When Paladin Enterprises published Hit Man, a manual about murder for hire, it knew and intended that the book would be used for such a purpose. When James Perry used the information contained in Hit Man to murder three innocent persons, he started a legal debate about the scope of First Amendment protections for books that instruct how to commit criminal acts. Many scholars and commentators indicated that Brandenburg v. Ohio contains the applicable constitutional standard; however, in litigation against Paladin, the survivors of the decedents challenged the conventional wisdom.
This Note examines the Brandenburg test for its applicability to published materials that function as instruction manuals to perpetrate crimes. Because Brandenburg is inextricably linked with the crowd context, it is inapplicable to the published materials that function not as advocacy, but as instruction. Because Hit Man was used exactly as Paladin had intended, Paladin should be held liable in tort for the wrongful deaths of Perry's three victims.