Damages Judgment Against Magazine Upheld
A federal appeals court has upheld a $4.37-million judgment against Soldier of Fortune magazine for printing a mercenary ad involved in a contract killing.
A three-judge panel of the U.S. 11th Circuit Court of Appeals rejected the magazine’s free speech argument. Judge R. Lanier Anderson III wrote in a 2-1 decision that “it is well settled that the First Amendment does not protect commercial speech related to illegal activity.”
The ruling upheld the judgment in favor of brothers Michael and Ian Braun, whose father was killed in 1985.
“This is not particularly good news for the First Amendment rights of print journalism,” said Alex McCall, director of special projects for the magazine in Boulder, Colo.
The magazine’s attorney, Chad Morriss of Montgomery, said Monday that he will ask all of the judges on the 11th Circuit to review the case.
Michael Braun of Montgomery and his older brother, now living in Tennessee, sued the magazine in 1988 over the death of their father, Richard Braun. He was gunned down outside his suburban Atlanta home. Michael, then 16, was wounded in the leg.
The brothers contended that a “gun for hire” ad placed in the June, 1985, issue by Richard Savage of Knoxville, Tenn., led to their father’s business associate, Bruce Gastwirth, arranging the contract killing.
Gastwirth, Savage and two members of a ring of hit men run by Savage were convicted of conspiracy in January, 1989.
A federal jury in Montgomery originally awarded the brothers $12.37 million in December, 1990, but a judge reduced it to $4.37 million.
Savage’s classified ad in Soldier of Fortune read: “GUN FOR HIRE: 37-year-old professional mercenary desires jobs. Vietnam veteran. Discreet and very private. Body guard, courier and other special skills. All jobs considered.”
“The implication is clear that the advertiser would consider illegal jobs,” the court ruled.
But Judge Jesse E. Eschbach said in dissent, “I remain convinced that the language of the advertisement is ambiguous, rather than patently criminal.”