'Son of Sam' laws
By David L. Hudson Jr.
First Amendment scholar
One normally would not associate serial killer David Berkowitz or the son of
Frank Sinatra with the first 45 words of the U.S. Constitution’s Bill of Rights.
But the two have a connection to a set of laws that raise intriguing First
Amendment problems. These statutes, known as “Son of Sam” laws, are designed to
take money criminals and ex-cons earn from expressive works about their crimes
and give it to their victims or their victims’ family members. Supporters of the
laws say they help crime victims and prevent criminals from profiting from their
misdeeds. Opponents counter that the laws infringe on fundamental First
Amendment principles.
Currently, more than 40 states have such laws on their books. The pattern
emerging is that when states pass such laws, state courts strike them down.
In a high-profile decision, the Nevada Supreme Court struck down the state’s
“Son of Sam” law in a constitutional challenge filed by former prison inmate
Jimmy Lerner, who wrote the popular memoir, You Got Nothing Coming: Notes
From a Prison Fish. Lerner had served three years in prison on a
voluntary-manslaughter charge after suffocating his friend Mark Slavin in a
Reno, Nev., hotel room in 1997.
Slavin’s sister, Donna Seres, filed a lawsuit in August 2002 to collect
profits from Lerner’s book. In January 2003, a Nevada trial court judge
dismissed Seres’ suit on First Amendment grounds. The judge relied on a U.S.
Supreme Court decision from 1991, Simon
& Schuster Inc. v. New York State Crime Victims Bd.
“The (state) law is content-based,” Lerner’s Reno-based attorney Scott
Freeman told the First Amendment Center Online in 2004. “It is very clear that
these laws chill free speech. They not only violate the First Amendment rights
of people like Mr. Lerner who engage in expressive work but people also have a
constitutional right to read books like his and receive information.”
Freeman’s confidence was well-founded, as the Nevada Supreme Court affirmed
the lower court and rejected the law, largely relying on Simon &
Schuster. (See further discussion of the Nevada ruling later in this
article.)
The Simon & Schuster decision
For much of 1976 and 1977,
serial killer David Berkowitz terrorized the city of New York, killing six
people and injuring seven others. Berkowitz was called the “Son of Sam” because
he claimed that a spirit named Sam told him (through a neighbor’s dog) to murder
his victims. He also referred to himself as the “Son of Sam” in a letter left at
one of the murder scenes. Arrested in August 1977, Berkowitz later pleaded
guilty and was sentenced to 365 years in prison.
After hearing reports that Berkowitz was being offered a substantial amount
of money for the rights to his story, the New York Assembly in 1977 passed a law
requiring that an accused or convicted criminal’s income from works describing
his crime be deposited in an escrow account. The funds from the escrow account
were then to be used to reimburse crime victims for the harm they had
suffered.
The state attempted to enforce the law after an admitted organized crime
figure, Henry Hill, entered into a contract with publisher Simon & Schuster,
which eventually led to Nicholas Pileggi’s book Wiseguy.
The book, which later led to the hit movie “GoodFellas,” recounted many of
Hill’s criminal activities while in the Mafia.
The state ordered the publisher to suspend all payments to Hill. The
publisher sued in August 1987, claiming a violation of its First Amendment
rights. The case eventually reached the U.S. Supreme Court, which ruled in 1991
in Simon
& Schuster Inc. v. New York State Crime Victims Bd. that the law
violated the First Amendment.
The Court voted unanimously to strike down the law, finding that it was an
overbroad attempt to protect victims rights. The Court noted that “a statute is
presumptively inconsistent with the First Amendment if it imposes a financial
burden on speakers because of the content of their speech.”
The Court noted that the law was content-based because it applied only to
works with a particular content. In First Amendment jurisprudence, content-based
laws must be justified by a compelling state interest in a narrowly tailored
way.
The high court found that state officials had a compelling interest, writing:
“There can be little doubt, on the other hand, that the State has a compelling
interest in ensuring that victims of crime are compensated by those who harm
them.” The high court also found that the state had a compelling interest in
preventing criminals from profiting from their crimes.
However, the Court determined that the law was too broad, or “overinclusive.”
The law broadly defined a “person convicted of a crime” to include “any person
who has voluntarily and intelligently admitted the commission of a crime for
which such person is not prosecuted.”
The law applied to works about crime even if the discussion about a crime was
tangential or incidental in the work as a whole. The Court reasoned that the New
York law could apply to The Autobiography of Malcolm X, Henry David
Thoreau’s Civil Disobedience or even Confessions of St.
Augustine.
“A list of prominent figures whose autobiographies would be subject to the
statute if written is not difficult to construct,” Justice Sandra Day O’Connor
wrote for the court. She wrote that the law could be applied to Jesse Jackson,
who was arrested in 1963 for a sit-in in North Carolina, or Bertrand Russell,
who was arrested in 1961 for a sit-down protest against nuclear weapons.
“That the Son of Sam law can produce such an outcome indicates that the
statute is, to say the least, not narrowly tailored to achieve the State’s
objective of compensating crime victims from the profits of crime,” O’Connor
wrote.
O’Connor stressed in the opinion that the decision affected only New York’s
law and did not affect similar laws by the federal government and other state
governments. “Some of these statutes may be quite different from New York’s, and
we have no occasion to determine the constitutionality of these other laws,”
O’Connor concluded.
The Barry Keenan case
After the Supreme Court’s Simon &
Schuster decision, many states, including New York and California, amended
their Son of Sam statutes. The amended California law was a bit narrower than
the New York law that was ruled unconstitutional. California’s statute applied
only to persons actually convicted of felonies and exempted those works that had
merely “passing mention of the felony, as in a footnote or bibliography.”
The test case for the California law came after reporter Peter Gilstrap
interviewed Barry Keenan for an article in New Times Los Angeles. Keenan,
along with two other individuals, had kidnapped Frank Sinatra Jr. in 1963 to
obtain money from his famous father. Keenan served four and a half years in
prison
However, in February 2002, the California Supreme Court ruled in Keenan v.
Superior Court of Los Angeles County that the state’s Son of Sam law
contained “the same fundamental defect identified in Simon & Schuster; it
reaches beyond a criminal’s profits from the crime or its exploitation to reach
all income from the criminal’s speech or expression on any theme or subject, if
the story of the crime is included.” According to the California high court, the
law “discourages the creation and dissemination of a wide range of ideas and
expressive works which have little or no relationship to the exploitation of
one’s criminal misdeeds.”
Sinatra’s counsel argued that the California law was not overbroad because,
unlike the New York law, it applied only to criminals speaking about felony
convictions. The California high court was not persuaded, writing: “One might
mention past felonies as relevant to personal redemption; warn from experience
of the consequences of crime; critically evaluate one’s encounter with the
criminal justice system; document scandal and corruption in government and
business; describe the conditions of prison life; or provide an inside look at
the criminal underworld.”
Stephen Rohde, the lawyer who successfully challenged the California law on
behalf of Keenan, said the decision had great significance for First Amendment
jurisprudence. In a 2003 article published in Los Angeles Lawyer, he
wrote:
The value of the Keenan case rests in its appreciation of how
society at large benefits from the widest array of voices addressing our
criminal justice system. Keenan is no more about merely protecting
convicted felons than decisions upholding the rights of protestors to burn the
American flag or of Nazis to march in Skokie, Illinois, were only about those
particular individuals. Cases guaranteeing First Amendment rights have little to
do with the particular message or messenger involved and have everything to do
with the principle of insuring that the public’s right to know is protected.
In the long run, given the decisions in Simon & Schuster and
Keenan, anyone who values wide-open, robust debate and the resolution of
important public policy issues through the open clash of ideas, instead of
repression imposed by governmental restrictions, will celebrate the elimination
of all Son of Sam laws, thereby contributing to an open marketplace of ideas
where books and movies about crime and punishment will succeed or fail on their
merits, free of direct or indirect censorship.
The decisions by the U.S. Supreme Court and the California Supreme Court led
Massachusetts’ highest court to conclude that a bill in the Massachusetts
Senate, which would have created a Massachusetts Son of Sam law, violated the
First Amendment. As mentioned earlier, the Nevada Supreme Court is set to
determine the fate of that state’s law.
In an interview with the First Amendment Center Online, Rohde said,
“Keenan is another nail in the Son of Sam coffin.”
“The lesson of Keenan is that you cannot pursue the interests of
victim rights in a way that violates the First Amendment,” he said.
Nevada Supreme Court ruling
As noted earlier, the Nevada Supreme Court
struck down its state law in 2004. The court determined that the law was
content-based because it singled out for financial burden speakers who spoke
about a past crime. This meant that the law was subject to strict scrutiny, the
highest form of judicial review. For a law to survive strict scrutiny, the
government must show that its regulation advances a compelling government
interest in a very narrowly tailored way.
The Nevada high court determined that the state had compelling interests in
compensating crime victims and preventing criminal profiteering. However, it
found that the law was not narrowly tailored enough to survive constitutional
review. The court noted that “the primary impediment to its validity stems from
its potential application to works only partially or tangentially related to the
crime committed.” To the court, the law was overinclusive because it applied to
virtually all works by defendants and felons even if the expressive works only
mentioned the past crime briefly. According to the court, the measure would
discourage “public discourse and nonexploitative discussion” of past crimes.
‘Finding another way’ — the Gravano route
The constitutional
hurdles imposed by Simon & Schuster, Keenan, Lerner and other court
decisions are quite high. This may cause many states to follow the approach
taken in Arizona in the case of “Sammy the Bull” Gravano.
Gravano, who served time in federal prison for organized crime racketeering
activities in New York, was criminally charged in Arizona with distributing the
drug Ecstasy. State officials then filed a civil action against Gravano seeking
the forfeiture of many of his assets, including proceeds he obtained from a book
about his life, Underboss: Sammy the Bull Gravano’s Story of Life in the
Mafia.
Gravano argued that seizure of royalties from Underboss violated the
First Amendment under Simon & Schuster. An Arizona appeals court
rejected his arguments in State of Arizona v. Gravano (2002), ruling that
the Arizona forfeiture statute, unlike a Son of Sam law, was not specifically
targeted at expressive works. The court explained:
Thus, whether proceeds of an expressive work are forfeitable under
the statutory scheme does not depend on the content of the work, and the
Underboss royalties owed to Gravano may be subject to forfeiture
regardless of the message conveyed in the book if a causal connection between
racketeering and the proceeds exists. Accordingly, the forfeiture statutes as
applied here are content-neutral.
Gravano appealed to the Arizona Supreme Court, which declined to review the
decision. The U.S. Supreme Court also declined to review a further appeal. “I
think what most states will do is what Arizona did,” says attorney Freeman.
“They will avoid the Son of Sam laws altogether and find another way to forfeit
a criminal’s assets, such as going under a RICO (Racketeer Influenced and
Corrupt Organizations) statute. Arizona cleverly went through the state RICO
law. I think more prosecutors will find creative ways to get around the
constitutional problems imposed by the Son of Sam decisions.”
Legal commentator Julie Hilden wrote in a March 2004 Findlaw.com column of another
method for crime victims potentially to recover damages against criminals —
civil tort suits. “To the contrary, crime victims and/or their families are
always free to file a multimillion dollar tort suit, going after a convicted
criminal for damages,” she wrote in the column. “The point is that such suits,
unlike ‘Son of Sam’ laws, are not intended to target free speech in
particular.”
Hilden wrote that these laws “might best be thought of as Son of Sam law in
disguise.”
California enacted one such law in 2002. The new law extends the statute of
limitations, allowing victims to sue criminals for up to 10 years after the
felon has completed parole.
Rohde explained that the new law was the “ultimate outcome” of the
legislature grapping with the Keenan decision. “If the statute is applied
evenhandedly and doesn’t single out First Amendment activity and is not used as
a stalking horse for Son of Sam, then I wouldn’t have a serious First Amendment
problem with the new law,” Rohde said.
Conclusion
Since Simon & Schuster, several state courts
have invalidated Son of Sam laws on First Amendment grounds. The clear message
from these decisions is that legislation must be narrowly crafted to survive
constitutional challenges. However, many states still have Son of Sam laws on
the books.
The push for restitution for crime victims will likely focus on general
civil-forfeiture actions or traditional tort suits against the criminals. More
states may extend the statute of limitations period for such lawsuits. What
remains evident, however, is that states must clear high First Amendment hurdles
before singling out the expressive works of criminals on the basis of the content of
their speech.
Updated March 2007