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High court strikes down state "Son-of-Sam" law

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    NMU         CALIFORNIA         Prior Restraints         Feb 22, 2002    

High court strikes down state “Son-of-Sam” law

  • Court finds that kidnapper can sell the film rights to his story, to the dismay of crime victim advocates.

The state Supreme Court on Thursday struck down the California “Son-of-Sam” law that prevented convicted felons from profiting off their crimes.

The law prevented a convicted felon from making any money from books, movies or other “expressive material” if it involved the story of his crime in any way. Any money the felon received would be seized for a victim’s fund and to pay fines and court expenses. The law was challenged by Barry Keenan, who had been convicted of kidnaping Frank Sinatra Jr. for four days in 1963.

Columbia Pictures offered $1.5 million for the film rights to “Snatching Sinatra,” a story that appeared in Los Angeles New Times. Keenan would have received some of the proceeds from Columbia’s offer. Sinatra filed a lawsuit in 1998, arguing that the California Victims Rights Law prohibited Keenan from receiving any profit from the crime. Keenan argued that the law violated his First Amendment rights.

The Son-of-Sam law was modeled after a New York law that the U.S. Supreme Court struck down as unconstitutional in 1991. The New York law had been passed after murderer David Berkowitz, a.k.a. “Son of Sam,” tried to sell the book rights to his story while in jail. The Supreme Court ruled that the law was an unconstitutional restriction on free speech because it was “overinclusive.” The New York law had prevented any person who ever mentions any involvement in any crime from profiting, even if that person had never been arrested, charged, or convicted of a crime. The Court held that such a law restricted speech too broadly and ruled the law unconstitutional.

In California, the trial court and the California Court of Appeal ruled in favor of Sinatra and upheld the law. They distinguished the California law from the unconstitutional law in New York, ruling that the California law was less broad and therefore did not have the same “overinclusive” defect that the New York law had. The Court of Appeal decided that its own statute was not similarly defective because it applies only to convicted felons and because it contains an exemption for a mere “passing reference” to a crime.

However, the California Supreme Court found that the law violated the First Amendment because it inhibited speech “beyond that necessary to serve the state’s compelling interest in compensating crime victims from the fruits of the crime.” The court relied heavily on the U.S. Supreme Court ruling in Simon & Schuster v. Crime Victims Board, the case that struck down New York’s “Son-of-Sam” law.

The court noted that the law was a direct regulation on speech and therefore must be invalidated unless it can withstand “strict scrutiny.” A law passes the strict scrutiny test, in the context of “Son-of-Sam” laws, only if the state has a compelling interest in compensating crime victims from the fruits of crime, and the statute at issue is narrowly tailored to fit that purpose.

The court ruled that the California law failed to meet the strict scrutiny test because, like the New York law, it was overinclusive. “[California’s law] contains the fundamental defect identified in Simon & Schuster; it reaches beyond a criminal’s profits from the crime or its exploitation to reach all income from the criminal’s speech or expression on any theme or subject, if the story of the crime is included.”

The court found that the statute was not saved merely because it applied only to convicted felons or because it contained an exemption for a mere “passing reference” to a crime. “By any reasonable construction, the California statute is still calculated to confiscate all income from a wide range of protected expressive works by convicted felons, on a wide variety of subjects and themes, simply because those works include substantial accounts of the prior felonies.”

(Keenan v. Superior Court) AG

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