OCTOBER TERM, 1991
Syllabus
SIMON & SCHUSTER, INC.
v. MEMBERS OF THE NEW YORK
STATE CRIME VICTIMS BOARD ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT
No. 90-1059. Argued October 15, 1991-Decided December
10,1991
Among other things, New York's "Son of Sam" law provides that an
"entity" contracting with a person "accused or convicted of a
crime" for the production of a book or other work describing the
crime must pay to respondent Crime Victims Board any moneys owed to
that person under the contract; requires the Board to deposit such
funds in an escrow account for payment to any victim who, within
five years, obtains a civil judgment against the accused or
convicted person and to the criminal's other creditors; and defines
"person convicted of a crime" to include "any person who has
voluntarily and intelligently admitted the commission of a crime
for which such person is not prosecuted." After it discovered that
petitioner publisher had signed an agreement with an author who had
contracted with admitted organized crime figure Henry Hill for the
production of a book about Hill's life, the Board,
inter
alia, determined that petitioner had violated the Son of Sam
law and ordered it to turn over all money payable to Hill.
Petitioner then brought suit under 42 U. S. C. § 1983, seeking a
declaration that the law violates the First Amendment and an
injunction barring the law's enforcement. The District Court found
the law to be consistent with the Amendment, and the Court of
Appeals affirmed.
Held: The Son of Sam law is inconsistent with the First
Amendment.
Pp. 115-123.
(a) Whether the First Amendment "speaker" is considered to be
Hill, whose income the New York law places in escrow because of the
story he has told, or petitioner, which can publish books about
crime with the assistance of only those criminals willing to forgo
remuneration for at least five years, the law singles out speech on
a particular subject for a financial burden that it places on no
other speech and no other income and, thus, is presumptively
inconsistent with the Amendment.
Leathers v.
Medlock,
499 U. S. 439,
447;
Arkansas Writers' Project, Inc. v.
Ragland,
481 U. S. 221,
230. The fact that the law escrows speechderived income, rather
than taxing a percentage of it outright as did the law invalidated
in
Arkansas Writers' Project, cannot serve as the basis for
disparate treatment under the Amendment, since both forms of
financial burden operate as disincentives to speak. Moreover,
the
106
Syllabus
Board's assertion that discriminatory financial treatment is
suspect only when the legislature intends to suppress certain ideas
is incorrect, since this Court has long recognized that even
regulations aimed at proper governmental concerns can restrict
unduly the exercise of rights under the Amendment. Furthermore, the
Board's claim that the law is permissible under the Amendment
because it focuses generally on an "entity" rather than
specifically on the
media falters, first, on semantic
grounds, since any entity that enters into a contract with a
convicted person to transmit that person's speech becomes by
definition a medium of communication, and, second, on
constitutional grounds, since the governmental power to impose
content-based financial disincentives on speech does not vary with
the identity of the speaker. Accordingly, in order to justify the
differential treatment imposed by the law, the State must show that
its regulation is necessary to serve a compelling state interest
and is narrowly drawn to achieve that end.
Id., at 231. Pp.
115-118.
(b) The State has a compelling interest in compensating victims
from the fruits of crime. Cf.
Caplin &
Drysdale,
Chartered v.
United States, 491 U. S. 617, 629.
However, contrary to the Board's assertion, the State has little if
any interest in limiting such compensation to the proceeds of the
wrongdoer's speech about the crime. The Board cannot explain why
the State should have any greater interest in compensating victims
from the proceeds of criminals' "storytelling" than from any of
their other assets, nor offer any justification for a distinction
between this expressive activity and any other activity in
connection with its interest in transferring the fruits of crime
from criminals to their victims. Cf.,
e. g., Arkansas Writers'
Project, supra, at 231. Like the governmental entities in the
latter and similar cases, the Board has taken the
effect of
the statute and posited that effect as the State's interest. Pp.
118-121.
(c) The New York law is not narrowly tailored to achieve the
State's objective of compensating victims from the profits of
crime. The law is significantly overinclusive, since it applies to
works on
any subject provided that they express the author's
thoughts or recollections about his crime, however tangentially or
incidentally, and since its broad definition of "person convicted
of a crime" enables the Board to escrow the income of an author who
admits in his work to having committed a crime, whether or not he
was ever actually accused or convicted. These two provisions
combine to encompass a wide range of existing and potential works
that do not enable a criminal to profit from his crime while a
victim remains uncompensated. Pp. 121-123.
916 F.2d
777, reversed.
107
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and WHITE, STEVENS, SCALIA, and SOUTER,
JJ.,joined. BLACKMUN, J.,
post, p. 123, and KENNEDY, J.,
post, p. 124, filed opinions concurring in the judgment.
THOMAS, J., took no part in the consideration or decision of the
case.
Ronald S.
Rauchberg argued the cause for
petitioner.
With him on the briefs were
Charles S.
Sims and
Mark C.
Morril.
Howard L. Zwickel, Assistant Attorney General of New
York, argued the cause for respondents. With him on the brief were
Robert Abrams, Attorney General, O.
Peter Sherwood,
Solicitor General, and
Susan L. Watson, Assistant Attorney
General. *
*Briefs of
amici curiae urging reversal were filed for
the American Civil Liberties Union et al. by
Leon Friedman,
Steven R. Shapiro, John A. Powell, and
Arthur N.
Eisenberg; for the Association of American Publishers, Inc., by
R. Bruce Rich; and for the Motion Picture Association of
America, Inc., by
Richard M. Cooper, David E. Kendall, and
Walter J.
Josiah, Jr.
Briefs of
amici curiae urging affirmance were filed for
the State of Florida et al. by
Robert A. Butterworth,
Attorney General of Florida, and
Louis F.
Hubener and
Charles A. Finkel, Assistant Attorneys General, and by the
Attorneys General for their respective States as follows:
Jimmy Evans of Alabama, Charles E. Cole of Alaska, Daniel E.
Lungren of California, Gale E. Norton of Colorado, Richard
Blumenthal of Connecticut, Charles M. Oberly III of Delaware,
Michael J. Bowers of Georgia, Larry EchoHawk of Idaho, Roland W
Burris of Illinois, Linley E. Pearson of Indiana, Robert T. Stephan
of Kansas, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of
Massachusetts, Frank J. Kelley of Michigan, Hubert H. Humphrey III
of Minnesota, Mike Moore of Mississippi, William L. Webster of
Missouri, Marc Racicot of Montana, Don Stenberg of Nebraska,
Frankie Sue Del Papa of Nevada, John P. Arnold of New Hampshire,
Robert J. Del Tufo of New Jersey, Lacy H. Thornburg of North
Carolina, Lee Fisher of Ohio, Robert H. Henry of Oklahoma, Ernest
D. Preate, Jr., of Pennsylvania, T. Travis Medlock of South
Carolina, Mark Barnett of South Dakota, Charles W Burson of
Tennessee, Paul Van Dam of Utah, Jeffrey L. Amestoy of Vermont,
Mary Sue Terry of Virginia, and Joseph B. Meyer of Wyoming; and for
the Council of State Governments et al. by Richard Ruda and Randal
S. Milch.
Briefs of amici curiae were filed for the United States by
Solicitor General Starr, Assistant Attorneys General Gerson and
Mueller, Deputy
108
JUSTICE 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."
Solicitor General Shapiro, and
Ronald J.
Mann; for the Crime Victims Legal Clinic by
Judith
Rowland; for the National Organization for Victim Assistance et
al. by
Charles G.
Brown III; and for the Washington
Legal Foundation et al. by
Daniel J.
Popeo, Richard A.
Samp, and
Jonathan K. Van Patten.
109
Memorandum 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(1)
(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
person 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(1l) (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, 573
N. E. 2d 541, 548 (1991).
111
The 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 §§ 13101352 (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(1).
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
B
Looking back from the safety of the Federal Witness Protection
Program, Henry Hill recalled: "At the age of twelve my ambition was
to be a gangster. To be a wiseguy. To me being a wiseguy was better
than being president of the United States." N. Pileggi, Wiseguy:
Life in a Mafia Family 19 (1985) (hereinafter Wiseguy). Whatever
one might think of Hill, at the very least it can be said that he
realized his dreams. After a career spanning 25 years, Hill
admitted engineering some of the most daring crimes of his day,
including the 1978-1979 Boston College basketball pointshaving
scandal, and the theft of $6 million from Lufthansa Airlines in
1978, the largest successful cash robbery in American history.
Wiseguy 9. Most of Hill's crimes were more banausic: He committed
extortion, he imported and distributed narcotics, and he organized
numerous robberies.
Hill was arrested in 1980. In exchange for immunity from
prosecution, he testified against many of his former colleagues.
Since his arrest, he has lived under an assumed name in an unknown
part of the country.
In August 1981, Hill entered into a contract with author
Nicholas Pileggi for the production of a book about Hill's life.
The following month, Hill and Pileggi signed a publishing agreement
with Simon & Schuster, Inc. Under the agreement, Simon &
Schuster agreed to make payments to both Hill and Pileggi. Over the
next few years, according to Pileggi, he and Hill "talked at length
virtually every single day, with not more than an occasional Sunday
or holiday skipped. We spent more than three hundred hours
together; my notes of conversations with Henry occupy more than six
linear file feet." App. 27. Because producing the book required
such a substantial investment of time and effort, Hill sought
compensation.
Ibid.
The result of Hill and Pileggi's collaboration was Wiseguy,
which was published in January 1986. The book depicts, in colorful
detail, the day-to-day existence of organized crime,
113
primarily in Hill's first-person narrative. Throughout Wiseguy,
Hill frankly admits to having participated in an astonishing
variety of crimes. He discusses, among other things, his conviction
of extortion and the prison sentence he served. In one portion of
the book, Hill recounts how members of the Mafia received
preferential treatment in prison:
"The dorm was a separate three-story building outside the wall,
which looked more like a Holiday Inn than a prison. There were four
guys to a room, and we had comfortable beds and private baths.
There were two dozen rooms on each floor, and each of them had mob
guys living in them. It was like a wiseguy convention-the whole
Gotti crew, Jimmy Doyle and his guys, 'Ernie Boy' Abbamonte and
'Joe Crow' Delvecchio, Vinnie Aloi, Frank Cotroni.
"It was wild. There was wine and booze, and it was kept in
bath-oil or after-shave jars. The hacks in the honor dorm were
almost all on the take, and even though it was against the rules,
we used to cook in our rooms. Looking back, I don't think Paulie
went to the general mess five times in the two and a half years he
was there. We had a stove and pots and pans and silverware stacked
in the bathroom. We had glasses and an ice-water cooler where we
kept the fresh meats and cheeses. When there was an inspection, we
stored the stuff in the false ceiling, and once in a while, if it
was confiscated, we'd just go to the kitchen and get new stuff.
"We had the best food smuggled into our dorm from the kitchen.
Steaks, veal cutlets, shrimp, red snapper. Whatever the hacks could
buy, we ate. It cost me two, three hundred a week. Guys like Paulie
spent five hundred to a thousand bucks a week. Scotch cost thirty
dollars a pint. The hacks used to bring it inside the walls in
their lunch pails. We never ran out of booze, because we had six
hacks bringing it in six days a week. Depending on what you wanted
and how much you were
114
willing to spend, life could be almost bearable." Wiseguy
150-151.
Wiseguy was reviewed favorably: The Washington Post called it an
"'amply detailed and entirely fascinating book that amounts to a
piece of revisionist history,'" while New York Daily News columnist
Jimmy Breslin named it "'the best book on crime in America ever
written.'" App. 5. The book was also a commercial success: Within
19 months of its publication, more than a million copies were in
print. A few years later, the book was converted into a film called
Goodfellas, which won a host of awards as the best film of
1990.
From Henry Hill's perspective, however, the publicity generated
by the book's success proved less desirable. The Crime Victims
Board learned of Wiseguy in January 1986, soon after it was
published.
C
On January 31, the Board notified Simon & Schuster: "It has
come to our attention that you may have contracted with a person
accused or convicted of a crime for the payment of monies to such
person." App. 86. The Board ordered Simon & Schuster to furnish
copies of any contracts it had entered into with Hill, to provide
the dollar amounts and dates of all payments it had made to Hill,
and to suspend all payments to Hill in the future. Simon &
Schuster complied with this order. By that time, Simon &
Schuster had paid Hill's literary agent $96,250 in advances and
royalties on Hill's behalf, and was holding $27,958 for eventual
payment to Hill.
The Board reviewed the book and the contract, and on May 21,
1987, issued a proposed determination and order. The Board
determined that Wiseguy was covered by § 632-a of the Executive
Law, that Simon & Schuster had violated the law by failing to
turn over its contract with Hill to the Board and by making
payments to Hill, and that all money owed to
115
Hill under the contract had to be turned over to the Board to be
held in escrow for the victims of Hill's crimes. The Board ordered
Hill to turn over the payments he had already received, and ordered
Simon & Schuster to turn over all money payable to Hill at the
time or in the future.
Simon & Schuster brought suit in August 1987, under 42 U. S.
C. § 1983, seeking a declaration that the Son of Sam law violates
the First Amendment and an injunction barring the statute's
enforcement. After the parties filed cross-motions for summary
judgment, the District Court found the statute to be consistent
with the First Amendment. 724 F. Supp. 170 (SDNY 1989). A divided
Court of Appeals affirmed.
Simon &
Schuster, Inc.
v.
Fischetti, 916 F.2d
777 (CA2 1990).
Because the Federal Government and most of the States have
enacted statutes with similar objectives, see 18 U. S. C. § 3681;
Note,
Simon &
Schuster, Inc. v. Fischetti: Can
New York's Son of Sam Law Survive First Amendment Challenge?, 66
Notre Dame L. Rev. 1075, n. 6 (1991) (listing state statutes), the
issue is significant and likely to recur. We accordingly granted
certiorari, 498 U. S. 1081 (1991), and we now reverse.
II A
A statute is presumptively inconsistent with the First Amendment
if it imposes a financial burden on speakers because of the content
of their speech.
Leathers v.
Medlock, 499 U. S. 439, 447
(1991). As we emphasized in invalidating a content-based magazine
tax: "[O]fficial scrutiny of the content of publications as the
basis for imposing a tax is entirely incompatible with the First
Amendment's guarantee of freedom of the press."
Arkansas
Writers' Project, Inc. v.
Ragland, 481 U. S. 221, 230
(1987).
This is a notion so engrained in our First Amendment
jurisprudence that last Term we found it so "obvious" as to
116
not require explanation.
Leathers, supra, at 447. It is
but one manifestation of a far broader principle: "Regulations
which permit the Government to discriminate on the basis of the
content of the message cannot be tolerated under the First
Amendment."
Regan v.
Time, Inc., 468 U. S. 641, 648649
(1984). See also
Police Dept. of Chicago v.
Mosley,
408 U. S. 92, 95 (1972). In the context of financial
regulation, it bears repeating, as we did in
Leathers, that
the government's ability to impose content-based burdens on speech
raises the specter that the government may effectively drive
certain ideas or viewpoints from the marketplace. 499 U. S., at
448449. The First Amendment presumptively places this sort of
discrimination beyond the power of the government. As we reiterated
in
Leathers: "'The constitutional right of free expression
is ... intended to remove governmental restraints from the arena of
public discussion, putting the decision as to what views shall be
voiced largely into the hands of each of us ... in the belief that
no other approach would comport with the premise of individual
dignity and choice upon which our political system rests.'''
Id., at 448-449 (quoting
Cohen v.
California,
403 U. S. 15,24
(1971)).
The Son of Sam law is such a content-based statute. It singles
out income derived from expressive activity for a burden the State
places on no other income, and it is directed only at works with a
specified content. Whether the First Amendment "speaker" is
considered to be Henry Hill, whose income the statute places in
escrow because of the story he has told, or Simon & Schuster,
which can publish books about crime with the assistance of only
those criminals willing to forgo remuneration for at least five
years, the statute plainly imposes a financial disincentive only on
speech of a particular content.
The Board tries unsuccessfully to distinguish the Son of Sam law
from the discriminatory tax at issue in
Arkansas Writers'
Project. While the Son of Sam law escrows all of the speaker's
speech-derived income for at least five years,
117
rather than taxing a percentage of it outright, this difference
can hardly serve as the basis for disparate treatment under the
First Amendment. Both forms of financial burden operate as
disincentives to speak; indeed, in many cases it will be impossible
to discern in advance which type of regulation will be more costly
to the speaker.
The Board next argues that discriminatory financial treatment is
suspect under the First Amendment only when the legislature intends
to suppress certain ideas. This assertion is incorrect; our cases
have consistently held that "[i]llicit legislative intent is not
the
sine qua non of a violation of the First Amendment."
Minneapolis Star &
Tribune Co. v.
Minnesota
Comm'r of Revenue, 460 U. S. 575, 592
(1983). Simon & Schuster need adduce "no evidence of an
improper censorial motive."
Arkansas Writers' Project,
supra, at 228. As we concluded in
Minneapolis Star: "We
have long recognized that even regulations aimed at proper
governmental concerns can restrict unduly the exercise of rights
protected by the First Amendment." 460 U. S., at 592.
Finally, the Board claims that even if the First Amendment
prohibits content-based financial regulation specifically of the
media, the Son of Sam law is different, because it imposes a
general burden on any "entity" contracting with a convicted person
to transmit that person's speech. Cf.
Cohen v.
Cowles
Media Co., 501 U.
S. 663, 670 (1991) ("[E]nforcement of ... general laws against
the press is not subject to stricter scrutiny than would be applied
to enforcement against other persons or organizations"). This
argument falters on both semantic and constitutional grounds. Any
"entity" that enters into such a contract becomes by definition a
medium of communication, if it was not one already. In any event,
the characterization of an entity as a member of the "media" is
irrelevant for these purposes. The government's power to impose
content-based financial disincentives on speech surely does not
vary with the identity of the speaker.
118
The Son of Sam law establishes a financial disincentive to
create or publish works with a particular content. In order to
justify such differential treatment, "the State must show that its
regulation is necessary to serve a compelling state interest and is
narrowly drawn to achieve that end."
Arkansas Writers'
Project, 481 U. S., at 231.
B
The Board disclaims, as it must, any state interest in
suppressing descriptions of crime out of solicitude for the
sensibilities of readers. See Brief for Respondents 38, n. 38. As
we have often had occasion to repeat: "'[T]he fact that society may
find speech offensive is not a sufficient reason for suppressing
it. Indeed, if it is the speaker's opinion that gives offense, that
consequence is a reason for according it constitutional
protection.'"
Hustler Magazine, Inc. v.
Falwell,
485 U. S. 46, 55
(1988) (quoting
FCC v.
Pacifica Foundation, 438 U. S. 726, 745
(1978)). "'If there is a bedrock principle underlying the First
Amendment, it is that the Government may not prohibit the
expression of an idea simply because society finds the idea itself
offensive or disagreeable.'"
United States v.
Eichman, 496
U. S. 310, 319 (1990) (quoting
Texas v.
Johnson,
491 U. S. 397,
414 (1989)). The Board thus does not assert any interest in
limiting whatever anguish Henry Hill's victims may suffer from
reliving their victimization.
There can be little doubt, on the other hand, that the State has
a compelling interest in ensuring that victims of crime are
compensated by those who harm them. Every State has a body of tort
law serving exactly this interest. The State's interest in
preventing wrongdoers from dissipating their assets before victims
can recover explains the existence of the State's statutory
provisions for prejudgment remedies and orders of restitution. See
N. Y. Civ. Prac. Law §§ 62016226 (McKinney 1980 and Supp. 1991); N.
Y. Penal Law
119
§ 60.27 (McKinney 1987). We have recognized the importance of
this interest before, in the Sixth Amendment context. See
Caplin &
Drysdale, Chartered v.
United
States, 491 U. S.
617, 629 (1989).
The State likewise has an undisputed compelling interest in
ensuring that criminals do not profit from their crimes. Like most
if not all States, New York has long recognized the "fundamental
equitable principle,"
Children of Bedford v.
Petromelis, 77 N. Y. 2d, at 727, 573 N. E. 2d, at 548, that
"[n]o 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."
Riggs v.
Palmer, 115 N. Y. 506, 511-512, 22 N. E. 188, 190 (1889).
The force of this interest is evidenced by the State's statutory
provisions for the forfeiture of the proceeds and instrumentalities
of crime. See N. Y. Civ. Prac. Law §§ 1310-1352 (McKinney Supp.
1991).
The parties debate whether book royalties can properly be termed
the profits of crime, but that is a question we need not address
here. For the purposes of this case, we can assume without deciding
that the income escrowed by the Son of Sam law represents the
fruits of crime. We need only conclude that the State has a
compelling interest in depriving criminals of the profits of their
crimes, and in using these funds to compensate victims.
The Board attempts to define the State's interest more narrowly,
as "ensuring that criminals do not profit from storytelling about
their crimes before their victims have a meaningful opportunity to
be compensated for their injuries." Brief for Respondents 46. Here
the Board is on far shakier ground. The Board cannot explain why
the State should have any greater interest in compensating victims
from the proceeds of such "storytelling" than from any of the
criminal's other assets. Nor can the Board offer any justification
for a distinction between this expressive activity and
120
any other activity in connection with its interest in
transferring the fruits of crime from criminals to their victims.
Thus even if the State can be said to have an interest in
classifying a criminal's assets in this manner, that interest is
hardly compelling.
We have rejected similar assertions of a compelling interest in
the past. In
Arkansas Writers' Project and
Minneapolis
Star, we observed that while the State certainly has an
important interest in raising revenue through taxation, that
interest hardly justified selective taxation of the press, as it
was completely unrelated to a press/nonpress distinction.
Arkansas Writers' Project, supra, at 231;
Minneapolis
Star, 460 U. S., at 586. Likewise, in
Carey v.
Brown, 447 U.
S. 455, 467-469 (1980), we recognized the State's interest in
preserving privacy by prohibiting residential picketing, but
refused to permit the State to ban only nonlabor picketing. This
was because "nothing in the content-based labornonlabor distinction
has any bearing whatsoever on privacy."
Id., at 465. Much
the same is true here. The distinction drawn by the Son of Sam law
has nothing to do with the State's interest in transferring the
proceeds of crime from criminals to their victims.
Like the government entities in the above cases, the Board has
taken the
effect of the statute and posited that effect as
the State's interest. If accepted, this sort of circular defense
can sidestep judicial review of almost any statute, because it
makes all statutes look narrowly tailored. As Judge Newman pointed
out in his dissent from the opinion of the Court of Appeals, such
an argument "eliminates the entire inquiry concerning the validity
of content-based discriminations. Every content-based
discrimination could be upheld by simply observing that the state
is anxious to regulate the designated category of speech." 916 F.
2d, at 785.
In short, the State has a compelling interest in compensating
victims from the fruits of the crime, but little if any interest in
limiting such compensation to the proceeds of the
121
wrongdoer's speech about the crime. We must therefore determine
whether the Son of Sam law is narrowly tailored to advance the
former, not the latter, objective.
C
As a means of ensuring that victims are compensated from the
proceeds of crime, the Son of Sam law is significantly
overinclusive. As counsel for the Board conceded at oral argument,
the statute applies to works on any subject, provided that they
express the author's thoughts or recollections about his crime,
however tangentially or incidentally. See Tr. of Oral Arg. 30, 38;
see also App. 109. In addition, the statute's broad definition of
"person convicted of a crime" enables the Board to escrow the
income of any author who admits in his work to having committed a
crime, whether or not the author was ever actually accused or
convicted. § 632-a(10)(b).
These two provisions combine to encompass a potentially very
large number of works. Had the Son of Sam law been in effect at the
time and place of publication, it would have escrowed payment for
such works as The Autobiography of Malcolm X, which describes
crimes committed by the civil rights leader before he became a
public figure; Civil Disobedience, in which Thoreau acknowledges
his refusal to pay taxes and recalls his experience in jail; and
even the Confessions of Saint Augustine, in which the author
laments "my past foulness and the carnal corruptions of my soul,"
one instance of which involved the theft of pears from a
neighboring vineyard. See A. Haley & Malcolm X, The
Autobiography of Malcolm X 108-125 (1964); H. Thoreau, Civil
Disobedience 18-22 (1849, reprinted 1969); The Confessions of Saint
Augustine 31, 36-37 (Franklin Library ed. 1980).
Amicus
Association of American Publishers, Inc., has submitted a sobering
bibliography listing hundreds of works by American prisoners and
ex-prisoners, many of which contain descriptions of the crimes for
which the authors were incar-
122
cerated, including works by such authors as Emma Goldman and
Martin Luther King, Jr. A list of prominent figures whose
autobiographies would be subject to the statute if written is not
difficult to construct: The list could include Sir Walter Raleigh,
who was convicted of treason after a dubiously conducted 1603
trial; Jesse Jackson, who was arrested in 1963 for trespass and
resisting arrest after attempting to be served at a lunch counter
in North Carolina; and Bertrand Russell, who was jailed for seven
days at the age of 89 for participating in a sit-down protest
against nuclear weapons. The argument that a statute like the Son
of Sam law would prevent publication of all of these works is
hyperbole-some would have been written without compensation-but the
Son of Sam law clearly reaches a wide range of literature that does
not enable a criminal to profit from his crime while a victim
remains uncompensated. *
*Because the Son of Sam law is so overinclusive, we need not
address the Board's contention that the statute is content neutral
under our decisions in
Ward v.
Rock Against Racism,
491 U. S. 781
(1989), and
Renton v.
Playtime Theatres, Inc.,
475 U. S. 41
(1986). In these cases, we determined that statutes were content
neutral where they were intended to serve purposes unrelated to the
content of the regulated speech, despite their incidental effects
on some speakers but not others. Even under
Ward and
Renton, however, regulations must be "narrowly tailored" to
advance the interest asserted by the State.
Ward, supra, at
798;
Renton, supra, at 52. A regulation is not "narrowly
tailored"-even under the more lenient tailoring standards applied
in
Ward and
Renton-where, as here, "a substantial
portion of the burden on speech does not serve to advance [the
State's content-neutral] goals."
Ward, supra, at 799. Thus
whether the Son of Sam law is analyzed as content neutral under
Ward or content based under
Leathers, it is too
overinclusive to satisfy the requirements of the First Amendment.
And, in light of our conclusion in this case, we need not decide
whether, as JUSTICE BLACKMUN suggests, the Son of Sam law is
underinclusive as well as overinclusive. Nor does this case present
a need to address JUSTICE KENNEDY'S discussion of what is a
longstanding debate, see G. Gunther, Constitutional Law 1069-1070
(12th ed. 1991), on an issue which the parties before us have
neither briefed nor argued.
123
Should a prominent figure write his autobiography at the end of
his career, and include in an early chapter a brief recollection of
having stolen (in New York) a nearly worthless item as a youthful
prank, the Board would control his entire income from the book for
five years, and would make that income available to all of the
author's creditors, despite the fact that the statute of
limitations for this minor incident had long since run. That the
Son of Sam law can produce such an outcome indicates that the
statute is, to say the least, not narrowly tailored to achieve the
State's objective of compensating crime victims from the profits of
crime.
III
The Federal Government and many of the States have enacted
statutes designed to serve purposes similar to that served by the
Son of Sam law. Some of these statutes may be quite different from
New York's, and we have no occasion to determine the
constitutionality of these other laws. We conclude simply that in
the Son of Sam law, New York has singled out speech on a particular
subject for a financial burden that it places on no other speech
and no other income. The State's interest in compensating victims
from the fruits of crime is a compelling one, but the Son of Sam
law is not narrowly tailored to advance that objective. As a
result, the statute is inconsistent with the First Amendment.
The judgment of the Court of Appeals is accordingly
Reversed.
JUSTICE THOMAS took no part in the consideration or decision of
this case.
JUSTICE BLACKMUN, concurring in the judgment.
I am in general agreement with what the Court says in its
opinion. I think, however, that the New York statute is
underinclusive as well as overinclusive and that we should
124
KENNEDY, J., concurring in judgment
say so. Most other States have similar legislation and deserve
from this Court all the guidance it can render in this very
sensitive area.
JUSTICE KENNEDY, concurring in the judgment.
The New York statute we now consider imposes severe restrictions
on authors and publishers, using as its sole criterion the content
of what is written. The regulated content has the full protection
of the First Amendment and this, I submit, is itself a full and
sufficient reason for holding the statute unconstitutional. In my
view it is both unnecessary and incorrect to ask whether the State
can show that the statute "'is necessary to serve a compelling
state interest and is narrowly drawn to achieve that end.'"
Ante, at 118 (quoting
Arkansas Writers' Project, Inc.
v.
Ragland, 481 U. S. 221, 231 (1987)). That test or
formulation derives from our equal protection jurisprudence, see,
e. g., Wygant v.
Jackson Board of Ed., 476 U. S. 267, 273-274
(1986) (opinion of Powell, J.);
Hirabayashi v.
United
States, 320 U. S.
81, 100 (1943), and has no real or legitimate place when the
Court considers the straightforward question whether the State may
enact a burdensome restriction of speech based on content only,
apart from any considerations of time, place, and manner or the use
of public forums.
Here, a law is directed to speech alone where the speech in
question is not obscene, not defamatory, not words tantamount to an
act otherwise criminal, not an impairment of some other
constitutional right, not an incitement to lawless action, and not
calculated or likely to bring about imminent harm the State has the
substantive power to prevent. No further inquiry is necessary to
reject the State's argument that the statute should be upheld.
Borrowing the compelling interest and narrow tailoring analysis
is ill advised when all that is at issue is a contentbased
restriction, for resort to the test might be read as a
125
concession that States may censor speech whenever they believe
there is a compelling justification for doing so. Our precedents
and traditions allow no such inference.
This said, it must be acknowledged that the compelling interest
inquiry has found its way into our First Amendment jurisprudence of
late, even where the sole question is, or ought to be, whether the
restriction is in fact content based. Although the notion that
protected speech may be restricted on the basis of content if the
restriction survives what has sometimes been termed "'the most
exacting scrutiny,'"
Texas v.
Johnson, 491 U. S. 397, 412
(1989), may seem familiar, the Court appears to have adopted this
formulation in First Amendment cases by accident rather than as the
result of a considered judgment. In
Johnson, for example, we
cited
Boos v.
Barry, 485 U. S. 312, 321
(1988), as support for the approach.
Boos v.
Barry in
turn cited
Perry Ed. Assn. v.
Perry Local Educators'
Assn., 460 U. S.
37, 45 (1983), for the proposition that to justify a
content-based restriction on political speech in a public forum,
the State must show that "the 'regulation is necessary to serve a
compelling state interest and that it is narrowly drawn to achieve
that end.'"
Boos v.
Barry, supra, at 321. Turning to
the appropriate page in
Perry, we discover that the
statement was supported with a citation of
Carey v.
Brown, 447 U.
S. 455, 461 (1980). Looking at last to
Carey, it turns
out the Court was making a statement about equal protection: "When
government regulation discriminates among speech-related activities
in a public forum, the Equal Protection Clause mandates that the
legislation be finely tailored to serve substantial state
interests, and the justifications offered for any distinctions it
draws must be carefully scrutinized."
Id., at 461-462. Thus
was a principle of equal protection transformed into one about the
government's power to regulate the content of speech in a public
forum, and from this to a more general First Amendment statement
about the government's power to regulate the content of speech.
126
KENNEDY, J., concurring in judgment
The employment of the compelling interest test in the present
context is in no way justified by my colleagues' citation of
Arkansas Writers' Project v.
Ragland. Ante, at 118.
True, both
Ragland and the case on which it relied,
Minneapolis Star &
Tribune Co. v.
Minnesota
Comm'r of Revenue, 460 U. S. 575 (1983),
recite either the compelling interest test or a close variant, see
Ragland, supra, at 231;
Minneapolis Star, supra, at
585, but neither is a case in which the State regulates speech for
its content.
There are, of course, other cases, some even predating the slow
metamorphosis of
Carey v.
Brown's equal protection
analysis into First Amendment law, which apply the compelling
interest test, but these authorities also address issues other than
content censorship. See
Buckley v.
Valeo, 424 U. S. 1, 25 (1976)
(upholding content-neutral limitations on financial contributions
to campaigns for federal office and striking down content-neutral
limitations on financial expenditures for such campaigns);
Cousins v.
Wigoda, 419 U. S. 477, 489 (1975)
(content-neutral restriction on freedom of association);
NAACP v.
Button, 371 U. S. 415, 438 (1963)
(content-neutral prohibition on solicitation by lawyers);
Shelton v.
Tucker, 364 U. S. 479, 488 (1960)
(content-neutral statute compelling teachers in state-supported
schools or colleges to disclose all organizations to which they
belonged or contributed).
The inapplicability of the compelling interest test to
content-based restrictions on speech is demonstrated by our
repeated statement that "above all else, the First Amendment means
that government has no power to restrict expression because of its
message, its ideas, its subject matter, or its content."
Police
Dept. of Chicago v.
Mosley, 408 U. S. 92, 95 (1972). See
also
Ragland, 481 U. S., at 229230 (citing
Mosley);
Regan v.
Time, Inc., 468 U. S. 641, 648-649
(1984) ("Regulations which permit the Government to discriminate on
the basis of the content of the message cannot be tolerated under
the First Amendment"). These
127
general statements about the government's lack of power to
engage in content discrimination reflect a surer basis for
protecting speech than does the test used by the Court today.
There are a few legal categories in which content-based
regulation has been permitted or at least contemplated. These
include obscenity, see,
e. g., Miller v.
California,
413 U. S. 15 (1973), defamation, see,
e. g., Dun &
Bradstreet, Inc. v.
Greenmoss Builders, Inc.,
472 U. S. 749
(1985), incitement, see,
e. g., Brandenburg v.
Ohio,
395 U. S. 444
(1969), or situations presenting some grave and imminent danger the
government has the power to prevent, see,
e. g., Near v.
Minnesota ex rel. Olson, 283 U. S. 697, 716
(1931). These are, however, historic and traditional categories
long familiar to the bar, although with respect to the last
category it is most difficult for the government to prevail. See
New York Times Co. v.
United States, 403 U. S. 713 (1971).
While it cannot be said with certainty that the foregoing types of
expression are or will remain the only ones that are without First
Amendment protection, as evidenced by the proscription of some
visual depictions of sexual conduct by children, see
New
York v.
Ferber, 458 U. S. 747 (1982), the
use of these traditional legal categories is preferable to the sort
of ad hoc balancing that the Court henceforth must perform in every
case if the analysis here used becomes our standard test.
As a practical matter, perhaps we will interpret the compelling
interest test in cases involving content regulation so that the
results become parallel to the historic categories I have
discussed, although an enterprise such as today's tends not to
remain
pro forma but to take on a life of its own. When we
leave open the possibility that various sorts of content
regulations are appropriate, we discount the value of our
precedents and invite experiments that in fact present clear
violations of the First Amendment, as is true in the case before
us.
To forgo the compelling interest test in cases involving direct
content-based burdens on speech would not, of course,
128
KENNEDY, J., concurring in judgment
eliminate the need for difficult judgments respecting First
Amendment issues. Among the questions we cannot avoid the necessity
of deciding are: Whether the restricted expression falls within one
of the unprotected categories discussed above,
supra, at
127; whether some other constitutional right is impaired, see
Nebraska Press Assn. v.
Stuart, 427 U. S. 539 (1976);
whether, in the case of a regulation of activity which combines
expressive with nonexpressive elements, the regulation aims at the
activity or the expression, compare
United States v.
O'Brien, 391
U. S. 367 (1968), with
Texas v.
Johnson, 491 U.
S., at 406-410; whether the regulation restricts speech itself or
only the time, place, or manner of speech, see
Ward v.
Rock Against Racism, 491 U. S. 781 (1989); and
whether the regulation is in fact content based or content neutral.
See
Boos v.
Barry, 485 U. S., at 319-321. However
difficult the lines may be to draw in some cases, here the answer
to each of these questions is clear.
The case before us presents the opportunity to adhere to a surer
test for content-based cases and to avoid using an unnecessary
formulation, one with the capacity to weaken central protections of
the First Amendment. I would recognize this opportunity to confirm
our past holdings and to rule that the New York statute amounts to
raw censorship based on content, censorship forbidden by the text
of the First Amendment and well-settled principles protecting
speech and the press. That ought to end the matter.
With these observations, I concur in the judgment of the Court
holding the statute invalid.
Comments
Be the first to comment
Leave a Comment