This Gun for Hire: Dancing in the Dark of the First Amendment

Abstract

Classified advertisements in newspapers and magazines represent a uniquely democratic access to the media for the individual. Without having to pay the thousands of dollars for full-page advertisements, and sellers can purchase space for their offers for only a few dollars, yet have them seen by city-wide or nation-wide audiences. Democracy, though, breeds its own excesses, and the legal question is always how to control that excess without harming the freedom.As befits a medium open to all, classified advertisements run the gamut of human activity, from the sale of a used automobile to employment to lonely singles looking for an attractive. nonsmoking, athletic mate. Unfortunately, classified advertisements also have been used as part of criminal activities, to help buyers locate those willing to kidnap or murder for the going rate.Victims, or the families of victims, of these crimes facilitated by classified advertisements have sued the publisher of the advertisements for damages. Courts have been uncertain, at best, how to evaluate these lawsuits. Through an unclear mixture of tort law and commercial speech doctrine, courts have failed to announce a clear standard to guide the conduct of publishers. This article will attempt to clarify the conflicting legal standards and describe a usable test that would both protect publishers from unnecessarily onerous burdens of investigating all classified advertisements and protect the public against the danger of the hired gun.