A Hit Job on Publications?
On Monday the Supreme Court upheld an appeals court decision that Soldier of Fortune magazine can be held liable for a contract killing. While the court’s action, upholding a lower court, is not the same thing as laying out some new general principle of law, the decision to let stand a $4.3-million damage verdict against the magazine for running a classified ad that led to the slaying of an Atlanta man is nonetheless very troubling.
The case originated in 1985 when Michael Savage placed a classified ad in Soldier of Fortune. The ad, in part, said: “GUN FOR HIRE: 37 year old mercenary desires jobs. Discrete (sic) and very private. Body guard, courier and other special skills. All jobs considered.” 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 Braun to death. They were convicted and sentenced to prison, and the Braun family filed a wrongful-death suit against the magazine. A jury agreed that the magazine was liable, and it awarded the family $4.3 million. Last year the U.S. Court of Appeals for the 11th Circuit, in Atlanta, upheld the verdict on a 2-to-1 vote.
Courts have long regarded so-called commercial speech, including advertisements, as subject to less stringent First Amendment protection than non-commercial speech, including political rhetoric or literature. In addition, newspaper and magazine publishers often impose their own standards regarding taste and subject matter on the advertising they accept. Even so, newspapers and magazines cannot possibly vouch for the absolute safety of each product advertised in their pages. Nor can they divine the intent of advertisers such as Savage.
Nonetheless, that’s just what publishers may be required to do in the 11th Circuit. And, by letting this decision stand, the Supreme Court, possibly for the first time, has upheld a damage award against a publisher for printing an advertisement written by someone else.
The $4.3-million award will likely put Soldier of Fortune out of business. But if the precedent in this case is adopted in other circuits and ultimately by the high court, it would impose, in the words of the dissenting circuit justice, “crushing third-party liability” on all publishers.