Court shoots from the hip with ruling - supports case against Soldier of Fortune for carrying gun-for-hire advertisement that led to executive's murder - Column

0 Comments | Insight on the News, Feb 22, 1993 | by Samuel Francis

Contrary to what some people might think, Soldier of Fortune is not my favorite magazine. But compared with reading what American courts claim is constitutional, SoF deserves a place on our coffee tables.

In mid-January, the Supreme Court let stand a $4.3 million judgment against the official monthly fantasy jolt of the wanna-be-a-mercenary-when-I-grow-up market. The trouble, as so often turns out to be the case with the reading material the court offers, is that what the court's ruling does to Soldier of Fortune it may also do to most other publications in the country.

The kind of people who I imagine regularly read Soldier of Fortune look rather like Woody Allen and work as washing machine repairmen but like to cast themselves in the home movies of their minds as a secret synthesis of Conan the Barbarian and Long Dong Silver. My impression of the articles the magazine typically sports is that they're devoted to such lore as how to strangle the sentries at Amazonian drug bases without making too much noise and what kind of ammo to use when taking out the secret police chief of Thither Slobovia. But if you think its articles are a gas, just wait till you get a load of its personal ads.

One ad carried in a 1985 issue read as follows: "GUN FOR HIRE: 37 year old mercenary desires jobs. Discrete [sic] and very private. Bodyguard, courier and other special skills. All jobs considered." Tragically for one Richard Braun, not every Soldier of fortune reader is Woody Allen. Some of them confuse fantasy with reality.

In August 1985, Braun's partner in business answered the above ad, placed in the magazine by somebody who called himself Michael Savage. That was his real name, but again, as is typical of the world of Soldier of Fortune, it sounds like the hero of an Edgar Rice Burroughs penny dreadful. In any case, Savage was hired to murder Braun and proceeded to do so, blowing away his victim in his home and wounding Braun's son. Savage was convicted of murder.

Braun's relatives filed a wrongful death lawsuit against the magazine and won about $12 million, which eventually was reduced to $4.3 million. The Supreme Court let the judgment stand, and Soldier of Fortune suddenly has been dragged out of the fantasy world in which it thrives and kicked into the real one.

Many say the magazine can't survive the suit and will go out of business as a result of the judgment.

The operative clause in the fantasy world the justices construct is that the First Amendment permits imposing liability "for negligently publishing a commercial advertisement where the ad on its face, and without the need for investigation, makes it apparent that there is a substantial danger of harm to the public." Savage's ad, it is purported, fills the bill, and so the magazine that carried his ad is liable.

Here is where the apparent problem lies. How many ads carried by magazines considerably more uptown than Soldier of Fortune fit that description? One of SoF's editors asks, "How many of the cars offered for sale every day in the paper are lemons? How many are dangerous?" Others mention the sort of ads that purvey the sexual charms of lonely young men and women. How many have AIDS or other venereal diseases? How many are serial murderers or sadists? If a Ted Bundy type places such an ad as a device to catch victims, is the paper or magazine that carries it liable?

Perhaps not, but the real problem is that Savage's ad really doesn't seem to fill the bill. The ad didn't say, "Gun for Hire: Will kill if price is right." It advertised skills as a bodyguard, courier, etc., and emphasized discretion. These are legitimate and not uncommon talents, and it simply doesn't follow from reading the ad that the man who placed it is willing to commit murder for money.

To reach that conclusion, you can't take his words "at face value," and you have to conduct further "investigation." Unless you're crazy (which maybe you'd be if you did it), you'd have to take him to lunch and, over the blue cheese dressing, get down to cases: When you said all jobs, did you really mean all jobs?

Here, one suspects, is another example of punishing the innocent when you're not able or willing to punish the guilty or even satisfied with punishing them. Soldier of Fortune did nothing wrong in carrying Savage's ad, but if that ad makes the magazine liable for damages, what ad doesn't? And why aren't other publications also liable even though they can't possibly verify whether those who place ads are serial killers or assassins for hire?

Maybe, if Soldier of Fortune does go out of business as a result, its last issue should be devoted to how to strangle Supreme Court justices without making too much noise.

Samuel Francis, a columnist for the Washington Times, is nationally syndicated.