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

Supreme Court, U.S

FILED

Vw) MAY 31 1991 \

No. 90-1059

IN THE

Supreme Court of the United States

October Term, 1990

SIMON & SCHUSTER, INC.,

Petitioner,

v.

MEMBERS OF THE NEW YORK CRIME VICTIMS BOARD,

GENNARO FISCHETTI, GEORGE L. GROBE, JR.,

DIANE McGRATH and ANGELO PETROMELIS

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Amici Curiae Brief of the States

in Support of Respondents*

ROBERT A. BUTTERWORTH

Attorney General of Florida

LOUIS F. HUBENER

Assistant Attorney General

(Counsel of Record)

CHARLES A. FINKEL

Assistant Attorney General

DEPARTMENT OF LEGAL AFFAIRS

Suite #1501, The Capitol

Tallahassee, FL 32399-1050

(904) 488-1573

ATTORNEYS FOR AMICI CURIAE

*The states joining in this brief are listed on inside front cover

LISTING OF STATE ATTORNEYS GENERAL

OTHER THAN FLORIDA

JIMMY EVANS

Attorney General

State of Alabama

CHARLES E. COLE

Attorney General

State of Alaska

DANIEL E. LUNGREN

Attorney General

State of California

GALE A. NORTON

Attorney General

State of Colorado

RICHARD BLUMENTHAL

Attorney General

State of Connecticut

CHARLES M. OBERLY III

Attorney General

State of Delaware

MICHAEL J. BOWERS

Attorney General

State of Georgia

LARRY ECHOHAWK

Attorney General

State of Idaho

ROLAND W. BURRIS

Attorney General

State of Illinois

LINLEY E. PEARSON

Attorney General

State of Indiana

ROBERT T. STEPHAN

Attorney General

State of Kansas

J. JOSEPH CURRAN JR.

Attorney General

State of Maryland

SCOTT HARSHBARGER

Attorney General

State of Massachusetts

FRANK J. KELLEY

Attorney General

State of Michigan

HUBERT H. HUMPHREY III

Attorney General

State of Minnesota

MIKE MOORE

Attorney General

State of Mississippi

WILLIAM L. WEBSTER

Attorney General

~ State of Missouri

MARC RACICOT

Attorney General

State of Montana

DON STENBERG

Attorney General

State of Nebraska

FRANKIE SUE DEL PAPA

Attorney General

State of Nevada

JOHN P. ARNOLD

Attorney General

State of New Hampshire

ROBERT J. DEL TUFO

Attorney General

State of New Jersey

LACY H. THORNBURG

Attorney General

State of North Carolina

LEE FISHER

Attorney General

State of Ohio

ROBERT H. HENRY

Attorney General

State of Oklahoma

ERNEST D. PREATE JR.

Attorney General

State of Pennsylvania

T. TRAVIS MEDLOCK PAUL VAN DAM

Attorney General Attorney General

State of South Carolina State of Utah

MARK BARNETT JEFFREY L. AMESTOY

Attorney General Attorney General

State of South Dakota State of Vermont

CHARLES W. BURSON MARY SUE TERRY

Attorney General Attorney General

State of Tennessee State of Virginia

JOSEPH B. MEYER

Attorney General

State of Wyoming

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............... ii

STATUTES and OTHER AUTHORITIES ........ iii

TE .cccecceceeeeneece 1

SUMMARY OF ARGUMENT .............. 3

ARGUMENT

THE SON-OF-SAM LAW DOES NOT UNDULY

RESTRICT PETITIONER’S EXERCISE OF

TABLE OF AUTHORITIES

Page

Arcara v. Cloud Books, Inc., 478 U.S. 697, 704

a ee ee 6, 10

Branzburg v. Hayes, 408 U.S. 665(1972) ........ 8

Breard v. Alexandria, 341 U.S. 622,642(1951)..... 6

Houchins v. K.Q.E.D., Inc., 438 U.S.1,(177) ..... 11

In the Matter of Children of Bedford, Inc. v.

Petromelis, __.__ N.Y.2d____ (1991) ..... 5, 10

Meyer v. Grant, 486 U.S. 414, 423,(1988) ........ 6

Minneapolis Star and Tribune v. Minn. Comm’r

of Rev., 460 U.S. 575, 585 (1983) .......... 6

Pell v. Procunier, 417 U.S. 817(1974) ......... 11

State of Florida v. Robinson, case # 91-1001,

Circuit Court, Fifth Judicial Circuit, Marion

SE a 8

United States v. O’Brien, 391 U.S. 367(1968) . . . 10,12

Village of Schaumburg v. Citizens, etc., 444 U.S.

ee ee we eee OSs 6 6} ts 6

Virginia State Board of Pharmacy v. Virginia

Citizens Consumer Counsel, Inc., 425 U.S. 748,

IMA bee ee 7

Ward v. Rock Against Racism, |

CN 5

Zacchini v. Scripps-Howard Broadcasting Co.,

RE 5

STATUTES and OTHER AUTHORITIES

Page

New York Executive Law Section 632-a ...... 1,4,5

Section 944.512 Florida Statutes(1989)......... 1

Article, St. Petersburg Times, March 12, 1991,

SG 6 bob Serbo vdc de PUN ccc. 8

Emerson, Towards a General Theory of the First

Amendment, 72 Yale LJ 877, 881-82(1963) .... 4

Okuda, Criminal Antiprofit Law: Some Thoughts

in Favor of the Constitutionality. 76 CAL.

L.R. 1353, 1365 (1989); 1364, footnote 73,74 ... 9

Franklin, Prison Literature in America (Oxford

PD «6 5 5» 6% 6 6:6 6 6 6.0 8

il

INTEREST OF AMICI

The State Florida is one of forty-two states that =

enacted laws to prevent criminals from garnering large

profits by marketing their crime stories.“ Most of these

statutes regulating profits—commonly referred to as “Son-

of-Sam” laws—are modeled after New York’s law, which

requires that anyone contracting for the story of a person

accused or convicted of a crime deposit the proceeds of the

contract with a crime victims’ compensation board.” The

board holds the funds in escrow for five years. During that

period the money may be released only for attorneys’ fees

and for restitution to victims of the offender’s crime. After

the five-year period, the offender receives any funds remain-

ing in the account.

The Florida statute varies from the New York statute by

placing a statutory lien on the proceeds of a convicted felon’s

account of his crime. Once the lien has been perfected, the

funds are distributed to dependents of the offender, to vic-

tims of the crime and to the state for its costs in prosecuting

and incarcerating the offender.® Florida currently has three

Son-of-Sam cases pending in its trial courts.

All of the forty-two state Son-of-Sam statutes prevent the

dissipation of the proceeds from the criminal’s story of the

crime and provide a method for distribution of the assets to

the victim. These statutes not only decrease the likelihood

that society will have to support Victims of crime, but also

satisfy victims’ sense of justice and desire for retribution,

and increase the criminal’s awareness of the consequences

of his crime.

1 See Brief for Respondents at n. 16.

2 New York Executive Law § 632-a.

3 Section 944.512 Florida Statutes (1989).

These statutes are narrowly designed to provide a mea-

sure cf compensation to crime victims without abridging the

criminal’s right to tell his story and express his thoughts and

feelings about the crime. It is the commercial element, the

marketing and profit motive, which is being regulated, not

the speech itself. These statutes, which are consistent with

the values and principles underlying our First Amendment

traditions and jurisprudence, provide the states with a

means of assisting the victims of crime and shifting the cost

of that assistance, at least in part, from the public to the

criminal offender. For this reason, Florida and other amici

states support New York in its efforts to affirm the constitu-

tionality of its statute.

SUMMARY OF ARGUMENT

The Son-of-Sam law does not directly burden free speech.

Rather, it regulates the contract that permits a criminal to

profit through exploitation of his crime. In those instances

when a publisher deems it expedient to contract with a

criminal for the right to that story, the involuntary victim,

by operation of state law, becomes the third-party benefi-

ciary. This satisfies the governmental interest in assuring

that the transgressor will not be further unjustly enriched

at the expense of his victim.

First Amendment rights are not abridged by the applica-

tion of this statute. Pecuniary gain is only one of numerous

motives for a criminal to tell his story. A criminal who

chooses not to share his exploits because of the removal or

postponement of economic gain is merely an unwilling

speaker. Should a publisher encounter such an unwilling

speaker, it has alternative sources available for gathering

and disseminating the desired information. The First

Amendment does not grant a publisher an unfettered right

to the source of its choice, especially at the expense of

involuntary victims.

ARGUMENT

THE SON-OF-SAM LAW DOES NOT UNDULY

RESTRICT PETITIONER’S EXERCISE OF

FIRST AMENDMENT RIGHTS

New York Executive Law § 632-a does not directly abridge

free speech, but rather constrains the use and disposition of

commercial profits during a fixed period of time. The law

regulates the contract that permits a criminal to profit by

preserving a known and identifiable asset from which a

victim can receive restitution, and it preserves the claim

until the creation of such an asset. The intent is not to

prevent the publication of the criminal author’s story, but to

assure the victim’s rights to the money generated by sale of

the story, which often has its origin in the most heinous

conduct.

Petitioner and its amici argue that most would-be story

tellers will decline to speak or write without a financial

incentive to relate the criminal activities. They cite as au-

thority the majority opinion of the court below, the affidavits

in the record, published accounts of crimes of hundreds of

convicts, and the asserted motive of Henry Hill for supplying

the information for Wiseguy. The fallacy in this approach is

thet it imputes to all individuals personal economic gain as

the primary incentive to create and disseminate ideas. This

“market place of ideas” rationale for freedom of expression

is but one of several philosophical rationales for the First

Amendment. Others are individual self-fulfillment, attain-

ment of truth, participation in decision making, and main-

tenance of a balance between stability and change in

society.* None of these functions is unduly burdened by the

Son-of-Sam law.

4 See Emerson, Towards a General Theory of the First Amendment,

72 Yale LJ 877, 881-82 (1963).

State and local laws have historically provided the ma-

chinery specifically designed to balance larger societal in-

terests with different, and sometimes clashing, interests of

individuals in freedom of expression. While a democratic

government may not seek to promote the broad interest in

consensus by means of restrictions on expression, it may

control conduct other than expression. See Ward v. Rock

Against Racism, US. ___, 109 S.Ct. 2746 (1989). So

too may state law inculcate and enforce community stan-

dards of right and wrong. See In the Matter of Children of

Bedford, Inc. v. Petromeliis, N.Y. 2d _____s (1991)

(upholding New York Executive Law § 632-a). It is within

this context that the Son-of-Sam law should be viewed.

The New York statute seeks to provide recovery to victims

and to prevent the offender from deriving profit from his

crime and the injuries which he has inflicted. The statute

thus escrows the proceeds from the story of the crime, not

to suppress the contents of the speech, but to ensure the

victim’s recovery of at least some small measure of damages.

The statute balances the right of freedom to express views

and ideas with the state’s interest in compensating crime

victims. If the criminal author receives no money for his

efforts, there is nothing to distribute to the victims. If he is

paid for his story, the victim raises his claims to the escrowed

funds. The statute is limited to those cases in which the

offender would be unjustifiably enriched as a result of the

crime which generated his story. This dual purpose of pro-

viding restitution for victims and preventing unjust enrich-

ment of criminals is a substantial governmental interest

that is clearly unrelated to the suppression of any protected

speech. Cf. Zacchini v. Scripps-Howard Broadcasting Co.,

433 U.S. 562 (1977) (Constitution does not prevent state law

from requiring the media to compensate a performer for

broadcasting his act without his consent). If a state has the

right to prevent unjust enrichment of the media resulting

from the appropriation of an existing right of publicity, it

have the right to prevent the unjust enrichment of a crimi-

nal author who would exploit the fate of his involuntary

victims.

Petitioner argues that statutory restrictions on expendi-

tures for speech have the “inevitable effect of reducing the

total quantum of speech,” citing Meyer v. Grant, 486 U.S.

414, 423, (1988). Additionally, petitioner relies upon six

other cases in which this Court has held that restrictions on

payments for speech are direct burdens on speech that are

invalid unless proven to be necessary and narrowly tailored

to serve a compelling governmental interest. In each of

those cases involving the dissemination of charitable or

political ideas, this Court found that the solicitation or

dissemination itself was so characteristically intertwined

with charitable or political issues that the regulation would

affect the flow of such information. However, several of those

cases expressly recognized a distinction when the sale of

literature introduced “a commercial feature.” Breard v.

Alexandria, 341 U.S. 622, 642 (1951).

In Breard, a vendor challenged a regulation which banned

door-to-door solicitations of national periodicals in residen-

tial areas. The regulation was upheld on the basis that the

privacy interests outweighed the right to distribute maga-

zines on private property by uninvited entry. This Court

recognized that the sale of periodicals did not put them

beyond the protection of the First Amendment. The sale,

however, brought into the transaction “a commercial fea-

ture,” Id. at 642, which distinction continues to be recog-

nized as requiring a weighing of public and individual

rights. See Minneapolis Star and Tribune v. Minn. Comm’r

of Rev., 460 U.S. 575, 585 (1983); Arcara v. Cloud Books, Inc.,

478 U.S. 697, 704 (1986); Village of Schaumburg v. Citizens,

etc., 444 U.S. 620, 631 (1979).

5 See Brief for Petitioner, pgs. 17-18.

The Son-of-Sam statute has an insubstantial effect upon

a criminal offender’s opportunity to disseminate his ideas.

Any inhibition he may feel tc write or publish relates only

to thwarted profit-seeking as opposed to informing or per-

suading the public. The Son-of-Sam statute is directed at

the commercial feature of a criminal’s speech about the

crime—that is, the use of his notoriety derived solely from

criminal activity to authenticate the work and enhance its

market. Hence, while the criminal author remains free to

appeal to the public’s ever growing curiosity and fascination,

he is not free to benefit himself by exploiting the victim

whose involvement was involuntary. Any economic benefits

derived from this exploitation must be made available to the

victim who not only suffered when the crime was committed,

but who must continue to endure constant reminders and

revelations about the crime presented. By escrowing these

funds, the statute prevents the criminal from being unjustly

enriched at the expense of his victim, but does not affect his

ability to tell his story.

Any attempt to establish a direct relationship between the

removal of monetary incentives and a decrease in the num-

ber of criminals who would market their crime stories is

speculative at best. The fact that Henry Hill and others may

(according to petitioner’s affidavits) refuse to speak to the

press or enter into contracts to publish their personal ac-

counts is merely indicative of the lack of a “willing speaker.”

However, “[f]reedom of speech presupposes a willing

speaker.” Virginia State Board of Pharmacy v. Virginia

Citizens Consumer Counsel, Inc., 425 U.S. 748, 456 (1976).

Petitioner’s attempts to ascribe the motives of a few suppos-

edly unwilling speakers to all criminals is speculative and

does not demonstrate a substantial burden upon First

Amendment interests. The fact that numerous offenders

would be affected by the statute does not necessarily mean

they would refrain from writing or publishing, assuming

they had such an interest. Petitioner’s arguments do not

demonstrate a “significant constriction of the flow of news

to the public,” as contemplated in Branzburg v. Hayes, 408

U.S. 665 (1972).

Criminals, as other individuals, have motivations for

speaking unrelated to pecuniary gain. Some of the earliest

American literature by convicted criminals was purely con-

fessional. The author offered himself as an example for other

members of society and sought forgiveness.°® Autobiogra-

phies of anti-slavery political prisoners attempted to use the

authors’ personal experiences as a means of awakening their

readers to the real nature of slavery and activating them to

join the struggle against it.’ Some convicts wrote protest

literature against the brutality of prisons while others used

it as an opportunity to articulate a political defense of the

crime committed by retrying the case in the court of public

opinion. 8 Still others wrote to raise money to reopen their

case.” While some who had been incarcerated offered a plea

to the reader to do something about reforming or abolishing

prisons, 10 thers wrote from a revolutionary perspective.

In a case currently pending in Florida, a woman convicted

of murdering her husband wrote a fictionalized account of

the crime and stated publicly that the book was not written

for monetary gain but in the hopes of establishing her

innocence and finding her husband’s murderer.’” It is a

facile conclusion to suggest that such works would not be

6 Franklin, Prison Literature in America, at 127 (Oxford University

Press, 1982).

7 Id. at 132.

8 Id. at 135.

9 Id. at 151.

10 ZId. at 137.

11 Id. at 147.

12 State of Florida v. Robinson, case # 91-1001, Circuit Court, Fifth

Judicial Circuit, Marion County. See article, St. Petersburg Times, March

12, 1991, page 6B.

published were the author allowed only a reduced profit or

no profit.

Additionally, the Son-of-Sam statute does not impede the

access to effective media for criminals who want to tell their

story. Rarely, if ever, would a criminal need to rely upon

contract advances to cover research and other preliminary

expenses because he typically sells only his rights to the

story, and not his services as author. Usually, a paid ghost-

writer pens the criminal’s story.’ 3 Some criminals are will-

ing to share their stories for no compensation at all,'* while

others actually desire to compensate their victims. 15 Under

the New York law, a criminal may enter a media contract to

raise money for his criminal defense, and in Florida, the

statute allows payment to the criminal’s dependents. In

such cases, the Son-of-Sam statutes actually encourage

speech rather than deter it.

The Son-of-Sam statute protects a substantial govern-

mental interest by providing a precise and limited method

of preventing criminals from being unjustly enriched by the

exploitation of their crimes and by providing a fund through

which the victim or the victim’s family can obtain at least

partial recovery for damages incurred as a result of the

criminal’s activities. This regulation has no effect upon the

criminal’s ability to tell his story or disseminate his ideas.

The New York statute allows him to use up to 20% of the

escrowed funds for attorney’s fees. It merely deprives him

of the direct use of the proceeds in favor of his victims, whose

claims are far more equitable.

Petitioner and its amici cite numerous examples of au-

thors whose writings would have been subject to the Son-of-

13. Okuda, Criminal Antiprofit Law: Some Thoughts in Favor of the

Constitutionality. 76 CAL. L.R. 1353, 1365 (1989).

14 Id. at 1364, footnote 73.

15 Id. at 1364, footnote 74.

Sam statutes if they had been in effect at the time of

publication. However, any suggestion that authors such as

Frederick Douglas, Henry David Thoreau, or Malcolm X

would not have written their autobiographies is both spec-

ulative and repugnant to the very principles they espoused.

Would petitioner and its amici suggest to this Court that Dr.

Martin Luther King, Jr. wrote a book about the Civil Rights

movement only for personal pecuniary gain? The argument

also fails to take account of the fact that many of the more

noteworthy literary works cited involved victimless crimes.

“If there is no victim, a necessary requirement for im-

plementation of the statute is lacking, section 632-a does not

apply and the criminal may discuss the crime without re-

straint....” In the Matter of Children of Bedford, Inc. v.

Petromelis, N.Y. 2d (1991) (Slip opinion at 14).

The appropriate test by which to judge the constitutional-

ity of the statute was set forth in United States v. O’Brien,

391 U.S. 367 (1968), where the Court considered the First

Amendment ramifications of a statute which imposed crim-

inal sanctions on one who knowingly destroyed his draft

card. As this Court noted in O’Brien:

{W]e think it is clear that a government regulation

is sufficiently justified if it is within the constitu-

tional power of the government; if it furthers an

important substantial governmental interest; if

the governmental interest is unrelated to the sup-

pression of free expression; and if the incidental

restriction on alleged first amendment freedoms

is no greater than is essential to the furtherance

of that issue.

Id. at 377.

This test was subsequently noted in Arcara v. Cloud

Books, Inc., supra, where the Court upheld the closure of a

bookstore in which prostitution and other unlawful conduct

10

were occurring. The Court, in considering the O’Brien test,

indicated that the legislation providing the closure sanction

was directed at unlawful conduct having nothing to do with

books or other expressive activity. In response to the argu-

ment that the effect of the statutory closure remedy im-

permissibly burdened its First Amendment protected

book-selling activities, the Court indicated that the severity

of that burden was dubious at best and was mitigated by the

fact that the owners remained free to sell the same materials

at another location. Jd. at 707. \

Petitioner, a publishing company, argues that the removal

of the profit incentive will reduce the number of stories

generated by criminals. Not only is there a lack of credible

evidence demonstrating a reduction of “willing speakers,”

but that argument ignores many alternative means that are

available to the media to procure the necessary information.

On numerous occasions, this Court has held that the First

Amendment does not guarantee the press an unrestrained

right of access to news sources or to gather information. Pell

v. Procunier, 417 U.S. 817 (1974), and Houchins v. K.Q.E.D.,

Inc., 438 U.S. 1(1977) (affirming restricted access to prisons

for the purpose of conducting inmate interviews).

Information concerning criminals and their exploits can

be obtained by alternate methods. An industrious investiga-

tive reporter could obtain substantially the same results by

interviewing public officials, private citizens or witnesses,

and by reviewing police reports, court records and court-

room testimony. Additionally, as previously noted, in many

instances the criminal will willingly forego the receipt of

profits and will tell his story to satisfy some other motive or

emotional need. Of course, if the criminal is willing to speak,

the statute does not prevent him from telling his story.

Simply stated, a publisher does not have an unfettered First

Amendment right of access to all information sources. If the

publisher deems it expedient to contract with a criminal to

11

exploit his crime, then the involuntary victim should be the

third-party beneficiary. This is what the statute

accomplishes. Therefore, when balancing the rights of the

victim against those of the criminal and a publisher, the

insubstantial burden arising from the Son-of-Sam law

should be subject to the test enumerated in United States v.

O’Brien, supra.

CONCLUSION

For the foregoing reasons, the decision below should be

affirmed.

Respectfully submitted,

ROBERT A. BUTTERWORTH

Attorney General of Florida

LOUIS F. HUBENER

Assistant Attorney General

(Counsel of Record)

CHARLES A. FINKEL

Assistant Attorney General

Florida Bar No. 099390

Department of Legal Affairs

Suite #1501, The Capitol

Tallahassee, FL 32399-1050

(904) 488-1573

ATTORNEYS FOR AMICI CURIAE

12