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State of Michigan in the Supreme Court People Of STATE OF MICHIGAN IN THE SUPREME COURT PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee v. KWAME KILPATRICK Supreme Court No. 143861 Defendant-Appellant Court of Appeals No. 304991 Lower Court No. 08-010496-FH COA No. 304991 Circuit Court No. 08-010496 MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF OF THE ASSOCIATION OF AMERICAN PUBLISHERS, INC., AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION, THE FREEDOM TO READ FOUNDATION, AND PEN AMERICAN CENTER Proposed Amici The Association of American Publishers, Inc., American Booksellers Foundation for Free Expression, The Freedom to Read Foundation, and PEN American Center (collectively, "Amici") state the following in support of this motion: 1. The Association of American Publishers, Inc. (AAP), is the national trade association of the U.S. book publishing industry. AAP's approximately 300 members include most of the major commercial book publishers in the United States as well as smaller and non-profit publishers, university presses, and scholarly societies. AAP members publish hardcover and paperback books in every field, educational materials for the elementary, secondary, post-secondary, and professional markets, scholarly journals, computer software, and electronic products and services. The Association represents an industry whose very existence depends upon the free exercise of rights guaranteed by the First Amendment. 2. American Booksellers Foundation for Free Expression (ABFFE) was organized as a not-for-profit organization by the American Booksellers Association in 1990 to inform and educate booksellers, other members ofthe book industry, and the public about the danger of censorship and to promote and protect the free expression of ideas, particularly freedom in the choice of reading materials. ABFFE has 300 member bookstores, located primarily in the United States. 3. The Freedom to Read Foundation is a not-for-profit organization established in 1969 by the American Library Association to promote and defend First Amendment rights, to foster libraries as institutions that fulfill the promise of the First Amendment for every citizen, to support the right of libraries to include in their collections and make available to the public any work they may legally acquire, and to establish legal precedent for the freedom to read of all citizens. 4. PEN American Center, the professional association of over 2600 literary writers (poets, playwrights, essayists, editors, and novelists), is the largest in a global network of 131 Centers around the world comprising International PEN. PEN's mission is to promote literature and protect free expression whenever writers or their work are threatened. In particular, PEN defends writers from censorship, harassment, and imprisonment. In the United States, PEN American Center defends the First Amendment whenever it comes under attack. To advocate for free speech in the United States, PEN mobilizes the literary community to apply its leverage through sign-on letter campaigns, 2 direct appeals to policy makers, participation in lawsuits and amicus briefs, briefing of elected officials, awards for First Amendment defenders, and public events. 5. Amici are dedicated to defending the First Amendment rights of their members and of the reading public - whose consumption of books, newspapers, magazines, and other expressive works is critical to the healthy functioning of a democratic society. Each of the Amici has participated regularly in an amicus capacity in important legal challenges to incursions on First Amendment rights. Amici believe their perspective on the constitutional issues raised in Defendant-Appellant Kilpatrick's motion will materially assist the Court in appraising the significance of those issues, which implicate fundamental First Amendment principles. 6. As Amici explain in the proposed brief that accompanies this motion, Mich. Comp. Laws§ 780.768, the statutory basis for the Circuit Court's June 20, 2011 forfeiture order relating to proceeds from Kilpatrick's book Surrendered: The Rise, Fall & Revelation ofKwame Kilpatrick, raises serious First Amendment concerns that Amici believe warrant review by this Court. 7. By singling out for a financial penalty expressive works that make any reference to criminal conduct by the author, section 780.768 conflicts with the precept that government cannot interfere with the content of the discourse on matters of public concern. The government is obliged to use content-neutral means to ensure the payment of restitution. Section 780.768, however, is expressly content-based and thus properly is subject to strict scrutiny, which it cannot survive. 8. Courts have held that laws like section 780.768 that specifically confiscate the proceeds from books that may make only passing reference to a crime burden more 3 speech than is necessary to advance the state's interest in compensating crime victims and in preventing criminals from profiting from crime. In doing so, as Amici's brief describes, such laws chill the publication of works that address vital matters of crime and criminal justice, including from a first-hand perspective. 9. AAP filed an amicus brief with the U.S. Supreme Court in the seminal "Son of Sam" law case, Simon & Schuster, Inc. v. Members ofthe New York State Crime Victims Bd., 502 U.S. 105 (1991). In that case, the Supreme Court cited AAP's brief in striking down New York's Son of Sam law. AAP (joined by, among others, ABFFE and PEN) also filed an amicus brief with the Supreme Court of California in Keenan v. Superior Court, 27 Cal. 4th 413 (2002), which that Court cited in its opinion striking down a California Son of Sam provision similar to section 780.768. 10. The courts in Simon & Schuster and Keenan specifically took note of AAP's amicus arguments, and Amici believe their amplification of the arguments presented in Kilpatrick's application will likewise help this Court understand the importance of granting the application and properly addressing the First Amendment arguments that the courts below erroneously rejected. 4 11. The Wayne County Prosecutor's Office has consented to the filing of the proposed amici curiae brief. Respectfully submitted, &/~ ANDREA KIMBALL (P-57558) SNR Denton US LLP 4520 Main Street, Suite 1100 Kansas City, Missouri 64111 (816) 460-2400 JONATHAN BLOOM Weil, Gotshal & Manges LLP 767 Fifth Avenue New York, NY 10153 (212) 310-8775 Dated: November 1, 2011 Attorneys for Amici Curiae 5 STATE OF MICHIGAN IN THE SUPREME COURT PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee v. KWAME KILPATRICK Supreme Court No 143861 Defendant-Appellant Court of Appeals No. 304991 Lower Court No. 08-010496-FH COA No. 304991 Circuit Court No. 08-010496 BRIEF OF THE ASSOCIATION OF AMERICAN PUBLISHERS, INC., AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION, THE FREEDOM TO READ FOUNDATION, AND PEN AMERICAN CENTER AS AMICI CURIAE IN SUPPORT OF DEFENDANT-APPELLANT'S APPLICATION FOR LEAVE TO APPEAL ANDREA KIMBALL (P-57558) SNR Denton US LLP 4520 Main Street, Suite 1100 Kansas City, Missouri 64111 (816) 460-2400 JONATHAN BLOOM Weil, Gotshal & Manges LLP 767 Fifth Avenue New York, NY 10153 (212) 310-8775 TABLE OF CONTENTS Page INTRODUCTION AND INTEREST OF THE AMICI.. ................................. .. ........ ... .. .. 1 ARGUMENT ............................................................ ..... ...... ... .... .. .......... .... ... ....... ... .......... 9 I. SECTION 780.768 IS A CONTENT-BASED STATUTE THAT IS PRESUMPTIVELY INCONSISTENT WITH THE FIRST AMENDMENT AND CANNOT WITHSTAND STRICT SCRUTINY ... ....... .. .. 9 A. The Impermissibility of Content-Based Statutes Is Well-Ingrained in First Amendment Doctrine .......... .. .. ... ....... .. ......................... ... ... .. .......... 9 B. Section 780.768 Is Content-Based .. .... .. .. ... .. ..... .. ... ..... .... .. .. ..... ...... .... ....... 10 C. The Targeting of Speech-Derived Assets Is Both Constitutionally Problematic and Unjustified .. ... ... .... .................. ... ... ....................... .. .... ... 12 D. Section 780.768 Is Overinclusive ............ ............. .. ..... .. ... .............. ... .. .. ... 13 II. SECTION 780.768 CHILLS CONSTITUTIONALLY PROTECTED SPEECH .. ........ .... ... ... ..................... ... .. ..... .... .. ... ... ... ..... .... ....... .... .. ......... .. ....... ..... 17 CONCLUSION ................ .. .. .. .......... ..... .. .... ... ............................ .. ... .. .. ..... .. ... ..... ..............24 TABLE OF AUTHORITIES Page(s) CASES Arkansas Writers' Project, Inc. v. Ragland, 481 u.s. 221 (1987) ................................................. ................... ...................... ...................... 12 Associated Press v. United States, 326 U.S. 1 (1945) .................................................................................................................... 23 Bouchard v. Price, 694 A.2d 670 (R.I. 1997) ....................................................................................... 11, 12, 13, 16 Curran v. Price, 638 A.2d 93 (1994) .................................................................................... .... ....................... ... 22 First Nat'! Bank ofBoston v. Bellotti, 435 U.S. 765 (1978) .................... .. ...................... .... ........ ...................... .. .......................... 10, 23 Garrison v. Louisiana, 379 U.S. 64 (1964) ............................... ....... .............................................................................. 3 Gentile v. State Bar
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