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

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............... iii

INTEREST OF THE AMICI CURIAE .......... 2

STATEMENT OF THE CASE .............. 2

a oe sca vaececéesceuc 9

I. The New York Statute Does Not Impose Any

Direct Burden on the First Amendment Right

SPE wc cc cece cecccccccucess 9

A. Section 632-a Does Not Affect the

Freedom of a Willing Speaker To Engage

in Expressive Conduct ............. 10

B. Section 632-a Neither Singles Out the

Press Nor Sanctions a Content-Based

Regulation of Speech .............., 14

Il. Because Section 632-a Is a Regulation of Non-

expressive Conduct, It Is Properly Subject to a

Rational Basis Analysis ............... 18

Ill. Any Effect of Section 632-a on Free Speech Is

at Most Incidental, and Thus the Statute Should

Be Subject to No Higher Standard of Scrutiny

Than the O’Brien Standard ............. 20

A. The Manner of Payment Under the Con-

tract Is Not Protected by the First

MEE NAb un scéeesaeetercex 20

B. Section 632-a Presents at Most an

Incidental Burden on the Exercise of Free

Pe EE oh 655.06 eet eececees

A. The State’s Interest is Important and

PT Sob sn oberces bneeneeseen

B. The State’s Interest Is Unrelated to

the Suppression of Expression ........

C. &The Incidental Restriction on Alleged

First Amendment Freedoms, If Any, Is

No Greater Than Is Essential to the

V. Even If This Court Applies Strict Scrutiny,

Section 632-a Is Constitutional ...........

TL 6 66% 6 & e oes 66 4 Oka 43 05% 82

APPENDIX - INTERESTS OF AMICI

TABLE OF AUTHORITIES

Cases

Arcara v. Cloud Books, Inc., 478 US.

A 12

Arkansas Writers’ Project, Inc. v. Ragland,

481 U.S. 221 (1987) .......... 7, 14, 15, 16

Barrett v. Wojtowicz, 66 A.D.2d 604,

414 N.Y.S.2d 350 (1979) ............... 4

Boos v. Barry, 485 U.S. 312 (1987) .......... 16

Branzburg v. Hayes, 408 U.S. 665 (1972) .... 13, 23

Buckley v. Valeo, 424 U.S. 1 (1976) ........ 12, 27

Business Guides v. Chromatic Communications

Enterprises, Inc., __ U.S. __, 111 S. Ct.

Nit ass 6 6 bos coe ebeeee 17

Caplin & Drysdale, Chartered v. United States,

491 US. 617 (1989) ............... 18, 21

Carey v. Brown, 447 U.S. 455 i a cae ue os 17

City of Renton v. Playtime Theatres, Inc.,

oe Ws ED vc cc cece cccccce 25, 26

Clark v. Community for Creative Non-Violence.

468 U.S. 288 (1984) ................. 12

Consolidated Edison Co. v. Public Service

Commission of New York, 447 U.S. 530

RE ee 17

Erznoznik v. City of Jacksonville,

422 US. 205 (1975) _................. 17

FCC v. League of Women Voters,

468 US. 364 (1984) ................. 16

First National Bank of Boston vy. Bellotti,

435 US. 765 (1978) ................. 27

Goldfarb v. Virginia State Bar,

421 U.S. 773 (1975) ................. 17

iv

In the Matter of the Children of Bedford, Inc.

v. Petromelis, __. N.Y.2d ___, slip

opinion (New York Court of Appeals,

ES passim

In the Matter of Bernhard Hugo Goetz, slip

opinion (New York State Crime Victims Board,

eee 26

In re Halmi, 12 Media L. Rptr. 2388 (Sup. Ct.

N.Y. County), aff'd, 512 N.Y.S.2d 650

PPT Sr ree Tre eee 26

Meyer v. Grant, 486 U.S. 414 (1988) ....... 7, 11

Minneapolis Star & Tribune Co. v. Minnesota

Commissioner of Revenue, 460 U.S. 575

REESE ES Oa eae 7, 14, 15

Palmer v. BRG of Georgia, Inc., _. US. ___,

<o ek de bbe 6 oo 0 6 17

Police Department of City of Chicago v. Mosley,

oe eae 7,17

Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188

Ee a ee 18

SEC v. Texas Gulf Sulphur Co., 401 F.2d 833

(2d Cir. 1968) (en banc), cert. denied,

EE 17

Simon & Schuster, Inc. v. Fischetti,

916 F.2d 777 (2d Cir. 1990) ......... passim

Simon & Schuster, Inc. v. New York State

Crime Victims Board, 724 F. Supp.

8 6, 16, 24

Texas v. Johnson, 491 U.S. 397 (1990) ... 16, 18, 25

United States v. Carolene Products Co.,

304 U.S. 144 (1938) .......... iatelnn tae 11

United States v. O'’ Brien, 391 US.

Te ee tk on ow 6 passim

Virginia State Board of Pharmacy v. Virginia

Citizens Consumer Council, Inc., 425

% Seas 10, 22

v

Williamson v. Lee Optical Co., 348 US.

Re 18

Zacchini v. Scripps-Howard Broadcasting Co.,

433 US. S62 (1977)... ww 21

Statutes

Calif. Civ. Proc. Code § 706.154(a)

ED a Ras kk gs cu ccna 15

N.Y. Civ. Prac. L. & R. § 5231(f)

(McKinney Supp. 1991) ............... 15

N.Y. Exec. Law § 632-a (McKinney

EE eee passim

Boom Ow OOO, 6 SEF ww wk ce. 4

BSGE LY. Lows,¢. 445 ................... 4

S. Dak. Codified Laws Ann. § 21-18-12

8 Fe 15

WS WRK. § OUR ccc 5

Okuda, Cr’minal Antiprofit Laws: Some Thoughts in

Favor of Their Constitutionality, 76 Calif.

L. Rev. 1353 (1988) .................. 5

N.Y. Times, September 2, 1987, at B3,

DS Wis nik Hod 4 oes b bine bw 6% 6 wo 6K ake 4

Washington Post, August 18, 1987, at AS.

8 are ee eee 21

Assembly Bill Memorandum Re: A 9019. July 15,

1977, reprinted in, Legislative Bill Jacket,

1977 N.Y Laws 823

IN THE

SUPREME COURT OF THE UNITED STATES

Octoser Term, 1990

No. 90-1059

SIMON & SCHUSTER, INC.,

Petitioner,

Vv.

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 OF AMICI CURIAE THE WASHINGTON

LEGAL FOUNDATION, THE ALLIED EDUCATIONAL

FOUNDATION, CITIZENS FOR LAW AND ORDER,

THE MARYLAND COALITION AGAINST CRIME,

THE NATIONAL VICTIM CENTER, PARENTS OF MURDERED

CHILDREN, THE STEPHANIE ROPER FOUNDATION, AND

45 MEMBERS OF THE NEW YORK STATE LEGISLATURE.

IN SUPPORT OF RESPONDENTS

(THE NAMES OF THE STATE LEGISLATORS ARE

LISTED ON THE INSIDE OF THE FRONT COVER]

2

INTERESTS OF AMICI CURIAE

The amici are individuals and organizations concerned

with promoting victims’ rights in the criminal justice

system. A further description of the amici is set forth in

the Appendix to this brief.

STATEMENT OF THE CASE

In 1977, the State of New York enacted Executive

Law § 632-a, which authorized the New York State Crime

Victims Board to establish escrow accounts into which

those who contract with accused or convicted criminals

regarding the reenactment of their crimes are required to

pay all moneys owed on account of such contract.' The

moneys deposited are to be paid to victims or legal

representatives who obtain a money judgment for damages

against the criminal (or legal representative) within five

years of the date of the establishment of the escrow

account. N.Y. Exec. Law § 632-a(1) (McKinney 1982).

Funds may be drawn from the account (to a maximum of

20 percent) for the benefit of the person accused or

convicted of a crime to help defray the expenses of legal

representation or production of the book. /d. § 632-a(8).

If unclaimed funds remain five years after the account is

first established, payment of the remainder shall be made

to the criminal or legal representative. Jd. § 632-a(4).

' Section 632-a affects every person or entity who contracts with

a criminal with respect to the reenactment of the criminal’s crimes.

The medium of the reenactment may be a "movie, book, magazine

article, tape recording, phonograph record, radio or television pre-

sentation, [or] live entertainment of any kind." It does not single out

the press for special treatment, adverse or otherwise.

3

The legislative intent behind the law was succinctly

stated by the law’s chief sponsor, State Senator Emmanuel

R. Gold:

It is abhorrent to one’s sense of justice and

decency that an individual, such as the forty-four

caliber killer, can expect to receive large sums of

money for his story once he is captured -- while

five people are dead and other people were in-

jured as a result of his conduct. This bill would

make it clear that in all criminal situations, the

victim must be more important than the criminal.

1977 New York State Legislative Annual 267 (memoran-

dum of Sen. Gold) (emphasis added). Further evidence of

the legislative purpose may be found in the Assembly’s

memorandum:

Currently a person may cowamit a crime Causing

much damage and personal injury, and then gain

substantial financial benefits related to the

resulting publicity. This bill will ensure that

monies received by the criminal under such

circumstances shall first be made available to

recompense the victims of that crime for their

suffering. The requirement of a civil action will

prevent the abuse of this privilege.

Assembly Bill Memorandum Re: A 9019, July 15, 1977,

reprinted in Legislative Bill Jacket, 1977 N.Y. Laws 823

(emphasis added).

eT

4

The bill passed both houses of the state legislature

and was signed into law by the Governor as Section

632-a of the Executive Law.’

There is nothing whatsoever in the legislative record

that reveals or even suggests a calculated attempt on the

part of the State of New York to limit the circulation of

information, punish the press, or target expressive activity

for special adverse treatment. The focus throughout was

on the laudatory goal of preventing unjust criminal enrich-

ment and assisting crime victims.

In the fourteen years since its enactment, Section

632-a has effectively prevented unjust enrichment and

aided crime victims in the manner envisioned by the New

York legislature. For example, the law successfully

applied to bank robber John Wojtowicz, the role model

for Al Pacino in the film "Dog Day Afternoon," so that

Wojtowicz’s film royalties, amounting to over $80,000,

were distributed to three of his crime victims. Barrett v.

Wojtowicz, 66 A.D.2d 604, 414 N.Y.S.2d 350 (1979).

Similarly, in 1987, a New York Supreme Court Justice

ruled that Section 632-a allowed eight people victimized

by the law’s eponym, "Son of Sam" killer David

Berkowitz, to receive shares of the more than $118,000

due to Berkowitz for book and movie deals. N.Y. Times,

Sept. 2, 1987, at B3, col. 4.

? Petitioner makes much of the fact that it took little time for

Section 632-a to be enacted into law (Petitioner's Brief at 5), as if

the State legislature should be condemned for being “unduly” respon-

sive to the law-abiding citizenry it was elected to serve. Because it

took little time for Section 632-a to become law, Petitioner implies

that the law was poorly written. Whatever force this non sequitur

may have had in 1977 has long since dissipated because the legisla-

ture has continued to monitor the problem and has enacted subsequent

substantive amendments to Section 632-a. (1978 N.Y. Laws, C. 417,

§ 1; 1981 N.Y. Laws, s. 445, §§ 2, 3).

At least forty states’ and the United States Congress‘

have adopted laws similar to Section 632-a, which was

the first of its kind in the nation. As was the case in

— York, the motivating event behind many of these

aws was a sensational crime within the jurisdiction

whereby the criminal stood to profit from the experience.

See Okuda, Criminal Antiprofit Laws: Some Thoughts in

Favor of Their Constitutionality, 76 Calif. L. R

1355 (1988). . Rev. 1353,

In this case, Henry Hill was a career criminal,

formerly employed in New York by the Lucchese Mafia

family. When he came to the attention of Petitioner

Simon & Schuster, Hill was cooperating with state and

federal prosecutors under the Federal Witness Protection

Program. He agreed to collaborate with author Nicholas

Pileggi on a book describing his activities as a low-level

member of a criminal enterprise. The book, entitled

Wiseguy, described in detail his Participation in bribery,

assault, extortion, theft, burglary, arson, drug dealing

credit card fraud, and murder. Simon & Schuster, Inc. y.

Fischetti, 916 F.2d 777, 779 (2d Cir. 1990). As the

Second Circuit opinion concluded: "Needless to say,

there were many, many victims of the crimes committed

by Henry Hill, and a great number of those victi

identified in Wiseguy." Id. _

On January 31, 1986, the Crime Victims Board

advised Petitioner that the publication of Wiseguy fell

within Section 632-a’s coverage. Specifically, the Board

* See In the Matter of Children of Bedford, Inc. v. Petromelis,

N.Y.2d ___ (New York Court of Appeals ; _s

at 16 n.3. » May 7, 1991), slip opinion,

* 18 U.S.C. § 3681 (1988),

6

concluded that Wiseguy was subject to Section 632-a

because it contained statements regarding Hill’s admitted

involvement in many violent and brutal crimes against the

citizens of the State of New York. Therefore, the Board

ordered Petitioner to pay all money it had paid or would

be paying to Hill for his work on the book to an escrow

account for the potential claims of his victims.

Petitioner brought this action challenging Section

632-a on First Amendment grounds and contending that

Section 632-a directly burdened the exercise of First

Amendment rights. The District Court rejected this

contention and held that the law involved only incidental

burdens on First Amendment freedoms and was justified

by the state’s interest in compensating victims. Simon &

Schuster v. New York State Crime Victims Board, 724 F.

Supp. 170, 178-79 (S.D.N.Y. 1989). On appeal, the

Second Circuit affirmed, holding that although in its

opinion the law imposed a direct burden on speech, the

State interest in preventing criminals from profiting from

their crimes while the victims of the crime remain

uncompensated for their financial losses occasioned by the

crime was a compelling interest. Fischetti, 916 F.2d at

782.

This Court granted the petition for certiorari on

February 19, 1991. ___ —U.S. ____, 111 S. Ct. 950 (1991).

SUMMARY OF ARGUMENT

Section 632-a is a regulation of nonexpressive con-

duct. It does not prohibit or otherwise regulate expres-

sion. It regulates the disposition of money that a pub-

lisher has agreed to pay as a result of a contract between

the publisher and the criminal for publication of the

criminal’s account of his crimes.

a,

7

The law does not affect the freedom of a willing

speaker to engage in expressive conduct. If a criminal is

less willing to speak because the prospect of payment has

been tempered by the application of Section 632-a, it is

on account of a regulation of conduct, not speech. Its

effect, therefore, would be on the amount of money need-

ed for a publisher to persuade the criminal to speak. As

such, it affects conduct not speech. This Court’s decision

in Meyer v. Grant, 486 U.S. 414 (1988), is not a bar to

any financial disincentive because Meyer's holding relates

to restrictions on the political process itself, which have

traditionally triggered a higher level of scrutiny.

The law does not single out the press for adverse

treatment of the type condemned by this Court in Minne-

apolis Star & Tribune Co. v. Minnesota Commissioner of

Revenue, 460 U.S. 575 (1983), and Arkansas Writers’

Project, Inc. v. Ragland, 481 U.S. 221 (1987). The

financial burden, if any, is laid on the criminal, not the

media. The publisher’s only financial obligation is

triggered by failure to comply with the law’s garnishment

provisions, not from the exercise of First Amendment

freedoms. The law is not a content-based regulation of

speech or expressive conduct and therefore does not come

under the doctrine of Police Dept. of City of C hicago vy.

Mosley, 408 U.S. 92, 96 (1972). There are many in-

stances where the law regulates nonexpressive conduct on

the basis of what a person says.

Because Section 632-a is a regulation of nonexpres-

sive conduct, it is Properly subject to a rational basis

analysis. The activity regulated -- the disposition of

proceeds of the contract between a criminal and a pub-

lisher -- is nonexpressive conduct. There is no speech

element involved in the regulation. If this Court decides,

however, that there is a speech element which cannot be

separated from the nonexpressive conduct regulated by the

8

law, then this Court should apply the standard set forth in

United States v. O’ Brien, 391 U.S. 367, 377 (1968). The

manner of payment under the contract is not protected

activity. At most, the regulation of the payment is only

an incidental burden on free speech. The effect, if any,

would be to increase the amount of compensation offered

by the publisher in order to persuade the criminal to

speak.

Section 632-a meets the O’Brien standards. The

State’s interest in assuring that a criminal does not profit

from his crime while the victims of the crime are in need

of compensation is important and substantial, if not com-

pelling. This interest is unrelated to the suppression of

expression. The Second Circuit erred in this case when

it held O’Brien inapplicable because it believed the law

had a relation to expression. The incidental restriction on

speech, if any, is no greater than is essential to the

furtherance of the state’s interest.

Even if this Court applies the strict scrutiny standard,

Section 632-a is constitutional. The state’s interest is

compelling, and both the Second Circuit and the New

York Court of Appeals have found that the means used

are narrowly tailored to achieve this end without unneces-

sarily abridging freedom of speech. The criminal is free

to speak; the publisher is free to publish and distribute the

book. The payments to the criminal are in effect gar-

nished until the victims are fully compensated. Earnings

from writings about prison life in general or from

subsequent employment as an “expert” are not attached.

The reach of Section 632-a is limited to the new assets

arising from criminal activity which has left victims

uncompensated for their losses. As such, it is narrowly

tailored to achieve New York’s compelling interest in

preventing the unjust enrichment of a criminal until the

valid claims of the victims have been redressed.

9

ARGUMENT

I. The New York Statute Does Not Impose Any

Direct Burden on the First Amendment Right of

Free Speech.

The proper starting point for analyzing whether Sec-

tion 632-a contravenes the First Amendment is to deter-

mine whether it abridges the exercise of free speech.

Petitioner is unable to point to anything in the statute that

directly prohibits either a criminal from telling the story

of his crimes to a book publisher, or a book publisher

from subsequently publishing an account of the story.

Section 632-a operates to reduce the profit-making motive

of criminals with respect to media reenactments of crimes.

It does this by regulating conduct.

Section 632-a prevents the criminals from profiting

from the reenactment of the crime while victims remain

uncompensated as a result of the wrongdoing. Section

632-a does not prohibit expression; it merely removes the

criminal’s expectation of immediate and direct compensa-

tion for the reenactment of the crime through the media.

The issue in this case is therefore not whether the

State of New York can enact a law forbidding publishers

from publishing books written by convicted criminals.

Nor is it whether New York has the power to restrict or

censor speech it deems offensive. Rather, the issue is

whether New York may control the disposition of money

that a publisher has pledged to a criminal as the result of

a contract between the publisher and the criminal for the

publication of the criminal’s account of his crimes. As

such, nothing in Section 632-a infringes upon the exercise

of freedoms protected by the First Amendment.

10

A. Section 632-a Does Not Affect the Freedom of

a Willing Speaker To Engage in Expressive

Conduct.

In this case, it is undisputed that Petitioner's book

was actually written, published, and sold. Nevertheless,

Petitioner contends that Section 632-a constitutes a direct

burden upon the exercise of First Amendment rights.

Specifically, it contends that the law has “led to decisions

not to write and not to publish certain works, and to self-

censor discussion of events which books otherwise would

have included, to avoid triggering the law." Petitioner’s

Brief at 19. The “evidence” to support this claim, besides

being speculative and self-serving, rests on an erroneous

premise.

The argument that Section 632-a violates the First

Amendment because it might deter the criminal from tell-

ing the story of his crimes assumes that a right to be

compensated is protected by the First Amendment. Peti-

tioner goes so far as to suggest that "the incentive of

economic gain is the engine that drives free expression.”

Petitioner’s Brief at 20. In other words, Section 632-a is

said to make it more difficult for Petitioner to persuade

criminals to speak about their crimes. But "[flreedom of

speech presupposes a willing speaker.” Virginia State

Board of Pharmacy v. Virginia Citizens Consumer Council,

Inc., 425 U.S. 748, 756 (1976). If a criminal is less

willi to speak because the prospect of payment has

sue Shute’ by the application of Section 632-a, it is

on account of a regulation of conduct, not speech. The

fact that the law requires payments from the publishers to

be applied first towards victim compensation does nothing

in and of itself to preclude the exercise of speech. The

effect, if any, would be to increase the amount of com-

pensation offered by the publisher in order to persuade

the criminal to speak.

1]

Petitioner cites Meyer, 486 U.S. 414, as supporting

the proposition that "payments necessary to make and

disseminate speech can no more be restricted than the

speech itself." Petitioner's Brief at 13. Petitioner’s

contention is not supported by a careful reading of this

case. Meyer invalidated a Colorado statute which made

it a felony to compensate circulators of initiative petitions.

The Court observed that "the circulation of a petition

involves the type of interactive communication conceming

political change that is appropriately described as ‘core

political speech."" Meyer, 486 U.S. at 421-22. This is

consistent with the heightened scrutiny reserved for review

of “legislation which restricts those political processes

which can ordinarily be expected to bring about repeal of

undesirable legislation." United States y. Carolene

Products Co., 304 US. 144, 152 n4 (1938).

In contrast, Section 632-a does not restrict the

political processes, either directly or indirectly. An

attempt to control the proceeds of a contract between a

criminal and a publisher does not in any way touch upon

the political processes. Moreover, unlike the law inval-

idated in Meyer, Section 632-a does not prohibit the

conduct, it simply regulates it. Thus, while Colorado

banned the use of paid circulators, the criminal remains

free to contract with a publisher and to tell his story.

The political context of Meyer is very important.

The Meyer Court, like the Colorado Supreme Court,

viewed the restrictions as “reducing the total quantum of

speech on a public issue.” /d., 486 U.S. at 423. In the

political context, this is a sound approach. Carolene

Products, 304 U.S. at 152 n. 4. Petitioners, however,

attempt to state this language as a general Proposition,

applicable to all speech. Petitioner’s Brief at 17. As a

general principle, invalidation of any regulation which

12

restricts the quantity of speech would be overly broad. It

or incidental burdens (O’Brien, 391 U.S. at 376-77) and

would undermine the time, place, and manner restrictions

long recognized by this Court. Clark v. Community for

Creative Non-Violence, 468 U.S. 288, 293 (1984). See

also Arcara v. Cloud Books, Inc., 478 U.S. 697, 705-06

(1986) (the argument that requiring the respondents to

move their bookselling business to another location would

have impermissibly burdened their First Amendment free-

doms “proves too much, since every civil and criminal

remedy imposes some conceivable burden on First

Amendment protected activities”).

Similarly, Petitioner’s reliance upon Buckley v. Valeo,

424 U.S. 1 (1976), is misplaced. As with Meyer, the

meaning of Buckley should not be separated from its

political context. The iimitation on campaign expendi-

tures was held to be a direct limitation on the quantity of

political communication of a candidate or campaign. /d.

at 18. This is a direct restriction on the political process

itself. The Court analogized the restriction to “being free

to drive an automobile as far and as often as one desires

on a single tank of gasoline." Jd. at 19 n.18. While this

is an apt observation on the impact of expenditure limita-

tions on political communications, the analogy does not fit

the instant case, as Petitioner contends. Petitioner’s Brief

at 21. There are no monetary limitations on how much

the publisher may pay the criminal for his story. The re-

quirements of Section 632-a deal with the manner of the

payment to the criminal, not the extent of any payment.

As such, Section 632-a is more closely analogous to the

time, place, and manner restrictions distinguished by the

Buckley Court. Buckley, 424 U.S. at 18.

Petitioner argues that removing the financial incentive

for the criminal will necessarily impede the production of

13

speech. Petitioner’s Brief at 18-21. A similar argument

was rejected by this Court in Branzburg v. Hayes, 408

U.S. 665 (1972). In Branzburg, the newspaper reporters

argued that the First Amendment protected the confiden-

fication. Id. at 695. Nevertheless, such an impact on the

news gathering capabilities of the media was not sufficient

. In responding to the argument that refusal to recog-

nize a reporter's privilege under the First Amendment

would undermine the freedom of the press, the Branzburg

Court replied that the lessons of history taught otherwise.

Id. at 698. This Court concluded, "The existing constitu-

tional rules have not been a serious obstacle to either the

development or retention of confidential news sources by

the press." /d. at 69. In other words, experience and

common sense can sometimes serve as a better guide to

the future than reliance on self-serving affidavits. The

experience under Section 632-a is similarly instructive.

For nearly ten years after enactment of Section 632-a, no

book publisher mounted any broad-based legal challenge

B. Section 632-a Neither Singles Out the Press

Nor Sanctions a Content-Based Regulation of

Speech.

By its terms, Section 632-a is applicable to “[e]very

person, firm, corporation, partnership, association or other

legal entity contracting with any person . . . accused or

convicted of a crime in this state, with respect to the

reenactment of such crime, by way of a movie, book,

magazine, article, tape recording, phonograph record, radio

or television presentation, live entertainment of any kind.

_. +" N.Y. Exec. Law § 632-a(1) (McKinney 1982).

Petitioner argues that the law has thereby singled out the

press for adverse treatment, relying principally upon

Minneapolis Star, 460 U.S. 575, and Arkansas Writers’

Project, 481 U.S. 221. Petitioner’s Brief at 21.

Minneapolis Star and Arkansas Writers’ Project stand

for the proposition that a discriminatory tax imposed on

the press places such a burden on the interests protected

by the First Amendment that the state must demonstrate

the tax serves a compelling govemmental interest which

cannot be achieved without differential taxation. Apart

from the question of whether these cases are intended to

be applied beyond the area of taxation, it is clear that

"In this regard, amici are at something of a loss to understand

why 2 law characterized by Petitioner as “intolerable” and

15

Section 632-a is not intended to Subject the press, or the

media generally, to adverse treatment. The press is not

required to shoulder any greater financial burden than an

employer served with a writ of gamishment. Unlike the

taxes invalidated in Minneapolis Star and Arkansas

Writers’ Project, the payments are not intended to come

out of the financial resources of the press but rather from

the proceeds of the contract with the criminal. Only if

the entity which has contracted with the criminal chooses

to ignore the statute can there be any adverse financial

impact. This is no different, however, than the exposure

of an employer who pays wages to an employee after

being served with a writ of gamishment. See, e.g., N.Y.

Civ. Prac. L & R § 5231(f) (McKinney Supp. 1991);

Calif. Civ. Proc. Code § 706.154(a) (West 1987); S.D.

Codified Laws Ann. § 21-18-12 (Michie 1987). The

employer in such a situation is not taxed or penalized on

account of the employee's activities but rather on account

of its own failure to comply with the law. In this case,

Petitioner’s obligation to pay a sum from its financial

resources arises not due to the exercise of First

Amendment freedoms, but due to its failure to comply

with the law.’ By contrast, the taxes imposed in

Minneapolis Star and Arkansas Writers’ Project were a

result of their publishing activities. In sum, Section 632-a

does not single out the Press for the imposition of any

financial burden because of the exercise of its de

Amendment freedoms.

Petitioner also contends that the regulation imposed

by Section 632-a is content-based and therefore subject to

Strict scrutiny. Petitioner's Brief at 22. The doctrine

" There can be no argument in this case that Petitioner lacked

sufficient notice of the applicability of Section 632-a. Indeed,

Petitioner abandoned its due Process argument on appeal to the

Second Circuit. See Fischetti, 916 F.2d at 781.

16

referred to by Petitioner has been articulated in Mosley,

408 USS. at 96: -

Once a forum is opened up to assembly or speak-

ing by some groups, government may not prohib-

it others from assembling or speaking on the

basis of what they intend to say. Selective

exclusions from a public forum may not be based

on content alone, and may not be justified by

reference to content alone.

The doctrine regarding content-based regulation extends to

expressive conduct as well. See, e.g., Texas v. Johnson,

491 U.S. 397, 412 (1989). The reach of this doctrine is

clearly defined: government may not regulate speech or

expressive conduct on the basis of the content of the

speech or expressive conduct.

In this case, Section 632-a does not regulate speech

or expressive conduct, it regulates the contract between

the criminal and the publisher. Simon & Schuster, Inc. v.

New York State Crime Victims Board, 724 F. Supp. 170,

177 (S.D.N.Y. 1989) ("[tJhe speech itself is not the target

of section 632-a; the profit-making aspect is the target”).

There is nothing in the content-based regulation cases

which extends the doctrine to include regulation of non-

expressive conduct. See, e.g., Johnson, 491 U.S. 397

(prohibition of flag desecration by burning is a content-

based regulation of expressive conduct); Boos v. Barry,

485 U.S. 312 (1987) (ban on signs within 500 feet of

foreign embassy if the sign expressed views against the

foreign government is a content-based regulation of

speech); Arkansas Writers’ Project, 481 U.S. 221 (taxation

or exemption of magazine publications on the basis of

content is a regulation of speech); FCC v. League of

Women Voters, 468 U.S. 364 (1984) (prohibition of edi-

torializing by noncommercial educational broadcasting

17

tation is a content-based regulation of speech); Consoli-

dated Edison Co. v. Public Service Commission of New

York, 447 U.S. 530 (1980) (regulation of utility bill

inserts is a content-based regulation of speech); Carey v.

Brown, 447 U.S. 455 (1980) (prohibition of picketing ex-

cept for labor disputes is a content-based regulation of

speech and expressive conduct); Erznoznik v. City of

Jacksonville, 422 U.S. 205 (1975) (prohibition of films

containing nudity by a drive-in theater is a content-based

regulation of speech); Mosley, 408 U.S. at 96 (prohibition

of picketing within 150 feet of school building except for

labor picketing is a content-based regulation of speech and

expressive conduct).

It is appropriate, and at times necessary, for govern-

ment to regulate nonexpressive conduct with content-based

criteria. The law of antitrust, for example, prohibits

agreements among competitors to allocate markets or to

fix prices. See, e.g., Palmer v. BRG of Georgia, Inc., __

U.S. __, 111 S. Ct. 401 (1990); Goldfarb v. Virginia

State Bar, 421 U.S. 733 (1975) (county bar’s publication

of fee schedule was part of an unlawful price-fixing

scheme). Federal securities law regulates false or mis-

leading statements made in connection with the sale of

securities. See, e.g., SEC v. Texas Gulf Sulphur Co., 401

F.2d 833 (2d Cir. 1968) (en banc), cert. denied, 394 US.

976 (1969). Federal bankruptcy law denies a discharge of

indebtedness for a debtor who knowingly makes a false

oath in connection with the case. 11 U.S.C. § 727(a)(4)

(1988). Rule 11 of the Federal Rules of Civil Procedure

authorizes a court to impose sanctions against a party or

counsel if the pleading, motion, or other paper is not well

grounded in fact, law, or equity. See, e.g., Business

Guides v. Chromatic Communications Enterprises, Inc.,

___ ~-U.S. __, 111 S. Ct. 922 (1991). These are just a

few of countless instances where the law regulates non-

expressive conduct based on its content. Section 632-a is

18

yet another example -- the telling of the story of the

crime or criminal activity triggers the state’s regulation,

not of the publication, but of the disposition of proceeds

from the contract between the criminal and the publisher.

Il. Because Section 632-a Is a Regulation of Non-

expressive Conduct, It Is Properly Subject to a

Rational Basis Analysis.

With respect to the appropriate level of scrutiny to be

applied to Section 632-a, Petitioner has argued for strict

scrutiny and has attempted to distinguished the lower ievel

of scrutiny set forth in O’Brien, 391 U.S. 367. Amici

submit that neither strict scrutiny nor O’Brien scrutiny is

appropriate in this case; rather, Section 632-a should be

analyzed under a “rational basis" approach. When, as

here, a law only regulates nonexpressive conduct and does

not indirectly burden speech, rational basis is the appro-

priate standard. Williamson v. Lee Optical Co., 348 U.S.

483 (1955). That rule of law is implicit in O’Brien

because it dealt with "speech" and "nonspeech" elements

combined in the same course of conduct. /d. at 376.

O’ Brien’s standard is inapplicable unless there is at least

some element of speech in the conduct to be regulated.

It follows, a fortiori, that the strict scrutiny standard

requires an even greater element of speech in the regu-

lated conduct. See, e.g., Johnson, 491 U.S. 397.

In the present case, the activity regulated is non-

expressive conduct; it has no speech element. Section

632-a does not prohibit or regulate in any way the actual

writing, publication, or sale of the reenactment of a

criminal’s crime. It regulates the disposition of the

proceeds of the contract between the criminal and the

publisher. Both the criminal and the publisher are free,

as they were in this case, to collaborate and publish the

story. The Board may not prohibit or in any way impose

19

conditions on the distribution and sale of the book if the

publisher does not comply with Section 632-a. The law

regulates nonexpressive conduct alone.

Under the rational basis approach, it is clear that

Section 632-a is rationally related to a legitimate state

interest. Petitioner concedes that the interest of the state

in providing compensation for crime victims is a legiti-

mate one. Petitioner’s Brief at 28. The state's interest in

preventing a criminal from profiting from a crime while

the victim of the crime remains uncompensated is certain-

ly no less a legitimate interest. See, e.g., Caplin &

Drysdale, Chartered v. United States, 491 U.S. 617, 629

(1989) ("[t]he Government’s interest in winning undimin-

ished forfeiture thus includes the objective of returning

property, in full, to those wrongfully deprived or de-

frauded of it"); Riggs v. Palmer, 115 N.Y. 506, 511, 22

N.E. 188, 190 (1889) ("[nJo one shall be permitted 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").

Section 632-a is unquestionably a rational manner of

realizing the state’s legitimate interest. The only assets

reached by the statute are the proceeds from the product

-- a story -- created by the criminal’s illegal activities.

See Children of Bedford, slip opinion at 19. The funds

are to be paid to those victims who establish valid claims

against the criminal in a court of competent jurisdiction.

Accordingly, Section 632-a is a rational approach to the

advancement of the state’s legitimate interests, and the

statute should therefore be upheld.

20

Ill. Any Effect of Section 632-a on Free Speech Is at

Most Incidental, and Thus the Statute Should Be

Subject to No Higher Standard of Scrutiny Than

the O’Brien Standard.

If the criminal’s reenactment of the story of the crime

and the contract between the criminal and the publisher

are considered to be indivisible and thus are treated as a

unit of conduct, then it is mecessary to determine the

extent to which such conduct is protected by the First

Amendment. The telling of the story is clearly protected

activity, and thus the issue becomes: (1) whether the

manner of payment under the contract is protected

activity, and (2) if not, whether regulation of the manner

of payment involves a direct burden on the protected

element of the activity -- the telling of the story. If the

manner of payment is not protected activity and if its

regulation presents at most an incidental burden on the

exercise of free speech, the appropriate level of scrutiny

will be found under the O’Brien case.

A. The Manner of Payment Under the Contract Is

Not Protected by the First Amendment.

Section 632-a regulates the receipt of payment by the

criminal under the contract with the publisher. It neither

prohibits compensation nor regulates the amount of com-

pensation agreed between the parties. The law simply

requires that payment be made to an escrow fund for

distribution to victims who may become judgment credit-

ors within the requisite time period. Section 632-a in

effect regulates the time, place, and manner of the

payments under the contract.’

’ Compensation to the criminal is merely delayed, not foreclosed.

Section 632-a allows any remaining funds held in escrow not claimed

(continued...)

21

Payments made to the criminal for the right to

publish the reenactment of the crime or the criminal’s

"thoughts, feelings, opinions or emotions regarding such

crime" are in reality proceeds of the criminal activity. In

committing crime, the criminal may "create, by illegal ac-

tivity, a new product -- a story -- which becomes profit-

abie in the retelling.” Children of Bedford, slip opinion

at 19. It is the crime itself which creates the story,” and

it is the telling of the story by the criminal which

generates the profits. The crime may serve to create a

right of publicity which the law under other circumstances

recognizes as a protected property right. Cf. Zacchini vy.

Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977).

Because payments made to a criminal for the media

rights to the story of the crime are essentially proceeds of

the crime itself, the action taken by New York in this

case is indistinguishable from the forfeiture upheld in

Caplin, 491 U.S. 617. In Caplin, this Court rejected Fifth

” (...comtinued)

by victims to be tumed over to the criminal at the expiration of five

years from the date the escrow account is established. N.Y. Exec.

Law § 632-a(4) (McKinney 1982).

* Of course, not all crime creates a story of interest to the general

public. First Amendment attommey Martin Garbus, who represents

several New York-based publishers, expressed the irony of the

situation with this observation:

You have to balance two factors: people like Berkowitz

making a bundle of money and free press. I think free

press is the more important issue. On the other hand,

criminals can say the grosser the crime, the more money

is in it for me, so instead of killing one person, I'll kill

seven.

Washington Post, Aug. 18, 1987, at AS5, col. 1.

22

and Sixth Amendment challenges to the forfeiture provi-

sions of the criminal enterprise statutes, holding that a

criminal cannot retain proceeds of the crime in order to

exercise constitutional rights. Jd. at 632-33. Likewise,

payments received by the criminal for media rights to the

crime should be regarded as proceeds of criminal activity

and therefore unprotected by the First Amendment.

No attempt is made under Section 632-a to prevent

the criminal from writing about or providing the media

with an account of the crime. In fact, Section 632-a

allows a portion of the payments to be received under

the contract to be used for the necessary expenses in-°

curred in telling the story. N.Y. Exec. Law § 632-a(8)

(McKinney 1982). No attempt is made to prevent the

publisher from publishing, distributing, or selling the

story. The sole activity regulated by Section 632-a is the

manner of payment to the criminal under the contract.

This activity cannot be regarded as protected by the First

Amendment.

B. Section 632-a Presents at Most an Incidental

Burden on the Exercise of Free Speech.

If the manner of payment is not protected by the

First Amendment, then the question is whether the state’s

regulation of the unprotected activity directly burdens the

exercise of protected freedoms. As noted earlier, "Free-

dom of speech presupposes a willing speaker." Virginia

State Board of Pharmacy v. Virginia Citizens Consumer

Council, Inc., 425 U.S. 748, 756 (1976). Petitioner’s

contention that it must persuade the criminal with offers

of immediate financial compensation may lead one to

question the sincerity of the supposed "willing" criminal

author. In any event, this Court has held that a similar

disincentive on informants constituted at most only an

incidental burden on the gathering of news information

23

by reporters. Branzburg, 408 U.S. at 693-95. Section

632-a does not prohibit or limit the amount of money to

be paid under the contract. The parties may take into

account the estimated damages owing to the criminal’s

victims when agreeing on an amount of compensation.

Section 632-a may have the effect of increasing the

publisher’s offer in order to persuade the criminal to

speak. As such, it has only an incidental effect on the

exercise of First Amendment rights.

The “inevitable effect" of Section 632-a is not the

suppression of speech. See O’Brien, 391 U.S. at 384.

The inevitable effect of the law is that victims of the

criminal’s wrongdoing will be given an opportunity to

receive compensation from the proceeds of the media ac-

count of the crime. Because Section 632-a involves, at

most, only incidental effects on the exercise of protected

activities, the O’Brien standard should be used in the

event the rational basis standard is found inapplicable.

IV. Section 632-a Passes Muster Under the O’Brien

Standard.

"[W]hen ‘speech’ and ‘nonspeech’ elements are

combined in the same course of conduct, a sufficiently

important governmental interest in regulating the non-

speech element can justify incidental limitations on First

Amendment freedoms." O’Brien, 391 U.S. at 376. The

O'Brien standard is as follows:

[A] government regulation is sufficiently justified

if it is within the constitutional power of the

Government; if it furthers an important or sub-

stantial governmental interest; if the governmental

interest is unrelated to the suppression of free

expression; and if the incidental restriction on

alleged First Amendment freedoms is no greater

24

than is essential to the furtherance of that inter-

est.

Id. at 377.

The District Court in this case held that “the New

York state legislature acted within its authority in enacting

[Section 632-a]." Simon & Schuster, Inc. v. New York

State Crime Victims Board, 724 F. Supp. 170, 178

(S.D.N.Y. 1989). Petitioner does not contest this

conclusion. The remainder of the O’Brien criteria are

considered separately.

A. The State’s Interest is Important and Substan-

tial.

New York's interest in enacting Section 632-a ex-

ceeds the O’Brien standard because the interest is not

only important and substantial, but also compelling:

It cannot be gainsaid that the state has a very

strong interest in preventing criminals from

profiting from their crimes. [Citations omitted).

But the state has a much stronger, indeed a com-

pelling, interest in assuring that a criminal not

profit from the exploitation of his or her crime

while the victims of that crime are in need of

compensation by reason of their victimization.

... Our society rightly deems it fundamentally

unfair for a criminal to be paid for recounting

the story of his or her crime while the victim

remains uncompensated for financial loss occa-

sioned by the crime.

Fischetti, 916 F.2d at 782. See also Children of Bedford,

slip opinion at 13.

25

B. The State’s Interest Is Unrelated to the Sup-

pression of Expression.

As the Second Circuit observed of Section 632-a,

"The purpose of the statute, of course, is not to suppress

speech but to assure that funds are set aside out of profits

derived by criminals from the exploitation of their crimes

and made available for the payment of judgments later

recovered by the victims of the crimes exploited."

Fischetti, 916 F.2d at 783. The legislative history, as

well as the statutory language itself, is devoid of any

indication that the statute was enacted in order to suppress

the criminal’s right to tell the story of the crime. The

law is viewpoint neutral. See City of Renton v. Playtime

Theaters, Inc., 475 U.S. 41, 48 (1986). In fact, the law

even encourages publication by making a portion of the

funds available for production costs. Section 632-a

therefore cannot be characterized as relating to the

suppression of expression.

Even though the interest of New York is clearly

unrelated to the suppression of expression, the Second

Circuit in this case rejected the apparent contention that

the governmental interest bore "no relation to expression”

and held that O’Brien was therefore inapplicable.

Fischetti, 916 F.2d at 781. However, this Court has

never required under the O’Brien approach that a regula-

tion be compietely divorced from any impact on speech.

O’Brien expressly deals with the combination of speech

and nonspeech elements. O’Brien, 391 U.S. at 376. If

there are no speech elements implicated, then the rational

basis approach would apply. See Section II, supra. The

Second Circuit thus misspoke when it articulated the stan-

dard as “no relation to expression" rather than O’ Brien’s

“unrelated to the suppression of free expression.” Id.

(emphasis added). See Johnson, 491 US. at 410 (flag-

burning statute related to the “suppression of free

26

ion" and thus is “outside of O'Brien's test

altogether"). In this case, Section 632-a's impact or

nexus with speech, if it exists, is compatible with

application of the O’Brien standard, because it is the

criminal’s own nonprotected conduct (the criminal activity

leaving victims in need of compensation) which gives rise

to the necessity of the regulation. See City of Renton.

475 U.S. at 48 (1986). The state’s interest is therefore

entirely unrelated to the suppression of free expression.

Incidental Restriction on Alleged First

. po Freedoms, If Any, Is No Greater

Than Is Essential to the Furtherance of that

Interest.

District Court in its application of the O'Brien

ante ah Gn in on drawn by Section 632-a did

not operate to prohibit expressive activity, but effectively

gamished the proceeds from the contract with the pub-

lisher. N.Y. State Crime Victims Board, 724 F. Supp. at

179. Section 632-a does not attempt to attach proceeds

from others, such as Nicholas Pileggi, who write about

crime. It is limited to moneys generated by the reenact-

ment of the crime and does not attach to the criminals

other assets. It does not apply to victimless crimes. /n

re Halmi, 12 Media L. Rpt. 2388 (Sup. Ct. N.Y.

County), aff d, 512 N.Y.S.2d 650 (1987); In the Matter of

Bernhard Hugo Goetz, slip opinion at 7-8 (N.Y. State

Crime Victims Board, May 17, 1988). Section 632-a

delays, but does not foreclose, payment to the criminal.

There is limited access to the funds for legal

representation or the necessary expenses of production.

Moneys remaining in the account after five years are paid

to the criminal. For basically the same reasons that both

the Second Circuit and the New York Court of Appeals

found that § 632-a satisfied the strict scrutiny standard,

the incidental restrictions on speech, if any, are no greater

27

than is essential to the furtherance of the state’s interest.

Fischetti, 916 F.2d at 783-84; Children of Bedford, slip

opinion at 17-20.

V. Even If This Court Applies Strict Scrutiny, Section

632-a Is Constitutional.

If strict scrutiny is the applicable constitutional

standard against which Section 632-a must be measured.

the state must show both that the statute furthers a

compelling governmental interest and that the means

employed are "closely drawn to avoid unnecessary abridg-

ment." First National Bank of Boston v. Bellotti, 435 US.

765, 786 (1978) (quoting Buckley v. Valeo, 424 US. at

25). The two courts that have subjected Section @2-a to

strict scrutiny analysis have both concluded that it meets

these standards. Fischetti, 916 F.2d at 782-84: Children

of Bedford, slip opinion at 13-20.

As discussed before, New York’s interest is in ensur-

ing that a criminal does not profit from his crime while

his victims remain uncompensated for their losses occa-

sioned by the wrongdoing. Both courts found this interest

to be a compelling governmental interest. Fischetti. 916

F.2d at 782; Children of Bedford, slip opinion at 13-16.

Petitioner apparently does not contest this assessment of

the nature of the interest. Petitioner's argument is

devoted to the question of whether the means are narrow-

ly tailored to serve this interest.

The appropriateness of the means used to achieve the

governmental interest has been analyzed briefly in connec-

tion with the O’Brien standard. See Section IV C, supra.

In addition, the Second Circuit’s opinion addressed the

“fit” between the interest and the means used:

writing or talking about or reenacting 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. The first amend-

ment right to speak is restricted only as a conse-

to

quence of their inability to profit until the victim

is compensated. Section 632-a is designed to tie

up the proceeds until victims have had an oppor-

tunity to make their claims for compensation. It

provides a specialized form of attachment and is

designed to freeze the proceeds of storytelling by

criminals for the benefit of those whose misfor-

tunes gave rise to the story.

Fischetti, 916 F.2d at 783. Petitioner argues that the

Court of Appeals’ analysis is a circular approach which

renders strict scrutiny analysis essentially toothless.

Petitioner’s Brief at 42. Petitioner’s argument is without

merit. When drafting statutes which touch upon the exer-

cise of constitutional rights, the legislature is acting in

the interest of the State of New York. This is precisely

the requirement which needs to be, and is, met.

The New York Court of Appeals likewise found that

the means were narrowly tailored to achieve the statute’s

purpose:

A criminal may earn income from writings on

such subjects as prison life in general, as Harris

has (see Harris v. Abate [Sup. Ct. N.Y. Co.],

NYLJ 4/2/90, at 25, col. 3), or may subsequently

obtain profitable employment as an “expert,” as

petitioners’ hypothetical computer expert. That

29

financial success is the result of their newly

advertised expertise or prominence, not their

illegal act. By contrast, criminals covered by the

statute had no marketable asset before the crime:

they create, by illegal activity, a new product --

a story -- which becomes profitable in the retell-

ing.

Children of Bedford, slip opinion at 18-19."

The reach of Section 632-a is limited to the new

asset arising from criminal activity which has left victims

uncompensated for their losses. As such, the statute is

narrowly tailored to achieve New York’s compelling

interest in preventing the unjust enrichment of a criminal

until the valid claims of the victims have been redressed.

* See also Fischetti, 916 F.2d at 784:

The general expertise derived by a thief from a series of

thefts is not the same as the tale of a specific theft com-

mitted against an identifiable victim. Payment for exper-

tise, royalties from books that do not describe crime

victims, and other income and assets of criminals may be

reached in other ways. Section 632-a deals with readily

identifiable, locatable funds that are most commonly

available io those who victimize others.

30

CONCLUSION

For the reasons stated herein, the Court should reject

the contention that Section 632-a is unconstitutional, and

the judgment below should be affirmed.

Respectfully submitted,

Prof. Jonathan K. Van Patten Daniel J. Popeo

University of South Dakota WASHINGTON LEGAL

School of Law FOUNDATION

Vermillion, SD 57069 12 Steuben Park

(605) 677-5361 Utica, NY 13501

(315) 735-8541

Daniel J. Popeo

Richard A. Samp

(Counsel of Record)

Christopher A. Sterbenz

WASHINGTON LEGAL

FOUNDATION

1705 N Street, N.W.

Washington, DC 20036

May 31, 1991 (202) 857-0240

| Se ee Ee ee Oe ee eee a eee. ee ee

APPENDIX

INTERESTS OF AMICI

The Washington Legal Foundation (WLF) is a

national public interest law and policy center with more

than 120,000 members and supporters nationwide. While

WLF engages in litigation and the administrative process

in a variety of areas, WLF devotes a substantial amount

of its resources to promoting victims’ rights. WLF works

with other victims’ rights groups, including some of the

amici in this case. WLF has appeared before this Court

as amicus curiae in a number of cases dealing with

victims’ rights issues, including the recent case of Payne

v. Tennessee, No. 90-5721.

The Allied Educational Foundation (AEF) is a non-

profit, charitable and educational foundation based in

Englewood, New Jersey. Founded in 1964, AEF is dedi-

cated to promoting education in diverse areas of study

such as law and public policy, and has appeared as

amicus before this Court on a number of occasions.

Citizens for Law and Order (CLO) is a grass-roots

organization in the state of California devoted to sup-

porting law enforcement agencies in that state in their

efforts against crime. CLO supports measures in the

California legislature designed to strengthen the criminal

justice system. CLO was founded in 1970.

The Maryland Coalition Against Crime (MCAC) is

based in Baltimore, Maryland. MCAC works for enact-

ment of legislation that promotes tougher law enforcement

measures and the rights of crime victims.

A-l

The National Victim Center is a national, non-profit

organization based in Fort Worth, Texas. The Center’s

purposes are to promote responsiveness of the criminal

justice system to the rights and needs of the victims of

violent crime, as well as to increase public awareness

conceming the plight of crime victims through educational

programs, conferences, and publications.

Parents of Murdered Children (POMC), founded by

the parents of Lisa Hullinger, who was murdered in 1978,

is a national, non-profit, self-help support group

organization based in Cincinnati, Ohio with chapters

nationwide. Besides providing support for grieving

parents and family members, POMC supplies information

about the criminal justice system, and seeks to make that

system responsive to the needs of the victim’s family.

POMC has appeared as an amicus in several cases.

The Stephanie Roper Foundation, Inc. (the Founda-

tion) is a private, non-profit, volunteer-based organization

in Maryland. The Foundation and its sister organization

(The Stephanie Roper Committee, Inc.) provide free assis-

tance to crime victims including information, legal help,

and support groups. The Foundation is named for the

victim of a brutal rape and murder, whose family mem-

bers were treated unfairly and denied any rights of

participation in the trial proceedings. Consequently, the

Foundation and its sister organization were created to

improve the plight of victims of crime. Maryland's

version of the "Son of Sam" law was one of 22 major

legislative enactments proposed by the Committee and

enacted into Maryland law. The Foundation believes the

current case provides an opportunity to reaffirm that

criminals should not benefit from their illegal acts, and

that victims should have the ability to be adequately

compensated for their injuries.

A-2

ee) A Ce es mentee ee

a

In addition, forty-five members of the New York

State legislature have joined in this brief as amici. Their

names are listed on the back of the front cover of this

brief. L. Paul Kehoe is the Chairman of the New York

State Senate Committee on Crime and Correction. James

P. King is the Co-Chairman of the New York State

Assembly Republican Task Force on Crime Victims’

Rights. Clarence D. Rappleyea, Jr. is the Minority Leader

of the New York State Assembly. Robert C. Wertz is the

Assistant Minority Leader of the New York State

Assembly. George H. Winner, Jr. is the Minority Leader

Pro Tempore of the New York State Assembly.

A-3