Eimann v. Soldier of Fortune Magazine, Inc. - 880 F.2d 830 (5th Cir. 1989)

Rule:

Publishers do not have an obligation to reject all ambiguous advertisements for products or services that might pose a threat of harm.

Facts:

The son and mother of a murder victim brought a wrongful death action against the magazine, which published an advertisement through which the victim's husband hired an assassin to kill her. The jury found that the magazine acted with negligence and gross negligence in publishing the advertisement and awarded damages against the magazine. On appeal, the magazine argued that no liability could attach to it because the criminal activities of the murderers were the proximate cause of the murder and that imposition of tort liability contravened First Amendment protection for commercial speech because the judgment impermissibly imposed a duty on publishers to investigate its advertisers and their ads.

Issue:

Could the magazine be held liable for publishing an advertisement through which the victim's husband hired an assassin to kill the victim?

Answer:

No.

Conclusion:

The court held that no liability could attach to the magazine as a matter of law because the magazine owed no duty to refrain from publishing a facially innocuous classified advertisement when the ad's context made its message ambiguous. The court concluded that the standard of conduct imposed by the district court did not strike the proper balance between the risks of harm from ambiguous advertisement and the burden of preventing harm from this source under these facts.