Eimann v. Soldier of Fortune Magazine, Inc.
1989 WL 85101, 880 F.2d 830 (1989)
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Rule of Law:
A publisher owes no legal duty to refrain from publishing a classified advertisement that is facially innocuous and ambiguous, even if the ad's context might suggest a potential for illegal activity. Imposing a duty to reject all such ambiguous advertisements would create an unreasonably high and onerous burden on the publisher.
Facts:
- In 1984, John Wayne Hearn, an ex-Marine, placed a classified ad in Soldier of Fortune Magazine (SOF).
- The ad read: 'EX-MARINES — 67-69 ’Nam Vets, Ex-DI, weapons specialist — jungle warfare, pilot, M.E., high risk assignments, U.S. or overseas,' followed by a phone number.
- Hearn intended the ad to recruit for legitimate bodyguard or security work, though he testified that approximately 90% of the responses he received were for illegal activities.
- Robert Black had previously asked at least four other people to kill his wife, Sandra Black.
- After seeing the advertisement, Robert Black contacted Hearn.
- Initially, Black and Hearn discussed legitimate bodyguard work and the sale of guns.
- Black later directly proposed that Hearn murder his wife, Sandra Black, for $10,000.
- On February 21, 1985, Hearn murdered Sandra Black at her husband's behest.
Procedural Posture:
- Sandra Black’s son, Gary Wayne Black, and her mother, Marjorie Eimann, filed a wrongful death lawsuit against Soldier of Fortune Magazine, Inc. in federal district court.
- Following a trial, a jury found that SOF was negligent and grossly negligent in publishing the advertisement.
- The jury awarded the plaintiffs $1.9 million in compensatory damages and $7.5 million in punitive damages, for a total of $9.4 million.
- The district court entered a judgment on the jury's verdict.
- Soldier of Fortune Magazine, Inc. (appellant) appealed the judgment to the United States Court of Appeals for the Fifth Circuit.
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Issue:
Does a publisher, under principles of negligence, owe a duty to the public to refrain from publishing a personal services advertisement that is facially innocuous but could be interpreted as a solicitation for illegal activities due to its ambiguous language and the magazine's overall context?
Opinions:
Majority - W. Eugene Davis
No. A publisher owes no duty to refrain from publishing a facially innocuous classified advertisement when the ad’s context—at most—makes its message ambiguous. The court determined that while the harm caused was grave, the burden of preventing such harm by requiring publishers to reject all ambiguous ads is too onerous. The court applied a risk-utility balancing test (the Hand Formula: B < PL), weighing the Burden (B) of precautions against the Probability (P) of harm multiplied by the gravity of the potential Loss (L). Here, the ad for 'high risk assignments' was ambiguous and did not explicitly offer illegal services. Forcing SOF to reject this ad would mean requiring it to reject all ads that are not perfectly clear, a burden (B) the court found outweighs the risk of harm (PL). The court noted that even the plaintiff's expert witness conceded that distinguishing lawful ads from criminal ones based on 'code words' was impossible, and that imposing such a duty would have a chilling effect on commercial speech and publishing.
Analysis:
This case establishes a significant precedent protecting publishers from tort liability for ambiguous third-party advertisements. By applying a risk-utility analysis, the court set a high bar for plaintiffs, requiring an advertisement to be more than merely suggestive of illegality to create a duty for the publisher. The decision clarifies that a publisher does not have a broad duty to investigate its advertisers or reject ads based on the publication's general context. This ruling shields the publishing industry from potentially limitless liability and avoids chilling commercial speech, forcing future plaintiffs to show that an ad more clearly and facially proposes an illegal transaction.
