Vivian RICE, Guardian and next friend of Tamielle Horn; Marilyn Farmer, Co-personal representatives of the estate of Mildred Horn; Tiffani M. Horn, Co-personal representatives of the estate of Mildred Horn; Michael D. Saunders, Individually and next friend of Colin D. Saunders, a minor and personal representative of the estate of Janice Y. Saunders; Colin D. Saunders; Janice Y. Saunders, Plaintiffs-Appellants, v. The PALADIN ENTERPRISES, INCORPORATED, a/k/a The Paladin Press, Defendant-Appellee, and Peter C. Lund, Defendant. David Crump, Professor of Constitutional Law and Recipient of "Friend of the First Amendment" Award; National Victim Center; Stephanie Roper Foundation, Incorporated; Victims Rights Political Action Committee; The Horror Writers Association; The Thomas Jefferson Center for the Protection of Free Expression; American Civil Liberties Union Foundation; American Civil Liberties Union of the National Capitol Area; American Civil Liberties Union of Colorado; ABC, Incorporated; America Online, Incorporated; Association of American Publishers; The Baltimore Sun Company; E.W. Scripps Company; Freedom to Read Foundation; Magazine Publishers of America, Incorporated; McClatchy Newspapers, Incorporated; Media General, Inc.; Media Professional Insurance; National Association of Broadcasters; Newspapers Association of America; The New York Times; The Reporters Committee for Freedom of the Press; Society of Professional Journalists; The Washington Post, Amici Curiae, 128 F.3d 233

Reversed and remanded by published opinion.' Judge LUTTIG wrote the opinion, in which Judges WILKINS and WILLIAMS joined. ' OPINION LUTTIG, Circuit Judge: To Those Who Think, To Those Who Do, To Those Who Succeed. Success is nothing more than taking advantage of an opportunity. A WOMAN RECENTLY ASKED HOW I could, in good conscience, write an instruction book on. murder. “How can you live with yourself if someone uses what you write to go out and take a human life?” she whined. I am afraid she was quite offended by my answer.

It is my opinion that the professional hit man fills a need in society and is, at times, the only alternative for “personal” justice. Moreover, if my advice and the proven methods in this book are followed, certainly no one will ever know. [AJlmost every man harbors a fantasy of living the life of Mack Bolán or some other fictional hero who kills for fan and profit. They dream of living by their reflexes, of doing whatever is necessary without regard to moral or legal restrictions. But few have the courage or knowledge to make that dream a reality.

You might be like my friends — interested but unsure, standing on the sidelines afraid to play the game because you don’t know the rules. [But] udthin the pages of this book you will learn one of the most successful methods of operation used by an independent contractor. You will follow the procedures of a man who works alone, without backing of organized crime or on a personal vendetta. Step by step you will be taken from research to equipment selection to job preparation to successful job completion.

You will learn where to find employment, how much to charge, and what you can, and cannot, do with the money you earn. But deny your urge to skip about, looking for the “good” parts. Start where any amateur who is serious about turning professional will start — at the beginning. [And when] [y]ou’ve read all the suggested material, you [will have] honed your mind, body and reflexes into a precision piece of professional machinery. You [will have] assembled the necessary tools and learned to use them efficiently. Your knowledge of dealing death [will have] increased to the point where you have a choice of methods.

Finally, you [will be] confident and competent enough to accept employment. [When you go to commit the murder, you will need] several (at least four or five pairs) of flesh-tone, tight-fitting surgical gloves. If these are not available, rubber gloves can be purchased at a reasonable price in the prescription department of most drug stores in boxes of 100. You will wear the gloves when you assemble and disassemble your weapons as well as on the actual job.

Because the metal gun parts cause the rubber to wear quickly, it is a good practice to change and dispose of worn gloves several times during each operation. [The bag you take to the kill also] should contain a few pairs of cheap handcuffs, usually available at pawn shops or army surplus stores. Dress, as well as disguises, should be coordinated according to the job setting. Black, dark brown or olive green clothes do not stand out and will probably appear at first glance to be a mechanic or delivery driver’s uniform....

And underneath, you can wear your street clothes for a quick change after the job is completed. The kill is the easiest part of the job. People kill one another every day. It takes no great effort to pull a trigger or plunge a knife. It is being able to do so in a manner that will not link yourself or your employer to the crime that makes you a professional. [If you decide to kill your victim with a knife,] [t]he knife ... should have a six-inch blade with a serrated edge for making efficient, quiet kills. The knife should have a double-edged blade. This double edge, combined with the serrated

section and six-inch length, will insure a deep, ragged tear, and the wound will be difficult, if not impossible, to close without prompt medical attention. Make your thrusts to a vital organ and twist the knife before you withdraw it. If you hit bone, you will have to file the blade to remove the marks left on the metal when it struck the victim’s bone. Using your six inch, serrated blade knife, stab deeply into the side of the victim’s neck and push the knife forward in a forceful movement.

This method will half decapitate the victim, cutting both his main arteries and wind pipe, ensuring immediate death. [You might also use an ice pick to murder your victim.] ... An ice pick can ... be driven into the victim’s brain, through the ear, after he has been subdued. The wound hardly bleeds at all, and death is sometimes attributed to natural causes. [If you plan to kill your victim zvith a gun,] you wül learn [on the following pages] how to make, without need of special engineering ability or expensive machine shop tools, a silencer of the ■highest quality and effectiveness.

The finished product attached to your 22 will be no louder than the noise made by a pellet gun. Because it is so inexpensive (mine cost less than twenty dollars to -make), you can easily dispose of it after job use without any great loss.... Yoúrfirst silencer will require possibly two days total to assemble ... as you carefully follow the directions step by step. After you make a couple, it will become so easy, so routine, that you can whip one up in just a few hours.

The following items should be assembled before you begin [to build your silencer]: — Drill rod, 7/S2 inch (order from a machine shop if not obtainable locally) — One foot of 1-1/2 inch (inside diameter) PVC tubing and two end caps — One quart of fiberglass resin zvith, hardener — One yard thin fiberglass mat [List continues] [If you plan to kill your victim zvith a gun,][c]lose kills are by far preferred to shots fired over a long distance. You will need to know beyond any doubt that the desired result has been achieved.

When using a small caliber weapon like the 22, it is best to shoot from a distance of three to six feet. You zvill not want to be at pointblank range to avoid having the victim’s blood splatter you or your clothing. At least three shots should be fired to ensure quick and sure death. [If you plan to kill your victim from a distance,] use a rifle zvith a good scope and silencer and aim for the head — preferably the' eye sockets if you are a sharpshooter. Many repeatedly, even in the head, and survived to tell about it.

The rifle■ has a ridge on top that zvill easily accept a scope, even though it is not cut for one. Put the scope in place, tighten it. dozvn, then sight it in. After sighting in, scratch a mark behind each scope clamp to allow remounting of the scope zvithout résighting each time. Extra clips are a must for both the rifle and pistol and should be carried as a precautionary measure. Hollow-point bullets are recommended because they deform on impact; making them nontraceable.

As an added precaution, you can fill the hollows zvith liquid poison to insure success of your operation.... [Details follow] To test your guns and ammunition, set up a sheet of quarter-inch plywood at distances of two to seven yards maximum for your pistol, and twenty to sixty yards maximum for your rifle. Check for penetration of bullets at each range. Quarter-inch plywood is only a little stronger than the human skull. If the serial number is on the barrel of the gun, grinding deeply enough to remove it may weaken the barrel to the point that the gun could explode in your face when fired.

To make these numbers untraceable, [instructions follow], ,• [After shooting your victim] run a [specified tool] doum the bore of the gun to change the ballistic markings. Do this even though you intend to discard the crime weapon.... If, for some reason, you just can’t bear to part zvith your weapon ... alter the [specified parts of the gun according' to the directions that follow]. Although several shots fired in succession" offer quick and relatively humane death to the victim, there are instances when other methods of extermination are called for..

The employer may want-you to gather certain information from the mark before yon do away zvith him. At other times, the assignment may call for torture or disfigurement as a “lesson” for the survivors. There is no end to the various ways of torturing a mark until he would tell you what you want to know, and die just to get it over. Sometimes all it takes is putting a knife to his throat.

Not from behind with the blade across the throat the way they do in the movies, but from the front with the tip of the blade creasing the soft hollow of the throat, where the victim can see the gleaming steel and realizes what damage it would do if fully penetrated. The only time I can think of that explosives might be in order is when several marks will be together in one place at the same time, and you might be able to get them all with one shot. Notice that I stressed the word might. Shrapnel doesn’t always kill.

So in the aftermath, it will be your responsibility to enter the area and make sure that the desired result was accomplished. [If you plan to kill your victim with a fertilizer bomb,] purchase a fifty pound bag of regular garden fertilizer from your garden center [and follow these detailed instructions for constructing the bomb]. Extend the fuse and light....

Arson is a good method for covering a kill or creating an “accident. ” Don’t ever use gasoline or other traceable materials to start your fire. [Specified substance] is your best starter because it bums away all traces. [In order to dispose of a corpse,] you can simply cut off the head after burying the body. Take the head to some deserted location, place a stick of dynamite in the mouth, and blow the telltale dentition to smithereens! After this, authorities can’t use the victim’s dental records to identify his remains.

As the body decomposes, fingerprints will disappear and no real evidence will be left from which to make positive identification. You can even clip off the fingertips and bury them separately. [Or] you can always cut the body into sections and pack it into an ice chest for transport and disposal at various spots around the countryside. If you choose to sink the corpse, you must first make several deep stabs into the body’s lungs (from just under the rib cage) and belly. This is necessary because gases released during decomposition will bloat these organs, causing the body to rise to the surface of the water.

The corpse should be weighted with the standard concrete blocks, but it must be wrapped from head to toe with heavy chain as well, to keep the body from separating and floating in chunks to the surface. After the fishes and natural elements have done their work, the chain will drag the bones into the muddy sediment. ... If you bury the body, again deep stab wounds should be made to allow the gases to escape. A bloating corpse will push the earth up as it swells.

Pour in lime to prevent the horrible odor of decomposition, and lye to make that decomposition more rapid. [After you killed your first victim,] you felt absolutely nothing. And you are shocked by the nothingness. You had expected this moment to be a spectacular point in your life. You had wondered if you would feel compassion for the victim, immediate guilt, or even experience direct intervention by the hand of God. But you weren’t even feeling sickened by the sight of the body. After you have arrived home the events that took place take on a dreamlike quality. You don’t dwell on them. You don’t worry.

You don’t have nightmares. You don’t fear ghosts. When thoughts of the hit go through your mind, it’s almost as though you are recalling some show you saw on television. By the time you collect the balance of your contract fee, the doubts and fears of discovery have faded. Those feelings have been replaced by cockiness, a feeling of superiority, a new independence and self-assurance. [Everything seems to have changed. The people around you have suddenly become so aggravatingly ordinary.

You start to view them as an irritating herd of pathetic sheep, doing as they are told, doing what is expected, following someone, anyone, blindly. You can’t believe how dumb your friends have become, and your respect diminishes for people you once held in awe. You too have become different. You recognize that you made some mistakes, but you know what they were, and they will never plague you again. Next time (and you know there will be a next time), there will be no hesitation, no fear. Your experience in facing death head-on has taught you about life. You have the power and ability to stand alone.

You no longer need a reason to kill. The things you have learned about life are important. You may wish to pass on your observations to someone you care about. When the bullshit starts to flow, you may feel compelled to set the record straight and tell those morons how it really is. When someone starts to brag, in confidence, about something he’s done, the intimacy of the moment, the shared confessions, may inspire you to do a little bragging of your own.

Or you may want to overawe some new woman in your life with your masculinity and you, feel the urge to shock her just a little-by hinting at your true profession. Start now in learning to control your ego. That means, above all keeping your mouth shut! You are a man. Without a doubt, you have proved it. You have come face to face with death and emerged the victor through your cunning and expertise. You have dealt death as a: professional. You don’t need any second or third opinions to verify your manhood.

Then, some day, when you’ve done and seen it all; when there doesn’t seem to be any challenge left or any new frontier left to conquer, you might just feel cocky enough to write a book about it. I. On the night of March 3, 1993, readied by these instructions and steeled by these seductive. adjurations from Hit Man: A.

Technical Manual for Independent Contractors, a copy of which was subsequently found in his apartment, James Perry brutally murdered Mildred Horn, her eight-year-old quadriplegic son Trevor, and Trevor’s nurse, Janice Saunders; by shooting Mildred Horn and Saunders through the eyes and by strangling Trevor Horn. Perry’s despicable crime was not one of vengeance; he did not know any of his victims. Nor did he commit the murders in the course of another offense.

Perry acted instead as a contract killer, a “hit man,” hired by Mildred Horn’s ex-husband, Lawrence Horn, to murder Horn’s family so that Horn would receive the $2 million that his eight-year-old son had received in settlement for injuries that had previously left him paralyzed for life. At the time of the murders, this money was held in trust for the benefit of Trevor, and, under the terms of the trust instrument, the trust money was to be distributed tax-free to Lawrence in the event of Mildred’s and Trevor’s deaths.

In soliciting, preparing for, and committing these murders, Perry meticulously followed countless of Hit Man’s 130 pages of detailed factual instructions on how to murder and to become a professional killer.

Perry, for example, followed many of the book’s instructions on soliciting a client and arranging for a contract murder in his solicitation of and negotiation with Lawrence Horn. • Cautioning against the placement of advertisements in military or gun magazines, as this might prompt “a personal visit from the FBI,” Hit Man instructs that “as a beginner” one should solicit business .“through a personal acquaintance whom you trust.” Hit Man at 87. James Perry offered his services as a professional killer to Lawrence Horn through Thomas Turner, a “good friend” of Perry’s, and Lawrence Horn’s first cousin. Perry v.

State, 344 Md. 204, 686 A.2d 274, 278 (1996), cert. denied, -.— U.S.-, 117 S.Ct. 1318, 137 L.Ed.2d 480 (1997). Hit Man instructs to request “expense money” .from .the employer prior to committing the crime, advising the contract killer to get “all expense money up front.” Hit Man at 92 (emphasis added).- The manual goes on to explain that this amount should generally range from five hundred to five thousand dollars, “depending on the type of job and the job location,” and that the advance should be paid in cash. Id.

Prior to commission of the murders, Lawrence Horn paid James Perry three thousand five hundred dollars through a series of wire transfers using phony names. Perry, 686 A.2d at 280. Hit Man instructs that the victim’s personal residence is the “initial choice” location for a murder and “an ideal place to make a hit,” depending on its “layout” and “position.” Hit Man at 81-82. James Perry murdered the Horns at their place of residence. Perry, 686 A.2d at 277.

Hit Man instructs its readers to use a rental car to reach the victim’s location, Hit Man at 98, and to “steal an out-of-state tag” and use it to “replace the rental tag” on the car, explaining that “[sjtolen tags only show up on the police computer of the state in which they are stolen.” Id. James Periy stole out-of-state tags and affixed them to his rental car before driving it to the Horns’ residence on the night of the murders. Perry, 686 A.2d at 276. Hit Man instructs the reader to establish a base at a motel in close proximity to the “jobsite” before committing the murders. Hit Man at 101.

On the night that he killed Mildred and Trevor Horn and Janice Saunders, James Perry took a room at a Days Inn motel in Rockville, Maryland, a short drive from the Horns’ residence. Perry, 686 A.2d at 276. Hit Man instructs that one should “use a made-up [license] tag number” when registering at the motel or hotel. Hit Man at 102. James Perry gave a false license tag number when he registered at the Days Inn on the night of the murders. Perry, 686 A.2d at 276. Hit Man instructs that a “beginner” should use an AR-7 rifle to kill his victims. Hit-Man at 21.

James Perry used an AR-7 rifle to slay Mildred Horn and Janice Saunders. Perry, 686 A.2d at 279. Hit Man instructs its readers where to find the serial numbers on an AR-7 rifle, and instructs them that, prior to using the weapon, they should “completely drill[ ] out” these serial numbers so that the weapon cannot be traced. Hit Man at 23. James Perry drilled out the serial numbers of his weapon exactly as the book instructs. Perry, 686 A.2d at 280.

Hit Man instructs in “explicit detail” (replete with photographs) how to construct, “without [the] need of special engineering ability or machine shop tools,” a homemade, “whisper-quiet” silencer from material available in any hardware store. Hit Man at 39-51. James Perry constructed such a homemade silencer and used it on the night that he murdered Mildred and Trevor Horn and Janice Saunders. J.A. at 24. Perry also followed any number of Hit Man’s instructions on how to commit the murder itself.

The manual, for example, instructs its readers to kill their “mark” at close range, so that they will “know beyond any doubt that the desired result has been achieved.” Hit Man at 24. .The book also cautions, however, that the killer should not shoot the victim at point blank range, because “the victim’s blood [will] splatter [the killer] or [his] clothing.” Id. Ultimately, the book recommends that its readers “shoot [their victims] from a distance of three to six feet.” Id. James Perry shot Mildred Horn and Janice Saunders from a distance of three feet. J.A. at 24.

Hit Man specifically instructs its audience of killers to shoot the victim through the eyes if possible: At least three shots should be fired to insure quick and sure death____ [A]im for the head — preferably the eye sockets if you are a sharpshooter. Hit Man at 24. James Perry shot Mildred Horn and Janice Saunders two or three times and through the eyes. Perry, 686 A.2d at 277. Finally, Perry followed many of Hit Man’s instructions for concealing his murders. Hit Man instructs the killer to “[p]ick up those empty cartridges that were ejected when you fired your gun.” Hit Man at 104.

Although Perry fired his rifle numerous times during the murders, no spent cartridges were found in the area. Compare Perry, 686 A.2d at 277, with id. at 280. Hit Man instructs the killer to disguise the contract murder as burglary by “mess[ing] the place up a bit and tak[ing] anything of value that you can carry concealed.” Hit Man at 104. After killing Mildred and Trevor Horn and Janice Saunders, James Perry took a Gucci watch, as well as some credit cards and bank cards from Mildred Horn’s wallet. Perry, 686 A.2d at 278.

According to the police report, a few areas of the Horns’ residence appeared “disturbed” or “slightly tossed,” and “a rug and cocktail table in the living room had been moved.” Id. at 277. Hit Man instructs that, after murdering the victims, the killer should break down the AR-7 in order to make the weapon easier to conceal. Hit Man at 105. James Perry disassembled his weapon after the murders, in accordance with the instructions in Hit Man. Perry, 686 A.2d at 280. Hit Man instructs killers to use specified tools to alter specified parts of the rifle. Hit Man at 25.

The author explains that the described alterations will prevent the police laboratory from matching the bullets recovered from the victims’ bodies to the murder weapon. James Perry altered his AR-7 in accordance with these instructions. Perry, 686 A.2d at 280. Hit Man also instructs the killer to dispose of the murder weapon by scattering the disassembled pieces of the weapon along the road as he leaves the crime scene. Hit Man at 105. And, after killing Mildred and Trevor Horn and Janice Saunders, Perry scattered the pieces of his disassembled AR-7 rifle along Route 28 in Montgomery County.

Perry, 686 A.2d at 280. In this civil, state-law wrongful death action against defendant Paladin Enterprises— the publisher of Hit Man ■ — the relatives and representatives of Mildred and Trevor Horn and Janice Saunders allege that Paladin aided and abetted Perry in- the commission of his murders through its publication of Hit Man’s killing instructions.

For reasons that are here of no concern to. the court, Paladin has stipulated to a set of facts which establish as a matter of law that the publisher-is civilly liable for aiding and- abetting James Perry in his triple murder, unless the First Amendment absolutely bars the imposition of liability upon a publisher for assisting in the commission of criminal acts. As the parties stipulate: “The parties agree that the sole issue to be decided by the Court ... is whether the First Amendment is a complete defense, as a matter of law, to the civil action set forth in the plaintiffs’ Complaint.

All other issues of law and fact are specifically reserved for subsequent proceedings.” J.A. at 58. Paladin, for example, has stipulated for purposes of

summary judgment that Perry followed the above-enumerated instructions from Hit Man, as well as instructions from another Paladin publication, How to Make a Disposable Silencer, Vol. II, in planning, executing, and attempting to cover up the murders of Mildred and Trevor Horn and Janice Saunders. J.A. at 61.

Paladin has stipulated not only that, in marketing Hit Man, Paladin “intended to attract and assist criminals and would-be criminals who desire information and instructions on how to commit crimes,” J.A. at 59, but also that it “intended and had knowledge” that Hit Man actually “would be used, upon receipt,' by criminals and would-be criminals to plan and execute the crime of murder for hire.” J.A. at 59 (emphasis added).

Indeed, the publisher has even stipulated that, through publishing and selling Hit Man, it assisted Perry in particular in the perpetration of the very murders for which the victims’ families now attempt to hold Paladin civilly liable. J.A. at 61.

Notwithstanding Paladin’s extraordinary stipulations that it not only knew that its instructions might be used by murderers, but that it actually intended to provide assistance' to murderers and would-be murderers which would be used by them “upon receipt,” and that it in fact assisted Perry in particular in the commission of the murders of Mildred and Trevor Horn and Janice Saunders, the district court granted Paladin’s motion for

summary judgment and dismissed plaintiffs’ claims that Paladin aided and abetted Perry, holding that these claims were barred by the First Amendment as a matter of law.

Because long-established caselaw provides that speech — even speech by the press — that constitutes criminal aiding and abetting does not enjoy the protection of the First Amendment, and because we are convinced that such caselaw is both correct and equally applicable to speech that constitutes civil aiding and abetting of criminal conduct (at least where, as here, the defendant has the specific purpose of assisting and encouraging commission of such conduct and the alleged assistance and encouragement takes a form other than abstract advocacy), we hold, as urged by the Attorney General and the Department of Justice, that the First Amendment does not pose a bar to a finding that Paladin is civilly liable as an aider and abetter of Perry’s triple contract murder.

We also hold that the plaintiffs have stated against Paladin a civil aiding and abetting claim under Maryland law sufficient to withstand Paladin’s motion for

summary judgment. For these reasons, which we fully explain below, the district court’s grant of

summary judgment in Paladin’s favor is reversed and the case is remanded for trial. II. A- In the seminal case of Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969), the Supreme Court held that abstract advocacy of lawlessness is protected speech under the First Amendment. Although the Court provided little explanation for this holding in its brief per curiam opinion, it is evident the Court recognized from our own history that such a right to advocate lawlessness is, almost paradoxically, one of the ultimate safeguards of liberty.

Even in a society of laws,'one of the most indispensable freedoms is that to express in the most impassioned terms the most passionate disagreement with the laws themselves, the institutions of, and created by, law, and the individual officials with whom the laws and institutions are entrusted. Without the freedom to criticize that which constrains, there is no freedom at all.

However, while even speech advocating lawlessness has long enjoyed protections under the First Amendment, it is equally well established that speech which, in its effect, is tantamount to legitimately proscribable nonexpressive conduct may itself be legitimately proscribed, punished, or regulated incidentally to the constitutional enforcement of generally applicable statutes. Cf. Cohen v.

Cowles Media Co., 501 U.S. 663, 669, 111 S.Ct. 2513, 2518, 115 L.Ed.2d 586 (1991) (noting “well-established line of decisions holding that generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news”). As no less a First Amendment absolutist than Justice Black wrote for the Supreme Court almost fifty years ago in Giboney v.

Empire Storage & Ice Co., in rejecting a First Amendment challenge to an injunction forbidding unionized distributors from picketing to force an illegal business arrangement: It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute. We reject the contention now.... ... It is true that the agreements and course of conduct here were as in most instances brought about through speaking or writing.

But it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in

part initiated, evidenced, or carried out by means of language, either spoken, written, or printed. Such an expansive

interpretation of the constitutional guaranties of speech and press would make it practically impossible ever to enforce laws against agreements in restraint of trade as well as many other agreements and conspiracies deemed injurious to society. 336 U.S. 490, 498, 502, 69 S.Ct. 684, 688-89, 691, 93 L.Ed. 834 (1949) (citations omitted). And as the Court more recently reaffirmed: Although agreements to engage in illegal conduct undoubtedly possess some element of association, the State may ban such illegal agreements without trenching on any right of association protected by the First Amendment.

The .fact that such an agreement necessarily takes the form of words does not confer upon it, or upon the underlying conduct, the constitutional immunities that the First Amendment extends to speech. [W]hile a solicitation to enter into an agreement arguably crosses the sometimes hazy line distinguishing conduct from pure speech, such a solicitation, even though it may have an impact in the political arena, remains in essence an invitation to engage in an illegal exchange for private profit, and may properly be prohibited. Brown v.

Hartlage, 456 U.S. 45, 55, 102 S.Ct. 1523, 1529-30, 71 L.Ed.2d 732 (1982); see also Osborne v. Ohio, 495 U.S. 103, 110, 110 S.Ct. 1691, 1696-97, 109 L.Ed.2d 98 (1990) (quoting Giboney, 336 U.S. at 498, 69 S.Ct. at 688-89); New York v. Ferber, 458 U.S. 747, 761-62, 102 S.Ct. 3348, 3356-57, 73 L.Ed.2d 1113 (1982) (same); Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456, 98 S.Ct. 1912, 1918-19, 56 L.Ed.2d 444 (1978) (quoting Giboney, 336 U.S. at 502, 69 S.Ct. at 690-91); National Organization for Women v.

Operation Rescue, 37 F.3d 646, 656 (D.C.Cir.1994) (“That ‘aiding and abetting’ of an illegal act may be carried out through speech is no bar to its illegality.”); United States v. Varani 435 F.2d 758, 762 (6th Cir.1970) (“[S]peech is not protected by the First Amendment when it is the very vehicle of the crime itself.”); Laurence H. Tribe, American Constitutional Law 837 (2d ed. 1988) (“[T]he law need not treat differently the crime of one man who sells a bomb to terrorists and that of another who publishes an instructional manual for terrorists on how to build their own bombs out of old Volkswagen parts.”).

Were the First Amendment to bar or to limit government regulation of such “speech brigaded with action,” Brandenburg, 395 U.S. at 456, 89 S.Ct. at 1834 (Douglas, J., concurring), the government would be powerless to protect the public from countless of even the most pernicious criminal acts and civil wrongs.

See, e.g., Model Penal Code § 223.4 (extortion or blackmail); id. § 240.2 (threats and other improper influences in official and political matters); id. § 241 (perjury and various cognate crimes); id. § 5.02 and § 2.06(3)(a)(i) (criminal solicitation); 18 U.S.C. § 871 (threatening the life of the .President); Model Penal Code § 5.03 (conspiracy); id. § 250.4 (harassment); id. § 224.1 (forgery); id. § 210.5(2) (successfully soliciting another to commit suicide); id. § 250.3 (false public alarms); and the like.

As Professor Greenawalt succinctly summarized: The reasons of ordinary penal policy for covering communicative efforts to carry out ordinary crimes are obvious, and the criminal law sensibly draws no distinction between communicative and other acts. Although assertions of fact generally fall within a principle of freedom of speech, what these sorts of factual statements contribute to the general understanding of listeners is minimal, and the justifications for free-speech that apply to speakers do hot reach communications that are simply means to get a crime successfully committed.

Greenawalt, Speech, Crime, and the Uses of Language at 85 (1989). In particular as it concerns the instant case, the speech-act doctrine has long been invoked to sustain convictions for aiding and abetting the commission of criminal offenses. Indeed, every court that has addressed the issue, including this court, has held that the First Amendment does not necessarily pose a bar to liability for aiding and abetting a crime, even when such aiding and abetting takes the form of the spoken or written word.

Thus, in a case indistinguishable in principle from that before us, the Ninth Circuit expressly held in United States v. Barnett, 667 F.2d 835 (9th Cir.1982), that the First Amendment does not provide publishers a defense as a matter of law to charges of aiding and abetting a crime through the publication and distribution of instructions on how to make illegal drugs.

In rejecting the publisher’s argument that there could be no probable cause to believe that a crime had been committed because its actions were shielded by the First Amendment, and thus a fortiori there was no probable cause to support the search pursuant to which the drug manufacturing instructions were found, the Court of Appeals explicitly foreclosed a First Amendment defense not only to the search itself, but also to a later prosecution: To the extent ... that Barnett appears to contend that he is immune from search or prosecution because he uses the printed word in encouraging and counseling others in the commission of a crime, we hold expressly that the first amendment does not provide a defense as a matter of law to such conduct.

Id. at 843 (emphasis in original); see also id. at 842 (“The first amendment does not provide a defense to a criminal charge simply because the actor uses words to carry out his illegal purpose. Crimes, including that of aiding and abetting, frequently involve the use of speech as part of the criminal transaction.”). The Ninth Circuit derided as a “specious syllogism” with “no support in the law” the publisher’s argument that the First Amendment protected his sale of the instruction manual simply because the First Amendment protects the written word. Id. at 842.

The principle of Barnett, that the provision of instructions that aid and abet another in the commission of a criminal offense is unprotected by the First Amendment, has been uniformly accepted, and the principle has been applied to the aiding and abetting of innumerable crimes. Notably, then-Judge Kennedy, in express reliance upon Barnett, invoked the principle in United States v. Freeman to sustain convictions for the aiding and abetting of tax fraud. 761 F.2d 549, 552-53 (9th Cir.1985), cert. denied, 476 U.S. 1120, 106 S.Ct. 1982, 90 L.Ed.2d 664 (1986).

In Freeman, the Ninth Circuit concluded that the defendant could be held criminally liable for counseling tax evasion at seminars held in protest of the tax laws, even though the speech that served as the predicate for the conviction “spr[ang] from the anterior motive to effect political or social change.” 761 F.2d at 551. Said the court: [T]he First Amendment is quite irrelevant if the intent of the actor and the objective meaning of the words used are so close in time and purpose to a substantive evil as to become part of the ultimate crime itself.

In those instances, where speech becomes an integral part of the crime, a First Amendment defense is foreclosed even if the prosecution rests on words alone. Id. at 552 (citations omitted). Thus, the court held that a First Amendment instruction was required only for those counts as to which there was evidence that the speaker “directed his comments at the unfairness of the tax laws generally, without soliciting or counseling a violation of the law in an immediate sense [and] made statements that, at least arguably, were of abstract generality, remote from advice to commit a specific criminal act.” Id. at 551-52.

For those counts as to which the defendant, through his speech, directly assisted in the preparation and review of false tax returns, the court held that the defendant was not entitled to a First Amendment instruction at all. Id. at 552. See also United States v.

Mendelsohn, 896 F.2d 1183, 1186 (9th Cir.1990) (holding Brandenburg inapplicable to a conviction for conspiring to transport and aiding and abetting the interstate transportation of wagering paraphernalia, where defendants disseminated a computer program that assisted others to record and analyze bets on sporting events; program was “too instrumental in and intertwined with the performance of criminal activity to retain first amendment protection”).

Our own circuit, and every other circuit to address the issue, has likewise concluded that the First Amendment is generally inapplicable to chargés of aiding and abetting violations of the tax laws. See, e.g., United States v. Kelley, 769 F.2d 215 (4th Cir.1985); United States v. Rowlee, 899 F.2d 1275 (2d Cir.1990), cert. denied, 498 U.S. 828, 111 S.Ct. 87, 112 L.Ed.2d 59 (1990); United States v. Moss, 604 F.2d 569 (8th Cir.1979), cert. denied, 444 U.S. 1071, 100 S.Ct. 1014, 62 L.Ed.2d 752 (1980); United States v.

Buttorff, 572 F.2d 619, 623-24 (8th Cir.1978) (holding that tax evasion speeches were not subject to Brandenburg because, although they did not “incite the type of imminent lawless activity referred to in criminal syndicalism cases,” they did “go beyond mere advocacy of tax reform”), cert. denied, 437 U.S. 906, 98 S.Ct. 3095, 57 L.Ed.2d 1136 (1978).

Thus, in Kelley, we held that a defendant who “participate[d]” in the preparation of false tax forms for others by telling listeners “what to do and how to prepare the forms” and by' supplying forms and materials was not entitled to the protections of the First Amendment, 769 F.2d at 217, even though the defendant offered his advice in a meeting of a group concededly dedicated to the political belief “that the federal income tax is unconstitutional as applied to wages,” id. at 216.

We observed, as the Ninth Circuit did with respect to the claim made in Barnett, ■that, [t]he claim of First Amendment protection of [Kelley’s] speech is frivolous.- His was no abstract criticism of income tax laws. His listeners were not urged to seek congressional action to exempt wages from income taxation. Instead, they were urged to file false returns, with every expectation that the advice would be heeded. The cloak of the First Amendment envelops critical, but abstract, discussions of existing laws, but lends' no protection to speech which urges the listeners to commit violations of current law.

Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430; United States v. Buttorff, 572 F.2d 619 (8th Cir.1978). It was no theoretical discussion of non-compliance with laws; action was urged; the advice was heeded, and false forms were filed. Kelley, 769 F.2d at 217. Analogously, we held in United States v.

Fleschner, 98 F.3d 155 (4th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 2484, 138- L.Ed.2d 992 (1997), that defendants who instructed and advised meeting attendees to file unlawful tax returns were not entitled to a First Amendment jury instruction on the charge of conspiracy to defraud the United States of income tax revenue because “[t]he defendants’ words and acts were not remote from the commission of the criminal acts.” 98 F.3d at 158-59.

Indeed, as the Department of Justice recently advised Congress,' the law is now well established that the First Amendment, and Brandenburg’s “imminence” requirement in particular, generally poses little obstacle to the punishment of speech that constitutes criminal aiding and abetting, because “culpability in such cases is premised, not on defendants’ ‘advocacy’ of criminal conduct, but on defendants’ successful efforts to assist others by detailing to them the means of accomplishing the crimes.” Department of Justice, “Report on the Availability of Bomb-making Information, the Extent to Which Its Dissemination is Controlled by Federal Law, and the Extent to Which Such Dissemination May Be Subject to Regulation Consistent with the First Amendment to the United States Constitution” 37 (April 1997) (footnote omitted) [hereinafter “DOJ Report”]; see also id. (“[T]he question of whether criminal conduct is ‘imminent’ is relevant for constitutional purposes only where, as in Brandenburg itself, the government attempts to restrict advocacy, as such.”).

And, while there is considerably less authority on the subject, we assume that those speech acts which the government may criminally prosecute with little or no concern for the First Amendment, the government may likewise subject to civil penalty or make subject to private causes of action. Compare Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964) (applying the same “actual malice” standard to both criminal libel prosecutions and private defamation actions) with New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Cf.

Cohen, 501 U.S. 663, 111 S.Ct. 2513, 115 L.Ed.2d 586 (finding in civil promissory estoppel case that First Amendment does not bar liability for newspaper’s publication of confidential source’s name); Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977) (First Amendment does not bar liability for common law tort of unlawful appropriation of “right to publicity” where television station broadcast “human cannonball” act in its entirety without plaintiffs authorization); Harper & Row, Publishers, Inc. v.

Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) (rejecting First Amendment defense to copyright infringement action against magazine for printing unauthorized presidential memoir excerpts). Even if this is not universally so, we believe it must be true at least where the government’s interest in preventing the particular conduct at issue is incontrovertibly compelling. B.

We can envision only two possible qualifications to these general rules, neither of which, for reasons that we discuss more extensively below, is of special moment in the context of the particular aiding and abetting case before us. 1. The first, which obviously would have practical import principally in the civil context, is that the First Amendment may, at least in certain circumstances, superimpose upon the speech-act doctrine a heightened intent requirement in order that preeminent values underlying that constitutional provision not be imperiled.

See, e.g., New York Times, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686; cf. United States v. Aguilar, 515 U.S. 593, 605, 115 S.Ct. 2357, 2365, 132 L.Ed.2d 520 (1995) (rejecting defendant’s First Amendment construction in part because “the statute here in question does not impose such a restriction [on the disclosure of wiretap authorizations] generally, but only upon those who disclose wiretap information ‘in order to [obstruct, impede, or prevent’ a wiretap interception” (emphasis added)); Haig v.

Agee, 453 U.S. 280, 308-09, 101 S.Ct. 2766, 2783, 69 L.Ed.2d 640 (1981) (“[The defendant’s] disclosures, among other things, have the declared purpose of obstructing intelligence operations and the recruiting of intelligence personnel. They are clearly not protected by the Constitution.” (emphasis added)); United States v.

Featherston, 461 F.2d 1119, 1122 (5th Cir.1972) (rejecting First Amendment challenge to federal statute criminalizing the téaching or demonstration of the making of any explosive device after construing statute to require “intent or knowledge that the information disseminated would be used in the furtherance of a civil disorder”), cert. denied, 409 U.S. 991, 93 S.Ct. 339, 34 L.Ed.2d 258 (1972); National Mobilization Committee to End the War in Viet Nam v. Foran, 411 F.2d 934, 937 (7th Cir.1969).

That is, in order to prevent the punishment or even the chilling of entirely innocent, lawfully useful speech, the First Amendment may in some contexts stand as a bar to the imposition of liability on the basis of mere foreseeability or knowledge that the information one imparts could be misused for an impermissible purpose. Where it is necessary, such a limitation would meet the quite legitimate, if not compelling, concern of those who publish, broadcast, or distribute to large, undifferentiated audiences, that the exposure to suit under lesser standards would be intolerable. See discussion infra,

Part IV. At the same time, it would not relieve from liability those who would, for profit or other motive, intentionally assist and encourage crime and then shamelessly seek refuge in the sanctuary of the First Amendment. Like our sister circuits, at the very least where a speaker — individual or media- — acts with the purpose of assisting in the commission of crime, we do not believe that the First Amendment insulates that speaker from responsibility for his actions simply because he may have disseminated his message to a wide audience.

See, e.g., Barnett, 667 F.2d 835 (holding that drug manufacturing instructions mailed to countless customers with whom the defendant had no personal contact could give rise to aiding and abetting conviction); Mendelsohn, 896 F.2d 1183 (holding that First Amendment did not forbid prosecution of aiding and abetting interstate transportation of wagering paraphernalia where computer programs for recording and analyzing illegal wagers were distributed generally and widely to the public); Buttorff, 572 F.2d at 622-23 (affirming, despite First Amendment challenges, convictions for providing tax-evasion information at “large public gatherings” to participants whom the defendants did not personally meet); Kelley, 769 F.2d 215 (similar);.

Moss, 604 F.2d 569 (similar); Freeman, 761 F.2d 549 (similar). This is certainly so, we are satisfied, where not only the speaker’s dissemination or marketing strategy, but the nature of the speech itself, strongly suggest that the audience both targeted and actually reached is, in actuality, very narrowly confined, as in the case before us. See discussion infra at 253-256.

Were the First Amendment to offer protection even in these circumstances, one could publish, by traditional means or even on the internet, the necessary plans and instructions for assassinating the President, for poisoning a city’s water supply, for blowing up a skyscraper or public building, or for similar acts of terror-and mass destruction, with-the specific, indeed even the admitted, purpose of assisting such crimes — all with impunity.

We need not engage in an extended discussion of the existence or scope of an intent-based limitation today, however, because we are confident that the First Amendment poses no bar to the imposition of civil (or criminal) liability for speech acts which the plaintiff (or the prosecution) can establish were undertaken with specific, if not criminal, intent.

See DOJ Report at 42-43 (advising that “the government may punish publication of dangerous instructional information where that publication is motivated by a desire to facilitate the unlawful [conduct as to which the instructions inform, or] [a]t the very least, publication with such an improper intent should not be constitutionally protected where it is foreseeable that the publication will be used for criminal purposes____”).

In fact, this conclusion would seem to follow a fortiori from the Supreme Court’s holding in New York Times, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, allowing the imposition of civil tort liability on a media defendant for reputational injury caused by mere reckless disregard of the truth of its published statements.

And, here, as previously noted, see also discussion infra at 252-53, Paladin has stipulated that it provided its assistance to Perry with both the knowledge and the intent . that the book would immediately be used by criminals and would-be criminals in the solicitation, planning, and commission of murder and murder for hire, and even absent the stipulations, a jury could reasonably find such specific intent, see discussion infra at 253-55.

Thus, Paladin has stipulated to an intent, and a jury could otherwise reasonably find that Paladin acted with a kind and degree of intent, that would satisfy any heightened standard that might be required by the First Amendment prerequisite to the imposition of liability for aiding and abetting through speech conduct. 2. The second qualification is that the First - Amendment might well (and presumably would) interpose the same or similar limitations upon the imposition of civil liability for abstract advocacy, without more, that it interposes upon the imposition of criminal punishment for such advocacy.

In other words, the First Amendment might well circumscribe the power of the state to create and enforce a cause of action that would permit the imposition of civil liability, such as aiding and abetting civil liability, for speech that would constitute pure abstract advocacy, at least if that speech were not “directed to inciting or producing imminent lawless ac: tion, and ... likely to incite or produce such action.” Brandenburg, 395 U.S. at 447, 89 S.Ct. at 1829. The instances in which such advocacy might give rise to civil liability under state statute would seem rare, but they are not inconceivable. Cf.

Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919) (criminal conspiracy prosecution predicated upon subversive advocacy); Frohwerk v. United States, 249 U.S. 204, 39 S.Ct. 249, 63 L.Ed. 561 (1919) (same); Debs v. United States, 249 U.S. 211, 39 S.Ct. 252, 63 L.Ed. 566 (1919) (criminal attempt prosecution predicated upon such advocacy). Again, however, an exhaustive analysis of this likely limitation is not required in this case. Here, it is alleged, and a jury could reasonably find, see discussion infra

Part III.A, that Paladin aided and abetted the murders at issue through the quintessential speech act of providing step-by-step instructions for murder (replete with photographs, diagrams, and narration) so comprehensive and detailed that it is as if the instructor were literally present with the would-be murderer not only in the preparation and planning, but in the actual commission of, and follow-up to, the murder; there is not even a hint that the aid was provided in the form of speech that might constitute abstract advocacy.

As the district court itself concluded, Hit Man “merely teaches what must be done to implement a professional hit.” J.A. at 218. Moreover, although we do not believe such would be necessary, we are satisfied a jury could readily find that the provided instructions not only have no, or virtually no, noninstructional communicative value, but also that their only instructional communicative “value” is the indisputably illegitimate one of training persons how to murder and to engage in the business of murder for hire.

See id.; see also id. at 221 (“This Court, quite candidly, personally finds Hit Man to be reprehensible and devoid of any significant redeeming social value”). Aid and assistance in the form of this kind of speech beárs no resemblance to the “theoretical advocacy,” Scales v. United States, 367 U.S. 203, 235, 81 S.Ct. 1469, 1489, 6 L.Ed.2d 782 (1961), the advocacy of “principles divorced from action,” Yates v. United States, 354 U.S. 298, 320, 77 S.Ct. 1064,1077, 1 L.Ed.2d 1356 (1957), overruled on other grounds, Burks v.

United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), the “doctrinal justification,” id. at 321, 77 S.Ct. at 1078, “the mere abstract teaching [of] the moral propriety or even moral necessity for a resort to force and violence,” Brandenburg, 395 U.S. at 448, 89 S.Ct. at 1830 (quoting Noto v. United States, 367 U.S. 290, 297-98, 81 S.Ct. 1517, 1520-22, 6 L.Ed.2d 836 (1961)), or any of the other forms of discourse critical of government, its policies, and its leaders, which have always animated, and to this day continue to animate, the First Amendment.

Indeed, this detailed, focused instructional assistance to those contemplating or in the throes of planning murder is the antithesis of speech protected under Brandenburg. It is the teaching of the “techniques” of violence, Scales, 367 U.S. at 233, 81- S.Ct. at 1488, the “advocacy and teaching of concrete action,” Yates, 354 U.S. at 320, 77 S.Ct. at 1077, the “preparation] ... for violent action and [the] steeling. ... to such action,” Brandenburg, 395 U.S. at 448, 89 S.Ct. at 1830 (quoting Noto, 367 U.S. at 297-98, 81 S.Ct. at 1520-21).

It is the instruction in the methods of terror of which Justice Douglas spoke in Dennis v. United States, when he said, “If this were a case where those who claimed protection under the First Amendment were teaching the techniques of sabotage ... I would have no doubts. The freedom to speak is not absolute; the teaching of methods of terror ... should be beyond the pale....” 341 U.S. 494, 581, 71 S.Ct. 857, 903, 95 L.Ed. 1137 (1951) (Douglas, J., dissenting).

As such, the murder instructions in Hit Man are, collectively, a textbook example of the type of speech that the Supreme Court has quite purposely left unprotected, and the prosecution of which, criminally or civilly, has historically been thought subject to few, if any, First Amendment constraints. Accordingly, we hold that the First Amendment does not pose a bar to the plaintiffs’ civil aiding and abetting cause of action against Paladin Press.

If, as precedent uniformly confirms, the states have the power to regulate speech that aids and abets crime, then certainly they have the power to regulate the speech at issue here. III. The district court’s contrary conclusion, reached in an initial and then an amended opinion, must be attributed ultimately, we believe, to that court’s failure at the time of its initial ruling to realize that Maryland does recognize a civil cause of action for aiding and abetting.

Once the court’s error with respect to the existence in Maryland of a civil aiding and abetting cause of action was brought to the court’s attention by the parties on motion for reconsideration, it appears that the court was simply unprepared to revisit its decision, issued only the week before, in order-to address the above-discussed cases, which the district court itself had- observed are “factually similar” to the case at. hand, J.A. at 156, but which the court had distinguished on the ground- that they involved criminal prosecutions for aiding and abetting and Maryland does not provide a civil cause of action for aiding and abetting.

J.A. at 155 (“Plaintiffs are asking the Court to allow' the Defendants to be subjected to civil liability for murder, based on a theory of civil aiding and abetting — a claim that does not exist under Maryland law.” (emphases added)). Perhaps ironically, this unwillingness foreordained what was, as we explain below, the district court’s second error in the

interpretation of Maryland law — its holding, on reconsideration, that Maryland would not recognize aiding and abetting liability under the facts as stipulated by the parties to this litigation, or on the facts as they appear from the record. Whatever doubts the district court may have harbored about its

interpretation of Maryland aiding and abetting law were almost certainly eased because it concluded alternatively (albeit in dicta) that Hit Man is entitled to thé protections of Brandenburg in any event because it is a mere instructional manual for, and not an incitement to, murder.

However, in this conclusion the district court erred as well, misunderstanding the Supreme Court’s decision in Brandenburg to protect not just abstract advocacy of lawlessness and the open criticism of government and its institutions, but also the teaching of the technical methods’ of criminal activity — in this case, the technical methods of murder.

A. • In its initial memorandum opinion, the district court rejected the plaintiffs’ principal argument, that the First Amendment does not bar the imposition of liability for the aiding and abetting of murder, on the ground that the State of Maryland does not recognize a civil cause of action for aiding and abetting: Plaintiffs argue that Hit Man is not protected by the First Amendment because the First Amendment does not protect communication aiding and abetting murder.

This argument must fail, however, because Plaintiffs do not cite, nor has the Court located, any reported decision that suggests that Maryland recognizes the tort of aiding and abetting. A federal court sitting in diversity cannot create new causes of action. Therefore, the Court cannot create a cause of action for aiding and abetting under Maryland law.... J.A. at 153-54 (footnote and citations omitted).

In response to submissions by both parties filed the very next day informing the court that Maryland does recognize civil aiding and abetting, the district court was obliged to amend its memorandum opinion to acknowledge the overwhelming authority that Maryland does, in fact, recognize such a cause of action.

However, rather than address then the numerous precedents holding that the First Amendment offers little protection against claims of aiding and abetting criminal conduct, which in its initial opinion the court had agreed were similar to the instant case, the district court thereafter merely added' to its original memorandum opinion the single conclusory footnote sen-fence (together with the necessary conforming changes to the relevant paragraph from its initial opinion) that, “[although Maryland appears to recognize aider and abetter tort liability, it has never been applied to support liability in this context.” J.A. at 205 n.2 (internal citation deleted).

In this holding, as with its original holding that Maryland did not recognize a cause of action for civil aiding and abetting, the district court erred. Maryland’s highest court has held that a defendant may be hable in tort if he “by any means (words, signs, or motions) eneourage[s], incite[s], aid[s] or abet[s] the act of the direct perpetrator of the tort.” Alleco Inc. v. Harry & Jeanette Weinberg Foundation, 340 Md. 176, 665 A.2d 1038, 1049 (1995) (quoting Duke v. Feldman, 245 Md, 454, 226 A.2d 345, 347 (1967)).

It further appears that generahy Maryland defines the tort of aiding and abetting in the same way that it defines the crime of aiding and abetting. The state defines “aider” as one who “assist[s], supports] or supplement^] the efforts of another,” and defines “abettor” as “one who instigates, advises or encourages the commission of a crime.” Anello v. State, 201 Md. 164, 93 A.2d 71, 72-73 (Md.1952).

The Court of Appeals has explained that in order for a conviction to stand, “it is not essential that there be a prearranged concert of action, although, in the absence of such action, it is essential that [the defendant] should in some way advocate or encourage the commission of the crime.” Id.

And, recently, the court has reiterated that criminal aiding and abetting “may be predicated upon counseling or encouraging” a criminal act, even if there is no agreement between the principal and the aider or abettor, and also, that “[i]t is well settled that aiding and abetting does not always require a conspiracy.” Apostoledes v. State, 323 Md. 456, 593 A.2d 1117, 1121 (1991). The primary, and possibly only, difference between Maryland’s civil and criminal laws of'aiding and abetting is the intent requirement.

As Judge Learned Hand explained in discussing generally the difference between civil and criminal aiding and abetting laws, the intent standard in the civil tort context requires only that the criminal conduct be the “natural consequence of [one’s] original act,” whereas criminal intent to aid and abet requires that the defendant have a “purposive attitude” toward the commission of the offense. United States v. Peoni, 100 F.2d 401, 402 (2d Cir.1938); see also Nye & Nissen v. United States; 336 U.S. 613, 619, 69 5.Ct. 766, 770, 93 L.Ed. 919 (1949) (adopting Judge Hand’s view of the criminal intent requirement).

We assume that Maryland prescribes a higher intent standard for the imposition of criminal liability than it does for civil liability. Especially in light of the caselaw discussed above, we are satisfied not only that the Maryland courts would conclude that an aiding and abetting cause of action would he in the circumstances of this case, but also that plaintiffs have, by way of stipulation and otherwise, established a genuine issue of material fact as to each element of that cause of action.

Perhaps most importantly in this regard, we conclude that plaintiffs have more than met their burden of establishing a genuine issue of material fact as- to Paladin’s intent, even assuming that the First Amendment erects a heightened standard from that required under Maryland state law. Paladin itself has stipulated that “Perry followed a number of instructions outlined in Hit Man ” in preparing for and in murdering Mildred and Trevor Horn and Janice Saunders. J.A. at 61. In .fact, as noted, the publisher has actually stipulated that it assisted Perry in the “perpetration of the murders.” Id.

Even without these express stipulations of assistance, however, a reasonable jury could conclude that Paladin assisted Perry in those murders, from the facts that Perry purchased and possessed Hit Man and that the methods and tactics he employed in his murders of Mildred and Trevor Horn and Janice Saunders so closely paralleled those prescribed in the book. As discussed above, see discussion supra

Part I, Perry followed, in painstaking detail, countless of the book’s instructions- in -soliciting, preparing for, and carrying out his murders. Without repeating these in detail here, Perry faithfully followed the book’s instructions in making a homemade silencer, using a rental car with stolen out-of-state tags, murdering the victims in their own home, using an AR-7 rifle to shoot the victims in the eyes from point blank range, and concealing his involvement in the murders.

The number and extent of these parallels to the instructions in Hit Man cannot be consigned, as a matter of law, to mere coincidence; the correspondence of techniques at least creates a jury issue as to whether the book provided substantial assistance, if it does not conclusively establish such assistance. A jury likewise could reasonably find that Perry was encouraged in his murderous acts by Paladin’s book. Hit Man does not merely detail how to commit-murder and murder for hire; through powerful prose in the second person and imperative voice, it encourages its readers in their specific acts of murder.

It reassures those contemplating the crime that they may proceed with their plans without fear of either personal failure or punishment. And at every point where the Would-be murderer might yield either to reason or to reservations, Hit Man emboldens the killer, confirming not only that he should proceed, but that he must proceed, if he is to establish his manhood. See discussion infra at 261-262. The book is so effectively written that its protagonist seems actually to be present at the planning, commission, and cover-Up of the murders the book inspires.

Illustrative of the nature and duration of the criminal partnership established between Hit Man and its readers who murder is the following “dialogue” that takes place when the murderer returns from his first killing: I’m sure your emotions have run full scale over the past few days' or weeks. There was a fleeting moment just before you pulled the trigger when you wondered if lightning would strike you then and there. And afterwards, a short burst of panic as you looked quickly around you to make sure no witnesses were lurking. But other than that, you felt absolutely nothing.

And you are shocked by that nothingness. You had expected this moment to be a spectacular point in your life.... The first few seconds of nothingness give you an almost uncontrollable urge to laugh out loud. You break into a wide grin. Everything you have been taught about life and its value was a fallacy. Hit Man at 107. As this and other cases reveal, the book is arrestingly effective in the accomplishment of its objectives of counseling others to murder and assisting them in its commission and cover-up.

Finally, and significantly, Paladin also has stipulated to an intent that readily satisfies that required under Maryland law or the First Amendment. Even if the First Amendment imposes a heightened intent-based limitation on the state’s ability to apply the tort of aiding and abetting to speech, see discussion supra at II.B.l, we are confident that, at the very least, the aiding and abetting of a malum in se crime such as murder with the specific purpose of assisting and encouraging another or others in that crime would satisfy such a limitation.

Paladin has stipulated not only that it had knowledge that its publication would be used upon receipt by murderers and other criminals in the commission of murder, but that it even intended that the book be so used. Thus, the publisher stipulated, “defendants intended and had knowledge that their publications would be used, upon receipt, by criminals and would-be criminals to plan and execute the crime of murder for hire.” J.A. at 59.

Paladin has even stipulated that it “engaged in a marketing strategy intended to attract and assist criminals and would-be criminals who desire information and instructions on how to commit crimes.” Id. These stipulations are more than sufficient to foreclose an absolute First Amendment defense to plaintiffs’ suit. See DOJ Report at 43 & 44-45 n.71 (“[W]e believe that the district court in Rice v. Paladin erred insofar as it concluded that Brandenburg bars liability for dissemination of [instructions on murder] regardless of the publisher’s intent.... [Defendant Paladin’s] concession^] would, for purposes of

summary judgment, seem to foreclose a constitutional defense ...”). The district court was never required to consider the intent requirement under Maryland’s law of aiding and abetting, much less whether the First Amendment imposes a heightened intent standard in the context of authorizing liability for speech acts, because of its mistaken conclusion that Maryland does not recognize a civil cause of action for aiding and abetting.

In analogizing this ease to the copycat eases (and seemingly in order to permit the analogy), however, the district court accepted Paladin’s post hoc “clarification” that it meant by its stipulation only that it was reasonably foreseeable to the publisher that, once the book was published and publicly available, it would be used by murderers to plan and to commit murder. Thus, in accepting the defendants’ belated clarification, the district court said: Defendants conceded that they intended that their publications would be used by criminals to plan and execute murder as instructed in the manual....

However, Defendants clarify their concession by explaining that when they published, advertised and distributed both Hit Man and Silencers, they knew, and in that sense “intended,” that the books would be purchased by all of the categories of readers previously described and used by them for the broad range of purposes previously described. J.A. at 215-16 (citations omitted). Of course, the district court was without authority to allow Paladin to alter the parties’ stipulation unilaterally, particularly given that Paladin was the party moving for

summary judgment. If anything, the stipulation should have been, and in any event must now be, interpreted in the light most favorable to the plaintiffs. Furthermore, even if the stipulation only established knowledge,

summary judgment was yet inappropriate because a trier of fact could still conclude that Paladin acted with the requisite intent to support civil liability. Wholly apart from Paladin’s stipulations, there are four bases upon which, collectively, if perhaps not individually, a reasonable jury could find that Paladin possessed the intent required under Maryland law, as well as the intent required under any heightened First Amendment standard. Compare DOJ Report, at 45 n.71 (“[E]ven assuming arguendo that the defendants’ own construction of the ‘intent’ stipulation were correct, that still would not justify the grant of

summary judgment, since it would leave unanswered the question whether Paladin also had the specific purpose of facilitating murder.”); First, the declared purpose of Hit Man itself is to facilitate murder. Consistent with its declared purpose, the book is subtitled “A Technical Manual for Independent Contractors,” and it unabashedly describes itself as “an instruction book on murder,” Hit Man at ix. A jury need not, but plainly could, conclude from such prominent and unequivocal statements of criminal purpose that the publisher who disseminated the book intended to assist in the achievement of that purpose.

Second, the book’s extensive, decided, and pointed promotion of murder is highly probative of the publisher’s intent, and may be considered as such, whether or not that promotion, standing alone, could serve as the basis for liability consistent with the First Amendment. See Wisconsin v. Mitchell, 508 U.S. 476, 489,- 113 S.Ct. 2194, 2201, 124 L.Edüd 436 (1993) (“The First Amendment ... does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent.”); cf. Noto, 367 U.S. at 299, 81 S.Ct. at 1521-22.

After carefully and repeatedly reading Hit Man in its entirety, we are of the view that the book so overtly promotes murder in concrete, non-abstract terms that we regard as disturbingly disingenuous both Paladin’s cavalier suggestion that the book is essentially a comic book whose “fantastical” promotion of murder no one could take seriously, and amici’s reckless characterization of the book as “almost avuncular,” see Br. of Amici at 8-9.

The unique text of Hit Man alone, boldly proselytizing and glamorizing the crime of murder and the “profession” of murder as it dispassionately instructs on its commission, is more than sufficient to create a triable issue of fact as to Paladin’s intent in publishing and selling the manual. Third, Paladin’s marketing strategy would more than support a finding of the requisite intent. Cf. Direct Sales v.

United States, 319 U.S. 703, 712-13, 63 S.Ct. 1265, 1269-70, 87 L.Ed. 1674 (1943) (holding that jury may infer intent to assist’ a. criminal operation based upon a drug distributor’s marketing strategy), It is known through Paladin’s stipulations that it “engaged in a marketing strategy intended to attract and assist criminals and would-be criminals who desire information and instructions on how to commit crimes.” J.A. at 59. But an inference as to such a strategy would be permitted from Paladin’s catalogue advertisement of Hit Man.

The publisher markets the book as follows, invoking a disclaimer which, the district court’s characterization notwithstanding, a jury could readily find to be transparent sarcasm designed to intrigue and entice: Learn how a pro gets assignments, creates a false identity, makes a disposable silencer, leaves the scene without a trace, watches his mark unobserved and more. Feral reveals how to get in, do the job and get out without getting caught. For academic study only! Paladin Press Catalog, Vol. 26, No. 2 at 41 (emphasis in original)'. See also infra note 10.

From this statement by the publisher in its own promotional sales catalogue, a jury could conclude that Paladin marketed Hit Man directly and even primarily to murderers and would-be criminals, and, from this permissible conclusion, in turn conclude that Paladin possessed the requisite intent necessary to support liability. Certainly, such a conclusion would be reasonable based upon this promotional description coupled with the singular character of Hit Man, which is so narrowly focused in its subject matter and presentation as to be effectively targeted exclusively to criminals.

In other words, despite the fact that Paladin may technically offer the book for sale to all comers, we are satisfied that a jury could, based upon Hit Man’s seemingly exclusive purpose to assist murderers in the commission of murder, reasonably conclude that Paladin essentially distributed Hit Man only to murderers and would-be murderers — that its conduct was not, at least in law, different from that of a publisher (or anyone else) who delivered Hit Man to a specific person or group of persons whom the publisher knew to be interested in murder.

And even Paladin effectively concedes that it could be liable were such a finding permissibly made. Paladin’s Memorandum in Support of

Summary Judgment at 33 n.24. A conclusion that Paladin directed Hit Man to a discrete group rather than to the public at large would be supported, even if not established, by the evidence that Hit Man is not generally available or sold to the public from the bookshelves of local bookstores, but, rather, is obtainable as a practical matter only by catalogue. Paladin Press is a mail order company, and-for the most part does not sell books through retail outlets.

In order to procure a copy of Hit Man, the prospective reader must first obtain a copy of Paladin’s catalogue, typically by completing a request form reprinted in one of Paladin’s advertisements in specialized magazines such as Soldier of Fortune. After obtaining that catalogue, the reader must scan the list of book titles and read the accompanying descriptions. Once the reader finds the book he desires, he must then complete and mail another form to order- the book.

From the requirements of this process, together with the book’s character, a jury need not, but could, permissibly find that Hit Man is not at all distributed to the general public and that, instead, it is available only to a limited, self-selected group of people interested in learning from and being trained by a self-described professional killer in various methods of killing for money, individuals who are then contemplating or highly susceptible to the commission of murder.

Finally, a jury could reasonably conclude that Paladin specifically intended to assist Perry and similar murderers by finding, contrary to Paladin’s demurs, as would we, that Hit Man’s only genuine use is the unlawful one of facilitating such murders. Cf. J.A. at 221 (observation by district court that Hit Man is “devoid, of any significant redeeming social value”). Although before us Paladin attempts to hypothesize lawful purposes for Hit Man, and it would doubtless advance the same hypotheses before a jury, at some point hypotheses are so implausible as to be deserving of little or no weight.

The.likelihood that Hit Man actually is, or would be, used in the legitimate manners hypothesized by Paladin is sufficiently remote that a jury could quite reasonably reject them altogether as alternative uses for the book. If there is a publication that could be found to have no other use than to facilitate unlawful conduct, then this would be it, so devoid is the book of any political, social, entertainment, or other legitimate discourse. Cf. Miller v.

California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (distinguishing obscene from nonobscene material in part on basis of “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value”).

Thus, for example, a jury would certainly not be unreasonable in dismissing (in fact, it arguably would be unreasonable in accepting) Paladin’s contention that Hit Man has significant social value in that the book, in the course of instructing murderers how to murder, incidentally informs law enforcement on the techniques that the book’s readers will likely employ in the commission of their murders. Likewise, a reasonable jury could simply refuse to accept Paladin’s contention that this purely factual, instructional manual on murder has entertainment value to law-abiding citizens.

And, just as a permissible inference as to Paladin’s marketing strategy would be supportable by evidence as to the specialized process by which one acquires Hit Man, either of these conclusions as to the absence of lawful purpose could be reinforced by the same evidence. In

summary, a reasonable jury clearly could conclude from the stipulations of the parties, and, apart from the stipulations, from the text of Hit Man itself and the other facts of record, that Paladin aided and abetted in Perry’s triple murder by providing detailed instructions on the techniques of murder and murder for hire with the specific intent of aiding and abetting the commission of these violent crimes. B. Any argument that Hit Man is abstract advocacy entitling the book, and therefore Paladin, to heightened First Amendment protection under Brandenburg is, on its face, untenable.

Although the district court erred in its alternative conclusion that the speech of Hit Man is protected advocacy, see discussion infra at III.B.2, even that court expressly found that “the book merely teaches what must be done to implement a professional hit.” J.A. at 217-18; id. at 218 n. 4 (discussing “instructive nature” of book).

Indeed, Paladin’s protests notwithstanding, this book constitutes the archetypal example of speech which, because it methodically and comprehensively prepares and steels its audience to specific criminal conduct through exhaustively detailed instructions on the planning, commission, and concealment of criminal conduct, finds no preserve in the First Amendment.

To the extent that confirmation of this is even needed, given the book’s content and declared purpose to be “an instruction book on murder,” Hit Man at ix, that confirmation is found in the stark contrast between this assassination manual and the speech heretofore held to be deserving of constitutional protection. 1.

Through its stipulation that it intended Hit Man to be used by criminals and would-be criminals.to commit murder for hire in accordance with the book’s instructions, Paladin all but concedes that, through those instructions, Hit Man prepares and steels its readers to commit the crime of murder for hire. But even absent the publisher’s stipulations, it is evident from even a casual examination of the book that the prose of Hit Man is at the other end of the continuum from the ideation at the core of the advocacy protected by the First Amendment.

The cover of Hit Man states that readers of the book will “[l]earn how a pro makes a living at this craft [of murder] without landing behind bars” and, how he gets hit assignments, creates a false working identity, makes a disposable silencer, leaves the scene without a trace of evidence, watches his mark unobserved, and more ... how to get in, do the job, and get out — without getting caught.

In the first pages of its text, Hit Man promises, consistent with its title as “A Technical Manual for Independent Contractors,” that the book will prepare the reader, step by step, to commit murder for hire: Within the pages of this book you will learn one of the most successful methods of operation used by an independent contractor. You will follow the procedures of a man who works alone, without backing of organized crime or on a personal vendetta. Step by step you will be taken from research to equipment selection to job preparation to successful job completion.

You will learn where to find employment, how much to charge, and what you can, and cannot, do with the money you earn. But deny your urge to skip about, looking for the “good” parts, Start where any amateur who is serious about turning professional will start — at the beginning. Hit Man at x-xi (emphasis in original). And, faithful to these promises, in the successive chapters of the 130 pages that follow, Hit Man systematically and in meticulous detail instructs on the gruesome particulars of every possible aspect of murder and murder for hire.

The manual instructs step-by-step on building and using fertilizer bombs, constructing silencers, picking locks, selecting and using poisons, sinking corpses, and torturing victims. It teáehes wou

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