Keenan v. Superior Court

BROWN, J., Concurring.

The majority correctly observes Civil Code section 2225, subdivision (b)(1), 1 shares the essential constitutional flaws condemned in 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). Lest it seem the moral of the story is crime does pay, I write separately to dispel the understandable misconception that every “Son of Sam” law is unconstitutional. A properly drafted statute can separate criminals from profits derived from their crimes while complying with the First Amendment.

The Simon & Schuster court recognized the fundamental difference between works like The Confessions of Saint Augustine or Letter from Birmingham Jail and a ghost-written work entitled Snatching Sinatra. In the former examples, it is the public prominence, fame, wit, passion and eloquence of the authors that make these stories valuable. The “crimes” caused negligible harm to any actual victim and added nothing to the marketability of the stories. In contrast, Mr. Keenan’s crime involved both a serious harm and is the source of his work’s profitability; judging by the title of his literary effort, it is the celebrity status of his victim that makes the story noteworthy.

Notwithstanding today’s decision, the state may constitutionally seize any asset of a criminal to redress the harm inflicted upon his victim. Additionally, the state may seize the fruits of the crime to render it unprofitable. For some works, like The Autobiography of Malcolm X, it may be difficult to determine the extent to which royalties result from the author’s criminal *438 involvement or his literary skill. But the existence of hard cases that might win an as-applied challenge does not mean all such laws are facially unconstitutional. The First Amendment protects schlock journalism as well as great literature. Thus, Mr. Keenan has every right to tell his story. That does not mean the First Amendment guarantees he can keep the money. And therein lies the tale.

I.

In Simon & Schuster, supra, 502 U.S. at pages 118-119 [112 S.Ct. at pages 509-510], the United States Supreme Court found New York’s law could further two compelling state interests, which reflect the notion that crime should neither impoverish the victim nor enrich the criminal. Toward the former imperative, the court recognized the compelling interest in “ensuring that victims of crime are compensated by those who harm them.” (Id. at p. 118 [ 112 S.Ct. at p. 509 ].) Toward the latter end, the court acknowledged the compelling interest in “ensuring that criminals do not profit from their crimes.” (Id. at p. 119 [ 112 S.Ct. at p. 510 ].) The fulfillment of these interests restores both victim and criminal to the status quo ante and nullifies the tangible effects of the crime.

Simon & Schuster invalidated the New York law, however, because it seized speech-generated revenues without necessarily serving either state interest. “Should a prominent figure write his autobiography at the end of his career, and include ... a brief recollection of having stolen ... a nearly worthless item . . . the Board would control his entire income . . . .” (Simon & Schuster, supra, 502 U.S. at p. 123 [ 112 S.Ct. at p. 512 ].) Because the book’s popularity would be due to the author’s lawful prominence rather than his (perhaps previously undiscovered) crime, the author’s income would not be a fruit of the crime, and thus seizure would not serve the antiprofit interest. Since the stolen item was nearly worthless, seizure would not serve the compensation interest. Accordingly, the court found the law “significantly overinclusive.” (Id. at p. 121 [ 112 S.Ct. at p. 511 ].) A properly structured statute could avoid this overinclusivity by seizing only assets that would compensate the victim or render crime unprofitable.

The hypothetically prominent figure who mentions a minor theft in his autobiography bears a strong resemblance to Saint Augustine, and very little to defendant. Defendant’s kidnapping created more than trivial harm, and it appears the notoriety of his criminal conduct is substantially responsible for the salability of his literary efforts. Thus, seizure of defendant’s royalties serves one or both of the compelling state interests. If so, the state may constitutionally distinguish between Snatching Sinatra and The Confessions of Saint Augustine.

II.

The constitutionality of seizing a criminal’s assets to compensate his victims is beyond dispute. As Simon & Schuster observed, every state has a *439 body of tort law serving this exact interest. (Simon & Schuster, supra, 502 U.S. at p. 118 [112 S.Ct. at pp. 509-510].) To effect compensation, it is immaterial whether the funds come from the fruits of crime or the defendant’s other assets.

Although compensation may have been a goal of New York’s law, it failed to achieve it constitutionally. The law seized only those assets generated by the offender’s storytelling. The problem was not the law’s underinclusivity per se; after all, a statute need not solve every problem to be constitutional. A law would be underinclusive if it granted the victim only a partial share of the profits or compensation only up to a maximum sum. 2 These limitations, however, would not create the constitutional defect cited in Simon & Schuster: the content-based nature of the speech restriction.

The high court deemed the law presumptively unconstitutional because it imposed a financial burden on speakers due to the content of their speech. (Simon & Schuster, supra, 502 U.S. at pp. 115-116 [112 S.Ct. at pp. 507-508].) The New York statute “singles out income derived from expressive activity for a burden the State places on no other income, and it is directed only at works with a specified content.” (Id. at p. 116 [ 112 S.Ct. at p. 508 ].) The dissenting opinion of Judge Newman in the court below demonstrated this content-based discrimination. (Simon & Schuster, Inc. v. Fischetti (2d Cir. 1990) 916 F.2d 111, 784 (Fischetti) (dis. opn. of Newman, J.).) Judge Newman observed the New York State Crime Victims Board applied the law to the autobiography of Jean Harris, who had killed “ ‘Scars-dale Diet’ Doctor Herman Tamower” (Simon & Schuster, at p. 111 [ 112 S.Ct. at p. 506 ]) because the book referred to the homicide in two chapters. (Fischetti, at p. 785.) If her book had concerned only the conditions at her prison, her royalties, though enhanced by the notoriety of her crime, would have been protected from seizure. (Ibid.) The distinction between the treatment of the actual book and the hypothetical book shows how “[t]he Son of Sam law establishes a financial disincentive to create or publish works with a particular content.” (Simon & Schuster, at p. 118 [ 112 S.Ct. at p. 509 ].)

The content-based discrimination triggered strict scrutiny, whereby the state must show the law is narrowly drawn to further a compelling state interest. (Simon & Schuster, supra, 502 U.S. at p. 118 [ 112 S.Ct. at 509-510 ].) But New York limited the law’s reach to “ ‘storytelling’ ” only; the *440 court found no rational reason “why the State should have any greater interest in compensating victims from the proceeds of such ‘storytelling’ than from any of the criminal’s other assets.” (Id. at p. 119 [ 112 S.Ct. at p. 510 ].) The content-based limitation thus not only created the need to establish a compelling interest, it also rendered the state’s interest less than compelling: “the State has a compelling interest in compensating victims from the fruits of the crime, but little if any interest in limiting such compensation to the proceeds of the wrongdoer’s speech about the crime.” (Id. at pp. 120-121 [ 112 S.Ct. at p. 511 ].) A law that shields assets such as Ms. Harris’s home or stock portfolio from a compensation order hardly serves that interest.

The high court’s reasoning shows that a law without this limitation would likely survive review, because the law would not be content based (thus avoiding strict scrutiny) and the law would narrowly serve the compelling interest of victim compensation, and thus, a fortiori, survive a lesser level of scrutiny. The Rhode Island Supreme Court discussed the validity of such a broader law in Bouchard v. Price (R.I. 1997) 694 A.2d 670 (Bouchard). 3 “Neither plaintiffs nor the Attorney General justified the act’s applicability solely to expressive activity. The state’s compelling interest in compensating victims from the proceeds of crime would be better served, for example, by making available to a victim all the criminal’s assets, however and wherever derived. Such an expansion of the resources potentially available to a victim would avoid the statute’s Achilles’ heel of singling out only expressive activity for a special burden. We note that victims of a crime may normally bring a civil action against the offender to recover damages. After a judgment has been obtained, a victim may proceed against the defendant’s assets whether or not these assets represent royalties obtained from the commercial exploitation of the crime. The enforcement of such a civil judgment against a defendant’s assets following a personal injury or property loss has not heretofore presented a First Amendment problem.” (Bouchard, at pp. 677-678, fn. omitted.) Indeed, Simon & Schuster itself approved of New York’s content-neutral “statutory provisions for prejudgment remedies and orders of restitution.” (Simon & Schuster, supra, 502 U.S. at p. 118 [112 S.Ct. at pp. 509-510]), and the majority likewise observes the propriety of content-neutral seizure of a defendant’s assets to compensate a victim. (Maj. opn., ante, at p. 436, fn. 21.)

*441 A state may thus seize a defendant’s assets in a content-neutral manner to ensure compensation. “Simon & Schuster does not . . . stand for the proposition that the government cannot recoup the proceeds of expressive activity relating to crime. Rather, the government cannot single out those proceeds for special treatment while ignoring other assets.” (U.S. v. Seale (3d Cir. 1994) 20 F.3d 1279, 1285, fn. 7 .) Courts may thus constitutionally order restitution from sources including, but not limited to, the defendant’s income from storytelling. (Ibid.; U.S. v. Jackson (5th Cir. 1992) 978 F.2d 903, 915 .) The law may prevent a criminal from enjoying any of his wealth while his victim remains uncompensated.

III.

The state may also pursue the compelling interest of depriving criminals of their profits. New York’s law was defective in this regard; it did not fully deprive criminals of their profits, only those profits resulting from storytelling. If Jean Harris exploited her criminal notoriety by writing a book, the state could confiscate those royalties. If instead of telling her story she chose to exploit her notoriety by charging $25 for underwear depicting the “Scars-dale Diet” logo with a red slash through it, 4 these royalties would be protected from seizure. The law’s message was not that crime doesn’t pay but that speaking about crime doesn’t pay. Deterring crime is a compelling state interest, deterring speech is not. The disparate treatment accorded the income from her book and from the hypothetical merchandise reveals the discriminatory nature of the New York law.

Furthermore, the discrimination undermined the compelling nature of the interest served by the law. The state could not “offer any justification for a distinction between [storytelling] and any other activity in connection with its interest in transferring the fruits of crime from criminals to their victims.” (Simon & Schuster, supra, 502 U.S. at pp. 119-120 [ 112 S.Ct. at p. 510 ].) There is a compelling interest in depriving criminals of their profits, but little if any interest in limiting such deprivation to the proceeds of the wrongdoer’s storytelling. (See id. at pp. 120-121 [112 S.Ct. at pp. 510-511].)

Whether the law pursues the compensation or antiprofit interest, a limitation on the law’s scope to storytelling is the Achilles’ heel of a Son of Sam provision. Virginia law, therefore, bars a defendant from exploiting her criminal notoriety through any means. It seizes “[a]ny proceeds or profits received or to be received directly or indirectly by a defendant or a transferee of that defendant from any source, as a direct or indirect result of his *442 crime or sentence, or the notoriety which such crime or sentence has conferred upon him.” ( Va. Code Ann. § 19.2-368.20 .) Regardless of whether a Virginia criminal profited by selling her account of the crime, her autograph, 5 or her furniture for an exorbitant price, 6 she could not enjoy such revenues under this law. 7

Section 2225, subdivision (b)(2) similarly avoids content discrimination in its seizure of profits. In conjunction with section 2225, subdivision (a)(10), it authorizes seizure of “all income from anything sold or transferred by the felon . . . including any right, the value of which thing or right is enhanced by the notoriety gained from the commission of a felony . . . .” The statute is indifferent to the thing’s expressive or nonexpressive character, and if expressive, its content. The majority correctly observes section 2225, subdivision (b)(2) is “clearly severable” from subdivision (b)(1) (maj. opn., ante, at p. 436, fn. 22), and today’s decision does not affect the continuing validity of the former provision.

The content neutrality of section 2225, subdivision (b)(2) is arguable, insofar as the law distinguishes between income-generating activity that exploits criminal notoriety and that which does not. For example, if Mr. Keenan published a book of poetry anonymously, the royalties would probably not qualify as profits as defined by the subdivision. But if he marketed the poems as “Sizzling Sonnets from the Sinatra Snatcher,” the royalties would be enhanced by his criminal notoriety, and thus subject to seizure. 8

On the other hand, Simon & Schuster observed statutes may be content neutral, and thus avoid strict scrutiny, where they are intended to serve *443 purposes unrelated to the content of the regulated speech, notwithstanding their incidental effects on some speakers or messages but not others. (Simon & Schuster, supra, 502 U.S. at p. 122 , fn. * [112 S.Ct. at pp. 511-512], citing Ward v. Rock Against Racism (1989) 491 U.S. 781 [ 109 S.Ct. 2746 , 105 L.Ed.2d 661 ]; City of Renton v. Playtime Theatres, Inc. (1986) 475 U.S. 41 [ 106 S.Ct. 925 , 89 L.Ed.2d 29 ].) Although New York’s law was too over-inclusive to qualify, a more narrowly drawn statute might face only intermediate scrutiny under Ward and City of Renton. {Simon & Schuster, supra, at p. 122, fn. * [112 S.Ct. at pp. 511-512].) Moreover, even if held to be content based, a statute that pursues a compelling interest (depriving criminals of all their profits) and is narrowly drawn (seizing only profits) could survive strict scrutiny.

A law that neutrally seizes all profits of crime comports with Simon & Schuster, supra, 502 U.S. 105 , and thus the First Amendment. Even when his victim has been fully compensated, a criminal is not entitled to profit from his crimes.

IV.

As the foregoing analysis shows, a state may constitutionally seize assets by pursuing the compelling interest of compensating victims, in which case the state may seize assets from any source (including assets that are not the fruits of the crime) up to the amount of the victim’s damages. Likewise, a state may constitutionally seize assets by pursuing the compelling interest of depriving criminals of assets that are the fruits of crime. And there is no apparent reason why a state must select only one compelling interest to pursue. A state may pursue both interests separately; seizing all assets up to the amount of damage under the compensation rationale, and then all fruits of crime under the antiprofit theory. Because each phase would neutrally seize assets in furtherance of a compelling state interest, the law would avoid the constitutional pitfalls noted in Simon & Schuster.

All statutory references are to the Civil Code unless otherwise stated.

Indiana law, for example, seizes only 90 percent of income derived from crime. ( Ind. Code Ann. § 5-2-6.3 -3(a)(l)(B).) According to the logic underlying the Laffer curve (i.e., by suppressing the profit incentive, a 100 percent taxation rate will not yield revenue), a defendant who may retain some profits will be more inclined to write about his crime, thereby generating income with which to compensate the victim. To a significant degree, the compensation and antiprofit imperatives are thus in tension.

The Bouchard court struck down a statute resembling New York’s law in that it confiscated royalties from storytelling: i.e., “ ‘any publication, reenactment, dramatization, interview, depiction, explanation, or expression through any medium of communication which is undertaken for financial consideration. The term includes ... a movie, book, magazine or newspaper article, tape recording, still photograph, radio or television program, live presentation, or reproduction or presentation of any kind.’ ” (Bouchard, supra, 694 A.2d at p. 674 , quoting definition of “commercial exploitation” in Criminal Royalties Distribution Act of 1983, R.I. Gen. Laws § 12-25.1-2(3).)

(See Learned, The Constitutionality of Cashing in on Crime: Free Expression, Free Enterprise, and Not-Profit Conditions of Probation (1995) 1 Suffolk J. Trial & Appellate Advoc. 79, fn. 10 (Learned) [describing the $25 boxer shorts marketed by convicted call girl/panderer Heidi Fleiss].)

(See Rolling v. State ex rel. Butterworth (Fla.Dist.Ct.App. 1999) 741 So.2d 627 .)

(See Learned, supra, 1 Suffolk J. Trial & Appellate Advoc. at p. 79, fn. 4 [describing sale of serial killer Jeffrey Dahmer’s household goods].)

Some states seizing profits do not expressly cover the fruits of criminal notoriety, instead defining as profits “any property obtained through or income generated from the commission of a crime; any property obtained by or income generated from the sale, conversion or exchange of proceeds of a crime, including any gain realized by such a sale, conversion or exchange; and any property that the offender obtained by committing the crime or income generated as a result of having committed the crime, including any assets obtained through the use of unique knowledge obtained during the commission of, or in preparation for the commission of, the crime, as well as any property obtained by or income generated from the sale, conversion or exchange of the property and any gain realized by such a sale, conversion or exchange.” ( Me. Rev. Stat. Ann. tit. 14, § 752 -E; see also Colo. Rev. Stat. Ann. § 24-4.1-201 ; N.Y. Crime Victims Board Law § 632 -a; N.D. Cent. Code § 32-07.1-01 ; W. Va. Code § 14 -2B-3; Wyo. Stat. Ann. § 1-40-302 .) It is not evident whether proceeds from writings about subjects unrelated to the crime would qualify as “income generated as a result of having committed the crime.” ( Me. Rev. Stat. Ann. tit. 14, § 752 -E.)

Statutes that exclude from coverage works about topics unrelated to the crime would face an even stronger challenge, as the topic (content) would determine whether the state seized the royalties.