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

7, )

\ |

No. Rs 4

Supreme Cot, US

FILED

APR 19 1991

|

nN THE OFFICE GF THE CLERK

Supreme Court of the United

OCTOBER TERM, 1990

>

SIMON & SCHUSTER, INC., -

Petitioner,

—_—V—

MEMBERS OF THE NEW YORK STATE

CRIME VICTIMS BOARD, et ai.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF AMICUS CURTAE OF THE AMERICAN CIVIL

LIBERTIES UNION, NEW YORK CIVIL LIBERTIES UNION, AND

PEN AMERICAN CENTER, IN SUPPORT OF PETITIONER

Leon Friedman

(Counsel of Record)

148 East 78 Street

New York, New York 10021

(212) 737-0400

Steven R. Shapiro

John A. Powell

American Civil Liberties Union

Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

Arthur N. Eisenberg

New York Civil Liberties Union

Foundation

132 West 43 Street

New York, New York 10036

(212) 382-0557

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................. iil

URE GE PE oes ccccecussccscceeses l

STATEMENT OF THE CASE ... cc ccccccees 2

The Statutory Background ................ 2

The Legislative History .......0cccccccess 3

INTRODUCTION AND

SUMMARY OF ARGUMENT ............... 4

ne 5

I. EXECUTIVE LAW §632-A MUST BE

SUBJECTED TO STRICT SCRUTINY

BECAUSE IT PLACES A SEVERE

AND CONTENT-BASED RESTRIC-

TION ON THE EXERCISE OF FIRST

AMENDMENT RIGHTS ............. 5

0 ee eee ee 5

B. By Depriving Authors Of Any

Profits For A Five Year Period, The

Chalienged Statute Places A Severe

Burden On The Exercise Of First

Amendment Rights ............... 7

C. The Law Imposes Differential Fi-

nancial Burdens On First Amend-

ment Generated Income ........... )

D. The Law Is Speaker- And Content-

SE TTS eee eee TT Te eee 12

Il. RESPONDENTS CANNOT MEET

THE STRICT SCRUTINY TEST IN

THIS CASE

A.

B.

CONCLUSION

The Desire To Compensate Victims . . .

The Desire To Compensate Victims

From Assets Subsequently Obtained

From Criminals ............ce-.-

The Desire To Keep Criminals

From Profiting From Their Crimes

1. Literary Royalties Do Not Flow

Directly And Proximately From

The Commission Of The Crime .. .

2. The Writing Of The Book Is An

Intervening Act That Breaks

The Chain Of Causation From

The Criminal Act That Is Its

er

3. The Reasoning Behind The Law

Sweeps Too Broadly ..........

4. The Law Reaches Books And

Writings Not Within Its Aim ....

The Need To Keep A Criminal

From Profiting From The Exploita-

tion Of His Or Her Crime While

The Victims Of The Crime Are In

Need of Compensation ...........

ii

a

19

19

TABLE OF AUTHORITIES

Page

Cases

Arkansas Writers’ Project, Inc. v. Ragland,

DEE scscccccecccccccece 10, 15, 25

Barrett v. Wojtowicz,

414 N.Y.S.2d 350 (2d Dep’t 1979) .............. 4

Boos v. Barry,

es cee sce teceecces 13, 25

Carey v. Brown,

ee cap cece eee. 12, 13

Children of Bedford Inc. v. Petromelis,

541 N.Y.S.2d 894 (Sup.Ct.

N.Y.Cty. 1989), aff'd, 556 N.Y.2d 483

(1st Dep’t 1990), argued

(N.Y.Ct.App. March 26, 1991) ................2,3

Consolidated Edison Co. v.

Public Service Comm’n,

Ears Swe c ec ces ecceeeess 12

FCC v. League of Women Voters,

ee cc cc cbs cee ccc ees 12, 13

First National Bank v. Bellotti,

a ccc nec ssc ecees 12, 14

Harper & Row, Publishers, Inc. v.

The Nation,

CE cS sec cccncecccccccccees 7

In re Johnsen,

430 N.Y.2d 904 (Sup.Ct. Kings Co. 1979) ......... 3

Page

In re Loud’s Estate,

334 N.Y.S.2d 969

(wees AA. Tees Oi. 197Z) nw wc ccc ccc cccccccces 19

Leathers v. Medlock,

No. 90-29 (April 16, 1991) ................. 10, 11

Meyer v. Grant,

Ge GAs SOP CUD ccccccccccccccces 8, 9, 15, 16

Minneapolis Star & Tribune Co. v.

Minnesota Comm’r of Revenue,

Ce a EE oc eGkboececcuveeusuesens 10

Perry Ed. Ass’n v. Perry Local

Educators Ass’n,

CPC ED <caensakesdebeeunbesceeee 13

Police Department v. Mosley,

Ge UE OE now u cccusedcoueceececeeuas 13

Riggs v. Palmer,

Sa CR Ue OED os 06nd wds60eKweacecteoas 19

Riley v. National Federation

of the Blind in North Carolina,

Ge GA OE EEE cccccccceccecccecshsanes 8. 9

Ross v. Oklahoma,

ee Gs ee ED 6 oc bb bee bbcéccbectéennnan 21

St. Martins’ Press, Inc v. Zweibel,

Index No. 89/12273

(Sup.Ct. N.Y.Co. Feb. 1, 1990)................. 2

Texas Monthly, Inc. v. Bullock,

__ US. __, 109 S.Ct. 890 (1989) .............. 10

Urevich v. Woodard,

667 P.2d 760 (Colo. 1983) .................... 8

Statutes and Regulations

tec acescee nnn tdewhsbete aad 6

I ee 6

EE ed a Oe 5

New York Civil Practice Law and Rules........ 6, 18

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

Other Authorities

Franklin, American Prisoners

and Ex-Prisoners: Their Writings (1982) .......... 23

New York State Caseload

Activity Report, 1987,

Office of Court Administration

of New York State .................0cceeeee 16

INTEREST OF AMICI’

The American Civil Liberties Union (ACLU) is a

nationwide, nonpartisan membership organization with

over 275,000 members, dedicated to defending the prin-

ciples of individual liberty embodied in the Constitution.

The New York Civil Liberties Union is its statewide

affiliate. For over seventy years, the ACLU has been

particularly associated with free speech issues and has

participated in thousands of cases involving the First

Amendment at every level of the state and federal

courts.

PEN American Center (PEN) is an organization of

2,400 novelists, poets, essayists, translators, playwrights,

and editors. As part of international PEN, it and its

affiliated organizations are chartered to defend free and

open communication within all nations and across

national boundaries. American PEN has taken a leading

role in attacking restrictive laws, rules, regulations and

practices that censor, curb or limit freedom of speech or

expression in the nation.

It is amici’s position that the law at issue here is

fundamentally out of step with the values and principles

underlying our First Amendment traditions and jurispru-

dence, and for that reason amici support the effort of

petitioner to have the law declared unconstitutional. In

the instant matter, author Nicholas Pileggi presents an

important picture of the criminal underworld in his

book Wiseguy. To obtain much of the material for the

book, Pileggi conducted extensive interviews with a form-

er underworld figure, Henry Hill, who would not have

provided the information without compensation. And

without Henry Hill’s story, the book could not have been

written and published. If the Crime Victim’s Board is

' Letters of consent to the filing of this brief have been lodged with

the Clerk of the Court pursuant to Rule 37.3.

l

successful in its effort to hold the publisher, Simon &

Schuster, liable for monies it has already paid, it is much

less likely that inside stories such as Wiseguy will be

published in the future.’ In such a case, all society is the

loser.

STATEMENT OF THE CASE

The Statutory Background

New York Executive Law §632-a is directed solely at

monies earned by the exercise of the rights of free spee-

ch and free press. It applies to all contracts for a book,

movie, magazine article, or play written by a person

accused of a crime with respect to the "reenactment" of

the crime or to the accused’s thoughts, feelings, opinions,

or emotions regarding a crime. A person who confesses

or “voluntarily admits" to a crime is covered by the law,

ever if he or she is never convicted of the crime, or

could not be convicted, because of the statute of limita-

tions or for any other reason.

Only the proceeds of a book, article, movie or play

are covered by the law. If the criminal obtains money

* The Board is also attempting to apply the law to at least two other

books of great societal interest: (1) Stranger in Two Worlds, written

by Jean Harris, and (2) Trading Secrets, by R. Foster Winans. The

Jean Harris book is a valuable study of prison life and its effect upon

women inmates. The book received excellent reviews for its careful

and well-written examination of the brutalities of institutional life. Mr.

Winans, who was and is a professional writer, recounted his involve-

ment in a Wall Street trading scandal and his insights into the corpo-

rate culture and inner workings of the financial markets. His book

also received many positive reviews. Yet the Crime Victims Board is

attempting in both instances to obtain all royalties earned by the

authors. See Children of Bedford Inc. v. Petromelis, 541 N.Y.S.2d 894

(Sup.Ct. N.Y.Cty. 1989), affd, 556 N.Y.2d 483 (1st Dep’t 1990),

argued (N.Y.CtApp. March 26, 1991); and St. Martins’ Press, Inc v.

Zweibel, Index No. 89/12273 (Sup.Ct. N.Y.Co. Feb. 1, 1990).

2

from any other source -- inheritance, investments, ex-

ploitation of any skill acquired from criminal activity

(such as learning how to break a lock or break into a

computer data bank) -- the law does not attempt to

reach it. The law is triggered only to reach the proceeds

from a First Amendment activity.

The Legislative History

The "Son-of-Sam" law was inspired by the fear that

the notorious criminal who operated under that name in

the late 1970’s would reap the benefits of the publicity

surrounding his actions and would make a fortune from

selling his story. The legislative bill jacket for the law

States its justification as follows:

Currently, a person may commit a crime

causing much damage and personal injury,

and then gain substantial financial benefits

related to resulting publicity. This bill will

insure that monies received by the criminal

under such circumstances shall first be made

available to recompense the victims of that

crime for their loss and suffering.’

The first case interpreting the law noted that the law

was “conceived in haste, written in haste, and declared

under the cry of the public for the legislature to exact

retribution ...." Jn re Johnsen (Berkowitz), 430 N.Y.2d

904, 906 (Sup.Ct. Kings Co. 1979). The law passed in

the summer of 1977, as part of the New York Crime

Victims Statute set forth in Article 22 of the Executive

Law, just before David Berkowitz (alias “Son-of-Sam")

was apprehended. It was signed by Governor Carey into

law on the day after he was arrested. A later court

decision noted that the Division of the Budget had

’ See Bill memorandum, A 9019, set forth in Appellant’s Appendix,

Children of Bedford v. Petrolmelis, supra, n.2.

3

advised that the law was "terribly drafted," and should be

vetoed, Barrett v. Wojtowicz, 414 N.Y.S.2d 350, 355 (2d

Dep’t 1979).

INTRODUCTION AND SUMMARY OF ARGUMENT

It must be emphasized at the outset that amici are

fully in accord with the purpose behind the Crime Vic-

tims Law: victims of crime should be compensated by

those who injured them, and the state should do more to

help them obtain financial assistance. But what the state

cannot do is to try to achieve this laudatory aim by con-

centrating only on one type of income, namely money

obtained by writing books or movies. Not only is this

approach terribly underinclusive -- how many criminals

are there who are capable of writing a publishable work?

-- but it violates key constitutional principles of First

Amendment jurisprudence, as explained below.

The law at issue here, §632-a of New York’s Execu-

tive Law, is unconstitutional under the First Amendment

for several reasons. It imposes differential financial

burdens on the First Amendment activity and only the

First Amendment activity of criminal authors, and it

draws distinctions based upon the content of the material

involved and the identity of the writer. These classifica-

tions imposed by the statute can only be upheld if the

Statute is narrowly tailored in the pursuit of a compelling

government interest. No such showing can be made

here. Specifically, the statute bears only a tenuous rela-

tionship to its stated purpose of compensating crime vic-

tims. It is underinclusive because it does not reach any

of the criminal’s assets beyond those generated by First

Amendment activity. It is overinclusive because it

reaches First Amendment profits even if the book’s suc-

cess does not depend on the author’s criminal notoriety.

And, it is manifestly ineffective since it has provided

compensation to only a handful of victims since the stat-

ute. -actment in 1977. Finally, writing a book cannot

t. e regarded as a fruit of the crime, even if the

‘concerns the crime, without distorting or ignoring

conunonly accepted legal doctrines.

ARGUMENT

Il. EXECUTIVE LAW §632-A MUST BE SUB-

JECTED TO STRICT SCRUTINY BECAUSE IT

PLACES A SEVERE AND CONTENT-BASED

RESTRICTION ON THE EXERCISE OF

FIRST AMENDMENT RIGHTS

A. Introduction

At the outset we must note that, while the effort to

compensate crime victims is commendable, the method

chosen by New York State under this law is unaccepta-

ble under the First Amendment.

We start with two obvious propositions that are not

in dispute: (1) the government has broad power to pun-

ish criminals and compensate victims; and (2) the yov-

ernment has broad power to recover from a criminal the

actual fruits, instrumentalities or proceeds from a crime.

Both of these aims reflect important, even com-

pelling government interests. The state certainly can

impose heavy financial burdens upon a convicted crim-

inal -- in addition to imprisonment -- through fines or

forfeitures. Indeed, the state has the power to punish

and compensate in the same proceeding. For example,

the federal government recently passed a law providing

for an "order of restitution" to be entered at the same

time sentence is imposed upon a convicted criminal, pro-

viding that the defendant must pay the victim of the

crime compensatory damages. See 18 U.S.C. §3579.

The order is enforceable to the same extent as a civil

judgment. Thus, it can be enforced against all the assets

of the defendant, from whatever source derived, for as

5

long as a judgment is enforceable under local law.

In addition, the state provides an elaborate system

for compensating all victims of any tort -- whether or not

it constitutes a crime -- through the normal civil tort suit.

Upon securing a judgment, a plaintiff can reach virtually

all assets of the tortfeasor. However, there are statutes

of limitations that require such actions to be brought

within a set period of time.

Finally, the government has broad power to recover

the proceeds or fruits of a crime. Both the state and

federal governments have provided comprehensive mech-

anisms -for forfeiting such proceeds under the federal

RICO statute, 18 U.S.C. §1961 et seq., and under the

recently enacted Article 13A of the New York Civil

Practice Law and Rules (CPLR). But when a criminai

writes a book, even about his crime, that book is, in no

sense, the "fruit" of the crime.“ The book is the fruit of

the criminal’s lawful, literary and artistic efforts. He or

she may be famous because of the crime, but to consider

the book the "proceeds" of the crime is to stretch the

meaning of that word beyond recognition.’

* The “proceeds of a crime” are defined in New York CPLR 1310 as

“any property obtained through the commission of a felony crime”

defined in the section (emphasis added). Under that definition, book

royalties could not conceivably be covered.

> We explain below why the royalties from a book written by a crimi-

nal about the crime cannot be considered the “fruits” of the crime.

Among other reasons cited below, one has only to look at the numer-

ous books written by former Presidents and government officials after

they leave office, which often represent the most important financial

component of their retirement income. Under the federal copyright

law, 17 U.S.C. §105, copyright “is not available for any work of the

United States Government.” If the later literary efforts of former gov-

ernment officials were considered the “fruits” or “proceeds” of their

government work, since they became famous as a result of being Pres-

ident or Secretary of State, they could not obtain copyright in their

work. But every court that has passed on the matter, including this

(continued...)

6

B. By Depriving Authors Of Any Profits For A Five

Year Period, The Challenged Statute Places A

Severe Burden On The _ Exercise Of First

Amendment Rights

The question presented here is not whether the im-

position of financial burdens on criminals, the compensa-

tion of victims, and the forfeiture of criminal proceeds

are important or even compelling state interests. The

question is whether the state can select one source of

income alone -- First Amendment generated income --

and create an extraordinary mechanism for compensating

victims only when such income is involved.

Because the Son-of-Sam law singles out First

Amendment income, the Second Circuit held that strict

scrutiny applies. We agree. As the Second Circuit ex-

plained:

We think that the District Court erred in

testing section 632-a under the standards

established in United States v. O’Brien [391

U.S. 367 (1968)]... despite the Supreme

Court’s requirement "that the governmental

interest in question be unconnected to ex-

pression in order to come under O’Brien’s

less demanding rule. Texas v. Johnson, 109

S.Ct. 2533, 2541 (1989).

It cannot be said that the governmental in-

terest advanced by section 632-a bears no

relation to expression, since the statute bur-

dens directly the speech of those who wish

to tell (and sell) the stories of their crimes.

* (...continued)

Court, considers the later literary efforts of such officials to be a

separate, individual literary act unrelated to the government service

that generated the book and the public’s interest in the author. See

Harper & Row, Publishers, Inc. v. The Nation, 471 U.S. 539 (1985).

7

The possibility of a payday five years or

more down the road, depending on claims

against the escrow fund, can hardly be seen

as providing an adequate financial incentive.

Without a financial incentive to relate their

criminal activities, most would-be story-

tellers will decline to speak or write.

Simon & Schuster, Inc. v. Fischetti, 916 F.2d 777, 781 (2d

Cir. 1990).

In applying strict scrutiny, the Second Circuit relied

in part upon this Court’s decision in Meyer v. Grant, 486

U.S. 414 (1988), which struck down a Colorado state law

that prohibited paying persons to circulate petitions for

ballot initiatives. The law put no restriction on the num-

ber of people who might circulate such petitions or the

manner in which they might be circulated. It simply

prohibited petition circulators from being paid for that

activity. Nevertheless, this Court had no difficulty in

finding that the law was subject to strict scrutiny.

The refusal to permit appellees to pay peti-

tion circulators restricts political expression

in two ways: First, it limits the number of

voices who will convey appellees’ message

and the hours they can speak and, therefore,

limits the size of the audience they can

reach. Second, it makes it less likely that

appellees will garner the number of signa-

tures necessary to place the matter on the

ballot....

Id. at 422-23 (footnote omitted). In words that are

equally relevant here, the Court further observed: "We

can take judicial notice of the fact that it is often more

difficult to get people to work without compensation

than it is to get them to work for pay." Jd. at 423, quot-

ing Urevich v. Woodard, 667 P.2d 760, 763 (Colo. 1983).

See also Riley v. National Federation of the Blind in North

Carolina, 487 U.S. 781 (1988)(North Carolina law that

restricted the fees that a professional fundraiser could

charge for collecting money for charity unconstitutional).

Exactly the same principle is involved in this case.

Simon & Schuster has a First Amendment right to "ad-

vocate [its] cause,” that is, to publish a book about a pro-

fessional criminal, Henry Hill. Restricting the right to

be paid for doing so inevitably inhibits a writer or pub-

lisher from deciding to write or publish a book. It also

inhibits publishers from signing up similar books in the

future.” Under the reasoning of Meyer, strict scrutiny

must apply. Accordingly, the statute cannot be sustained

unless it is narrowly tailored in the pursuit of a com-

pelling interest.

C. The Law Imposes Differential Financial Burdens On

First Amendment Generated Income

The law at issue involves discrimination against First

Amendment activities and First Amendment activities

only. No one doubts that the state could pass a wide va-

riety of laws benefitting victims and allowing them to

recover money from their criminal attackers. It could

certainly allow victims to obtain money secured from all

sources, including funds obtained by writing books. But

well-established constitutional doctrine forbids the state

from focusing on income derived only from First Amend-

ment activities and providing for remedies dealing with

that activity alone. This would be considered a discrimi-

natory financial burden on expressive activities prohibi-

ted by the First Amendment.

The point is illustrated by recent decisions from this

Court striking down laws that discriminate in the imposi-

* Even if the Court did not take judicial notice of this fact, the affida-

vits from other publishers submitted in this matter show that such an

inhibition on expressive activity is indeed occurring as a result of the

Son-of-Sam law. JA13-24, 34-47.

tion of taxes against First Amendment actors. It is un-

disputed that the government may tax the income or

property of newspapers, book publishers or movie com-

panies. Their status as First Amendment actors does not

immunize them from financial burdens placed on all

others similarly situated. But as broad as its taxing power

may be, the state cannot tax activities in which only First

Amendment actors engage.

Thus, this Court wrote in Arkansas Writers’ Project,

Inc. v. Ragland, 481 U.S. 221, 227 (1987): "Our cases

clearly establish that a discriminatory tax on the press

burdens rights protected by the First Amendment.” No

matter how small the financial burden may be, legisla-

tion "singling out the press as a whole or targeting indi-

vidual members of the press . . . poses a particular dan-

ger of abuse by the State" and cannot be upheld under

the First Amendment. /d. at 1727. See also Texas

Monthly, Inc. v. Bullock, __ US. , 109 S.Ct. 890

(1989)(sales tax exemption for religious magazines

violates the Establishment Clause).

Nor may the state impose a discriminatory financial

burden only on activities engaged in by the press. For

example, in Minneapolis Star & Tribune Co. v. Minnesota

Comm’r of Revenue, 460 U.S. 575 (1983), the Court

struck down a use tax on newsprint costs over $100,000.

As this Court observed in Minneapolis Star, "differential

treatment, unless justified by some special characteristic

of the press, suggests that the goal of the regulation is

not unrelated to the suppression of expression, and such

a goal is presumptively unconstitutional." /d. at 585.

That principle was recently reaffirmed in Leathers v.

Medlock, No. 90-29 (April 16, 1991). After reviewing its

decisions in Arkansas Writers’ Project and Minneapolis

Star, the Court wrote:

These cases demonstrate that differential

taxation of First Amendment speakers is

10

constitutionally suspect when it threatens to

suppress the expression of particular ideas

or viewpoints. Absent a compelling justifica-

tion, the government may not exercise its

taxing power to single out the press. The

press plays a unique role as a check on gov-

ernment abuse, and a tax limited to the

press raises concerns about censorship of

critical information. A tax is also suspect if

it targets a small group of speakers. Again,

the fear is censorship of particular ideas or

viewpoints. Finally, for reasons that are

obvious, a tax will trigger heightened scru-

tiny under the First Amendment if it dis-

criminates on the basis of the content of tax-

payer speech.

Leathers v. Medlock, slip op. at 6-7 (citations omitted).

Section 632-a suffers all of these defects. There is

no doubt that a differential "burden" is placed upon First

Amendment activities. The law "singles out the press”

and engages in "differential treatment” of speech related

activities: specifically, a state agency is empowered to

attach certain assets for a five year period and extend

the normal statute of limitations indefinitely only with

respect to book and movie generated income. The law

does not attempt to reach other assets of a criminal --

stocks, bonds, cash -- or to reach other income that a

criminal may later make as a result of exploiting the

skills he learned as a criminal (for example, the wages of

a burglar who becomes a locksmith or of a bank robber

who becomes an adviser to companies on security). It

reaches only income that a criminal makes as an author.

Again, such a differential burden is unconstitutional, un-

less it is narrowly tailored in the pursuit of a compelling

interest.

ll

D. The Law Is Speaker- And Content-Based

Any law that differentiates between one type of

speaker and another is presumptively unconstitutional.

In First National Bank v. Bellotti, 435 U.S. 765, 784-85

(1979), a law barring business corporations from making

contributions for speech on certain subjects (which this

Court interpreted as a direct restriction on speech itself)

was held invalid. This Court noted: “In the realm of

protected speech, the legislature is constitutionally dis-

qualified from dictating the subjects about which persons

may speak and the speakers who may address a public is-

sue" (emphasis added). See also FCC v. League of Wom-

en Voters, 468 U.S. 364, 384 (1984)(among "the purest

examples of a ‘law .. . abridging the freedom of speech,

or of the press’. . . [is a] regulation that denies one

group of persons the right to address a selected audience

on ‘controversial issues of public policy’. . . .").

Again, that is precisely what §632-a does. It singles

Out certain speakers for special disadvantages. It is only

when a criminal writes about the crime that the prohibi-

tions in §632-a come into operation. Any other person

may write the same book and keep the proceeds. Strict

scrutiny must be applied to such a differentiation.

In addition, the law is triggered only if the subject

matter of the book is the “reenactment” of the crime or

a description of the criminal author’s thoughts, opinions,

feelings or emotions about the crime. In other words,

the law is invoked only if certain subjects are discussed

or certain topics covered. Such a distinction runs afoul

of the most fundamental principles of the First Amend-

ment. See Consolidated Edison Co. v. Public Service

Comm'n, 447 U.S. 530, 537 (1980)(citation omitted): "As

a general matter, ‘the First Amendment means that the

government has no power to restrict expression because

of its message, its ideas, its subject matter or its con-

tent.” See also Carey v. Brown, 447 U.S. 455, 461-64

(1980)(differential treatment of residential picketing in-

12

valid under strict scrutiny since applicability of provision

"dependent solely on the nature of the message being

conveyed"); Perry Ed. Ass'n v. Perry Local Educators

Ass'n, 460 U.S. 37, 45 (1983)("[fJor the State to enforce a

content-based exclusion it must show that its regulation

is necessary to serve a compelling state interest and that

it is narrowly drawn to achieve that end"); Erznoznik v.

City of Jacksonville, 422 U.S. 205, 215 (1975)("even a

traffic regulation cannot discriminate on the basis of

content”).

The term “content” has a broad meaning under the

law. It means not only that the state cannot differentiate

in terms of the viewpoint being offered by the speaker,

but also that it cannot differentiate in terms of the sub-

ject matter being discussed, regardless of the speaker's

viewpoint. Thus, in both Carey and Police Department v.

Mosley, 408 U.S. 92 (1972), labor picketing was allowed

in front of certain buildings, but other demonstrations

were not. The defect in the law was the fact that the

only subject allowed to be aired at that place related to

labor disputes, regardless of the point of view presented.

That was sufficient to make the regulation a prohibited

content-based law. In FCC v. League of Women Voters,

468 U.S. 364, a federal law prohibited noncommercial

educational broadcasting stations receiving funds from

the Corporation for Public Broadcasting from engaging

in “editorializing.” This Court held that the law was an

invalid regulation based on the “content of the sup-

pressed speech,” since it prohibited a broad category ot

speech, regardless of the particular point of view ex-

pressed. See also Boos v. Barry, 485 U.S. 312 (1988).

Similarly, here, the only subject matter that triggers

application of the law is a discussion of the crime. If the

criminal author discusses his or her life in prison or be-

fore the crime, the law does not apply. This differential!

treatment of subject matter or category or content is pre-

cisely what this Court has condemned, absent a com-

13

pelling state reason, under the cases noted above.

Finally, the legislative background of the law indi-

cates that its purpose was precisely to keep criminals

from telling their story, ie., to suppress their expression,

a goal which is presumptively unconstitutional. What-

ever the validity of more general laws benefitting victims,

the First Amendment prohibits the state from imposing a

discriminatory financial burden on criminals for the very

purpose of prohibiting them or inhibiting them from

telling their stories.

When the state passes a law imposing financial bur-

dens solely on criminals who write about their crime, the

only conclusion that one can draw is that the state is

seeking to suppress that type of expression. It does not

want criminals writing about crime and seeks to discour-

age them from doing so by denying them any immediate

financial reward if they do so. Indeed, when the state

seeks to justify the law by saying that it is trying to keep

a criminal from "benefitting" from his crime, it is implic-

itly admitting that it has precisely that purpose in mind.

The inescapable conclusion from this type of differentia-

tion is that the state is indeed attempting to suppress a

certain type of expression (by imposing a particular bur-

den on that message but not on others) written by a par-

ticular speaker (the criminal author).

The First Amendment prohibits the state from im-

posing that type of burden or acting with that purpose in

mind. The state is simply disqualified from dictating the

subjects that its citizens may discuss or who may discuss

them. See First National Bank v. Bellotti, 435 U.S. 765.

14

Il. RESPONDENTS CANNOT MEET THE STRICT

SCRUTINY TEST IN THIS CASE

The "strict scrutiny” test requires that the state not

only argue but prove that its regulation "is necessary to

serve a compelling interest and is narrowly drawn to

achieve that end.” Arkansas Writers’ Project, 481 U.S. at

231. This Court noted in Meyer v. Grant, 486 U.S. at

1894: "[T]he State has failed to demonstrate that it is

necessary to burden appeilees’ ability to communicate

their message in order to meet its concerns” (emphasis

added). In no way can the state offer a “compelling” ~

reason for the law at issue here, nor can it show that the

means chosen were "narrowly tailored" to achieve that

end, nor can it “demonstrate” that "it is necessary” to

burden a criminal author’s ability to communicate in

order to satisfy its interests in this case.

The requirement of showing a narrowly tailored as

well as compelling reason applies both to the fact of reg-

ulation and the distinctions made by the law with respect

to the First Amendment activity. See Arkansas Writers’

Project, 481 U.S. at 231 (state must justify not taxation of

the press generally, but differential taxation of the

press). Thus, in this case, the state must show more

than that the Son-of-Sam law could be invoked to com-

pensate some victims of crime. It must show a com-

pelling reason why it was necessary to limit the attach-

ment and extension-of-limitations provisions in the law

only to First Amendment generated income and only

from the publishing of books reenacting the crime, and that

the method it chose was "narrowly tailored” to compen-

sate victims while not unnecessarily restricting First

Amendment activities.

In sum, the state has the burden, and it is a "heavy"

one, id., of justifying its asserted reasons for focusing

only on First Amendment generated income by pointing

to concrete legislative facts to support the differentiation.

Unlike the analysis employed under the rational relation-

15

ship test, the state cannot hypothesize some later justifi-

cation and try to persuade a court to accept its ad hoc

rationalization. See, e.g., Meyer v. Grant, 486 U.S. at 426,

"No evidence has been offered to support that specula-

tion [of the attorney general to support the law]" (em-

phasis added). Instead, the reasons offered are subject

to the most careful scrutiny to see if there are real facts

to support them, and if the reasons pass constitutional

muster.

Based on this standard, the state cannot justify the

present law. None of the reasons suggested by the

Board meet the stringent test noted above.

A. The Desire To Compensate Victims

The general desire to assist victims is not enough to

justify the law. If that were its only aim, the law is terri-

bly inadequate and underinclusive. According to a re-

cent report of the Board, the law has been invoked less

than ten times in the eleven years of its operation, an

average of less than one person helped per year. (The

Board has attempted to apply the law in another five or

six cases, including this case and the litigations described

above).

By contrast, the total number of victims of crime in

New York State is in the hundreds of thousands, if not

the millions. In 1987, there were 53,733 sentences im-

posed after a felony conviction in New York State Case-

load Activity Report, 1987, Office of Court Administra-

tion, and over the past ten years the rate has been stead-

ily increasing. Assuming that there were an equal num-

ber of victims of such crimes for each person sentenced

-- an assumption that in fact underestimates the number

of victims, since criminals often have multiple victims --

the assistance given crime victims generally by the Son-

of-Sam law is ludicrously inadequate, averaging one in

50,000. This imbalance between the universe of victims

in the state and the narrow focus and reach of the law is

16

another indication that its true aim was not to compen-

sate victims, but to suppress expressive activity by crimi-

nals.

B. The Desire To Compensate Victims From Assets

Subsequently Obtained From Criminals

Another argument often asserted is that criminals

are generally judgment proof and that it is a waste of

time and money to bring a regular tort action immedi-

ately after the crime and collect a judgment, which will

then be unenforceable. The state argues that victims

rarely have the funds to bring a fruitless action on their

own and need the assistance of the state to freeze the

criminal author’s assets. Subsequently acquired book

and movie moneys may be a ready source of funds which

the state can attach for the benefit of the victim.

To uphold the law on that basis, the scate must show

in fact that the current civil tort system for compensating

tort victims is inadequate, and that there is a real prob-

lem of criminals obtaining large sums of money for sell-

ing their stories subsequently while their victims go un-

compensated. Such facts must be presented to a legisla-

tive body and must at least be articulated to a court

later examining the law.

There is absolutely no evidence to show that any of

these hypotheses are true. Any victim of a tort may take

advantage of the normal civil procedures for obtaining

relief, ie., by bringing an action for wrongful death,

assault, negligence and the like and securing a judgment

against all the assets of the criminal tortfeasor, including

the earnings from a book.

Indeed, in a case discussed in one of the affidavits in

the record below, that is precisely what happened with

respect to the earnings from a book entitled /n the Belly

of the Beast, written by John Henry Abbott. After writ-

ing that book (which did not discuss any specific crime)

17

and being released from prison, Abbott killed New York

artist Richard Adan. Adan’s estate brought an action for

wrongful death and, prior to the civil trial, attached all

of Abbott’s royalties due with respect to that book under

the normal content-neutral attachment provisions of the

CPLR, which apply to all assets of a potential judgment-

debtor. Thereafter, upon securing a judgment, the estate

levied upon those proceeds.’ Thus, the normal attach-

ment-and-levy procedures of the CPLR were more than

adequate to the task of assisting crime victims to obtain

compensation, even against criminal authors.

In addition, the state must show that there is some-

thing unique about later acquired assets from books and

movies that are different from later acquired assets in

any other area, Ze., money later inherited by a criminal

or earned by a criminal as a locksmith, security expert,

or computer-data thief based on skills developed as a

criminal, or merely his regular wages earned in any

other way. Furthermore, the state must show that the

need for seizing such assets exists only when the criminal

author writes about the crime.

There is absolutely no proof that any one of these

hypotheses were true, either before the law was passed

or since then. If the theory is that later acquired money

by a criminal should be made available to victims by a

special attachment procedure aided by a state agency

even beyond the normal statute of limitations period,

then why not apply it to all later acquired assets of a

criminal? Surely the victim needs the funds just as much

regardless of how the criminal may earn them later.

What is unique about book and movie money in this

regard? And what is unique about book and movie

money dealing only with the crime that requires that only

those assets be attached?

” See Affidavit of Gerald Hollingsworth, ¢ 97-10, JA35S.

18

Once again, the only possible conclusion one can

reach is that the legislature did not want books pub-

lished that were written by criminals about their crimes.

It sought to discourage them from doing so by depriving

them of compensation, if they did write and publish a

book. Under the First Amendment, that is not an ac-

ceptable purpose for a law.

C. The Desire To Keep Criminals From Profiting From

Their Crimes

Another reason offered for the law is the argument

that criminals should not profit from their crime and a

book which depicts the crime is somehow the "fruit" of

that crime. While a legislator may vote for the law on

that basis, a court simply cannot accept that reason as a

justification for a law treading on First Amendment

rights without the high evidentiary showing required

under the First Amendment. There are at least four

reasons why the fruits of literary activities cannot be

considered the "fruits" of a crime.

1. Literary Royalties Do Not Flow Directly And

Proximately From The Commission Of The

Crime

It is true that New York State has ruled, as have all

common law jurisdictions, that "no one shall be per-

mitted to profit by his own fraud, or to take advantage

of his own wrong, or to found any claim upon his own

iniquity, or to acquire property by his own crime," Riggs

v. Palmer, 115 N.Y. 506, 511 (1889). Thus, an individual

who kills someone may not inherit from the estate of the

person slain, nor collect from an insurance policy in

which he may be named as a beneficiary. Jn re Loud’s

Estate, 334 N.Y.S.2d 969 (Surr.Ct. Kings Cty. 1972).

But in those situations the economic benefit flows

directly from the illegal act, with no intervening events

contributing to the gain. When a criminal steals a car or

19

robs a bank, the proceeds come to him directly from the

illegal act. When he kills a testator and inherits from

the will, nothing more needs to be done before the

money goes to him. In that sense the proceeds are a

direct product of the killing. But in no sense is a book

on crime the "fruit" or "proceeds" of that crime under

this analysis.

A book is the lawful fruit of the author’s literary

etforts, where a person sits down and engages in a crea-

tive activity -- writing -- which is condoned and even

praised by society in every other context and is specifi-

cally protected by the First Amendment. Since the pro-

ceeds flow from this later act and not from the criminal

activities that are described in the work, neither the

automatic forfeiture provisions of state or federal law

nor the common law rule applies.

2. The Writing Of The Book Is An Intervening

Act That Breaks The Chain Of Causation

From The Criminal Act That Is Its Subject

Matter

Viewed from another perspective, the law in ques-

tion seeks to obtain the proceeds from the lawful writing

by the criminal, not from the criminal acts of the perpe-

trator. If a criminal commits an offense, the victim may

press charges and sue him and, as explained above, the

normal tort procedures are available. But only when he

or she writes a book, and not for any other activity, are

the extraordinary procedures now under question in-

voked.

Thus, the law operates only upon the writing phase

of the criminal author’s activity. But it is impossible to

consider the lawful act of writing as an activity that can

trigger the invocation of the criminal justice mechanism

of a state. It is simply not an activity that can be con-

demned on its own or sanctioned through fine, attach-

ment or forfeiture. Of course, to the extent that such a

20

lawful activity generates income, the proceeds of that

activity can be reached in the same evenhanded way that

other noncriminal assets of the criminal may be ob-

tained. However, it cannot be considered any phase of

the criminal activity of the writer."

3. The Reasoning Behind The Law Sweeps Too

Broadly

To say that the fame created by a criminal act is the

fruit of that act and therefore any economic benefit that

flows from that fame is the fruit of the crime is to

stretch the meaning of the term beyond any recognition.

Each of our last five Presidents (Johnson, Nixon, Carter,

Ford and Reagan) became famous because of their gov-

ernmental service. Each wrote a book about their term

of office, for which they were paid millions of dollars. Is

the fame that they acquired as President the “fruit” of

their service as President? If so, they cannot collect any

royalties on their books since the Constitution prohibits

a President from receiving any "emolument” from his ser-

vice other than his salary. U.S. Constitution, Art. II,

Sect. I. Cl. 5. Lee Iaccoca became famous because of

his service as President of Chrysler, and wrote a best

seller which earned millions of dollars. Does the com-

pany, or its shareholders, have a claim to his royalties

since his fame was the "fruit" of his labors at Chrysler?

If a judge wishes to write a book about his service, the

State that he worked for does not own the copyright in

the book, nor can it make any claim to his royalties even

though the judge was placed in that position by the state

and may have become famous and expert because the

state so employed him.

We have always considered the reasons why a per-

* To the contrary, writing can and should be regarded as “an inter-

vening cause that broke the causal link” between the crime and the

monies earned from book royalties. Ross v. Oklahoma, 487 US. 81.

96 (1988).

21

son became famous to be distinct from any activities he

engages in to earn money once he achieved that status.

Many persons became famous and develop expertise in

an area in which they are employed (government service,

entertainment, business, academia) and then write about

those experiences. But we have never required such per-

sons to surrender the proceeds of their books to the

employer who put him in that position on the ground

that the royalties are the "fruit" of the fame which his

employment brought about. That is simply not the law.

The writing of his book is considered an act independent

of his service, employment and fame. A criminal has to

pay for his crime through the punishment imposed, but

the fact that he or she becomes famous as a result of the

crime and that economic benefits result from that fame

has never triggered any forfeiture theory -- until the Son-

of-Sam law was passed.

4. The Law Reaches Books And Writings Not

Within Its Aim

The alleged purpose of the law was to reach funds

from "famous" criminals who, it was expected, could

profit from their notoriety. As the sponsor said, a crim-

inal may "gain substantial financial benefits related to

resulting publicity" from his famous crimes. The law was

designed, therefore, to prevent criminals from exploiting

their criminal activity through profits gained by selling

their crime stories. But the law in question does not

reach merely "famous" crimes or exploitative criminals.

It reaches all crimes that a person writes about, regard-

less of whether they made him famous or not.

Thus, if Herman Melville or Jack London committed

some minor crimes in their youth and then made them

the subject of books written twenty years later, the pro-

ceeds of those books are treated exactly the same as a

"Son-of-Sam" exploitative work. If Malcolm X writes

about his burglary of twenty years before, which gener-

ated no publicity of any kind when the events occurred,

22

he also is subject to the law. The law assumes that

every book that discusses a crime must be the kind of

exploitative work that the sponsors feared, even though

there are literally thousands of books by criminals that

add to our understanding of society and do not fall in

that category.” Such a total divergence between the in-

tent of the sponsors and the reach of the law reinforces

the sense that the statute is, at once, too broad and too

narrow.

D. The Need To Keep A Criminal From Profiting From

The Exploitation Of His Or Her Crime While The

Victims Of The Crime Are In Need of Compensation

Finally, the Second Circuit found another "com-

pelling reason" to sustain the law beyond those offered

by the state itself. The court held:

Our society rightly deems it fundamentally

unfair for a criminal to be paid for recount-

ing the story of his or her crime while the

victim remains uncompensated for financial

loss occasioned by the crime.

916 F.2d at 782. The Second Circuit went on to note

that the sort of law enacted by New York prevents a

criminal’s unjust enrichment, satisfies a victim’s sense of

justice and desire for retribution and increases the crim-

inal’s awareness of the crime.

[T]he statute recognizes that the only way a

criminal can profit directly from a specific

crime involving a particular victim, other

* There exists a fifty-three page bibliography of hundreds of writings

by “criminals” and a discussion of their importance. See Franklin,

American Prisoners and Ex-Prisoners: Their Writings (1982). Many if

not most of the books would have been subject to the Son-of-Sam law

if it had been in existence at the time.

23

than by obtaining any proceeds of the crime

itself, is by writing or talking about -or re-

enacting it. The statute also recognizes that,

aS a practical matter, the sole asset of most

criminals is the right to tell the story of their

crimes.

Id. at 783.

There are a number of observations that must be

made about the Second Circuit’s creative effort to save

the law in question.

First, the court simply combined the three interests

that were separately identified to justify the law into a

single compound purpose. Thus, as discussed immedi-

ately above, the state previously identified three interests

served by the law: (1) the need to compensate victims

generally, (2) the need to compensate victims from after

acquired assets of a criminal, and (3) the need to keep a

criminal from profiting from the crime. The new com-

bined or compound interest becomes the need-to-keep-

criminals-from-profiting-from-exploitation-of-their-crimes-

through-after-acquired-profits-from-their-books-while-the-

victims-are-not-yet-compensated. But the fallacies that

doomed each of the separate interests also doom the

combined interest as well. The premise of the new com-

pound interest is still that the criminal is profiting from

the crime when he or she writes a book. If a book is

not the fruit of the crime, then the entire premise of this

new interest falls. For the reasons stated above, amici

do not believe that a book is the fruit of the crime that

made the author famous.

Second, as a matter of constitutional law, the crea-

tion of the "compound" interest referred to makes a

mockery of the compelling state interest test. What the

Second Circuit did below is to focus only on what the

law covers and to see whether it could justify that pur-

pose as compelling. Does the state have an interest in

24

having criminal authors pay to their victims, after-ac-

quired royalties that discuss the crime? If that were the

only focus, the answer might be "yes." But the minute

the focus is broadened -- to ask what is not covered by

the law -- then the defects of the law become apparent.

If the question becomes: “Does the state have an inter-

est in having criminal authors pay to their victims after-

acquired royalties that discuss the crime while permitting

the criminal to write on any other subject without penalty,

then the content-based nature of the law is obvious.

Similarly, if the question is phrased: “Does the state

have an interest in having criminal authors pay to their

victims after-acquired royalties that discuss the crime

while not trying to reach any other after-acquired asset of

the criminal," then the First Amendment violation be-

comes clear.

If the Second Circuit’s approach were correct, then

the rule requiring that a compelling state interest must

be shown before a content based distinction can be up-

held disappears entirely. For example, this Court in

Arkansas Writers’ Project examined a state law which

placed a tax on general circulation publications but ex-

empted religious, professional, trade and sports maga-

zines. If the question were only: "Should general circu-

lation magazines pay a sales tax," the answer is obvious-

ly, "yes." But if the question becomes: "Should general

circulation magazines pay a sales tax while sports and

religious magazines do not pay such a tax," then the

answer is di*ferent.

Similarly, in Boos v. Barry, 485 U.S. 312, this Court

examined a federal law that prohibited picketing within

500 feet of an embassy when the demonstration criticized

the foreign government involved, but allowed such

demonstrations if the picketing was favorable. Once

again, if the focus were only on banning all demonstra-

tions in front of an embassy, a case could be made that

international relations required such a restriction. But if

25

one compares the types of demonstrations that are al-

lowed and those that are prohibited, the content-based

distinction becomes apparent and the law was properly

invalidated.

The point of these cases is that the compelling state

interest test cannot be so easily evaded. The approach

of the Second Circuit undercuts any attempt to deal with

content-based laws. By focusing only on the justification

for the restraint on the person who is covered by the

law, and paying no attention to the speech that is al-

lowed or the other persons left free to speak, all

content-based prohibitions disappear. Only by such a

radical attack on basic First Amendment principles can

the Son-of-Sam Law be upheld.

Finally, the factual assertions on which the Second

Circuit rested its new "compelling state interest" analysis

are demonstrably untrue. Thus, the court asserted that

"§632-a deals with readily identifiable, locatable funds

that are commonly available to those who victimize

others," 916 F.2d at 784 (emphasis added). But, as amici

pointed out above, there are at least 50,000 crime vic-

tims a year from felonies alone in New York State, yet

the Son-of-Sam Law has been invoked less than ten

times in the twelve years it has been in existence. More-

over, the Crime Victims Board has attached, or sought

to attach, assets from only about seven or eight criminal

authors. To talk about such funds as’"commonly availa-

ble to those who victimize others" is absurd.

Ultimately, the Second Circuit’s conclusion depends

upon the premise that there are thousands of criminals

who commit crimes only so that they can write a book

about how they felt while they were committing their

crimes. Such a surmise is simply untenable. It assumes

that there are greedy publishers whose chief goal is to

make money from a criminal gloating over his deeds and

that the ghoulish public will readily buy such material.

The experience in New York State both before and after

26

the law was passed shows that no such program exists.

Since, under the strict scrutiny test, it is the state’s bur-

den to demonstrate by real evidence and not by specula-

tion and conjecture that criminals "commonly" have and

exploit this asset, its failure to present any evidence to

support any part of this hypothesis is fatal to its defense

of the law.

If New York were genuinely interested in compen-

sating crime victims, it could to so in a variety of ways

that would undoubtedly survive constitutional review.

Instead, New York has enacted a statute that focuses

exclusively on expressive activity without providing the

overwhelming majority of crime victims with any mean-

ingful chance for restitution. That imbalance dooms this

statute under the First Amendment. It does not and

should not doom future efforts to compensate crime

victims in New York or elsewhere.

27

CONCLUSION

For the foregoing reasons, the decision below must

be reversed and New York Executive Law §632-a must

be declared unconstitutional.

Respectfully submitted,

Leon Friedman

(Counsel of Record)

148 East 78 Street

New York, New York 10021

(212) 737-0400

Steven R. Shapiro

John A. Powell

American Civil Liberties Union

Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

Arthur N. Eisenberg

New York Civil Liberties Union

Foundation

132 West 43 Street

New York, New York 10036

(212) 382-0557

Dated: April 19, 1991

28