August 12, 2004

You Know You're a 1L To Be...

by PG

... when pretty much any situation makes you wonder about the possibilities for civil litigation and criminal prosecution. When I had elective surgery, I thought about the former -- only in jest, I promise! The latter came up as well when I got this e-mail from blogger J.T.:

Lately, I've been thinking of writing a few posts demonstrating how much of a joke anti-terrorist security is. Do you guys think it's appropriate for me to give detailed instructions about how to get a gun onto a plane, how to build a car bomb, and so on?

Two different lines of precedent came to mind. The first was civil: what if someone used these instructions on how to build a car bomb, successfully killed someone, was criminally prosecuted (at which point her getting the instructions from J.T. would become known) and thus led to J.T.'s being sued for his part in the crime?

Such a case was extensively described in Rodney Smolla's Deliberate Intent: A Lawyer Tells the True Story of Murder by the Book. The book in question is Hit Man: A Technical Manual for Independent Contractors, which begins with the warning "Neither the author nor the publisher assumes responsibility for the use or misuse of information contained in the book. For informational purposes only!"

Nonetheless, the families of people killed by an independent contractor schooled in Hit Man's methods successfully overcame the First Amendment objection, and eventually settled out of court. As part of the settlement, Paladin Press stopped publishing Hit Man and destroyed its copies. This had the unintended consequence of putting Hit Man into the public domain, and it is now available on several websites.

Smolla's book is titled "Deliberate Intent" because it is on the basis of Paladin's having deliberately intended to assist and encourage people in committing murder that the plaintiffs won. At the end, Smolla (who at one point refers to the Fourth Circuit's Michael Luttig as "the Judge from Hell") admits that his side's victory may lead to cases that he deems frivolous, but distinguishes Hit Man from Natural Born Killers on the grounds that Oliver Stone did not intend for anyone to mimic the characters in his movie.

J.T. likely would win on the same argument, particularly if his posts were couched in language that made it clear that he was writing to point out the holes in our security, not to encourage people to exploit those holes. Instead of Hit Man's exhortations on how a successful killer will feel like more of a man, J.T. could talk about the freedom-hating evil-doers.

One person pointed out that perhaps a better alternative would be to write those posts and then send them to Tom Ridge, instead of publishing them on the internet. However, this would miss the purpose of drawing widespread attention to our security problems. The Department of Homeland Security presumably already knows about these holes, and hasn't figured out a way to plug them up yet. Public pressure might force the government to try harder, or at least garner ideas from the general population about how to solve the problems.

Talking about DHS brings me to the potential for criminal prosecution. I think that it is fairly small -- the past prosecutions for revealing security holes have involved people who actually breached security, and even then they haven't always been arrested. For example, ABC has twice shipped depleted uranium from overseas to test security at American ports, and both times DHS became annoyed and investigated the news organization, but didn't put anyone in prison. J.T. would not be publishing classified information, so he wouldn't even need the Pentagon Papers precedent.

August 12, 2004 06:06 PM | TrackBack

How do you write several hundred words on JT's e-mail without addressing the question posed?

"Is it appropriate?" does not equal "Will I get my ass sued or thrown in jail?"

In my opinion, it's not appropriate. Park Dietz, the consulting shrink for Law and Order, noted that he believes such information is damaging, and he ought to know. Dave Barry, who addressed airport security prior to 9/11 and said he thought it would be very easy to get a gun on board, refrained from outlining the ways of doing so.

It's fairly easy for bright people to think of effective or potentially effective ways to kill or injure large numbers of people. But before we show off, we ought to think of what good it would do to get into the specifics.

Posted by: JRM at August 12, 2004 07:40 PM


Hence my self-mockery in the post's title -- gearing up for law school has me thinking in terms of legality even when that's not the overt issue.

Posted by: PG at August 12, 2004 11:41 PM

What are the differences between (1) fiction or non-fiction that relates how a crime was committed that may suggest how the perp might have avoided getting caught (assuming she was caught) from (2) a "HOW TO" book that looks to future action? Don't readers of category (1) get ideas on how to commit crimes without getting caught? Law and Order, CSI and other crime programs can instruct viewers on how to avoid getting caught, or at least trying. Where is the line of liability to be drawn? Does it depend upon the intellect of the reader/viewer? A cunning person may learn from category (1) perhaps better than a denser person from category (2). Have current day terrorists learned techniques from fictional terrorists in popular books over the past several decades?

Posted by: Shag from Brookline at August 14, 2004 08:15 AM

Nice post. It's critically important to note a facet of the Hit Man case that significantly changed the scope of the question there. For purposes of the appeal, Paladin stipulated that it did aid and abet murder and intended to do so. It argued that, even so, the First Amendment protected the book. The court said that the First Amendment didn't protect what amounted to criminal speech, much like it doesn't protect fraud or perjury just because it's spoken. It's a much, much closer question whether this speech actually is criminal absent the stipulation. E. Volokh is writing an article on this "crime-facilitating speech," by the way. (It may even be out by now.)

Posted by: Milbarge at August 18, 2004 04:24 PM

maybe ford and chevy need to be sued for making vehicles that allow the drivers to break the speed limit. thats just like that dumbass bill brady trying to deny citizens firearms. if he had been throwed out of a window he would be trying to ban them instead of guns.

Posted by: rammis cid at May 7, 2006 12:17 AM
Post a comment

Remember personal info?

Sitting in Review
Armen (e-mail) #
PG (e-mail) #
Craig Konnoth (e-mail) #
About Us
Senior Status