Suit Award Over Ad Tied to Murder Upset

A federal appeals court on Thursday struck down a jury’s $9.4-million award against Soldier of Fortune magazine made to relatives of a woman murdered by a mercenary hired through a classified advertisement.

E. Barrett Prettyman Jr., an appeals attorney for Soldier of Fortune, said Publisher Robert Brown was “ecstatic” over the ruling, which Prettyman called a First Amendment victory for the publishing industry.

The U.S. 5th Circuit Court of Appeals ruled that a Houston jury had imposed too high a standard on the magazine and said publishers could be discouraged from running other ambiguously worded ads if the award were upheld.

“The kind of duty the plaintiffs were attempting to impose here would not only have put this magazine out of business, but would have had an extraordinarily harmful effect on magazines and publishers of all kinds,” Prettyman said.

Robert Black was convicted of hiring hit man John Wayne Hearn to kill his wife, Sandra Black, in February, 1985, through an ad that read: “Ex Marines. ‘67-69 vets. Ex-DI, weapons specialist--jungle warfare. Pilot. ME. High-risk assignments. U.S. or overseas.”

Robert Black is now on Texas’ Death Row and Hearn is in Florida serving three life sentences for the Sandra Black killing and two other murders.

Lawyers for the magazine argued in a June hearing that there was no way the publishers could have known the cryptic ad was actually a solicitation for murder. The ad appeared in a 1984 issue.

John Roberson, representing Sandra Black’s son Gary, 19, and mother, Marjorie Eimann, 65, said during the hearing that “high risk assignment” meant “gun for hire” in the lingo of the magazine.

However, Judge W. Eugene Davis disagreed when writing on behalf of the three-judge panel.

“The burden on a publisher to avoid liability from suits of this type is too great,” Davis wrote. “Without a more specific indication of illegal intent than Hearn’s ad or its context provided, we conclude that Soldier of Fortune did not violate the standard of conduct by publishing an ad that later played a role in criminal activity.”

Although the magazine said the judgment had been a violation of press freedoms under the First Amendment, Davis said the court did not need to address First Amendment arguments. He wrote that, under Texas liability law, the magazine had no duty to refrain from publishing an ambiguously worded ad.