Keenan v. Superior Court

• Decision Date: 21 February 2002
• Docket Number: No. S080284.,S080284.
• Citation: 117 Cal.Rptr.2d 1,40 P.3d 718,27 Cal.4th 413
• Court: California Supreme Court
• Parties: Barry KEENAN, Petitioner, v. SUPERIOR COURT of Los Angeles County, Respondent; Frank Sinatra, Jr., Real Party in Interest.

117 Cal.Rptr.2d 1

27 Cal.4th 413

40 P.3d 718

Barry KEENAN, Petitioner, v. SUPERIOR COURT of Los Angeles County, Respondent; Frank Sinatra, Jr., Real Party in Interest.

No. S080284.

Supreme Court of California.

February 21, 2002.

Rohde & Victoroff and Stephen F. Rohde, Los Angeles, for Petitioner.

Dilan A. Esper; Peter J. Eliasberg and Mark D. Rosenbaum, Los Angeles, for ACLU Foundation of Southern California as Amicus Curiae on behalf of Petitioner.

Weil, Gotshal & Manges, R. Bruce Rich, Jonathan Bloom, Heather R. Goldstein, New York, NY, Josh A. Krevitt, Redwood Shores, and Christopher J. Cox, Springfield, VA, for The Association of American Publishers, Inc., The American Booksellers Foundation for Free Expression, Magazine Publishers of America, Inc., and PEN American Center as Amici Curiae on behalf of Petitioner.

No appearance for Respondent.

Corbett & Steelman, Richard B. Specter and Mark M. Monachino, Irvine, of Real Party in Interest.

Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, Carole Ritts Kornblum, Assistant Attorney General, Peter K. Shack and Kelvin C. Gong, Deputy Attorneys General, as Amici Curiae on behalf of Real Party in Interest.

BAXTER, J.

We confront a claim that California's "Son of Sam law" facially violates constitutional protections of speech by appropriating, as compensation for crime victims, all monies due to a convicted felon from expressive materials that include the story of the crime. We conclude that these provisions of the California statute are facially invalid under both the free speech clause of the First Amendment to the federal Constitution¹ as applied to the states through the Fourteenth Amendment, and the liberty of speech clause of the California Constitution (art. I, § 2, subd. (a)).²

The California law was first enacted in 1983 as Civil Code section 2224.1.³ (Stats. 1983, ch. 1016, § 2, pp. 3581-3584.) In 1986, the law was renumbered as section 2225 (Stats.1986, ch. 820, §§ 7, 8, pp. 2730-2733), and it has since been amended on several occasions (see Stats.1992, ch. 178, § 2, p. 882; Stats.1994, ch. 556, § 1, p. 2823; Stats.1995, ch. 262, § 1; Stats.2000, ch. 261, § 2). As currently in effect, the law seeks to prevent a convicted felon, or a profiteer, from exploiting the felon's crimes for financial gain while victims of crime go uncompensated.

One prong of the California statute, in effect since the law's inception, imposes an involuntary trust, in favor of damaged and uncompensated crime victims as "beneficiaries]," on a convicted felon's "proceeds" from expressive "materials" (books, films, magazine and newspaper articles, video and sound recordings, radio and television appearances, and live presentations) that "include or are based on" the "story" of a felony for which the felon was convicted, except where the materials mention the felony only in "passing ..., as in a footnote or bibliography." (§ 2225, subds.(a)(4), (6), (7), (9), (b)(1); see former § 2224.1, subds. (a)(4), (6), (7), (9), (b), Stats.1983, ch. 1016, § 2, p. 3581.) For convenience, we sometimes hereafter refer to this portion of the statute, governing proceeds from expressive materials that include the story of the crime, by its operative provision, section 2225, subdivision (b)(1) (section 2225(b)(1)).

More recent amendments to the California statute attack the financial exploitation of crime from a second, distinctly different angle. Since 1994, the law's involuntary trust provisions have also applied to "profits" received by the felon, or his or her representative, from the sale or transfer of any "thing" or "right," the value of which "is enhanced by the notoriety gained from the commission of a felony for which a convicted felon was convicted." (§ 2225, subd. (a)(10), italics added; see also id., subd. (b)(2).) In 2000, the involuntary trust provisions were further extended, with limited exceptions, to "profiteer[s] of the felony," i.e., "any person[s]" who derive income by selling memorabilia, property, rights, or things for values enhanced by their felony-related notoriety. (§ 2225, subds.(a)(3)(B), (10), (b)(2)). As necessary, we sometimes hereafter refer to this prong of the statute, governing profits from things sold for their felony-related notoriety value, by its operative provision, section 2225, subdivision (b)(2) (section 2225(b)(2)).⁴

In 1991, the United States Supreme Court held that a somewhat similar New York law violated the First Amendment. (Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd. (1991) 502 U.S. 105, 112 S.Ct. 501, 116 L.Ed.2d 476 (Simon & Schuster).) In provisions somewhat like California's section 2225(b)(1), the statute at issue confiscated, for the benefit of crime victims, all monies a criminal was due under contract with respect to a "reenactment" of the crime, or from the expression of his or her personal thoughts or feelings about the crime, in a film, broadcast, print, recording, or live performance format.

Finding the New York law facially invalid, the Simon & Schuster majority reasoned that the statute, as a direct regulation of speech based on content, must fall unless it satisfied a strict level of constitutional scrutiny. The New York law failed this test, said the majority, because although the state had a compelling interest in compensating crime victims from the fruits of crime, the statute at issue was not narrowly tailored to that purpose. (Simon & Schuster, supra, 502 U.S. 105, 121-123, 112 S.Ct. 501, 116 L.Ed.2d 476.)

The flaw most clearly identified by the Simon & Schuster majority was that the New York statute was overinclusive. The majority noted two respects in which the New York law regulated speech too broadly for its compelling purpose. First, the law applied to expressive works in which one merely admitted crimes for which he or she had not been convicted. Second, it confiscated all profits from expressive works in which one made even incidental or tangential mention of his or her past crimes for nonexploitative purposes. (Simon & Schuster, supra,502 U.S. 105, 121,112 S.Ct. 501,116 L.Ed.2d 476.)

California's analogous provision, section 2225(b)(1), similarly imposes a contentbased financial penalty on protected speech. Yet section 2225(b)(1), like its New York counterpart, fails to satisfy strict scrutiny because it, too, is overinclusive. Section 2225(b)(1) 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.

Though section 2225(b)(1), unlike the New York law, applies only to persons actually convicted of felonies, and states an exemption for mere "passing mention of the felony, as in a footnote or bibliography" (id., subd. (a)(7)), these differences do not cure the California statute's constitutional flaw. 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.

Because we conclude, contrary to the Court of Appeal, that section 2225(b)(1) is invalid, we will reverse the judgment of the Court of Appeal.

FACTS

On July 8, 1998, Frank Sinatra, Jr. (Sinatra, Jr.), son of the late singer, filed a complaint in Los Angeles Superior Court. Named as defendants were Barry Keenan, Joseph Amsler, John Irwin, Peter Gilstrap, Columbia Pictures (a division of Sony Pictures Entertainment, Inc.), and New Times, Inc. (New Times).

As pertinent here, the complaint alleged as follows: In 1963, Keenan and Amsler, acting pursuant to a conspiracy with Irwin, kidnapped Sinatra, Jr., from his Nevada hotel room and drove him to Los Angeles, where he was held until his father paid a ransom. During his captivity, Sinatra, Jr., suffered economic loss, physical suffering, and emotional distress. Keenan, Amsler, and Irwin were later apprehended, tried, convicted of felony offenses, and incarcerated under California law.⁵ Following their arrests, the kidnappers made media statements, since admitted to be false, that Sinatra, Jr., had conspired in his own kidnapping to extract money from his father. These defamatory statements caused further damage to Sinatra, Jr.'s business and reputation.

The complaint further alleged: In January 1998, Keenan and one or both accomplices arranged with Gilstrap, or with New Times (publisher of New Times Los Angeles, a tabloid magazine), for Gilstrap to interview Keenan about the kidnapping. The purpose was to produce a story for sale to print, broadcast, and film media. Monies derived from exploiting the kidnapping story would be split among Gilstrap, New Times, and the kidnappers. An article entitled Snatching Sinatra, authored by Gilstrap, appeared in a January 1998 issue of New Times Los Angeles. In late January 1998 and thereafter, other magazines reported that Columbia Pictures had bought the motion picture rights to Snatching Sinatra for up to $1.5 million. In February 1998, citing section 2225, Sinatra, Jr., made demand on Columbia Pictures to withhold from the kidnappers, and from Gilstrap and New Times as the kidnappers' "representatives," any monies otherwise due such persons or entities for the motion picture rights. Columbia Pictures refused to do so without a court order.

The complaint asserted that under section 2225, all monies due to the kidnappers, or to their "representatives" Gilstrap and New Times, for preparation for sale of the story of Sinatra, Jr.'s, kidnapping, the sale of the rights to the story, or the sale of materials that included or were based on the story, were "proceeds" as defined by subdivision (a)(9) and "profits" as defined by subdivision (a)(10), and were thus subject to an...