Simon & Schuster v. Members of the New York State Crime Victims Board

Petitioner
Simon & Schuster, Inc.
Respondent
New York Crime Victims Board
Petitioner's Claim
That New York's "Son of Sam" law restricts free speech and is therefore inconsistent with the First Amendment.
Chief Lawyer for Petitioner
Howard L. Zwickel
Chief Lawyer for Respondent
Ronald S. Rauchberg
Justices for the Court
Harry A. Blackmun, Anthony M. Kennedy, Sandra Day O'Connor (writing for the Court), William H. Rehnquist, Antonin Scalia, David H. Souter, John Paul Stevens, Byron R. White
Justices Dissenting
None (Clarence Thomas did not participate)
Place
Washington, D.C.
Date of Decision
10 December 1991
Decision
Overturned the two lower courts' decisions ruling that New York's Son of Samlaw was inconsistent with the First Amendment.
Significance
The Supreme Court ruled that New York's particular Son of Sam law was overbroad. The law would penalize any book in which the author had admitted a crime.Also the Court ruled that the statute levied a financial penalty on a certain type of speech that it imposed on no other type of speech. The Supreme Court held that this particular law was unconstitutional, but since that time other constitutionally questionable Son of Sam laws have been passed in many states, including another in New York.
During the summer of 1977 the most sensational and widely reported story wasa series of murders in New York City. When David Berkowitz was caught and identified as the killer, the New York State legislature wanted to make sure hedid not profit from his killing spree. The state quickly passed a statute (New York Exec. Law 632-a) designed to prevent Berkowitz from selling his storyand making money. More specifically, the law required any entity which entered into a contract with a person convicted or accused of a crime to give a copy of the contract as well as any income derived from the contract to the NewYork Crime Victims Board. The board would then deposit the payment into an escrow account to provide monetary judgements for crime victims who sued the accused or convicted person.
The case Simon & Schuster v. New York State Crime Victims Board began in 1986. Simon & Schuster, a large New York publishing house, enteredinto a contract with organized crime figure Henry Hill. In a 26-year career,Hill was involved in robberies, extortion, and selling drugs. Hill and author Nicholas Pileggi signed on with Simon & Schuster to write a book whichwould eventually become Wiseguy: Life in a Mafia Family. The Crime Victims Board learned of Hill and Pileggi's book in January of 1986. The board moved quickly to get all the financial records regarding the transactions between Simon & Schuster and Hill. After reviewing the contract the board ruled that the publishing house had broken the law and all the money paid to Hill should have been turned over to the board's escrow account for Hill's victims. The board also ordered Hill to turn over all monies he received from theproject. In August of 1987, Simon & Schuster sued the board in U.S. District Court claiming the law violated the First Amendment. The district court found the statute consistent with the First Amendment and the Second Circuit Court of Appeals affirmed the lower court's ruling. Because the issue was likely to come up again, the U.S. Supreme Court granted certiorari, an order for the lower court to forward the case to the highest court.
The Supreme Court reversed the two lower court's rulings in an 8-0 vote (Justice Clarence Thomas took no part in the case). The Court's opinion, deliveredby Justice O'Connor, held that New York chose to impose a financial penaltyon one type of speech that it imposed on no other type of speech. The Court had previously ruled in Leathers v. Medlock that a statute which imposed a financial burden on speech because of its content was inconsistent with the First Amendment. Further, in Arkansas Writers' Project, Inc. v. Ragland the Court ruled that the content of speech could not be the basis for any special taxes. The Court wrote:

We conclude simply that in theSon of Sam law, New York has singled out speech on a particular subject for afinancial burden that it places on no other speech and no other income. TheState's interest in compensating victims from the fruits of crime is a compelling one, but the Son of Sam law is not narrowly tailored to advance that objective. As a result, the statute is inconsistent with the First Amendment.

The Court ruled that the Son of Sam law was overbroad--that it wastoo general. This statute as it was written would include all types of literature and penalize any speech in which the author admitted a crime. Though Justice O'Connor acknowledged the exaggeration, this law would in theory punishthe authors of such books as The Autobiography of Malcolm X, CivilDisobedience by Henry David Thoreau, and even The Confessions of Saint Augustine.
Another issue that the Court addressed was the rights of victims. The Court recognized that the state had a compelling interest in compensating crime victims and in preventing criminals from profiting from their misdeeds. Despite the Board's best attempts, it could not explain why the specific assets from acriminal telling his or her story should be isolated from all of their otherearnings. In short, the Court did not see why the state should specificallylimit the financial penalty to the money the lawbreaker earned from talking about his or her crime. In his agreement with the Court, Justice Kennedy concluded:

I would recognize this opportunity to confirm our past holdings and to rule that the New York statute amounts to raw censorship based oncontent, censorship forbidden by the text of the First Amendment and well-settled principles protecting speech and the press. That ought to end the matter.

But the issue of victims' rights was a matter that was far from settled.
Almost immediately after the Supreme Court declared New York's law unconstitutional, the New York legislature passed a revised Son of Sam law on 24 July 1992. On 3 April 1997 the Crime Victims Board announced the first settlement under the new law. Warner Bros., Inc. payed the children of Bruce Kellog, whowas murdered by teenagers hired by his wife, a $5,000 settlement after a production company owned by the entertainment giant made a TV movie about the crime. Earlier in 1997 New York Governor George E. Pataki and Attorney General Dennis C. Vacco sued organized crime figure Sammy "The Bull" Gravano as a result of his reported book deal. In addition to New York, Son of Sam laws have spread across the United States and Canada. The state of Florida sued writer Sandra London under its Civil Restitution Lien and Crime Victims' Remedy Act of 1994. London sold the story of Danny Rolling, who murdered five college students in 1990. While this case and others like it have sprung up allover the country in the aftermath of Simon & Schuster v. New York State Crime Victims Board, the decision remained an important part of the body of law concerning commercial speech. The case is mentioned along with Police Department of Chicago v. Mosley in 1972 and Arkansas Writers' Project, Inc. v. Ragland in 1987 as an important safeguard of free speech--even that speech which may be unpopular or offensive.
Related Cases

• Police Department of Chicago v. Mosley, 408 U.S. 92 (1972).
  
• Arkansas Writers' Project v. Ragland, 481 U.S. 221 (1987).
  
• Leathers v. Medlock, 499 U.S. 439 (1991).

Crime for Profit
Should crime pay? Do criminals, convicted or not, have the right to profit from selling their true crime stories to publishers or film makers?
Proponents maintain if criminals are not paid they will not write, and the public is extremely interested in crime, criminals, and criminal justice. Publicity surrounding crime arouses such curiosity. If criminals did not write, the public would be denied their right to read or view authentic versions of crime experience.
Publishing and film-making industries generate huge profits by commonly focusing on crime themes in a large number of works, including books, movies, andtelevision programs. Biding wars for criminals' stories occur. Perhaps marketing their story is the only asset the wrongdoer has left. The criminal or criminal's family could use the money for legal debts and living expenses. Conversely, if the profits could be seized, crime victim restitution programs could be funded.
Lastly, proponents argue Henry David Thoreau's Civil Disobedience or the Autobiography of Malcolm X would never have been published, stifling the free exchange of ideas.
Opponents focus on the victim's loss being turned into profit for the wrongdoer. Payment for crime is unconscionable and offensive. Felons actually benefitting from vicious crimes could perhaps lead to more grisly crimes.
Sources
Garbus, Martin. Let's Do Away with "Son of Sam" Laws. Publisher's Weekly, Vol. 242, no. 7, p. 19.