Court Shoots from the Hip with Ruling

Article excerpt

Contrary to what some people might think, Soldier of Fortune is not my favorite magazine. But compared with reading what American courts claim is constitutional, SoF deserves a place on our coffee tables.

In mid-January, the Supreme Court let stand a $4.3 million judgment against the official monthly fantasy jolt of the wanna-be-a-mercenary-when-I-grow-up market. The trouble, as so often turns out to be the case with the reading material the court offers, is that what the court's ruling does to Soldier of Fortune it may also do to most other publications in the country.

The kind of people who I imagine regularly read Soldier of Fortune look rather like Woody Allen and work as washing machine repairmen but like to cast themselves in the home movies of their minds as a secret synthesis of Conan the Barbarian and Long Dong Silver. My impression of the articles the magazine typically sports is that they're devoted to such lore as how to strangle the sentries at Amazonian drug bases without making too much noise and what kind of ammo to use when taking out the secret police chief of Thither Slobovia. But if you think its articles are a gas, just wait till you get a load of its personal ads.

One ad carried in a 1985 issue read as follows: "GUN FOR HIRE: 37 year old mercenary desires jobs. Discrete [sic] and very private. Bodyguard, courier and other special skills. All jobs considered." Tragically for one Richard Braun, not every Soldier of fortune reader is Woody Allen. Some of them confuse fantasy with reality.

In August 1985, Braun's partner in business answered the above ad, placed in the magazine by somebody who called himself Michael Savage. That was his real name, but again, as is typical of the world of Soldier of Fortune, it sounds like the hero of an Edgar Rice Burroughs penny dreadful. In any case, Savage was hired to murder Braun and proceeded to do so, blowing away his victim in his home and wounding Braun's son. Savage was convicted of murder.

Braun's relatives filed a wrongful death lawsuit against the magazine and won about $12 million, which eventually was reduced to $4.3 million. The Supreme Court let the judgment stand, and Soldier of Fortune suddenly has been dragged out of the fantasy world in which it thrives and kicked into the real one.

Many say the magazine can't survive the suit and will go out of business as a result of the judgment.

The operative clause in the fantasy world the justices construct is that the First Amendment permits imposing liability "for negligently publishing a commercial advertisement where the ad on its face, and without the need for investigation, makes it apparent that there is a substantial danger of harm to the public. …