# Amicus Curiae Brief — Simon & Schuster, Inc. v. Members of NY State Crime Victims Bd. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0068%3A14 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1991 - **Citation:** 502 U.S. 105 ## Text 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0068%3A14. Public record. Not legal advice.