California, Massachusetts courts nix Son of Sam laws

From the Spring 2002 issue of The News Media & The Law, page 46.

Two state supreme courts recently struck down measures barring convicted criminals from profiting from their crimes, determining that they were not drawn narrowly enough to withstand constitutional scrutiny.

The Massachusetts Supreme Judicial Court on March 14 said a proposed “Son of Sam” law would restrict the free speech rights of criminals. That court’s decision follows one by the California Supreme Court on Feb. 21 that struck down a law preventing one of the kidnappers of Frank Sinatra Jr. from making a movie about the 1963 crime.

New York became the first state to enact such a law in 1977 after serial killer David Berkowitz, better known as the “Son of Sam,” received a number of high-priced offers for the rights to his story. But the U.S. Supreme Court struck down the law as unconstitutional in 1991.

The High Court determined in Simon & Schuster v. Crime Victims Board that the New York law was “overinclusive” because it prevented any person who mentions involvement in a crime from profiting, even if that person had never been arrested, charged or convicted of a crime.

Since then, many states have tried fashioning their own “Son of Sam” laws to prevent criminals from profiting from crimes. But most states find it difficult to craft such laws to withstand constitutional scrutiny.

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Massachusetts

The Massachusetts decision came after the Massachusetts Senate asked the Supreme Judicial Court to review its “Crime Victim Compensation” bill after questions were raised about its constitutionality. The bill would have diverted profits criminals made from their crimes to an escrow account reserved for the victims.

The court ruled that it would restrict free speech rights.

“With respect to all types of criminal defendants, the law . . . would impose financial burdens and uncertainties that would, in their practical effect, operate to chill a wide range of expression,” the court wrote.

The court also noted that there were other ways to prevent criminals from reaping financial benefits from their crimes such as specific probation requirements designed to limit their incomes. (S. 1939, Crime Victim Compensation Bill)

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California

The California law barred a convicted felon from making any money from books, movies or other “expressive material” if it involved the story of his crime in a significant way. Any money the felon received would be seized for a victim’s fund and to pay fines and court expenses.

The law was challenged by Barry Keenan, who had been convicted of kidnapping Frank Sinatra Jr. for four days in 1963. Columbia Pictures offered $1.5 million for the film rights to “Snatching Sinatra,” a story that appeared in Los Angeles New Times. Keenan would have received some of the proceeds from Columbia’s offer.

Sinatra filed a lawsuit in 1998, arguing that the California Victims Rights Law prohibited Keenan from receiving any profit from the crime. Keenan argued that the law violated his First Amendment rights.

Both a trial court and the California Court of Appeal ruled in favor of Sinatra and upheld the law. They distinguished the California law from the unconstitutional law in New York, ruling that the California law was less broad and, therefore, did not have the same “overinclusive” defect that the New York law had.

The appellate court decided that the statute was not similarly defective because it applied only to convicted felons and because it contains an exemption for a mere “passing reference” to a crime.

The California Supreme Court, however, found that the law violated the First Amendment because it inhibited speech “beyond that necessary to serve the state’s compelling interest in compensating crime victims from the fruits of the crime.” The court relied heavily on the ruling in Simon & Schuster.

The court noted that the law was a direct regulation on speech and, therefore, must be invalidated unless it can withstand “strict scrutiny.” A law passes the strict scrutiny test, in the context of “Son-of-Sam” laws, only if the state has a compelling interest in compensating crime victims from the fruits of crime, and the statute at issue is narrowly tailored to fit that purpose.

The court ruled that the California law failed to meet the strict scrutiny test because, like the New York law, it was overinclusive. “[California’s law] contains the 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.”

The court found that the statute was not saved merely because it applied only to convicted felons or because it contained an exemption for a mere “passing reference” to a crime.

“By any reasonable construction, the California statute is still calculated to confiscate all income from a wide range of protected expressive works by convicted felons, on a wide variety of subjects and themes, simply because those works include substantial accounts of the prior felonies,” the court wrote. (Keenan v. Superior Court)

Both states may try to rework their laws to avoid First Amendment problems.

Sean Kealy, spokesman for the Massachusetts bill sponsor, state Sen. Cynthia Creem (D-Newton), said the Massachusetts legislation would be reevaluated and constructed in a less broad manner.

In 2000, Kealy wrote a law review article in which he proposed that “Son of Sam” laws might pass constitutional muster if they were content-neutral and narrowly tailored to ensure that victims received compensation for the crime. He suggested that the Massachusetts law should be deemed constitutional under that standard, but the law was struck down.

“The question is how we’re going to do it,” Kealy said about crafting a new version of the bill. “It’s a pretty difficult decision to get around.” — AG