The First Amendment protects words, not weapons. But what happens when speech is so purely functional, so precisely designed to cause harm, that its value as expression disappears? That question lay at the heart of Rice v. Paladin Enterprises, a chilling case that tested how far the “marketplace of ideas” can stretch before it becomes a manual for murder.
The story began with a paperback titled Hit Man: A Technical Manual for Independent Contractors, published by Paladin Press. The book was not satire or fiction. It offered step-by-step instructions for contract killing: how to stalk victims, modify weapons, avoid detection, and destroy evidence. When a Maryland man followed those instructions to commit a triple murder, the victims’ families sued the publisher for aiding and abetting the crime.
Paladin’s defense rested on the First Amendment. The company argued that its book was speech, not conduct, and therefore shielded by Brandenburg v. Ohio (1969), which protects even inflammatory advocacy unless it is intended and likely to produce imminent lawless action. The Fourth Circuit disagreed. It held that when speech is “purely functional,” it falls outside Brandenburg’s protection.
This was the crucial shift: when expression operates as a mechanism for crime rather than an argument about it, courts bypass the Brandenburg test. Brandenburg asks whether a speaker advocates violence; Rice asked whether the speech performs it. A how-to manual, the court reasoned, does not invite debate or persuasion—it provides operational support for harm. Its value is utilitarian, not expressive, and its danger is entirely foreseeable.
In criminal law, intent is non-negotiable. Foreseeability alone (knowing that someone might misuse your words) isn’t enough for criminal conviction.
A journalist writing an article about how guns operate isn’t criminally liable if someone later uses that information unlawfully.
But a person who gives those same instructions to help a specific attacker crosses into aiding-and-abetting territory.
That’s why Rice was a civil case. The publisher could be sued because it foreseeably caused harm, but criminal punishment would have required proof that Paladin acted with the intent to assist murder. (Paladin’s stipulation that it intended its manual to help killers would, in theory, satisfy that element.)
The difference between incitement and facilitation drives this logic. Incitement involves urging others to act, and its danger lies in persuasion and immediacy. Facilitation involves enabling the act; its danger lies in instruction and assistance. The former concerns motivation; the latter concerns means. When speech operates as a weapon of function rather than a vehicle of belief, courts treat it not as expression but as conduct.
Rice doesn’t undermine Brandenburg; it defines its edge. Brandenburg protects even hateful advocacy so long as it stays in the realm of persuasion. Rice denies protection to speech that transforms persuasion into performance.
That’s the border between liberty and liability. The First Amendment’s promise ends when words cease to argue and begin to do.
Doctrinal sum-up:
Facilitation occurs when speech provides the means or tools for committing a crime (instructions, blueprints, or operational guidance) rather than merely encouraging it.
Unlike incitement, which aims to persuade, facilitation enables; its danger lies in function, not advocacy, because the speech itself helps make the unlawful act possible.
I don’t recall whether the Planned Parenthood v. ACLA case was within this portion of our discussion, or if it fell in true threats. In that case, the ACLA posted Wanted posters of abortion doctors, and some of those doctors were then killed and assaulted. I just want to clear up my understanding of the line between threats, incitement, and facilitation. Two questions:
1) Is posting this information likely to cause imminent harm facilitation?
2) What is the distinction between that case and the Turning Point Professor Watchlist? Both publicly post individuals in a “wanted” like manner, and professors and doctors have faced harassment and violence as a result. I would think this watchlist would fall under the same reasoning of ACLA, however, I haven’t seen any litigation surrounding this. What do you see as the difference?