‘Son of Sam’ laws

David L. Hudson Jr.

Friday, June 4, 2004

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 2012