Parole condition barring payment for publication found constitutional
05/30/95
MASSACHUSETTS–A parole condition prohibiting a woman from profiting from the sale of her story after pleading guilty to manslaughter does not violate the First Amendment, according to a 5-0 decision by the Supreme Judicial Court of Massachusetts in mid-May.
The state high court agreed that the condition implicated Sixties’ radical and former fugitive Katherine Ann Power’s First Amendment rights, but concluded that it did not prohibit her from telling her story, only from profiting from it.
The state high court distinguished the parole condition from the New York “Son of Sam” law, which the U.S. Supreme Court struck down in the 1991 Simon & Schuster v. New York Crime Victims Board case. Simon & Schuster held that the New York law, which barred authors from profiting from stories about criminal activities, imposed a content-based financial burden on speech which served a compelling state interest, but was unconstitutionally overbroad because it applied to people who wrote about their “criminal” activity even if they were never accused or convicted.
Parole conditions, the state court pointed out, apply to one particular convict, and are not subject to the same degree of First Amendment scrutiny as laws of general applicability. Restraints on probationers’ fundamental rights, the court said, are not unconstitutional so long as the restrictions are reasonably related to a probationary purpose.
Katherine Ann Power had been sentenced to eight to 12 years in prison and 20 years’ probation for her role as getaway driver in a Boston bank robbery during which one of her accomplices used a machine gun to kill a police officer. Power turned herself in after living as a fugitive for 23 years.
She appealed the parole condition directly to the state’s highest court, arguing that the condition constituted a content- based prior restraint that violated the First Amendment. (Commonwealth v. Power)
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