Authors held responsible for readers’ actions

From the Spring 2003 issue of The News Media & The Law, page 30.

By Sara Thacker

On Oct. 18, 2001, federal agents raided an office in an industrial park in Escondido, Calif. Inside, they found one of the largest ecstasy laboratories ever seized in U.S. history and a copy of “Total Synthesis II,” a book explaining how to manufacture the drug.

That same day, Hobart Huson, author of “Total Synthesis II,” was arrested in San Antonio and charged with conspiracy to manufacture and distribute ecstasy.

The book, which Huson wrote under the pen name “Strike,” provides specific instructions on how to create an ecstasy lab. Huson wrote the book while serving a six-month sentence for attempting to manufacture the drug. After he was released, he formed Scientific Alliance, a company that distributes otherwise legal chemicals that could be used to produce ecstasy.

Huson’s case and another case involving a “tax avoidance” book have recently forced courts to consider when speech crosses the line into conduct by aiding in the commission of a crime. And based on a body of law that has developed extensively in the last few years, the prospects are not good for the authors of books that lay out a series of steps to accomplish an illegal objective.

Federal prosecutors plan to use Huson’s book to show that he intended for the chemicals sold to the defendants through his company to be used in the production of ecstasy.

According to Assistant U.S. Attorney Todd Robinson, who is prosecuting the case against all the defendants in federal court in Los Angeles, Huson’s book is merely tangential to the case.

Federal agents wiretapped Huson’s business and recorded conversations between Huson and the defendants even before the book was found in the defendants’ laboratory, Robinson said.

The book refers readers not only to Scientific Alliance to purchase chemicals, but provides readers with a telephone script of how to use a fake name and identity to obtain ingredients used to produce ecstasy from chemical companies.

Huson’s book also contains various recipes for amphetamines and extols the benefits of drugs.

“Ecstasy is the most benign drug Strike has ever encountered. It is passive yet powerful. By powerful Strike does not mean that it incapacitates or makes one dangerous. It is, in fact, quite the opposite. Its power is in its ability to evoke a total sensory bath of tactile, visual and mental enhancement. . . .Why this substance was taken away from the people is a question that only government-funded scientists can answer,” Huson wrote in his book.

Huson’s views may not be popular. Indeed, Huson acknowledges in his book that creating “an underground laboratory” would be “illegal” and informs his readers that “hypothetically” one could start a laboratory with certain equipment and chemicals.

Notwithstanding this disclaimer, U.S. District Judge Thomas J. Whelan ruled that prosecutors will be able to introduce the book as evidence in the July trial to prove Huson’s knowing participation in the conspiracy to manufacture and distribute ecstasy in one of the largest laboratories seized in the United States.

Lessons learned from “Hit Man”

As Colorado-based publisher Paladin Press learned, the First Amendment provides no protection once a court determines that speech has aided and abetted a crime.

Founded in 1970 by Peter Lund and Robert K. Brown, Paladin Press focused on publishing specialized military and action-adventure books that contained information on potentially illegal activities and devices. In 1975, Brown left Paladin to start Soldier of Fortune magazine.

According to its Web site, Paladin believes the First Amendment guarantees Americans the right to read about the topics they choose.

The company’s philosophy was put to the test in1983 when Paladin published “Hit Man: A Technical Manual for Independent Contractors.”

The first version of the book was written by a woman as fiction, Lund explained. Paladin told the author that if she changed the format to a manual, it would consider publishing the book.

Ten years later, James Perry used the book to murder Lawrence Horn’s ex-wife Mildred, Horn’s 8-year-old quadriplegic son Trevor, and Trevor’s nurse, Janice Saunders, in Montgomery County, Md. Horn hired Perry as the “hit man” so that he would receive the $2 million settlement for the accident that left his son paralyzed.

In a wrongful death action brought by the victims’ families, Paladin argued that even assuming it was civilly liable as an aider and abetter to Perry’s triple contract murder, the First Amendment provided a complete defense from any liability.

Paladin’s argument was that speech is protected by the First Amendment if it is distributed to a mass audience and could be used for lawful as well as unlawful purposes, said attorney Lee Levine, who represented the publishing company.

But that argument failed.

While abstract advocacy of illegal activity is protected speech under the First Amendment, the U.S. Court of Appeals in Richmond (4th Cir.) held that speech providing step-by-step instructions on how to murder did not deserve First Amendment protection.

A jury reasonably could conclude that the book was “so comprehensive and detailed that it is as if the instructor were literally present with the would-be murderer not only in preparation and planning, but in the actual commission of, and follow-up to, the murder,” the court wrote.

In addition, the court found that “where a speaker — individual or media acts with the purpose of assisting in the commission of crime, we do not believe that the First Amendment insulates that speaker from responsibility for his actions simply because he may have disseminated his message to a wide audience.”

In light of the decision and to avoid trial, Paladin’s insurance carrier decided to settle. As part of the settlement agreement, Paladin stopped distributing the book and provided millions of dollars to the victim’s families.

But Lund still wonders how a publisher and the perpetrator of a crime can be held accountable when they have never met.

“We are not advocating criminal activity,” Lund said. “We sell information, some of which may be used by people who are predisposed to criminal activity.”

“These same books are also used by police, military, mystery writers, crime writers and all over the world. That has value,” Lund explained.

“The Federal Mafia” banned

Irwin Schiff, owner of Freedom Books, also is convinced his book has value.

Schiff’s book, “The Federal Mafia,” describes how the government illegally collects income tax and provides a worksheet on how to claim “zero income” on federal tax return forms.

But the government wants Schiff’s book banned, and successfully obtained a temporary restraining order against distribution of the book in U.S. District Court in Las Vegas.

Judge Lloyd George is expected to rule in May on whether to permanently ban distribution of Schiff’s book.

In papers filed in Nevada to enjoin distribution of Schiff’s book, the Department of Justice claims that the IRS has identified at least 3,100 individuals who filed “zero income” tax returns based on Schiff’s materials. According to the Justice Department, “the total amount of taxes that Schiff’s customers have evaded or attempted to evade is $56,000,000 for tax years 1999 through 2001.”

The Justice Department argues that distribution of the book constitutes aiding and abetting illegal activity, which is conduct that constitutes a crime under the federal tax code and should be enjoined.

“This is not, however, a criminal prosecution,” wrote Alan Lichtenstein, counsel for the American Civil Liberties Union of Nevada in a friend-of-the-court brief. “If it were, the jury would decide whether the facts, circumstances and context of a particular crime served to indicate that it was aided and abetted through speech or writing. The total banning of the book allows for no such specific case by case analysis.”

But the Justice Department claims that it does not have the time or resources to prosecute thousands of tax evaders, and if it did, the courts and government would be overwhelmed.

According to Lichtenstein, that’s no excuse.

“What the government’s position really states is that it is easier for them to invoke censorship than to prove aiding and abetting on a case by case basis in front of a jury,” the ACLU argued in its brief.

Even though the ACLU does not endorse Schiff’s position on federal income taxes, it believes his book is entitled to the highest level of protection under the First Amendment.

“The point of the book, as the title indicates, is that, in Mr. Schiff’s view, the government is acting illegally. This attack on government, however frivolous it may appear to some, contains core political speech. As such it is constitutionally protected,” the ACLU wrote.

The government disagreed. Schiff and his associates cannot “evade an injunction merely by sandwiching their unprotected tax-scheme materials between protected speech, putting a glossy cover on the whole package, and calling it a book,” wrote the Justice Department in its post-hearing brief.

But Schiff is adamant that no statute requires payment of federal income taxes and that his speech should be protected even if it can be proven wrong.

“Popular speech doesn’t need protection. What needs protection is unpopular speech that goes against conventional thinking,” Schiff said.