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

- JUN 2 8 1992

No. 90-1059

IN THE

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

MCGRATH, and ANGELO PETROMELIS,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

REPLY BRIEF FOR THE PETITIONER

MARK C. MORRIL RONALD S. RAUCHBERG

SIMON &. SCHUSTER, INC. Counsel of Record

1230 Avenue of the Americas CHARLES S. SIMS

New York, New York 10020 PROSKAUER ROSE GOETZ

(212) 698-7138 & MENDELSOHN

1585 Broadway

New York, New York 10036

(212) 969-3000

Counsel for Petitioner

TABLE OF CONTENTS

Page

POINT I — SECTION 632-A IS SUBJECT TO EXACTING

DT CEE e eee e eae sees coec ccc ccce l

A. Section 632-a Directly Burdens Speech ......... l

B. Section 632-a Differentially Regulates Speech... .. 5

C. Section 632-a Is Content-Based .............. 6

D. United States v. O'Brien \s Inapplicable ........ 8

POINT II — SECTION 632-A’S TARGETED

APPLICATION ONLY TO PAYMENTS FOR

EXPRESSION, AND ONLY TO EXPRESSION OF

SPECIFIED CONTENT, CANNOT SURVIVE

ee, )

A. The Interest in Preserving Victims’ Rights to Assets

Earned Through Victimization Cannot Justify

Die Cee UWe dele get ececece 10

B. Section 632-a Is Not Necessary or Narrowly

Tailored To Advance the Interest in Denunciation

and Punishment of Criminals .............. 13

C. The Interests Asserted Are Not Implicated By The

Facts Here And Therefore Cannot Defeat Simon &

Schuster’s First Amendment Claim .......... 15

POINT III — SECTION 632-A IS INVALID EVEN

UNDER UNITED STATES V. O'BRIEN ......... 16

ee ee 19

TABLE OF AUTHORITIES

Page

Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986) ....... 5

Austin v. Michigan Chamber of Commerce,

190 3. Ge, GG CHReD 0 coc owen keene eee a

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) ...... 3

Barnes v. Glen Theatre, Inc.,

1991 U.S. LEXIS 3633 (June 21, 1991) ......... 5,8

Bell v. Wolfish, 441 U.S. 520 (1979) .. 2... 2... .0005. 16

Bernal v. Fainter, 467 U.S. 216 (1984) .............. 9

Buckley v. Valeo, 424 U.S. 1 (1976) ............. 9,17

Caplin & Drysdale, Chartered v. United States,

Ge Ue. GEr Gb c 0 0 0 060d essen ee 4

Carey v. Brown, 447 U.S. 455 (1980) ............45. 7

Children of Bedford,

1991 NY LEXIS 647 (May 7, 1991) .......... passim

City of Renton v. Playtime Theatres, Inc..,

Gis UB GH GD cccscvceseseuersee 7

Clark v. Community for Creative Non-Violence,

GES UB. See GPS ec ccc ccoensseusee ee 17

Cohen v. Cowles Media Co.,

1991 U.S. LEXIS 3639 (June 24, 1991) ....... passim

The Florida Star v. BJF, 491 U.S. 524 (1989) ......... 14

Page

Gregg v. Georgia, 428 U.S. 153 (1976) ............. 16

Hustler Magazine v. Falwell, 485 U.S. 46 (1988) ....... 10

In re Winship, 397 U.S. 358 (1970)... 2.2... 2 eee eee, 15

Ingraham v. Wright, 430 U.S. 651 (1977) ............ 16

Jones v. United States, 463 U.S. 354 (1983) .......... 16

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) ..... 16

Lamont v. Postmaster General, 381 U.S. 301 (1965) ..... 10

Leathers v. Medlock, 111 S. Ct. 1438 (1991) ......... 4,5

Lovell v. Griffin, 303 U.S. 444 (1938) .............0.. +

Lyng v. Int'l Union, 485 U.S. 360 (1988) ............. a

Mazer v. Stein, 347 U.S. 201 (1954) ............6.6.. 11

Meyer v. Grant, 486 U.S. 414 (1988) ........... passim

Miami Herald Publishing Co. v. Tornillo,

TT occ s cc ecccccecccces 10

Minneapolis Star & Tribune Co. v.

Minnesota Comm'r of Revenue,

CECE esc cc eee scccccces 7

Mississippi Univ. for Women v. Hogan,

EEE ea becicccceccccccces 13

New York Mut. Life Ins. Co. v. Armstrong,

ESSE ETRE TEE 16

Iv

Page

New York State Crime Victims Board v. Johnsen,

Index 85067/77 (Sup. Ct. Kings Co. Nov. 24, 1981)... 18

New York Times v. Sullivan, 376 U.S. 254 (1963) ........ 3

O'Lone v. Shabazz, 482 U.S. 342 (1987) ............ 14

Police Dep't v. Mosley, 408 U.S. 92 (1972) ........... 9

Procunier v. Martinez, 416 U.S. 396 (1974) .......... 14

Regan v. Taxation with Representation of Washington,

Ge Ge EES 6.06 Os HOGS Se Sb OWS 6 cece +

Regan v. Time, Inc., 468 U.S. 641 (1984)............. 7

Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889) ..... 16

Riley v. Nat'l Federation of the Blind,

4 3 , Pore er Teererrerireen 7

Rust v. Sullivan,

59 U.S.L.W. 4451 (U.S. May 23, 1991) ........... 4

Skinner v. Oklahoma, 316 U.S. 527 (1942) ........... 14

Spence v. Washington, 418 U.S. 405 (1974) ....... 15, 16

Texas v. Johnson, 491 U.S. 397 (1989) .......... 15, 16

Turner v. Safley, 482 U.S. 78 (1987) ............... 14

United States v. Busher, 817 F.2d 1409 (9th Cir. 1987) ... 11

United States v. McKeithen, 822 F.2d 310 (2d Cir. 1987) .. 11

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

United States v. One 1972 Chevrolet Corvette,

625 F.2d 1026 (ist Cir. 1980)..............

United States v. One 1976 Ford F-150 Pick-Up,

169 F.2d 525 (8th Cir. 1985) ..............

United States v. Porcelli, 865 F.2d 1352 (2d Cir.),

cert. den., 110 S. Ct. 53 (1990) ............

Virginia State Board of Pharmacy v.

Virginia Citizens Consumer Council. Inc.,

Seco eee wheeensces

Ward v. Rock Against Racism, 491 U.S. 781 (1989) .

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) .....

STATUTES

BP ee OEE cc cerecceccccencenesecess

New York Executive Law § 632-a..............

REPLY BRIEF FOR THE PETITIONER

Perhaps because it is extraordinarily rare for a statute to be

upheld under strict scrutiny, the Board struggles for the bulk of its

argument to demonstrate that New York Executive Law § 632-a is

not subject to that exacting standard of review. But a statute

restricting payment only for speech, and only for speech of

specified content, so impairs free speech interests by deterring the

creation and publication of the affected speech that it is necessarily

subject to strict scrutiny.

Section 632-a cannot survive strict scrutiny. The interests said

to be advanced by the statute could be served by generally

applicable legislation; none of those interests requires the burdens

of the statute to be borne only by the specified speech.

POINT I

SECTION 632-A IS SUBJECT TO EXACTING SCRUTINY

A. Section 632-a Directly Burdens Speech

Our opening brief demonstrated that section 632-a’s restriction

on payment for expression directly burdens protected speech and

that the uncontradicted record in this case evidences those burdens.

Wiseguy would not have been written or published had Simon &

Schuster not undertaken to make payment to Hill. S&S Br. 7, 16-

21."

1. The argument that section 632-a does not “directly or

substantially burden free speech or publication since . . . criminals

who choose to speak and entities who wish to disseminate the

criminal’s message are not prohibited from doing so” (Bd. Br. 22)

disregards this Court’s holdings, the principles of basic economics,

the underlying premises and incentives of copyright law, and the

Court of Appeals’ specific finding that “[wJithout a financial

incentive to relate their criminal activities, most would-be story

1 References to Simon & Schuster’s opening brief are given as "S&S

Br.", and to the Board’s Brief as “Bd. Br."

2

tellers will decline to speak or write.” Petition 11a; see S&S Br.

17-21.

No one would doubt that a law forbidding compensating judges

for their work, or requiring them to wait five years for any

payment to ensure the availability of funds for any judgments

rendered against them personally, would diminish the ranks of

those able to serve as judges. So too a law forbidding payment of

writers for certain kinds of books deters the creation and

publication of the books for which writers cannot be paid. The

Second Circuit unanimously agreed that section 632-a has this

damaging effect (Petition 6a, 11-12a, 26a), and nothing the Board

points to undermines that holding.

The Board’s labored demonstration that despite its restriction

on payment section 632-a does not flatly “prohibit the media from

communicating the criminal’s message” (Bd. Br. 27-34), and its

search for various reasons why some subject to the law might

speak despite its burdens, are constitutionally irrelevant. Exacting

scrutiny in Meyer v. Grant was not premised on any finding that

initiative proponents could find nobody to circulate their petitions

without payment; it was enough that that law, like the section 632-

a, had the “inevitable effect of reducing the total quantum of

speech that could not be paid for." 486 U.S. 414, 423 (1988).

The record and common sense establish that this law has the same

harmful effect. S&S Br. 19-21; see generally Brief for Motion

Picture Association of America, especially at 35-37.

2. The principle that “[f]reedom of speech presupposes a

willing speaker," Virginia State Board of Pharmacy v. Virginia

Citizens Consumer Council, Inc., 425 U.S. 748, 756 (1976), is

beside the point because it is simply not true that “[a] person who

speaks only upon receipt of a financial incentive cannot be

considered a voluntary or willing speaker." Bd. Br. 23-24. The

advances commonly paid by publishers to authors are not paid to

overcome authors’ unwillingness to speak; rather, they facilitate

speech by willing speakers by enabling authors to devote their

productive hours to writing instead of other remunerative work.

JA 20-21, 27-28, 33, 35, 41.

3

The dependence of speech on some kind of payment does not

deprive it of protection. The New York Times is entitled to First

Amendment protection when it publishes a paid advertisement,

even though one must presume it would be unwilling to publish the

advertisement without payment. New York Times v. Sullivan, 376

U.S. 254, 266 (1963) (newspaper does “not forfeit that protection

because [speech was] published in the form of a paid

advertisement”).

The creation and dissemination of protected speech frequently

depends as a practical matter on payments to individuals (e.g.,

reporters, novelists, nonfiction writers, lecturers, professors, and

union organizers) from the media and other organizations engaging

in speech (e.g., newspapers, broadcasters, textbook publishers,

churches, unions, political candidates and parties). Absent such

payments, the quantity of speech would be grievously diminished,

as this Court has repeatedly recognized. See S&S Br. 18 n. 15

(citing eight cases); of Cohen v. Cowles Media Co., 1991 U.S.

LEXIS 3639, *14 (une 24, 1991) (noting newspapers’ practice of

paying sources for “newsworthy material to be published").

The Board, moreover, misses the point by trying to argue that

Hill was not a willing speaker. Apart from the fact that he was,

the petitioner here is Simon & Schuster. It was plainly a “willing

speaker,” having decided to publish an anti-romantic first-hand

account of the sordid reality of crime, but it could not

communicate its message without payment to Hill.2 The

2 The Board attempts to detract from Simon & Schuster’s First

Amendment interests by repeatedly referring to “Hill's message," rather

than Simon & Schuster’s or Pileggi’s, and suggesting that a literary agent

rather than Simon & Schuster conceived the ideas underlying Wisegvy.

Bd. Br. 11. But it cannot matter who conceived the project; either way,

Simon & Schuster decided that the message of Wiseguy was a message it

wanted to convey. It is settled that “the constitutional guarantee of

freedom of the press embraces the circulation of books as well as their

publication.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 64 n.6

(1963); New York Times Co. v. Sullivan, 376 U.S. at 266; Lovell v.

(continued...)

ca

4

“willingness” of The New York Times or The Washington Post to

speak would not count for much under a law barring them from

paying reporters, columnists, or editorial writers. | Laws

specifically prohibiting the myriad payments on which the system

of freedom of expression depends are by their very nature and

effect direct burdens on speech drawing strict scrutiny.

3. The issue here is whether the government can prohibit

performance of contracts between the press and writers and

primary sources, not whether public subsidies can be denied to

certain writers or works to implement the goals of statutory

programs. Cases holding that the government need not subsidize

the exercise of constitutional rights (Bd. Br. 25-27), such as Lyng

v. Int'l Union, 485 U.S. 360, 369 (1988), and Regan v. Taxation

with Representation of Washington, 461 U.S. 540 (1983), are

therefore irrelevant. There is a fundamental distinction "between

direct state interference with a protected activity and state

encouragement of an alternative activity consonant with legislative

policy.” Rust v. Sullivan, 59 U.S.L.W. 4451, 4457-58 (U.S.

May 23, 1991) (citation omitted).

Caplin & Drysdale, Chartered v. United States, 491 U.S. 617

(1989), is even further afield. See Bd. Br. 26. Caplin & Drysdale

did not hold that the government could prevent criminal defendants

from spending their own funds on attorneys of their own choosing.

The money at issue there was derived from drug-law violations,

and was subject to forfeiture under a general'y applicable statute.

This Court simply held that the defendant had no right to spend the

government's money on counsel of his own choosing. 491 U.S.

617, 626-28. Here, by contrast, New York has prohibited Simon

& Schuster from spending its own untainted money to secure

Henry Hill’s labors.

2(...continued)

Griffin, 303 U.S. 444, 452 (1938); Leathers v. Medlock, 111 S. Ct.

1438, 1442 (1991) (cable operator).

5

B. Section 632-a Differeatially Regulates Speech

1. The Board advances no reason for narrowly limiting to

taxation the rule of Minneapolis Star & Tribune Co. v. Minnesota

Comm 'r of Revenue, 460 U.S. 575 (1983). Compare Bd. Br. 35-

36 with S&S Br. 21-22. That the rule goes further, and subjects

to strict scrutiny all laws that target expression or the press,

whether by taxation or other regulation, is demonstrated by Arcara

v. Cloud Books, Inc., 478 U.S. 697, 704, 706-07 (1986), where

this Court read Minneapolis Star to rule that "a statute that has the

inevitable effect of singling out those engaged in expressive

activity” is subject to demanding justification. See also Cohen v.

Cowles Media Company, 1991 U.S. LEXIS 3639, *14 (June 24,

1991) (strict scrutiny not required because Minnesota doctrine of

promissory estoppel did “not target or single out the press.

Rather, insofar as we are advised, the doctrine is generally

applicable to the daily transactions of all the citizens of

Minnesota"); and Barnes v. Glen Theatre, Inc., 1991 U.S. LEXIS

3633, *11 (June 21, 1991) (applying United States v. O'Brien, 391

U.S. 367 (1968), because state “has not banned nude dancing as

such, but has proscribed public nudity across the board").

2. The Board alternatively contends that statutes that target

the press or expressive activity are, under Leathers v. Medlock,

111 S. Ct. 1438, 1447 (1991), strictly scrutinized only if they are

"directed at, or presen[t] the danger of suppressing, particular

ideas." Bd. Br. 38. Leathers applied that analysis to a tax

generally applicable to virtually all economic activity, including

cable television, but which exempted newspapers and magazines.

This Court found that this arrangement could not conceivably favor

or disfavor viewpoint, subject matter or ideas, and noted that the

generality of the regulation firmly protected against this danger.

But Leathers did not address a statute distinguishing expression

from all other activities; it did not overrule Minneapolis Star’s

holding that laws differentially regulating expressive activity are

subject to strict scrutiny. Statutes targeting expression or the press

as a whole are subject to strict scrutiny not only if they are

targeted at or present the danger of suppressing particular ideas,

but because such targeting by its very nature presents that danger,

6

which generality of regulation minimizes. See S&S Br. 22, 29 &

n. 23.

In any event, this record amply discloses New York’s hostility

to the particular speech and speakers affected by section 632-a;

New York finds such speech to cause “suffering” and "a second

harm to the victim” and to be exploitative. See S&S Br. 24.

The very structure of section 632-a, moreover, targeting

payments to the unpopular class of “criminals” as the sole subject

matter of the statute, clearly presents "the danger of suppressing

particular ideas” or viewpoints. Speech by criminals is likely to

differ from speech by others on such matters as the utility of

punishment, the economic causes of crime, and the possibilities of

rehabilitation. Strict scrutiny is needed here because the legislature

could have, but did not, legislate with generality to minimize the

dangers of viewpoint discrimination.

C. Section 632-a Is Content-Based

1. The Board first contends that section 632-a is not content

based because it "does not require the Board to ‘evaluate the nature

of the message.’" Bd. Br. 37. But since “the State itself defined

the content of publications that would trigger liability,” Cohen v.

Cowles Media Co., 1991 U.S. LEXIS 3639 at *15, and payments

may pass from publishers to writers and sources only if the speech

does not contain "thoughts, feelings, opinions, or emotions” or a

“reenactment” of specified events, the restriction is content- and

subject-matter based under the plain meaning of that phrase and

this Court’s cases. See S&S Br. 23 & n. 19.

2. The United States concedes that the federal statute, 18

U.S.C. § 3681, "may be characterized as content-based,” and that

its “reason for singling out this speech is ... a concern that

dissemination of the speech is particularly likely to aggravate the

harms suffered by the victims of the crimes committed by the

speaker.” Brief of the United States ("U.S. Br.") at 10-11 n.15.

Section 632-a is equally content-based and equally hostile to the

speech at which it is aimed.

7

3. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48

(1986), does not excuse section 632-a from strict scrutiny. First,

the Renton reasoning has excused a seemingly content-based statute

only on its own facts, in a case involving sexually oriented

materials, and has no application where strict scrutiny is required

because a challenged statute has placed undue burdens on speech

or has targeted the press or expressive activity. Compare S&S Br.

24-25 with Bd. Br. 37-38."

Second, section 632-a and its distinctions are justified not

because of concern with anything like neighborhood blight, as was

the zoning ordinance at issue in Renton, but rather with the

public’s abhorrence at payments being made for expression of

certain content. See S&S Br. 24. It is therefore subject to the

same scrutiny that would apply to laws barring payment of priests

for religious speech (or barring newspapers from paying columnists

writing about abortion more than the minimum wage, or barring

payment of artists for abstract art), even if the legislature were

motivated by public offense and abhorrence at seeing priests (or

3 The Court in Renton manifested no intent to overrule either such

content-based strict scrutiny decisions as Carey v. Brown, 447 U.S. 455

(1980), and Regan v. Time, Inc., 468 U.S. 641, 648-49 (1984), or such

burden-on-expression strict scrutiny cases as Meyer v. Grant, 486 U.S.

414 (1988), and Riley v. Nat'l Federation of the Blind, 487 U.S. 781

(1987), or such press-targeted strict scrutiny cases as Minneapolis Star.

In these cases and many others, statutes were invalidated without any

finding that they were aimed at the content of speech, and despite

plausible attempts to justify them by considerations other than the

expected communicative impact of speech. If strict scrutiny were limited

to cases where the proponents of regulation admit their concern over the

communicative impact of speech, precious little would be left of the

doctrine.

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (Bd. Br.

36, 38) is imapposite, since it addressed a time, place and manner

regulation that impacted only on the volume of sound, and did not on its

face select activity for regulation on the basis of content or subject

matter.

columnists or artists) profit for speech of that content, rather than

by offense at content or any purpose to suppress it.

D. United States v. O’Brien Is Inapplicable

The argument that United States v. O'Brien, 391 U.S. 367

(1968), supplies the correct standard of review here ignores our

demonstration that O’Brien applies only to general regulations of

conduct that are incidentally, and only sometimes, applied to

expressive conduct. O’Brien cannot apply to a statute that

regulates speech “on its face,” or to one that regulates speech in all

of its applications. Compare S&S Br. 26 with Bd. Br. 39-40

(failing to cite a single case in which O’Brien was applied to a

Statute aimed at speech-related activity). See also Cohen v. Cowles

Media Co., 1991 U.S. LEXIS 3639, *12-14 (O’Brien applied

because “the Minnesota doctrine of promissory estoppel is a law

of general applicability"); Barnes v. Glen Theatre, Inc., 1991 U.S.

LEXIS 3633, *11 (not applying strict scrutiny because state banned

public nudity generally, not "nude dancing as such”), and id. at

*22, *28 (Scalia, J., concurring) ("On its face, this law is not

directed at expression in particular... . A law is ‘general’... .

if it regulates conduct without regard to whether that conduct is

expressive.").

The contention that payment for speech is “not inextricably

intertwined with speech . . . because . . . attaching the criminal’s

profits is not a barrier to the criminal’s speech as the law does not

prevent a willing criminal from speaking” (Bd. Br. 39) is squarely

contradicted by the record in this case, which shows how this law

does deter speech, and by all the cases holding restricting amounts

private parties agree to pay and receive in order to create and

disseminate speech is a direct and substantial barrier to speech.

See S&S Br. 17-18. An enormous amount of the protected speech

on which our free society depends could be effectively suppressed

if strict scrutiny were not applicable to laws that delay for years

payment for certain expression, but permit such payment for any

other service and for expression of different content.

9

POINT Il

SECTION 632-A’S TARGETED APPLICATION

ONLY TO PAYMENTS FOR EXPRESSION, AND

ONLY TO EXPRESSION OF SPECIFIED CONTENT,

CANNOT SURVIVE EXACTING SCRUTINY

Both the Board and the Second Circuit have ignored how

unusual, indeed virtually unprecedented, it is to uphold a statute

upon exacting review. “Only rarely are statutes sustained in the

face of strict scrutiny . . . strict-scrutiny review is ‘strict’ in theory

but usually ‘fatal’ in fact." Bernal v. Fainter, 467 U.S. 216, 219

n.6 (1984) (citation omitted).‘

So powerful is the First Amendment’s direction that "no law"

shall abridge free speech that the Court has at times observed that

"government has no power to restrict expression because of its

message, its ideas, its subject matter, or its content,” Police

Department of Chicago v. Mosley, 408 U.S. at 95 (citations

omitted, emphasis added), and has recently and unanimously said

that strict scrutiny is a “well-nigh insurmountable” burden. Meyer

v. Grant, 486 U.S. 414, 425 (1988). With the exception of two

decisions emphasizing the unique concern for avoiding corruption

of the political process, the Court has apparently not upheld on

strict scrutiny a single statute challenged as violative of free speech

in three decades.°

Section 632-a fails strict scrutiny not only because it is not

narrowly tailored to serve the State’s asserted interest, as we show

below, but more fundamentally because its substantial burden on

speech is inconsistent with free expression. Here, as in other

cases, the harm to freedom of speech far outweighs the extent, if

any, by which the law furthers legitimate state interests. See, e.g.,

4 The “strict scrutiny” test applied in equal protection cases such as

Bernal is the same test applied in the First Amendment context. Ward v.

Rock Against Racism, 491 U.S. 791, 798 n.6 (1989); Police Dep't v.

Mosley, 408 U.S. 92, 101 & n.8 (1972).

5 Austin v. Michigan Chamber of Commerce, 110 S. Ct. 1391 (1987);

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

10

Meyer v. Grant, 486 U.S. at 425-428; Hustler Magazine v.

Falwell, 485 U.S. 46, 56 (1988) (recovery for speech that

intentionally inflicts emotional distress absent proof of “actual

malice” would deny “adequate ‘breathing space’ to the freedoms

protected by the First Amendment"); Miami Herald Publishing Co.

v. Tornillo, 418 U.S. 241, 258 (1974) ("It has yet to be

demonstrated how governmental regulation [of a right of reply] can

be exercised consistent with First Amendment guarantees of a free

press. . . ."); Lamont v. Postmaster General, 381 U.S. 301, 307

(1965) ("The regime of this Act is at war with the ‘uninhibited,

robust, and wide-open’ debate and discussion that are contemplated

by the First Amendment”).

The New York Court of Appeals has since our opening brief

authoritatively identified the two interests assertedly underlying

section 632-a: "preserv[ing] the victim’s equitable right to assets

earned by a criminal as a result of victimization” (an interest it

referred to as ensuring that “criminals should not be permitted to

profit from their wrongs") and “impos[ing] on those convicted of

crime punishment and disabilities which reflect the nature and

extent of the community’s denunciation of particular conduct. . .”

Children of Bedford, 1991 NY LEXIS 647, *17-19 (May 7, 1991).

But the Board has not demonstrated that this statute is necessary

and narrowly tailored to serve those two interests, or that they are

even implicated on the record here.

A. The Interest in Preserving Victims’ Rights to Assets Earned

Through Victimization Cannot Justify Section 632-a

If existing remedies to enable victims to obtain compensation

from criminals are inadequate, they can be generally expanded.

New York’s attachment statute can be made available in all cases

of crime, or for all violent crimes; the statute of limitations can be

generally extended for all crime victims; etc. Section 632-a

enhances victims’ remedies, however, as to assets that flow from

speech and in no other cases, supposedly because the assets in

question are themselves uniquely the result of “victimization” or

are uniquely the "profits of crime.”

11

The Board, however, has only ipse dixit to support its assertion

that all the advances and royalties subject to section 632-a

(including the royalties due Hill) are the “profits of crime."

Government cannot abridge free speech simply by labeling a broad

variety of payments for expression the “profits of crime."

Payment for works like The Autobiography of Malcolm X,

Wiseguy, and the other works noted in our opening brief (at pp.

36, 39-40) do not become crime profits through legislative fiat.

The undisputed record demonstrates that Henry Hill, who jointly

owns the copyright in Wiseguy, was paid for providing what

authors and primary sources generally provide, hard creative work

and long hours. As the Supreme Court held in Mazer v. Stein,

347 U.S. 201, 219 (1954), “Sacrificial days devoted to such

creative activities deserve rewards commensurate with the services

rendered.” See S&S Br. 7, and JA 26-27, 30, 83°

The Board’s denial that section 632-a underinclusively fails to

reach all the other payments received by “criminals” that have as

strong a connection to criminal activity as do subsequent writing,

on the purported ground that those other payments arise from

“newly advertised expertise or prominence,” not from an “illegal

act,” is unavailing. Bd. Br. 47, quoting Children of Bedford.

Payments like those made to Willie Sutton to consult on bank

security, to reformed addicts who become drug rehabilitation

6 Even outside the First Amendment context, courts have been careful

to reject governmental attempts to obtain forfeiture of assets that lack a

direct and substantial nexus with the underlying criminal conduct. See,

e.g., United States v. Busher, 817 F.2d 1409, 1414-16 (9th Cir. 1987)

(no forfeiture “of a defendant's entire interest in an enterprise that is

essentially legitimate where he has committed relatively minor RICO

violations not central to the conduct of the business"); United States v.

Porcelli, 865 F.2d 1352, 1365 (2d Cir.), cert. den., 110 S. Ct. 53 (1990)

(same); United States v. McKeithen, 822 F.2d 310, 313-15 (2d Cir. 1987)

(vacating forfeiture of entire property and limiting it to 43% portion

found by jury to have housed drug enterprise); United States v. One 1976

Ford F-150 Pick-Up, 769 F.2d 525, 527 (8th Cir. 1985) (per curiam);

United States v. One 1972 Chevrolet Corvette, 625 F.2d 1026, 1029-30

(ist Cir. 1980).

12

counselors, to burglars-turned-locksmiths, and to criminals-turned-

evangelicals, are no less (and no more) the profits or the result of

crime than are the royalties due Henry Hill. Payments made to

Gordon Liddy for his appearance in a liquor advertisement now

running in several magazines are plainly the result of the notoriety

he gained through crime; yet since he does not discuss his crime

in the advertisement a statute like New York’s would not reach the

payment. Payments for writing books that mention prior events

deemed crimes are indistinguishable in terms of the state’s asserted

interests from these other payments that New York has chosen not

to regulate. Compare S&S Br. 41-43 with Bd. Br. 47-49 and

Children of Bedford, 1991 NY LEXIS 647, *22-23.

Section 632-a’s overinclusiveness with respect to this interest

is highlighted by the federal statute discussed in the United States’

brief. Whatever its other defects arising from its targeting of

expression, 18 U.S.C. § 3681 is at least limited so that no

restriction on payment for speech can be imposed until after a

conviction, at which time it has become clear whether a crime has

been committed and whether it has victims.’ Moreover, even then

speech will be deterred by a payment restriction only if the United

States Attorney believes, and the court finds, that “the interest of

justice or an order of restitution under this title so requires.”

Thus, under § 3681 publishers are free to enter into publication

agreements with all persons, including convicted criminals, without

the ongoing deterrent effect of a looming penalty resulting from a

possible future determination by an administrative board that the

payment was improper at the outset. Indeed, the requirement that

a court enter an order before § 3681 applies makes possible further

narrowing of the statute’s reach; courts might enter orders only in

the context of restitution orders reaching all of a convicted

7 Although the Board had previously ruled that victimless crimes are

within section 632-a, see S&S Br. 5 n.7, the New York Court of Appeals

disagreed and recently narrowed section 632-a to exclude victimless

crimes, Children of Bedford, 1991 NY LEXIS 647, *18. This reduces

but surely does not cure the statute's overbreadth.

13

criminal’s after-acquired assets, or only where the prospect of

payment induced the crime.

As the United States notes here, during the debates leading to

§ 3681, “Senator Mathias remind[ed] the Senate that ‘the writings

of criminal defendants have played an important role in our society

and culture’... ." As a result, a narrowed statute was enacted,

one that “would not apply to most of the literary works described

in the petition, see Pet. 14." U.S. Br. at 4, nn. 5 & 6. Section

632-a, by contrast, sweeps well past the interests asserted by the

State to deter these works that the federal statute does not deter.

B. Section 632-a Is Not Necessary or Narrowly Tailored To

Advance the Interest in Denunciation and Punishment of

Criminals

The Board has never suggested that an interest in inflicting

additional “punishment,” “denunciation,” and ‘retribution’

underlies section 632-a, and does not do so here, notwithstanding

the Court of Appeals’ mention of this interest (without the slightest

support in the legislative history) in Children of Bedford. See Bd.

Br. 46." A law functioning simply as a special attachment

provision for victims, that applies to those never tried or convicted

and to those acquitted by reason of insanity, that assists state tax

authorities and judgment creditors generally, that applies to federal

as well as state crimes, and that provides for the return of any

royalties to convicted criminals if no victims step forward and

obtain judgments within five years, is plainly not designed to

impose punishment or retribution, and is in any event entirely

untailored to serve that interest.

But even assuming arguendo that punishment and retribution

was a goal of the law, section 632-a is impermissibly overinclusive

with respect to that interest. First, by reaching those immunized,

8 Even where intermediate rather than strict scrutiny applies, the Court

has refused to consider state interests that are mere afterthoughts that did

not actually underlie the enactment in question. E.g., Mississippi Univ.

for Women v. Hogan, 458 U.S. 718, 730 (1982); Weinberger v.

Wiesenfeld, 420 U.S. 636, 648 (1975).

14

never tried, or acquitted by reason of mental disease or defect, the

law applies far beyond persons who, having been duly convicted,

are proper subjects for advancement of that interest, and indeed

that interest is not even implicated on these facts. See Point II C

infra. Second, the legislative power to define punishments is no

less subject to the specific restraints of the Bill of Rights than are

other governmental powers. Even incarcerated prisoners retain

certain fundamental constitutional rights (although subject to

restraint for reasons of security), e.g., Procunier v. Martinez, 416-

U.S. 396 (1974) (free speech); O'Lone v. Shabazz, 482 U.S. 342

(1987) (free exercise of religion); and Turner v. Safley, 482 U.S.

78 (1987) (right to marry); cf Skinner v. Oklahoma, 316 U.S. 527

(1942) (right of procreation). It follows a fortiori that states may

not impose on all convicted criminals life-long restrictions on the

fundamental rights to pray, join a church, marry, or read and

write, simply by denominaiing those restrictions "punishment."

At the same time, section 632-a is not necessary to serve this

interest. Given the variety of ways in which states may “impose

on those convicted of crime punishment and disabilities which

reflect the nature and extent of the community’s denunciation of

particular conduct,” Children of Bedford, 1991 N.Y. LEXIS 647,

*19, New York could clearly add to its present range of

punishments and disabilities, if it determines the need to do so,

without effectively suppressing Wiseguy and all the other works

that section 632-a is likely to deter. Cf Meyer v. Grant, 486 U.S.

at 427 (deeming other existing statutes “adequate” to serve state's

interest).

The law, moreover, is underinclusive with respect to

punishment. Compare Bd. Br. 47 with S&S Br. 37-43. The

Board has not answered our showing that by requiring the return

of escrowed royalties not obtained by crime victims in damage

actions the Son of Sam law leaves “appreciable damage” to the

State’s asserted interest unremedied, see The Florida Star v. BJF,

491 U.S. 524, 541-42 (1989), making clear that the law cannot be

found narrowly tailored to that interest. Compare S&S Br. 38 with

Bd. Br. 17 n. 27 (return to “Capeman” murderer of royalties he

had earned).

15

C. The Interests Asserted Are Not Implicated By The Facts

Here And Therefore Cannot Defeat Simon & Schuster’s

First Amendment Claim

The Court of Appeals’ authoritative identification of the two

interests underlying section 632-a highlights the law’s substantial

overinclusivness and establishes that those interests cannot be relied

on here, since Wiseguy does not implicate them. Texas v.

Johnson, 491 U.S. 397, 404, 407, 410 (1989); Spence v.

Washington, 418 U.S. 405, 414 0.8 (1974).

The two interests posited by the Court of Appeals, like the

statute on its face and literally every reference to compelling

interests in the Board’s brief and those of its supporting amici,

relate solely to persons convicted of crime: wo obtain for the

victim “assets earned by a criminal as a result of the victimization"

and to “impose on those convicted of crime punishment and

disabilities which reflect the nature and extent of the community's

denunciation of particular conduct,” which the Court referred to

as “retributive satisfaction." Children of Bedford, 1991 NY

LEXIS 647, *17-20 (emphasis added). See also, e.g., Bd. Br. 49

("The degree of tailoring of the state’s interest may also take

account of the fact that criminals have committed a crime and that

society may impose certain restrictions on their ability to profit

from that crime.")

These interests may not constitutionally be advanced, and are

in any event not served, here, where the Board’s decision to apply

the law rested not on any conviction but instead solely on the

Board’s determination that the book contained Hill's "admissions"

to having committed crimes. See, e.g., In re Winship, 397 U.S.

358, 363-64 (1970) (finding of guilt beyond a reasonable doubt

required for stigmatization and condemnation “for commission of

a crime"; government “cannot adjudge [individual] guilty of a

criminal offense without convincing a proper factfinder of his guilt

with utmost certainty”); Jones v. United States, 463 U.S. 354, 369

(1983) (interest in retribution cannot be furthered without criminal

conviction); and Kennedy v. Mendoza-Martinez, 372 U.S. 144,

167-69 (1963) ("punishment cannot be imposed without a prior

criminal trial and all its incidents"; whether governmental action

16

is “punishment” depends, in part, on "[wJhether the sanction

involves an affirmative disability or restraint . .. whether its

operation will promote the traditional aims of punishment —

retribution and deterrence, [and] whether the behavior to which it

applies is already a crime") (footnotes omitted).°

A governmental interest that "is simply not implicated” on the

facts of a given case cannot be relied on to defeat a First

Amendment claim. Texas v. Johnson, 491 U.S. at 404; Spence v.

Washington, 418 U.S. 405, 414 n.8 (1974). Neither of the two

interests identified by New York's highest court does or

constitutionally could apply here, and the law must at a minimum

be invalidated insofar as it applies to persons not shown to be duly

convicted. :

POINT Ill

SECTION 632-A IS INVALID EVEN

UNDER UNITED STATES V. O’BRIEN

Finally, section 632-a would be invalid even if O’Brien

supplied the correct standard of review.

incidental burdens on speech “if the conduct itself may

constitutionally be regulated, if the regulation is narrowly drawn

where ty pkg interest, and if the interest is

unr to the suppression of free speech." Clark v. Community

for Creative Non-Violence, 468 U.S. 288, 294 (1984). Contrary

to the Board’s argument (Bd. Br. 40-45), section 632-a fails each

of these criteria.

9 See also Ingraham v. Wright, 430 U.S. 651, 669, 671 n. 40 (1977);

Bell v. Wolfish, 441 U.S. 520, 535-539 & n. 20 (1979); and Gregg v.

Georgia, 428 U.S. 153, 183-184 & n. 30 (1976). Contrary to the

implication left by the Board and some of its amici, the decision denying

an inheritance in Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889),

rested on Riggs’ prior conviction for murdering the testator. See also

New York Mus. Life Ins. Co. v. Armstrong, 117 U.S. 591 (1896)

(conviction for murder led to forfeiture by assignee of insurance policy

of payment under policy).

17

First, the “conduct” at issue — a publisher’s expenditure for

expression to be published — cannot constitutionally be regulated

qua conduct. The Court so held in Buckley, rejecting “the view

that the present Act’s contribution and expenditure limitations are

comparable to the restrictions on conduct upheld in O'Brien.” 424

U.S. at 16. See S&S Br.26.

Second, the interest underlying the Son of Sam law is related,

not unrelated, to the suppression of free speech. See S&S Br. 24-

25; see also p. 6 supra.

Third, the law is not “narrowly drawn.” Clark, 468 U.S. at

294. Although O’Brien does not import any least-restrictive means

test, it nonetheless requires invalidation if "a substantial portion of

the burden on speech does not serve to advance its goals,” or if

"the means chosen are . . . substantially broader than necessary to

achieve the government's interest." Ward v. Rock Against Racism,

491 U.S. 781, 799-800.

Rarely can it have been so clear that “a substantial portion of

the burden on speech” is entirely unnecessary and unproductive.

To the considerable extent that it deters the publication of books

subject to its terms — and this record demonstrates the effective

suppression of three books Nicholas Pileggi would have written

absent Son of Sam law impediments, the bowdlerization of an

autobiography published by G. P. Putnam’s ‘ons, and the belief

of publishers and editors that the deterrent impact is substantial,

see S&S Br. 10-12 — speech is heavily burdened without

advancing any state interests whatever. On the other side of the

balance is virtually nothing: in ten years the law has compensated

the victims of only a single criminal, only a handful of additional

escrow accounts have been established, and there is no showing or

reason to believe that even in these cases the law had any marginal

utility — that is, that compensation would not have been achieved

thorough other available remedies, as it was in the case of Jack

Henry Abbott. JA 35-36." Since all of the state’s legitimate

10 The federal statute too “has not. . . generated any significant sum

of money” since its enactment in 1984. U.S. Br. at 9 n. 12.

18

interests could be furthered by generally applicable enhancements

to existing remedies (assuming the legislature was unhappy with

existing remedies), such as extension of the statute of limitations

in all actions by victims against criminals who injured them, the

burden on speech created by section 632-a is entirely gratuitous."

Just as clearly the law’s means are substantially broader than

necessary to achieve the interests identified by the Court of

Appeals. The statute reaches far beyond the first interest by

reaching assets that are in no sense “earned as a result of

victimization," as exemplified by its application to the entire

payment to Henry Hill for Wiseguy which was for hundreds of

hours of conversation with Pileggi, not the "profit of crime." See

S&S Br. 7, 36, 40-41, and pp. 13-14, supra. The Statutory means

are also far broader than necessary to further the interest in

“punishment and disabilities," "denunciation," and “retribution,”

since these are impermissibly imposed on those who have not had

the protection of a judicial trial. See Point II C Supra.

11 The Board's attempt to inflate the accomplishments of the Son of

Sam law is highly misleading. See Bd. Br. 8 n. 13 and 17 n. 27.

Section 632-a did not help the victims of David Berkowitz to obtain

compensation. The Board's attempt to apply the statute to Berkowitz was

rejected, since section 632-a as initially drafted did not apply to contracts

catered into by conservators of criminals, as was its attempt to rely on a

subsequent amendment. New York State Crime Victims Board v. Johnsen,

Index 85067/77 (Sup. Ct. Kings Co. Nov. 24, 1981).

19

CONCLUSION

For the foregoing reasons and those set forth in our opening

brief, the judgment below should be reversed, and the case

remanded for entry of a declaration that section 632-a is

unconstitutional, an injunction enjoining its enforcement, and an

order awarding petitioner costs and attorneys’ fees pursuant to 42

U.S.C. § 1988.

Respectfully submitted,

MARK C. MORRIL RONALD S. RAUCHBERG,

SIMON & SCHUSTER, INC. Counsel of Record

1230 Avenue of the Americas CHARLES S. SIMS

New York, New York 10020 PROSKAUER ROSE GOETZ &

MENDELSOHN

1585 Broadway

“ New York, New York 10036

Counsel for Petitioner

June 29, 1991