Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board

502 U.S. 105, 112 S. Ct. 501, 116 L. Ed. 2d 476, 1991 U.S. LEXIS 7172, 91 Daily Journal DAR 15069, 60 U.S.L.W. 4029, 19 Media L. Rep. (BNA) 1609
Supreme Court of the United States·Decided December 10, 1991·No. 90-1059·Published·Cited by 669 cases

Opinions

[108]*108Justice O’Connor

delivered the opinion of the Court.

New York’s “Son of Sam” law requires that an accused or convicted criminal’s income from works describing his crime be deposited in an escrow account. These funds are then made available to the victims of the crime and the criminal’s other creditors. We consider whether this statute is consistent with the First Amendment.

I

A

In the summer of 1977, New York was terrorized by a serial killer popularly known as the Son of Sam. The hunt for the Son of Sam received considerable publicity, and by the time David Berkowitz was identified as the killer and apprehended, the rights to his story were worth a substantial amount. Berkowitz’s chance to profit from his notoriety while his victims and their families remained uncompensated did not escape the notice of New York’s Legislature. The State quickly enacted the statute at issue, N. Y. Exec. Law § 632-a (McKinney 1982 and Supp. 1991).

The statute was intended to “ensure that monies received by the criminal under such circumstances shall first be made available to recompense the victims of that crime for their loss and suffering.” Assembly Bill Memorandum Re: A 9019, July 22,1977, reprinted in Legislative Bill Jacket, 1977 N. Y. Laws, ch. 823. As the author of the statute explained: “It is abhorrent to one’s sense of justice and decency that an individual... can expect to receive large sums of money for his story once he is captured — while five people are dead, [and] other people were injured as a result of his conduct.” [109]*109Memorandum of Sen. Emanuel R. Gold, reprinted in New York State Legislative Annual, 1977, p. 267.

The Son of Sam law, as later amended, requires any entity contracting with an accused or convicted person for a depiction of the crime to submit a copy of the contract to respondent New York State Crime Victims Board (Board), and to turn over any income under that contract to the Board. This requirement applies to all such contracts in any medium of communication:

“Every person, firm, corporation, partnership, association or other legal entity contracting with any person or the representative or assignee of 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, or from the expression of such accused or convicted person’s thoughts, feelings, opinions or emotions regarding such crime, shall submit a copy of such contract to the board and pay over to the board any moneys which would otherwise, by terms of such contract, be owing to the person so accused or convicted or his representatives.” N. Y. Exec. Law §632-a(l) (McKinney 1982).

The Board is then required to deposit the payment in an escrow account “for the benefit of and payable to any victim . . . provided that such victim, within five years of the date of the establishment of such escrow account, brings a civil action in a court of competent jurisdiction and recovers a money judgment for damages against such [accused or convicted] person or his representatives.” Ibid. After five years, if no actions are pending, “the board shall immediately pay over any moneys in the escrow account to such person or his legal representatives.” §632-a(4). This 5-year period in which to bring a civil action against the convicted [110]*110person begins to run when the escrow account is established, and supersedes any limitations period that expires earlier. § 632-a(7).

Subsection (8) grants priority to two classes of claims against the escrow account. First, upon a court order, the Board must release assets “for the exclusive purpose of retaining legal representation.” §632-a(8). In addition, the Board has the discretion, after giving notice to the victims of the crime, to “make payments from the escrow account to a representative of any person accused or convicted of a crime for the necessary expenses of the production of the moneys paid into the escrow account.” Ibid. This provision permits payments to literary agents and other such representatives. Payments under subsection (8) may not exceed one-fifth of the amount collected in the account. Ibid.

Claims against the account are given the following priorities: (a) payments ordered by the Board under subsection (8); (b) subrogation claims of the State for payments made to victims of the crime; (c) civil judgments obtained by victims of the crime; and (d) claims of other creditors of the accused or convicted person, including state and local tax authorities. N. Y. Exec. Law §632-a(ll) (McKinney Supp. 1991).

Subsection (10) broadly defines “person convicted of a crime” to include “any person convicted of a crime in this state either by entry of a plea of guilty or by conviction after trial and any person who has voluntarily and intelligently admitted the commission of a crime for which such person is not prosecuted.” § 632-a(10)(b) (emphasis added). Thus a person who has never been accused or convicted of a crime in the ordinary sense, but who admits in a book or other work to having committed a crime, is within the statute’s coverage.

As recently construed by the New York Court of Appeals, however, the statute does not apply to victimless crimes. Children of Bedford, Inc. v. Petromelis, 77 N. Y. 2d 713, 726, 673 N. E. 2d 541, 648 (1991).

[111]*111The Son of Sam law supplements pre-existing statutory-schemes authorizing the Board to compensate crime victims for their losses, see N. Y. Exec. Law §631 (McKinney 1982 and Supp. 1991), permitting courts to order the proceeds of crime forfeited to the State, see N. Y. Civ. Prac. Law §§ 1310-1352 (McKinney Supp. 1991), providing for orders of restitution at sentencing, N. Y. Penal Law § 60.27 (McKinney 1987), and affording prejudgment attachment procedures to ensure that wrongdoers do not dissipate their assets, N. Y. Civ. Prac. Law §§ 6201-6226 (McKinney 1980 and Supp. 1991). The escrow arrangement established by the Son of Sam law enhances these provisions only insofar as the accused or convicted person earns income within the scope of §632-a(l).

Since its enactment in 1977, the Son of Sam law has been invoked only a handful of times. As might be expected, the individuals whose profits the Board has sought to escrow have all become well known for having committed highly publicized crimes. These include Jean Harris, the convicted killer of “Scarsdale Diet” Doctor Herman Tarnower; Mark David Chapman, the man convicted of assassinating John Lennon; and R. Foster Winans, the former Wall Street Journal columnist convicted of insider trading. Ironically, the statute was never applied to the Son of Sam himself; David Berkowitz was found incompetent to stand trial, and the statute at that time applied only to criminals who had actually been convicted. N. Y. Times, Feb. 20,1991, p. B8, col. 4. According to the Board, Berkowitz voluntarily paid his share of the royalties from the book Son of Sam, published in 1981, to his victims or their estates. Brief for Respondents 8, n. 13.

This case began in 1986, when the Board first became aware of the contract between petitioner Simon & Schuster and admitted organized crime figure Henry Hill.

[112]*112B

Free access — add to your briefcase to read the full text and ask questions with AI

Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board, 502 U.S. 105, 112 S. Ct. 501, 116 L. Ed. 2d 476, 1991 U.S. LEXIS 7172, 91 Daily Journal DAR 15069, 60 U.S.L.W. 4029, 19 Media L. Rep. (BNA) 1609 (1991).

502 U.S. 105 (Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Oberholzer, F. v. Galapo, S.
2022 Pa. Super. 69 (Superior Court of Pennsylvania, 2022)
Doyal, Craig
Court of Criminal Appeals of Texas, 2018
In Re: Erik Brunetti
877 F.3d 1330 (Federal Circuit, 2017)
State v. Vaughn
366 S.W.3d 513 (Supreme Court of Missouri, 2012)
Occupy Fresno v. County of Fresno
835 F. Supp. 2d 849 (E.D. California, 2011)
Log Cabin Republicans v. United States
716 F. Supp. 2d 884 (C.D. California, 2010)
Kalman v. Cortes
723 F. Supp. 2d 766 (E.D. Pennsylvania, 2010)
Smith v. Tarrant County College District
694 F. Supp. 2d 610 (N.D. Texas, 2010)
Big Hat Books v. Prosecutors
565 F. Supp. 2d 981 (S.D. Indiana, 2008)
Krinsky v. Doe 6
72 Cal. Rptr. 3d 231 (California Court of Appeal, 2008)
Pocatello Education Ass'n v. Heideman
504 F.3d 1053 (Ninth Circuit, 2007)
American Civil Liberties Union v. Gonzales
478 F. Supp. 2d 775 (E.D. Pennsylvania, 2007)
Entertainment Software Ass'n v. Foti
451 F. Supp. 2d 823 (M.D. Louisiana, 2006)
Utah Education Ass'n v. Shurtleff
511 F. Supp. 2d 1106 (D. Utah, 2006)
Kennedy v. Avondale Estates, Georgia
414 F. Supp. 2d 1184 (N.D. Georgia, 2005)
Neufeld v. State Board of Equalization
22 Cal. Rptr. 3d 423 (California Court of Appeal, 2004)
Wolfe v. Barnhart
354 F. Supp. 2d 1226 (N.D. Oklahoma, 2004)
Van Arnam v. General Services Administration
332 F. Supp. 2d 376 (D. Massachusetts, 2004)