502 U.S. 105 (1991), 90-1059, Simon & Schuster, Inc. v. Members of

Docket Nº:No. 90-1059
Citation:502 U.S. 105, 112 S.Ct. 501, 116 L.Ed.2d 476, 60 U.S.L.W. 4029
Party Name:Simon & Schuster, Inc. v. Members of
Case Date:December 10, 1991
Court:United States Supreme Court

Page 105

502 U.S. 105 (1991)

112 S.Ct. 501, 116 L.Ed.2d 476, 60 U.S.L.W. 4029

Simon & Schuster, Inc.


Members of

No. 90-1059

United States Supreme Court

Dec. 10, 1991

New York State Crime Victims Board

Argued Oct. 15, 1991




Among other things, New York's "Son of Sam" law provides that an "entity" contracting [112 S.Ct. 503] with a person "accused or convicted of a crime" for the production of a book or other work describing the crime must pay to respondent Crime Victims Board any moneys owed to that person under the contract; requires the Board to deposit such funds in an escrow account for payment to any victim who, within five years, obtains a civil judgment against the accused or convicted person and to the criminal's other creditors; and defines "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.

After it discovered that petitioner publisher had signed an agreement with an author who had contracted with admitted organized crime figure Henry Hill for the production of a book about Hill's life, the Board, inter alia, determined that petitioner had violated the Son of Sam law and ordered it to turn over all money payable to Hill. Petitioner then brought suit under 42 U.S.C. § 1983, seeking a declaration that the law violates the First Amendment, and an injunction barring the law's enforcement. The District Court found the law to be consistent with the Amendment, and the Court of Appeals affirmed.

Held: The Son of Sam law is inconsistent with the First Amendment. Pp. 115-123.

(a) Whether the First Amendment "speaker" is considered to be Hill, whose income the New York law places in escrow because of the story he has told, or petitioner, which can publish books about crime with the assistance of only those criminals willing to forgo remuneration for at least five years, the law singles out speech on a particular subject for a financial burden that it places on no other speech and no other income and, thus, is presumptively inconsistent with the Amendment. Leathers v. Medlock, 499 U.S. 439, 447; Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 230. The fact that the law escrows speech-derived income, rather than taxing a percentage of it outright as did the law invalidated in Arkansas Writers' Project, cannot serve as the basis for disparate treatment under the Amendment, since both forms of financial burden operate as disincentives to speak. Moreover, the

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Board's assertion that discriminatory financial treatment is suspect only when the legislature intends to suppress certain ideas is incorrect, since this Court has long recognized that even regulations aimed at proper governmental concerns can restrict unduly the exercise of rights under the Amendment. Furthermore, the Board's claim that the law is permissible under the Amendment because it focuses generally on an "entity," rather than specifically on the media, falters, first, on semantic grounds, since any entity that enters into a contract with a convicted person to transmit that person's speech becomes, by definition, a medium of communication, and, second, on constitutional grounds, since the governmental power to impose content-based financial disincentives on speech does not vary with the identity of the speaker. Accordingly, in order to justify the differential treatment imposed by the law, the State must show that its regulation is necessary to serve a compelling state interest, and is narrowly drawn to achieve that end. Id. at 231. Pp. 115-118.

(b) The State has a compelling interest in compensating victims from the fruits of crime. Cf. Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 629. However, contrary to the Board's assertion, the State has little if any interest in limiting such compensation to the proceeds of the wrongdoer's speech about the crime. The Board cannot explain why the State should have any greater interest in compensating victims from the proceeds of criminals' "storytelling" than [112 S.Ct. 504] from any of their other assets, nor offer any justification for a distinction between this expressive activity and any other activity in connection with its interest in transferring the fruits of crime from criminals to their victims. Cf., e.g., Arkansas Writers' Project, supra, 481 U.S. at 231. Like the governmental entities in the latter and similar cases, the Board has taken the effect of the statute and posited that effect as the State's interest. Pp. 118-121.

(c) The New York law is not narrowly tailored to achieve the State's objective of compensating victims from the profits of crime. The law is significantly overinclusive, since it applies to works on any subject provided that they express the author's thoughts or recollections about his crime, however tangentially or incidentally, and since its broad definition of "person convicted of a crime" enables the Board to escrow the income of an author who admits in his work to having committed a crime, whether or not he was ever actually accused or convicted. These two provisions combine to encompass a wide range of existing and potential works that do not enable a criminal to profit from his crime while a victim remains uncompensated. Pp. 121-123.

916 F.2d 777 (CA2 1990), reversed.

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O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, STEVENS, SCALIA, and SOUTER, JJ., joined. BLACKMUN, J., post, p. 123, and KENNEDY, J., post, p. 124, filed opinions concurring in the judgment. THOMAS, J., took no part in the consideration or decision of the case.

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O'CONNOR, J., lead opinion

JUSTICE O'CONNOR delivered the opinion of the Court.

New York's "Son of Sam" law requires that an accused or convicted criminal's income from works describing his crime be deposited in an escrow account. These funds are then made available to the victims of the crime and the criminal's other creditors. We consider whether this statute is consistent with the First Amendment.



In the summer of 1977, New York was terrorized by a serial killer popularly known as the Son of Sam. The hunt for the Son of Sam received considerable publicity, and by the time David Berkowitz was identified as the killer and apprehended, the rights to his story were worth a substantial amount. Berkowitz's chance to profit from his notoriety while his victims and their families remained uncompensated did not escape the notice of New York's Legislature. The State quickly enacted the statute at issue, N.Y.Exec.Law § 632-a (McKinney 1982 and Supp.1991).

The statute was intended to

ensure that monies received by the criminal under such circumstances shall first be made available to recompense the victims of that crime for their loss and suffering.

Assembly Bill Memorandum Re: A 9019, July 22, 1977, reprinted in Legislative Bill Jacket, 1977 N.Y.Laws, ch. 823. As the author of the statute explained,

[i]t is abhorrent to one's sense of justice and decency that an individual . . . can expect to receive large sums of money for his story once he is captured -- while five people are dead, [and] other people were injured as a result of his conduct.

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Memorandum of Senator Emanuel R. Gold, reprinted in New York State Legislative Annual, 1977, p. 267.

The Son of Sam law, as later amended, requires any entity contracting with an accused or convicted person for a depiction of the crime to submit a copy of the contract to respondent Crime Victims Board, and to turn over any income [112 S.Ct. 505] under that contract to the Board. This requirement applies to all such contracts in any medium of communication:

Every person, firm, corporation, partnership, association or other legal entity contracting with any person or the representative or assignee of any person, accused or convicted of a crime in this state, with respect to the reenactment of such crime, by way of a movie, book, magazine article, tape recording, phonograph record, radio or television presentation, live entertainment of any kind, or from the expression of such accused or convicted person's thoughts, feelings, opinions or emotions regarding such crime, shall submit a copy of such contract to the board and pay over to the board any moneys which would otherwise, by terms of such contract, be owing to the person so accused or convicted or his representatives.

N.Y.Exec.Law § 632-a(1) (McKinney 1982). The Board is then required to deposit the payment in an escrow account

for the benefit of and payable to any victim . . . provided that such victim, within five years of the date of the establishment of such escrow account, brings a civil action in a court of competent jurisdiction and recovers a money judgment for damages against such [accused or convicted] person or his representatives.

Ibid. After five years, if no actions are pending, "the board shall immediately pay over any moneys in the escrow account to such person or his legal representatives." § 632-a(4). This 5-year period in which to bring a civil action against the convicted

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person begins to run when the escrow account is established, and supersedes any limitations period that expires earlier. § 632-a(7).

Subsection (8) grants priority to two classes of claims against the escrow account. First, upon a court order, the Board must release assets "for the exclusive purpose of retaining legal representation." § 632-a(8). In addition, the Board has the discretion, after giving notice to the victims of the crime, to

make payments from the escrow account to a representative of any...

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