Publishers applaud ad victory

Folio: The Magazine for Magazine Management, Oct, 1989 by Jan Jaben

Houston-Publishers are not responsible for ambiguous ad content, according to the recent reversal of a $9.4 million judgment against Soldier of Fortune magazine, What's more, legal sources say the case probably won't bc applealed to the Supreme Court, since the U.S. Court of Appeals for thc Fifth Circuit based the reversal on tort law.

"It's a wonderful decision from a publisher's point of view," asserts Slade Metcalf, attorney for the Magazine Publishers of America (MPA). "Magazine publishers can exhale a collective sigh of relief because of the strong wording of the decision."

The decision ended an 18-month controversy over publishers' responsibilities for ad content. Last March, a Houston jury found Denver-based Soldier of Fortune liable for negligence as a result of a 1984 classified ad that purported to offer "high risk assignments, U.S. or overseas." The ad was answered by Robert Black, who subsequently hired John Wayne Hearn, the advertiser, to kill Black's wife. Mrs. Black's mother and son sued, contending that Soldier of Fortune was responsible for introducing the two men, and thus, for the murder of Mrs. Black.

The Appeals Court, however, unanimously ruled that ",Soldier of Fortune owed no duty to refrain from publishing a facially innocuous classified advertisement when the ad's context at most-made its message ambiguous." Furthermore, the court stated, "Given the pervasiveness of advertising in our society and the important role it plays, we decline to impose on publishers the obligation to reject all ambiguous advertisements for products or services that might pose a threat of harm."

Time Inc. Magazines Co. general counsel Harry M. Johnston applauded the judgment for recognizing the "reality of how magazines are published." Together with other publishers and the MPA, Time Inc. was party to a brief filed as friends of the court.

First Amendment issues

Although the decision was based on Texas tort law, both sides of the dispute agree that "First Amendment considerations pervade the decision," according to Bruce Sanford, a Washington, D.C., attorney who Bled the publishers' amici curiae brief. "The amici brief clearly presented to the court the larger issues at stake and the court recognized those issues tacitly in its decision."

The plaintiffs' attorney, however, not only found the jury's findings "faulty," but was distressed by the way the court reached its conclusions.

"You can read the ruling, and although the court says otherwise, the First Amendment issue in the background had a substantial impact on the outcome," says Houston attorney Ronald G. Franklin"I'm disappointed that the court didn't say that. Instead, it cloaked its decision in Texas law apparently in an attempt to prevent us from seeking review in front of the U.S. Supreme Court."

In fact, the next step in the case, expected at any time, will be taken by the plaintiffs if they request a review before the larger panel of Fifth Circuit judges. The recent judgment was made by a three-judge panel, which ruled unanimously. If the request is made, Franklin believes the court will decide within a couple of months whether to hear the case.

Although he could take the case as far as the Supreme Court, Franklin says that is unlikely. "The way the court structured the opinion, it was obviously to keep it from being appealable."

'Victory over evil'

When SOF appeals attorney E. Barrett Prettyman Jr. called the magazine with the news, publisher Robert K. Brown "wanted to make sure there wouldn't be another trial or that it would go to the Supreme Court," according to Prettyman. Brown, who was not at his Denver office when he heard the news, did not go out and celebrate his victory. "It's been rather a numbing experience," Brown says.

Brown's staff, however, immediately closed the office that Thursday afternoon, leaving a recorded message that they had gone to "celebrate our illustrious victory over the forces of evil."

The victory was not without cost to Soldier of Fortune. Brown says a fundraising effort netted only about $25,000, although most of the legal fees, he adds, should be covered by insurance. The magazine's circulation dropped in the last two years, possibly as a result of the publicity generated by the court case, Brown says. For July, circulation stood at 90,000 at the newsstand and 25,000 in subscriptions, with total readership of 425,000. Last September, the title claimed to have 600,000 readers.

Advertising, he contends, held its own, with the August issue containing nine more pages than in the same issue a year ago.