## Facts

- Hustler published “Orgasm of Death” (Aug. 1981), an article describing autoerotic asphyxia in a “Sexplay” series.
- The article described the practice and the “thrill” sought by participants, while framing the series as educational about sexual practices.
- A prominently placed editor’s note warned of the practice’s “often-fatal dangers,” recommended readers “DO NOT ATTEMPT” it, and stated the discussion was “solely for an educational purpose.”
- The article repeatedly warned the practice was dangerous, often fatal, and not controllable, and recounted deaths and research suggesting many teenage deaths annually.
- Troy D., a fourteen-year-old in Texas, read the article and later attempted autoerotic asphyxia at home.
- Troy was found nude, hanging in his closet, with the article at his feet; his friend Andy V. discovered the body.
- Diane Herceg (Troy’s mother) and Andy V. sued Hustler seeking damages for emotional and psychological harm and exemplary damages, alleging the article incited Troy’s conduct.
- The district court dismissed most theories on First Amendment grounds but allowed an incitement theory to go to the jury; the jury found for plaintiffs and awarded damages.
- Hustler appealed; plaintiffs cross-appealed on damages and other rulings.

## Issues

1. Whether the First Amendment permits civil liability against a publisher on an incitement theory for an article alleged to have led a minor to engage in dangerous conduct causing death.
2. Whether the article constituted unprotected incitement under the Brandenburg standard (speech directed to producing imminent lawless action and likely to produce it).

## Decision

- The Fifth Circuit reversed the judgment against Hustler.
- The court held Hustler could not be held civilly liable on an incitement theory consistent with the First Amendment.
- The article did not satisfy Brandenburg because it was not directed to inciting or producing imminent lawless action and was not likely to produce such action.
- The court treated the piece as informational and cautionary in overall thrust, emphasizing its repeated warnings and explicit recommendation not to attempt the practice.
- The court rejected a lower First Amendment threshold for tort damages, reasoning that civil liability cannot be imposed where criminal punishment would be unconstitutional.

## Legal Principles

- Under Brandenburg v. Ohio, speech is unprotected as incitement only if it is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
- Generalized publication of information, even about dangerous conduct, does not constitute incitement absent intent to prompt immediate unlawful conduct and a likelihood of imminent action.
- First Amendment constraints apply to civil tort liability as well as criminal sanctions; tort judgments cannot be used to deter protected expression through indirect punishment.
- Warnings, cautionary framing, and lack of exhortation to immediate action weigh against characterizing descriptive content as incitement or an actionable “how-to” solicitation.

## Conclusion

The Fifth Circuit set aside a jury verdict imposing tort liability on a magazine for a teenager’s death allegedly inspired by an article, holding the First Amendment barred recovery because the publication did not intentionally advocate, nor was it likely to produce, imminent lawless action under Brandenburg.


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