Braun v. Soldier of Fortune: Ad Liability and First Amendment

In Braun v. Soldier of Fortune Magazine, Inc., the U.S. Court of Appeals for the Eleventh Circuit upheld a $4,375,000 negligence judgment against a magazine that ran a classified ad used to hire a hitman, ruling that the First Amendment does not give a publisher total immunity when an advertisement on its face alerts a reasonably prudent publisher to a clearly identifiable unreasonable risk of harm.¹

The Ad and the Killing

In early 1985, Michael Savage placed a classified ad in Soldier of Fortune offering himself as a “gun for hire,” describing his services as “discrete and very private,” and stating that “all jobs considered.” A business partner of Richard Braun used the ad to find and hire an assassin. In August 1985, Braun was shot and killed in his driveway. His 16-year-old son Michael was present and took a bullet to the thigh during the attack. The family sued the magazine and its parent, Omega Group, Ltd., for damages.¹

The Negligence Claim Against the Publisher

The Brauns sued under Georgia negligence law. Their theory: a publisher owes the public a duty of care in screening the ads it prints, and that duty is breached when the publisher runs an ad whose wording signals a substantial risk of violent crime. The family argued that the language of Savage’s ad was suggestive enough of illegal violence on its face that a reasonable publisher would have refused it, and that running it anyway created an unreasonable risk of injury or death to third parties.¹

The First Amendment Defense

Soldier of Fortune argued that classified advertising is commercial speech protected by the First Amendment, and that holding publishers responsible for the hidden intentions of advertisers would push publications to censor lawful content to avoid liability. The magazine said publishers should not have to investigate advertisers or predict future crimes. The court accepted that commercial speech carries constitutional protection but held that the protection is not absolute where the ad itself signals a risk of harm.¹

The Ruling and the Standard It Set

The Eleventh Circuit affirmed the $4,375,000 judgment against the magazine. The standard the court applied looks only at what the ad conveys on its face; the publisher is not required to conduct any outside investigation. Where the wording alerts a reasonably prudent publisher to a clearly identifiable unreasonable risk of harm, the First Amendment does not bar a negligence claim. Because Savage’s ad openly indicated the availability of criminal services, the magazine could not shelter behind free speech protection to avoid liability for the foreseeable violence that followed.¹

1
OpenJurist. Braun v. Soldier of Fortune Magazine, Inc., 968 F.2d 1110