Reply Brief — Simon & Schuster, Inc. v. Members of NY State Crime Victims Bd.

Supreme Court brief1991

Ask Donna

What actually matters in this document.

Text

No. 90-1059

rt, U.S.

FILED

FEB 5 1991

IN THE JOSEPH F. SPANIOL, JR.

Supreme Court of the United States —_

OCTOBER TERM, 1990

SIMON & SCHUSTER, INC.,

Petitioner,

—_—V.—

MEMBERS OF THE NEW YORK STATE CRIME VICTIMS BOARD,

GENNARO FISCHETTI, GEORGE L. GROBE, JR., DIANE MC-

GRATH, and ANGELO PETROMELIS,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

REPLY BRIEF IN SUPPORT OF THE

PETITION FOR CERTIORARI

RONALD S. RAUCHBERG

Counsel of Record

CHARLES S. SIMS

PROSKAUER ROSE GOETZ &

MENDELSOHN

1585 Broadway

New York, New York 10036

(212) 969-3950

MARK C. MORRIL

SIMON & SCHUSTER, INC.

1230 Avenue of the Americas

New York, New York 10020

(212) 698-7138

Counsel for Petitioner

TABLE OF CONTENTS

IE Seep ec scccsccccccecs

I THE DECISION BELOW MISCONCEIVES

AND MISAPPLIES STRICT SCRUTINY IN

CONFLICT WITH DECISIONS OF THIS COURT ...

II THE RECORD AND COMMONSENSE SHOW

THAT THE SON OF SAM LAW POSES A

CONTINUING THREAT TO SPEECH...........

Py ct sen nee) UW eV Ob Wew es ee eseees

TABLE OF AUTHORITIES

Page

Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986) ..... xe

Branzburg v. Hayes, 408 U.S. 665 (1972)............. 5

Buckley v. Valeo, 424 U.S. 1 (1976) .............. 3,4

Carey v. Brown, 447 U.S. 455 (1980) ............... 2

Meyer v. Grant, 486 U.S. 414 (1988) .............. 3-5

Minneapolis Star & Tribune Co. v.

Minnesota Comm’'r of Revenue,

45D U3. FTE GED oo ce cccccesecseseeueeenee 2

Riley v. National Federation of the Blind,

467 U.S. TER (IGG . cc ceseccduesssmeenenae 4

United States v. O’Brien, 391 U.S. 367 (1968).......... 3

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-1059

SIMON & SCHUSTER, INC.,

Petitioner,

-_-Vvi—_—

MEMBERS OF THE NEW YORK STATE

CRIME VICTIMS BOARD, GENNARO FISCHETTI,

GEORGE L. GroBe, JrR., DIANE MCGRATH,

and ANGELO PETROMELIS,

Respondents.

—— ——

———_— - —- — ——_

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

REPLY BRIEF IN SUPPORT OF THE

PETITION FOR CERTIORARI

———

——

THE DECISION BELOW MISCONCEIVES

AND MISAPPLIES STRICT SCRUTINY IN

CONFLICT WITH DECISIONS OF THIS COURT

The conflict between the decision below and this Court’s First

Amendment jurisprudence is underscored by the Board’s concession

that the purpose of Section 632-a is "not to compensate the broad

class of crime victims” but only “to benefit a special category of

victims, i.e., the victims of those criminals who seek to profit by

telling the story of their crime." (See Brief in Opposition at 15.)

That Section 632-a makes the exercise of First Amendment rights

the trigger of special victims’ compensation is precisely what

renders the law unconstitutional.

The Petition urged that review was necessary because the

decision below effectively jettisoned the longstanding rule that to

uphold a statute that differentially regulates the press, or one whose

application depends on content, the state must demonstrate that not

only the regulation but also the suspect distinctions it draws are

necessary to serve compelling governmental interests. See Petition

at 12-14 (relying on Minneapolis Star & Tribune Co. v. Minnesota

Comm'r of Revenue, 460 U.S. 575 (1983), and Carey v. Brown,

447 U.S. 455 (1980)).

The Brief in Opposition fails utterly to explain how this

requirement can be met or why the failure to comply with it is not

fatal to Section 632-a. The Board does not dispute its obligation

to justify the law’s distinctions, see Brief in Opposition at 14-17,

but it fails to identify any compelling interest for assisting only “a

special category of victims, i.e., the victims of those criminals who

seek to profit by telling the story of their crime.”

Consider, for example, three robbers who jointly hold up a

bank. One of the three, like Willie Sutton, is hired after serving

a prison sentence to assist a bank in avoiding further robberies,

based on his experience; the second is granted immunity and

enrolled in the witness protection program and given monthly

“transitional” payments; the third, after a prison sentence, becomes

a black political activist and writes his life story as The

Autobiography of Malcolm X. New York does not prohibit these

payments to the first two criminals, even though their their conduct

is made possible by a “specific crime involving a particular victim"

(see Brief in Opposition at 17, quoting the decision below, 15a);

only the payment to the author is banned.’

; The Board’s conclusory assertion that strict scrutiny was applied

“based upon a substantial record supporting New York's compelling

interest in ensuring that criminals not profit at the expense of their

victims . . . " (Brief in Opposition at 17) is simply inaccurate. The

three affidavits submitted by the Board made no attempt to provide

evidentiary support for any of the factual propositions that the Board -

was required to prove to pass strict scrutiny — for example, that any

necessary improvements to existing laws could not have been enacted

without content-based distinctions and targeting of the media, that

there was a compelling need to limit the statute only to payments for

(continued...)

Without compelling necessity for a measure assisting victims

only of crimes which are subsequently mentioned in works by

convicted, accused, or self-admitted criminals, and not crime

victims generally, Section 632-a and the decision below cannot be

squared with this Court’s cases. (Petition at 12-16.)

Apparently aware of its failure to prove that distinctions in

regulation targeting the press and content-based regulation be found

necessary to serve compelling interests, the Board seeks to avoid

review on a ground that each member of the Second Circuit panel

rejected, namely that the statute could have been sustained under

the lesser standard of United States v. O’Brien, 391 U.S. 367

(1968). Brief in Opposition at 17-18. O’Brien considered a statute

of general applicability that could, in some instances, affect

expressive conduct. Section 632-a, by contrast, is designed to deal

with speech in every instance of its application, and, further, is

content-based. Thus, correctly, neither the majority nor the dissent

below invoked O’Brien.

All panel members agreed that Meyer v. Grant, 486 U.S. 414,

423-25 (1988), unambiguously and unanimously held that direct

restrictions on payments for speech are tantamount to direct

restrictions on speech subject to scrutiny. See Petition at 11.7 The

failure of the Brief in Opposition to distinguish or even cite Meyer

only highlights the conflict between that decision and the judgment

below.

'(...continued)

speech, and that doing so would likely serve the state’s interest more

than it would hurt it.

To the extent that the Brief in Opposition offers any factual support

for Section 632-a, it relies solely on conclusory statements in law

review articles written well after enactment of the statute.

. See also Arcara v. Cloud Books, Inc., 478 U.S. 697, 702, 707

(1986) (different standard of review for generally applicable laws that

are incidentally applied to bookstores than for laws having “the

inevitable effect of singling out those engaged in expressive activity”);

Buckley v. Valeo, 424 U.S. 1, 16 (1976) ("We cannot share the view

that . . . expenditure limitations are comparable to restrictions on

conduct upheld in O’Brien.")

Finally, the need to review the decision below is not altered by

the Board’s attempt to justify the law’s limitation only to victims

of those who later write about their crimes with the maxim that no

person “shall be permitted . . . to take advantage of his own

wrong.” The Board has not yet shown how payment for books like

The Autobiography of Malcolm X or Manchild in the Promised

Land can constitutionally be considered “taking advantage of”

crime, rather than compensation for the time and effort expended

in creating protected speech. The Board has not shown why the

state should regulate payment for writing about crime but not

payment for other activities in which criminals “take advantage . . .

of [their] own wrong{s].” In any event, none of the judges below

thought that preventing crime from paying was in fact the interest

underlying the statute. The law, moreover, plainly permits such

“taking advantage” of crime, since it provides that covered

payments for expression will be returned to the criminal-author

after five years if no judgment has been obtained, or if the author's

own funds have satisfied the judgment.

THE RECORD AND COMMONSENSE SHOW

THAT THE SON OF SAM LAW

POSES A CONTINUING THREAT TO SPEECH

Attempting to avoid review by asserting that “the record is

barren of any concrete examples from publishers or criminals that

the statute has deterred them from speaking or from

publishing. ..", the Board has ignored this Court’s First

Amendment jurisprudence and misstated the record. Brief in

Opposition at 19.

The Court regularly takes judicial notice of the likely

consequences of laws restricting payments for speech, just as it

considers the likely consequences of any legislation affecting

fundamental rights. See, e.g., Meyer v. Grant, 486 U.S. at 423-

24; Riley v. National Federation of the Blind, 487 U.S. 781, 789,

794 (1988); and Buckley v. Valeo, 424 U.S. at 19 ("Being free to

engage in unlimited political expression subject to a ceiling on

expenditures is like being free to drive an automobile as far and as

often as one desires on a single tank of gasoline.”) By contrast, the

cases that the Board claims hold that any deterrent effect must be

proven without reliance on what is likely to occur, Branzburg v.

Hayes, 408 U.S. 665, 693-94 (1972), and Arcara v. Cloud Books,

Inc., 478 U.S. at 706, are inapposite, since those cases considered

not speech-targeted and content-based measures, as here, but only

generally applicable measures incidentally applied to expressive

conduct (in Branzburg) or incidentally applied to non-expressive

conduct (in Arcara). Such laws are judged under entirely different

standards than laws that are content-based or that target speech.

Arcara, 478 U.S. at 704, 706-07.

In addition to what logic and basic economics teach is the

"inevitable effect of reducing the total quantum of speech,” Meyer

v. Grant, 486 U.S. at 423, Simon & Schuster also relied on

uncontradicted affidavits showing “concrete examples” of the law's

deterrent effect. See Petition at 7-8, 11-12, 17 (citing affidavits

below providing examples of bowdlerized text and books not

undertaken resulting from Son of Sam laws). The Board’s ignoring

these cannot erase them from the record.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,