit Man with particular loathing. Mr. Smolla writes that the lower court judge who dismissed the case “never really grasped [ Hit Man 's] essence.” Judge Luttig read it as a pernicious training manual, and Mr. Smolla approves: “That’s how it read to someone whose own life had been touched by violence.”

Mr. Smolla doesn’t seem to realize he’s conceding that the case turned on individual reading experiences, which surely cannot be the basis for a neutral legal principle.

Different readers will take away different things from Mr. Smolla’s book. Different readers took away different things from Hit Man . I would urge you to judge the latter book for yourself, but you cannot. Rod Smolla has suppressed it.