Simon & Schuster v. NY State Crime Victims Bd.

• Citation: 724 F. Supp. 170
• Decision Date: 26 October 1989
• Docket Number: No. 87 Civ. 5582 (JFK).,87 Civ. 5582 (JFK).
• Parties: SIMON & SCHUSTER, INC., Plaintiff, v. MEMBERS OF the NEW YORK STATE CRIME VICTIMS BOARD, Gennaro Fischetti, George L. Grobe, Jr., Diane McGrath, and Angelo Petromelis, individually and in their official capacities, Defendants.
• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

724 F. Supp. 170

SIMON & SCHUSTER, INC., Plaintiff, v. MEMBERS OF the NEW YORK STATE CRIME VICTIMS BOARD, Gennaro Fischetti, George L. Grobe, Jr., Diane

McGrath, and Angelo Petromelis, individually and in their official capacities, Defendants.

No. 87 Civ. 5582 (JFK).

United States District Court, S.D. New York.

October 26, 1989.

Ronald S. Rauchberg, Charles S. Sims, Proskauer Rose Goetz & Mendelsohn, John C. Bender, Elizabeth A. McNamara, Simon & Schuster, Inc., New York City, for plaintiff.

Robert Abrams, Atty. Gen. of the State of N.Y., New York City (Harvey J. Golubuck, Howard L. Zwickel, Anne S. Haskell, of counsel), for defendants.

Henry Mark Holzer, Brooklyn Law School, Brooklyn, N.Y., Daniel J. Popco, Michael P. McDonald, Washington Legal Found., Washington, D.C., amici curiae, for Washington Legal Found., et al.

Arthur Eisenberg, New York Civ. Liberties Union, Leon Friedman, New York City, amicus curiae, for the New York Civ. Liberties Union.

Irwin Karp, Port Chester, N.Y., amicus curiae, for Volunteer Lawyers for the Arts, Inc.

Weil, Gotshal & Manges, New York City (R. Bruce Rich, Robin E. Silverman of counsel), amicus curiae, for the Ass'n of American Publishers, Inc.

OPINION AND ORDER

KEENAN, District Judge:

Before the Court are plaintiff's motion and defendants' cross-motion for summary judgment. Fed.R.Civ.P. 56. Plaintiff Simon & Schuster, Inc. ("Simon & Schuster") seeks an order declaring that New York Executive Law section 632-a violates the First and Fourteenth Amendments to the United States Constitution. The Court has heard oral argument on these motions and has received numerous briefs of amici curiae.

Background

At issue in this action is New York Executive Law section 632-a, commonly referred to as the "Son of Sam" law. Enacted in 1977, the purpose of section 632-a is to prevent those accused or convicted of a crime from profiting from the commercial exploitation of their crimes by contracting for the production of books, movies, magazine articles, television shows and the like in which their crime is reenacted or in which the "person's thoughts, feelings, opinions or emotions" about the crime are expressed.

The facts of this case are undisputed. In 1980, career criminal Henry Hill was arrested and charged with six counts of conspiracy to sell drugs. In 1980, Hill began to cooperate with the Government and was put into the Federal Witness Protection Program. In 1981, Simon & Schuster began efforts to publish a book with Hill's cooperation, which would provide an inside look at organized crime in New York City. Simon & Schuster's Editor in Chief, Michael Korda, contacted the Sterling Lord Agency ("Sterling Lord"), a literary agency in New York, to find an author for such a book. The parties obtained the services of Nicholas Pileggi, a well-known author who had previously written magazine articles on organized crime and municipal corruption. On August 21, 1981, Pileggi, Hill and Sterling Lord entered into a written agreement for the creation of the book. On September 1, 1981, Simon & Schuster, Pileggi and Hill entered into a publishing agreement ("the Contract") for an autobiographical non-fiction work based on organized crime in New York City. Simon & Schuster was to pay money to Sterling Lord for the benefit of Pileggi and Hill, and the money was to be divided between Pileggi and Hill. Sterling Lord was to receive 10% of the money paid to Pileggi and Hill. The result of these transactions was Wiseguy: Life in a Mafia Family, which was published in January 1986 and which subsequently appeared on several best-seller lists.

By letter dated January 31, 1986, defendant the New York State Crime Victims Board ("the Board") directed Simon & Schuster to provide it with a copy of the Contract and to suspend payments to Sterling Lord. Simon & Schuster complied. On June 15, 1987, the Board served on Simon & Schuster a Proposed Determination and Order and informed Simon & Schuster of their right to a hearing. No hearing was requested by Simon & Schuster,¹ and the Proposed Determination and Order became final on July 15 1987.

The Order concluded that Wiseguy was subject to the regulations promulgated in section 632-a, because the book contained Hill's thoughts, feelings, opinions and emotions about and admissions to his participation in criminal activities. The Board described Wiseguy as

Henry Hill's life story from 1955 when he first became involved with organized crime until May 1980 when he joined the Federal Witness Protection Program. It is a veritable catalog of crimes in which Henry Hill admits to the commission of various crimes and expresses his feelings, opinions or emotions regarding such crimes.

Plaintiff's Notice of Motion, Exh. 2, ¶ 11. As a result of its review, the Board found that Simon & Schuster had violated section 632-a; a copy of the Contract should have been turned over to the Board at the time of execution for its determination as to the applicability of section 632-a. The Board found that Pileggi was a co-author, not a representative of Hill, thus he was not subject to section 632-a. Sterling Lord was found, however, to be an agent of Hill and therefore a representative under section 632-a, and was ordered to turn over to the Board its 10% share of Hill's proceeds. The Board also ordered Hill to turn over to its escrow account any money paid to him by Simon & Schuster through Sterling Lord, totaling $96,250.00. If Hill failed to turn over the money, Simon & Schuster was ordered to pay that amount to the Board. In addition, Simon & Schuster was ordered to turn over all outstanding money payable to Hill, including any future royalties payable to Hill or his representatives under the Contract.

Plaintiff then brought this action seeking declaratory and injunctive relief, asserting that section 632-a violates the First Amendment guarantee of freedom of speech and is unnecessarily vague and overbroad in violation of the Fourteenth Amendment. Plaintiff further alleges that section 632-a impairs its ability to undertake publishing contracts that arguably fall within the statute's reach. The statute thus has a chilling effect in that books concerning crime, about which the public has a right to know, will not be published. In addition, plaintiff argues that section 632-a affects editorial decisions and will result in self-censorship of certain subjects.

Discussion

A. Legislative History of Section 632-a

The legislative history of section 632-a has been thoroughly recounted in Barrett v. Wojtowicz, 66 A.D.2d 604, 414 N.Y.S.2d 350 (2d Dept.1979), and will be summarized for purposes of this discussion. New York Executive Law, Article 22, sections 620-635, was enacted in 1966 and is entitled "Crime Victims Board." Section 620 contains a "Declaration of policy and legislative intent," which reads as follows:

The legislature recognizes that many innocent persons suffer personal physical injury or death as a result of criminal acts. Such persons or their dependents may thereby suffer disability, incur financial hardships, or become dependent upon public assistance. The legislature finds and determines that there is a need for government financial assistance for such victims of crime. Accordingly, it is the legislature's intent that aid, care and support be provided by the state, as a matter of grace, for such victims of crime.

Section 622 creates a Crime Victims Compensation Board, section 623 delineates the powers of the Board, and section 629 provides the method for judicial review of the Board's decisions. Rules and regulations promulgated by the Board are set forth in Title 9 of New York Code of Rules and Regulations, Parts 525, 526 and 527.

Section 632-a was enacted in 1977 and is entitled "Distribution of Moneys Received as a Result of the Commission of a Crime." Section 632-a provides that any payments made to a criminal pursuant to a contract for the reenactment of his or her crime through a movie, book, magazine article, tape recording, phonograph record, radio or television presentation, or from the expression of such accused or convicted person's thoughts, feelings, opinions or emotions regarding such crime, be put into escrow for five years. Victims of the reenacted crime are then given five years from the creation of the escrow account in which to bring a civil action and recover a money judgment against the criminal or his representatives. See Barrett, 66 A.D.2d at 615, 414 N.Y. S.2d at 357. The money is held in escrow in order to ensure that the assets are preserved and that the victim's money judgment will be satisfied.

The motivation behind the enactment of section 632-a was the highly publicized sale by David Berkowitz, the "Son of Sam" serial killer, of the exclusive rights to the story concerning his crime. The bill's sponsor, New York State Senator Emmanuel R. Gold stated,

It is abhorrent to one's sense of justice and decency that an individual, such as the forty-four calibre killer, can expect to receive large sums of money for his story once he is captured — while five people are dead, other people were injured as a result of his conduct. This bill would make it clear that in all criminal situations, the victim must be more important than the criminal.

N.Y.Legis.Ann., 1977, at 267. See Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889) (old maxim that no one should be permitted to profit from his own crime).

It is no secret that section 632-a was enacted in hasty response to the public outcry that ensued after the David Berkowitz sale was publicized. See Matter of Johnsen, 103 Misc.2d 823, 824, 430 N.Y. S.2d 904, 906 (1979). The statute has, however, been amended since its enactment. In 1978 and 1981 section 632-a was amended to clarify substantive ambiguities. L.1978 ch. 417, eff. Sept. 1, 1978; L.1981 ch. 445, eff. July 7, 1981. See Barrett, 66 A.D.2d at 611-12, 414 N.Y.S.2d at 355. And in 1986 the legislature again made amendments to...