## Facts

- Soldier of Fortune magazine published a personal-services classified ad in multiple 1984 issues stating: “EX-MARINES—67–69 ’Nam Vets, Ex–DI, weapons specialist—jungle warfare, pilot, M.E., high risk assignments, U.S. or overseas,” with a phone number.
- The advertiser, John Wayne Hearn, testified the ad sought lawful work (e.g., bodyguard/security services and training).
- Many respondents to the ad later sought illegal services, but the publisher had no notice at publication that the ad would be used to arrange violent crimes.
- Robert Black contacted Hearn through the ad and hired him to kill Black’s wife, Sandra Kay Black, for $10,000.
- Hearn murdered Sandra Black in Texas on February 21, 1985, and was later convicted.
- Sandra Black’s mother and son brought wrongful-death and survival claims against the magazine and its publishing entities, alleging negligent publication and failure to investigate the ad.
- A jury found negligence and gross negligence and awarded approximately $9.4 million; the publisher appealed.

## Issues

1. Whether, under Texas negligence law, a magazine owes a duty to refrain from publishing or to investigate a personal-services ad that is facially compatible with lawful work but could be misused for crime.
2. Whether a third-party murder arranged through contacts from the ad was reasonably foreseeable to the publisher at the time of publication, such that liability may be imposed.
3. Whether constitutional protections for commercial speech barred or constrained tort liability for publishing the advertisement (raised but not necessary to resolve on appeal).

## Decision

- The Fifth Circuit reversed the judgment and rendered judgment for the publisher.
- The court held the advertisement was facially innocuous and, at most, ambiguous; it did not clearly solicit criminal activity.
- Because criminal consequences were not reasonably foreseeable from the ad’s text and context at publication, the publisher owed no duty to withhold the ad or to investigate the advertiser.
- The court resolved the appeal on duty/foreseeability grounds and did not decide the case on First Amendment grounds.

## Legal Principles

- Under Texas negligence law, duty is a threshold legal question for the court and depends substantially on reasonable foreseeability.
- A publisher generally has no negligence duty to investigate or reject an advertisement that is facially compatible with lawful conduct, even if it could be misused for illegal purposes.
- Foreseeability is assessed based on what the publisher reasonably could infer at publication from the advertisement’s content and context, not from later evidence of how respondents used it.
- Negligence liability may be appropriate where an advertisement clearly and explicitly solicits or invites illegal violence, making criminal harm reasonably foreseeable.

## Conclusion

The court held that an ambiguous, facially lawful personal-services advertisement did not make a subsequent contract killing reasonably foreseeable to the publisher; absent that foreseeability, Texas law imposed no duty to investigate or refuse publication, so the publisher was not liable for the murder arranged through the ad.


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