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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 ...


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