Balance of Power

    "This," Fancher told Gardner Bond with an air of spite, "is a spite suit. Let me be clear: the Kilcannon Center and its political allies have failed to achieve their goal of discrediting the advocates of gun rights. So now they would use this court to deny the SSA its First Amendment rights to defend the Second Amendment rights of all Americans."

    "Then clear this up," Bond interjected. "If Lexington were liable for its advertisement, would the SSA be liable for printing it?"

    "Not at all." Fancher folded his hands in front of him, body hunched in a defensive crouch. "No question—the claims against Lexington are phantasmagorical. But to rope in the SSA is an outrage.

    "Mary Costello's lawyers make two claims. First, that the SSA ran a truthful ad, written by Lexington, that they imagine John Bowden saw." Fancher's voice filled with sarcasm. "So if the San Francisco Chronicle accepts an ad by a maker of pesticides, and a disaffected wife puts it in her husband's soup, the Chronicle is liable to his children?

    "What nonsense. In desperation, these lawyers have concocted worse nonsense: a 'conspiracy' in which the

SSA forces Lexington to sell the P-2 and Eagle's Claw bullets at gun shows—the first 'conspiracy' in history, at least under the antitrust laws, where the alleged pernicious purpose is to compel a wholly legal act . . ."

    "Plaintiff's broader claim," Bond corrected him, "is that the SSA directed Lexington in the acts leading to the so-called wrongful death of Ms. Costello's relatives."

    "But on what basis?" Fancher asked. "That the SSA aggressively advocates gun rights, in the Congress and out? That's our right as citizens. Just as our members have the right not to buy a company's products because they no longer like what it stands for." Pausing, he turned to Sarah. "A choice, when exercised against so-called villains like 'big tobacco,' which is advocated by the Kilcannon Center itself."

    With a studied lack of expression, Sarah scribbled on her notepad, "Economic gain." As if on cue, the judge told Fancher, "Plaintiff also alleges that the SSA encouraged other gun makers to isolate Lexington in the event of a boycott, encouraging them to divide Lexington's market share should it reach an agreement with the President regarding gun shows. Might not that violate the antitrust laws?"

    Fancher grimaced. "It's a pity," he said with reedy contempt, "that, on motions to dismiss, the presumption of truth is given to the scrupulous and unscrupulous alike. At this juncture, this Court is required to credit such fantasies. But plaintiff's counsel is required to have a reasonable basis for believing them. At some

juncture, I hope the Court will inquire as to whether counsel has defrauded it."

    "You can be sure," Bond countered stiffly, "that this Court will never permit a fraud to go to trial. But, as of now, all it can do is wonder." Abruptly turning to Lenihan and Sarah, Bond demanded, "Which one of you cares to respond to that?"

* * *

    Reaching the podium, Sarah paused to steady herself, drawing one deep breath. Bond's judicial stare bore into her.

    "Your Honor," she began, "if the

Chronicle ran ads for rat poison headed 'lethal to husbands in sixty seconds,' then the Chronicle would answer for it . . ."

    "Is that what the SSA did, Ms. Dash? I don't recall that the ad incited murder."

    "Effectively, it did. The ad touted the lethal capacity of the Lexington P-2. It reminded criminals and batterers that the P-2 was banned in California. And then—in a companion ad for the gun show itself—the SSA magazine told them where to acquire one without a background check."

    "So now," Bond interrupted, "the SSA is responsible for two ads— one by Lexington, and one by the promoters of the gun show."

    "Which were placed side by side." Sarah felt anger overcome her nervousness. "Don't the editors read their own magazine? They had no obligation to run these ads at all. Instead, they did so in a manner designed to maximize the chance that what did happen would happen— that John Bowden would set out for Las Vegas . . ."

    "According to your complaint."

    "Which I stand by, Your Honor." Sarah hesitated, and then reached the most delicate point. "As I do our allegation that the SSA helped other manufacturers conspire to take Lexington's share of the market, should the SSA commence a boycott . . ."

    "Mr. Fancher," Bond cut in, "claims that you have no basis for alleging that. I have no basis for knowing. But you know—as we speak— whether or not you do.

    "You're an officer of the court, Ms. Dash. Under Rule 11, each claim in your complaint must have a good faith basis. If this claim does not, you may be liable for defendant's legal fees and expenses. Or even, in the most extreme of cases, subject to disbarment."