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Herceg v. Hustler Magazine, Inc. - 814 F.2d 1017 (5th Cir. 1987)


The word incitement, like many of the words in our complex language, can carry different meanings. It is properly used to refer to encouragement of conduct that might harm the public such as the violation of law or the use of force. But when the word is used in that context, the state may not punish such an inducement unless the speech involved is, directed to inciting or producing imminent lawless action and likely to incite or produce such action.


Appellees, the mother of a 14-year-old and the teen's friend, brought an action against appellant Hustler, Inc., alleging that the teenager was incited by an article in Hustler, "The Orgasm of Death," which detailed how to perform autoerotic asphyxiation in the magazine. Appellee friend found the body of the teenager hanging dead in his closet with the magazine open to the page on which the article appeared in Hustler. The jury in the federal district court awarded damages, and Hustler appealed.


Could a publisher of a magazine article detailing an act that could, if performed, result in death be held liable for a teenager's suicide under the "incitement" exception of the First Amendment?




The Court of Appeals for the Fifth Circuit reversed the judgment of the district court, holding that the imposition of civil liability for such an article was a violation of the freedom of speech and of the press under U.S. Const. amend. I. The Court noted that the article did not incite the deceased to perform the autoerotic act, but rather, repeatedly advised readers not to do it because of the danger of death. The Court held that the incitement exception to the guarantee of freedom of speech was directed to inciting imminent lawless action, such as mob violence. The Court found that the article published by Hustler could be taken as advice against performing the dangerous autoerotic act.

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