Magazine Held Responsible for Ad That Led to Slaying : Publishing: Justices let stand the $4.3-million award against Soldier of Fortune for a ‘Gun for Hire’ listing.
In a setback for the publishing industry, the Supreme Court Monday let stand a $4.3-million damage verdict against a magazine for printing a classified ad that led to the contract slaying of an Atlanta businessman.
A U.S. appeals court ruled last year that Soldier of Fortune magazine can be held liable because its ad posed an “unreasonable risk of . . . substantial harm to the public,” a ruling the justices left intact.
The decision Monday is not only likely to put out of business the 17-year-old magazine, according to a company official, but it puts publishers nationwide on notice that they must do more to screen the content of classified ads.
Press lawyers said the case marks the first time the high court has upheld a damage award against a publisher for printing an advertisement written by someone else.
In 1985, an unemployed Vietnam veteran named Michael Savage had sent in a classified ad to “Soldier of Fortune” entitled, “Gun for Hire.”
He described himself as a “37-year-old professional mercenary (who) is discrete (sic) and very private. Body guard, courier and other special skills. All jobs considered.” His address and phone number followed.
Savage later testified that he sought work as a security guard but instead accepted an offer to kill Richard Braun. On Aug. 26, 1985, Savage and another man shot and killed Braun in the driveway of his suburban Atlanta home and wounded his 16-year-old son.
The killers were convicted and sentenced to prison but the Braun family filed a wrongful death suit against Soldier of Fortune. A jury agreed the magazine was liable and ultimately handed down the $4.3-million verdict, an amount the magazine’s owners said would be “fatal” to its existence.
On appeal, the magazine’s lawyers argued that the First Amendment’s guarantee of press freedom prohibits damage verdicts against a publication, except when it specifically solicits a crime. Their attorneys said that the magazine would not have printed an ad that solicited illegal activity.
Last year, however, a U.S. appeals court in Atlanta upheld the award on a 2-1 vote and ruled broadly that a publisher can be held liable for an ad which poses a “clearly identifiable, unreasonable risk of harm to the public.”
The First Amendment does not shield publication of an ad which “on its face makes it apparent that there is a substantial danger of harm to the public,” the appeals court said.
In their appeal to the high court, the magazine’s lawyers said that the lower court ruling, if allowed to stand, “opens the floodgates for unprecedented and crippling lawsuits against publishers.” They noted that many ads, such as those promoting new cars that can reach a “top speed of 140 miles,” could pose a substantial risk to the public if a driver indeed drove 140 m.p.h.
Press groups, including the Magazine Publishers of America and the National Newspaper Assn., also urged the justices to hear the case and reverse the decision. In 1991, $30.4 billion in advertising was placed in American newspapers, of which about one-third, or $10.5 billion, came from classified ads.
On a typical Sunday, papers such as The Times, the Washington Post and the New York Times run more than 50 pages of classified ads. They cover items as diverse as pit bulls, guns or fast cars--products that may cause injury.
Nonetheless, without comment or dissent, the high court dismissed the appeal in the case (Soldier of Fortune vs. Braun, 92-817).
The court’s refusal to hear a case does not set a binding national precedent. The court later could consider the same issue if another publication is hit with a similarly large damage verdict.
But the high court may well be satisfied with the rule set down by the Atlanta-based court. In speeches and comments, the justices have said that they usually agree to hear an appeal involving a constitutional ruling if at least four of their number believe the lower court erred. In this case, no member of the court dissented.
Surprisingly, the Supreme Court has never ruled directly on what level of protection publishers should be accorded in printing advertisements. For years, the justices have been divided over whether “commercial speech,” such as advertising, deserves the same level of protection under the First Amendment as information about politics and government.
In a second case involving press freedoms, the justices refused Monday to free a Florida reporter from a 30-day jail sentence for refusing to reveal the name of a source who had provided language from a confidential court order in a highly publicized parental custody dispute. In this case, however, the justices may have ignored the appeal because of legal confusion.
In 1990 a reporter for the Stuart News obtained an account of a judge’s confidential order denying parental custody to a mother who had been convicted of abusing an older child.
An angry judge asked state officials to investigate and they subpoenaed the reporter to testify. He refused and was held in contempt of court, a finding that the Florida courts upheld.
However, in their appeal to the Supreme Court, the paper’s lawyers offered an argument that they had not made in the state court--that the Stuart News also was protected by a First Amendment right to “publish truthful information, which it has lawfully obtained.”
But state attorneys argued that the high court should not entertain arguments not advanced in lower courts and urged that the case (Roche vs. Florida, 92-373) be dismissed. The court did just that.