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The Constitutionality of DePaul Journal of Art, Technology & Intellectual Property Law Volume 3 Issue 2 Spring 1993 Article 2 The Constitutionality of "Son of Sam" Laws after Simon & Schuster v. New State Crime Victims Board Jane Langdon Follow this and additional works at: https://via.library.depaul.edu/jatip Recommended Citation Jane Langdon, The Constitutionality of "Son of Sam" Laws after Simon & Schuster v. New State Crime Victims Board, 3 DePaul J. Art, Tech. & Intell. Prop. L. 58 (1993) Available at: https://via.library.depaul.edu/jatip/vol3/iss2/2 This Lead Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Journal of Art, Technology & Intellectual Property Law by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. Langdon: The Constitutionality of "Son of Sam" Laws after Simon & Schuster THE CONSTITUTIONALITY OF "SON OF SAM" LAWS AFTER SIMON & SCHUSTER v. NEW STATE CRIME VICTIMS BOARD I. INTRODUCTION Compensation Board ("Board") of any profits gained A "Son of Sam" law is an antiprofit statute requir- from a criminal act by way of a movie, book, or mag- 7 ing criminals to surrender all proceeds received from azine article. The law also required a publisher to the sale and publication of their memoirs.' New surrender to the Board any contract made with a York's "Son of Sam" statute was the first of its kind criminal for the publication of a book." However, and acted as a model for many other states and the Executive Law 632-a was not limited to criminals in federal government. 2 This article will review "Son of the ordinary sense, but applied to those "accused or Sam" laws in general, focusing on New York's convicted" of a crime, or who "admitted" to a crime in 9 Executive Law 632-a which was recently held uncon- his or her book. Further, the publisher had to relin- stitutional by the Supreme Court in Simon & Schuster, quish to the Board profits due to the criminal source Inc. v. New York State Crime Victims Board.' This arti- of the work with respect to any expression of his or cle will also examine New York's recently revised her "thoughts, feelings, opinions, or emotions" regard- "Son of Sam" law and, based on the Supreme Court's ing the crime or "with respect to any reenactment" of analysis, propose the elements of a "Son of Sam" law the crime.'" The money paid to the Board was to be which could possibly withstand constitutional review. put in an escrow account; these funds would go to any victim of the crime in satisfaction of a civil judg- II. BACKGROUND ment for damages against the "criminal" obtained in an action brought within five years of the establish- A. The Origin of the "Son of Sam" Law ment of the escrow account." If the charges against New York Executive Law 632-a was enacted in the defendant were dismissed, or the defendant was 1977 in response to the sensationalism and mass acquitted, the escrow account funds were returned to media coverage of the serial killer, David Berkowitz the defendant.'" However, a person found not guilty a/k/a "Son of Sam."' Even before Berkowitz was by reason of insanity was "deemed to be a convicted apprehended, it was apparent that the notoriety sur- person" and therefore subject to the restrictions of the rounding his heinous crimes would give him the statute.'3 Prior to paying over the monies, the Board opportunity to realize a large profit from the sale of would pay off any subrogation claims of the state for his story. Ironically, the public supplied the demand monies paid out to victims by the Board prior to any for these stories, as well as the force behind the legis- civil judgments." Additionally, the Board would pay lation to suppress these books. The "Son of Sam" law all creditors who present "lawful claims, including was enacted to quiet the public outcry in reaction to state or local government tax authorities." the enormous profits earned by criminals for the pub- Based on New York state administrative regula- lication of their stories.5 New York State Senator tion, the Board had the authority to investigate con- Emmanuel Gold, sponsor of the bill, stated in his tracts not voluntarily submitted to it. After an adminis- memorandum to Congress that: trative hearing, the Board could enter a final decision It is abhorrent to one's sense of justice bringing a contract within the scope of its authority.' and decency that an individual such as If actions were pending after five years, the Board the fourty-four caliber killer (Berkowitz) would immediately pay over any moneys in the can expect to receive large sums of escrow account to such person or his legal represen- 7 money for his story once he is captured tative.' while five people are dead, and other Although the statute received enormous publicity people were injured as a result of his and incited much debate, its application was very lim- conduct. This bill would make it clear ited. Since the law's enactment in 1977, only $164,944 that in all criminal situations, the victim in proceeds owed to criminals were confiscated by must be more important than the crimi- the Board. 8 The statute required that publishers and nal.6 others who acquire literature rights notify the Board More specifically, Executive Law 632-a required before paying out money to a criminal author." the surrender to the State Crime Victims However, the small amount of monies confiscated Published58 by Via Sapientiae, 2016 Journal of Art & Entertainment Law 1 DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 3, Iss. 2 [2016], Art. 2 was due in part to the lack of compliance by publi- ing a profit." 2 cists in turning over their contract to the Board and The First Amendment issues in this case received the Board's reluctance in enforcing the statute more careful consideration by the court of appeals. because of constitutional concerns.20, The attempted The Second Circuit ruled that "the statute ...imposes a application of this statute to the best-selling novel by direct, rather than an incidental burden on speech Nicholas Pileggi, entitled Wiseguy: Life in a Mafia and therefore must meet the requirements of the strict Famil, brought Executive Law 632-a under constitu- scrutiny test to survive constitutional challenge. "3" tional attack for the last time in the case of Simon & The appellate court found two compelling state inter- Schuster v. New York State Crime Victims Board.2' ests: "preventing criminals from profiting from their crimes," and "assuring that a criminal not profit from B. The Constitutionality of New York's the exploitation of his or her crime, while the victims "Son of Sam" Law of that crime are in need of compensation by reason The facts of Simon & Schuster v. New York State of their victimization."34 Thus, the court of appeals Crime Victims Board arose in 1986 when a publishing concluded that the statute was narrowly drawn to sat- company, Simon & Schuster, published an autobio- isfy the compelling state interest of compensating vic- graphical, non-fiction book about the life and mafia tims of crimes out of the proceeds of the sale of a career of Henry Hill." The author, Nicholas Pileggi, criminal's story, thereby withstanding strict scrutiny 5 spent hundreds of hours interviewing Hill about his review.3 past criminal activities, which included bribery, The Supreme Court granted certiorari in order to assault, extortion, theft, burglary, arson, drug dealing, make the final determination as to whether Executive credit card fraud and murder.23 Upon publication of Law 632-a was inconsistent with the First the book, the Board informed Simon & Schuster Amendment's protection of free speech. Publishers about Executive Law 632-a and requested a copy of were pleasantly surprised when a unanimous their contract for review. 2' The Board ordered Simon Supreme Court deemed New York's "Son of Sam" law & Schuster to stop all payments to Hill's literary unconstitutional, thus reversing the Second Circuit agency in connection with the book and demanded Court of Appeals.-, The Court looked to earlier prece- Hill forfeit $96,250 in proceeds already paid to him. dent in determining the First Amendment implications Henry Hill and Simon & Schuster resisted turning over of this law. In Arkansas Writers' Project v. Ragland, the earnings from this book. the Supreme Court reviewed the use of a content- On August 3, 1987, Simon & Schuster commenced based magazine tax and held that "official scrutiny of an action against the members of the New York State the content of publications as the basis for imposing a Crime Victims Board requesting an order that New tax is entirely incompatible with the First Amend- York Executive Law 632-a violated the First and ment's guarantee of freedom of the press."37 In Fourteenth Amendments." Simon & Schuster argued Leathers v. Medlock, the Court ruled that a tax that the "Son of Sam" law regulated speech based on imposed only on cable television services, excluding its content and the identity of the speaker, which vio- other media, was not an unconstitutional, differential lated the First Amendment. 6 Furthermore, they argued taxation."8 The Court reasoned there that the legisla- that this law had a chilling effect on speech by "inter- tive intent was not to restrict speech based on its con- fering with the publishing and editorial decisions of tent; however, the Court admitted that a statute is publishers and writers" and curtailing the availabilty "presumptively inconsistent with
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