From: Declan McCullagh <declan@well.com>
Date: Wed, 12 Nov 1997 07:07:31 +0800
To: Peter Herngaard <pethern@inet.uni2.dk>
Subject: Re: 1st Ammendment Tossed in Paladin Case
In-Reply-To: <3.0.1.32.19971111115626.00cf2150@dnai.com>
Message-ID: <v03007802b08e93782291@[168.161.105.216]>
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Here are two portions I found interesting:

>the district court granted Paladin's motion for summary
>judgment and dismissed plain- tiffs' claims that
>Paladin aided and abetted Perry, holding that these
>claims were barred by the First Amendment as a matter
>of law. Because long- established caselaw provides
>that speech - - even speech by the press - - that
>constitutes criminal aiding and abetting does not
>enjoy the protection of the First Amendment, and
>because we are convinced that such caselaw is both
>correct and equally appli- cable to speech that
>constitutes civil aiding and abetting of criminal
>conduct (at least where, as here, the defendant has
>the specific pur- pose of assisting and encouraging
>commission of such conduct and the alleged assistance
>and encouragement takes a form other than abstract
>advocacy), we hold, as urged by the Attorney General
>and the Department of Justice, that the First
>Amendment does not pose a bar to a finding that
>Paladin is civilly liable as an aider and abetter of
>Perry's triple contract murder... the district court's
>grant of summary judgment in Paladin's favor is
>reversed and the case is remanded for trial.
>


>Thus, in a case indistinguishable in principle from that before us,
>
>the Ninth Circuit expressly held in United States v. Barnett, 667 F.2d
>
>835 (9th Cir. 1982), that the First Amendment does not provide pub-
>
>lishers a defense as a matter of law to charges of aiding and abetting
>
>a crime through the publication and distribution of instructions on
>
>how to make illegal drugs. In rejecting the publisher's argument that
>
>there could be no probable cause to believe that a crime had been
>
>committed because its actions were shielded by the First Amendment,
>
>and thus a fortiori there was no probable cause to support the search
>
>pursuant to which the drug manufacturing instructions were found,
>
>the Court of Appeals explicitly foreclosed a First Amendment defense
>
>not only to the search itself, but also to a later prosecution:
>
>To the extent . . . that Barnett appears to contend that he is
>
>immune from search or prosecution because he uses the
>
>printed word in encouraging and counseling others in the
>
>commission of a crime, we hold expressly that the first
>
>amendment does not provide a defense as a matter of law to
>
>such conduct.

-Declan