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BRAUN v. SOLDIER

June 22, 1990

MICHAEL F. BRAUN, Plaintiff,
v.
SOLDIER OF FORTUNE MAGAZINE; et al., Defendants. MICHAEL F. BRAUN; et al., Plaintiffs, v. SOLDIER OF FORTUNE MAGAZINE; et al., Defendants


Truman Hobbs, Chief United States District Judge.


The opinion of the court was delivered by: HOBBS

TRUMAN HOBBS, CHIEF UNITED STATES DISTRICT JUDGE

 On August 14, 1989, defendants Soldier of Fortune Magazine, Inc. and Omega Group, LTD filed motions for summary judgment on plaintiffs' claims. On February 12, 1990, defendants supplemented their motion. The plaintiffs responded on February 20, 1990, to which the defendants replied on February 26, 1990.

 FACTS

 On August 26, 1985, Shawn Trevor Doutre stood in Richard Braun's driveway and fired at Braun's car with a MAC 11 automatic pistol as Braun drove from his driveway. Braun rolled out of his car, falling face down onto the driveway. Doutre ran over to Braun, and fired two rounds into the back of Braun's head. Braun's sixteen-year-old son, Michael, was in the car with his father. He too rolled out of the car and lay on the other side of the driveway. After killing Braun, Doutre walked over to Michael, raised his gun, but did not fire. Instead, he put his finger over his lips and ran. Michael suffered a gunshot wound to his thigh, but survived.

 Doutre worked with Richard Savage. Savage had been hired by Bruce Gastwirth, Braun's business associate, to kill Braun. Gastwirth hired Savage through a personal advertisement run by Savage in Soldier of Fortune Magazine (hereinafter "SOF"). That ad read:

 
GUN FOR HIRE: 37-year old professional mercenary desires jobs. Vietnam Veteran. Discreet and very private. Body guard, courier, and other special skills. All jobs considered. Phone (615) 436-9785 (days) or (615) 436-4335 (nights), or write: Rt. 2, Box 682 Village Loop Road, Gatlinburg, TN 37738 (97).

 Michael and his older brother Ian Braun filed claims against SOF, its parent company Omega Group, and Gastwirth for the wrongful death of their father. Michael also has a separate action against these defendants for his injuries.

 DISCUSSION

 a. The Defendants' Duty to Screen Personal Advertisements

 The defendants SOF and Omega Group seek summary judgment, asserting that both the First Amendment and principles of tort law forbid imposing liability on a publisher for advertisements printed in its publications which do not overtly promote illegal transactions. They argue that the words "gun for hire," and "all jobs considered" are at best ambiguous, and that imposing liability on a publisher for publishing ambiguous ads is overburdensome. Thus, they argue, the Court should determine that the defendants had no duty to screen its personal ads and pull this particular advertisement from its want ad section.

 The defendants' argument that the ad's ambiguity released the publisher from any duty is not well taken. Where the ambiguity lies in whether an ad, on its face, suggests murder for hire, the Court is unwilling to rule that lack of precision in drafting absolves the defendants. Applying the familiar balancing test applied in Eimann v. Soldier of Fortune Magazine, Inc., 880 F.2d 830 (5th Cir. 1989) and accepted under Georgia law, Ely v. Barbizon Towers, Inc., 101 Ga. App. 872, 115 S.E.2d 616 (1960), this Court believes that the likelihood and gravity of the possible harm from an advertisement which, on its face, implies that the advertiser is available to kill others is so great, and that the social utility of advertising criminal activity is so small, that imposing a duty on the publisher not to publish the ad is justified. *fn1" See Prosser & Keeton, The Law of Torts, § 31 at 170-71 (5th ed. 1984); Restatement (Second) of Torts, §§ 291, 292 (1965).

 This is not a case where the product advertised is basically a safe product but which may have dangerous uses or propensities in the hands of certain users. See Walters v. Seventeen Magazine, 195 Cal. App. 3d 1119, 241 Cal. Rptr. 101 (Ct. App. 1987); Yuhas v. Mudge, 129 N.J. Super. 207, 322 A.2d 824 (Sup. Ct. App. Div. 1974). Nor is the wording of the ad so facially innocuous that, absent knowledge that the advertiser was soliciting murder contracts, the risk of murder was unforeseeable as a matter of law. *fn2" Eimann v. Soldier of Fortune Magazine, 880 F.2d 830 (5th Cir. 1989). Rather, the Court believes that the language of this advertisement is such that, even though couched in terms not explicitly offering criminal services, the publisher could recognize the offer of criminal activity as readily as its readers obviously did. See United States v. Hunter, 459 F.2d 205, 213 (2d Cir.), cert. denied, 409 U.S. 934, 93 S. Ct. 235, 34 L. Ed. 2d 189 (1972). Of course, in this Court's opinion the foreseeability of the criminal activity is ultimately a question for the jury, and that is where this case should be decided. *fn3"

  The defendants' argument that the First Amendment protects their ad publications is similarly rejected. While commercial speech *fn4" is protected under the First Amendment, that protection does not extend to advertising commercial activity which is itself illegal. Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 772, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1976), citing with approval, Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 37 L. Ed. 2d 669, 93 S. Ct. 2553 (1973). Any argument that this limit on First Amendment protection applies only to overt solicitations of criminal activity fails in light of the Supreme Court's decision in Pittsburgh Press and the facts of that case. There, the Court upheld the Human Relations Commission's order banning the practice of placing job opening advertisements under columns headed "Jobs -- Male Interest" and "Jobs -- Female Interest." The ...


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