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California case could determine future of 'Son of Sam' laws

Analysis

By David Hudson
freedomforum.org

03.08.01

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A case before the California high court could determine the constitutionality of laws designed to prevent criminals from profiting from storytelling about their crimes. (See Freedom Forum research package on 'Son of Sam' laws.)

California law prohibits a "convicted felon" or a "profiteer of the felony" from making money by describing or selling memorabilia associated with the crime.

In 1986, California passed a so-called "Son of Sam" law, which generally prohibited convicted felons from profiting from discussions of their felonies. Last year, the Legislature expanded the law by extending it to cover any memorabilia of the felon, "the value of which is enhanced by the notoriety gained from the commission of the felony."

The measure is designed to compensate crime victims for the harm they have suffered and to prevent people from making money off of crimes they have committed. In fact, proponents of the law prefer the term "victims' rights" legislation, as opposed to the "Son of Sam" moniker.

However, free-speech advocates claim the California law violates the First Amendment. Opponents of the law cite a 1991 U.S. Supreme Court decision striking down New York's "Son of Sam" law.

'Son of Sam' laws and the Simon & Schuster decision

In the summer of 1977, serial killer David Berkowitz terrorized the city of New York. Berkowitz was later called the "Son of Sam" because he claimed that his dog Sam told him to murder his victims.

The New York Legislature passed a law that required an accused or convicted criminal's income from works describing his crime to be deposited in an escrow account. The funds from the escrow account are then used to reimburse crime victims for the harm they have 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 a popular movie, recounted many of Hill's criminal activities while a Mafia member.

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 its 1991 decision Simon & Schuster, Inc. v. Members of 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 said the law in question 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 did find that the state had "a compelling interest in ensuring that victims of crime are compensated by those who harm them." The justices 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," because it 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 the 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 O'Connor wrote in her opinion. She noted 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 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 her 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.

California case: Keenan v. Superior Court of California for the County of Los Angeles

Barry Keenan, who was convicted of kidnapping Frank Sinatra Jr., has challenged California's Son of Sam law. The case is currently before the California Supreme Court.

In December 1963, Keenan and two others kidnapped Sinatra Jr. Police apprehended Keenan after he and his partners in crime collected $240,000 in ransom money. Keenan was convicted and served four years in federal prison.

In 1998 Keenan gave an interview to New Times Los Angeles magazine about the kidnapping. Keenan and/or his agents later contracted with Columbia Pictures for the motion picture rights to the story.

In July 1998, Sinatra sued in state court to impose a constructive trust upon the monies paid to Keenan about the kidnapping. The next month, a trial court issued an injunction against Columbia Pictures and New Times. Keenan appealed to a California appeals court, arguing that the Son of Sam law was unconstitutional.

On May 27, 1999, one day after oral arguments, the California Court of Appeals unanimously upheld the statute.

Keenan then appealed to the California Supreme Court, which agreed to hear the case in September 1999. Both sides have filed briefs to the state high court, which has not yet set a date for oral arguments.

Keenan's attorney Stephen Rohde writes in his brief: "The 'Son of Sam' law represents a laudable, yet misguided, effort to impose perpetual punishment on convicted criminals by ignoring the commands of the First Amendment."

However, Richard Specter, Sinatra's attorney, responded in his brief: "More than 200 years after its adoption, a convicted felon now opines that the freedom of expression embodied in the First Amendment unequivocally establishes not only the right to be heard, but also the right to profit from his crime."

Specter insists that the California law is much more narrowly drafted than the New York law that was declared unconstitutional by the U.S. Supreme Court in 1991. He contrasts the definition of "convicted felon" in the California law with that in New York.

The California law defines a "convicted felon" as "any person convicted of a felony, or found not guilty by reason of insanity of a felony committed in California, either by a court or jury trial or by entry of a plea in court."

The New York law, on the other hand, included individuals who admitted they had committed a crime.

In an interview, Specter also emphasized that the California law does not apply to works that contain only a "passing mention of a felony."

"The California law includes the exact words of the U.S. Supreme Court when it criticized the New York law," Specter said. "The state has a compelling interest in ensuring that criminals do not profit from their crimes and that victims be compensated for the harm they've suffered. This law achieves this goal in a narrowly tailored way."

However, Rohde says the measure "suffers from the same flaws as the New York law in Simon & Schuster."

Rohde says that the law's "passing mention" or "tangential or incidental" references are unconstitutionally vague. "One person's 'passing mention' may be another person's 'important vignette' or 'critical turning point,' " he writes. "There is simply no way of telling."

The new law and its future

Though the Keenan case does not deal with the amended law regarding memorabilia, it could call into question the amendment as well.

Rohde wrote a letter to the California Senate Judiciary Committee, questioning the constitutionality of the new amendment. He wrote: "The bill is extraordinarily overbroad sweeping within its scope artworks, photographs, drawings, poems, essays, journals, diaries, manuscripts, books, videos, posters, letters, and the like created by the felon, all of which are protected by the First Amendment and Art. 1, Sec. 2 of the California Constitution."

He noted that the term "memorabilia" was not defined and called the law both "unconstitutionally vague" and "bad public policy."

The bill excludes the sale or transfer by a profiteer of any other expressive work protected by the First Amendment unless the sale or transfer is primarily for a commercial or speculative purpose.

Free-speech expert Robert O'Neil, founder of the Thomas Jefferson Center for the Protection of Free Expression, says this exemption does not satisfy constitutional scrutiny.

"The attempt to solve the problem by exempting expressive material might work, but for the qualification or limit on that exemption for material created or disseminated 'primarily for a commercial purpose,' " O'Neil said. "Surely in the case of the publisher, and probably in the case of the author/felon — both were proper challengers to the New York law in Simon & Schuster — a "commercial purpose" exists and would not in any other setting forfeit a First Amendment interest."

"Thus in the end the California law would do just what the Supreme Court said New York could not — 'establish a financial disincentive to create and publish works with a particular content,' " O'Neil said.

Rohde says he expects the California high court to hear the case sometime next month.

Related

California high court mulls 'Son of Sam' law
Barring felons from making money from their stories violates free speech, attorney for Frank Sinatra Jr. kidnapper tells justices.  12.07.01

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