Our country has long had a fascination with celebrities. The general public has a voracious appetite for information on the day-to-day lives of celebrities: what they wear, what and where they eat, where they spend their time, how much money they make, and more. Magazines such as The National Enquirer, Star, Us Weekly and People help satiate the public’s obsessive thirst for this information.
Our country also has an obsession with some otherwise run-of-the-mill criminals. A few times a year someone commits a crime that captivates the nation. The current trial under the collective microscope is that of Scott Peterson. This case has, barring objectively more important news, dominated the headlines for months.
However, the fascination with celebrities and criminals respectively pales in comparison to the furor generated when a celebrity is either accused or convicted of a crime. For example, Roscoe "Fatty" Arbuckle, one of America’s first celebrity "criminals," was accused of raping and murdering a young woman in a hotel suite.1 Mr. Arbuckle was tried three times and eventually acquitted, but the resulting negative publicity from the charges and trials effectively ruined his career forever.2 More recently, Winona Ryder was convicted of felony grand theft and vandalism for shoplifting from an upscale Beverly Hills store.3 The media frenzy surrounding the incident was tremendous, especially considering it was over a relatively minor crime. And of course, no one can forget perhaps the most infamous celebrity criminal of all: Orenthal James (O.J.) Simpson. It would be an understatement to note that O.J.’s murder trial drew more than its fare share of attention from the national and international media alike.
This social phenomenon continued when the story broke that Martha Stewart had allegedly broken the law. Ms. Stewart sold 3,928 shares of ImClone one day before a Food and Drug Administration ruling against ImClone caused the price of the stock to drop sharply.4 Ms. Stewart was initially accused of having received inside information that the founder of ImClone was selling his shares, which allegedly prompted Ms. Stewart to sell hers as well.5 However, she was never actually charged with insider trading.6 Ms. Stewart was, however, eventually charged with and convicted of "one count of conspiracy, two counts of making false statements and one count of obstruction of agency proceedings."7
The latest headline from Ms. Stewart’s trial was one that, for a change, did not have anything directly to do with the criminal trial itself. Ms. Stewart announced that she plans on writing a "how-to" book based on her experience in the federal court system.8 Ms. Stewart explained that this proposed book would include advice on selecting an attorney, tips for interviews (presumably with the media) as well as general guidance on how to behave during the ordeal.9 Apparently it will be some sort of guidebook for navigating a federal trial. Based on Ms. Stewart’s past success as an author as well as the widespread interest in all aspects of her trial, the book would undoubtedly sell very well. However, despite all the interest in this issue, some would certainly question Ms. Stewart’s right to profit, even indirectly, from her crime. Even though Ms. Stewart might not describe the crimes at all, without ever having committed them Ms. Stewart would not have the opportunity to write her proposed "how-to" book and earn the large royalties associated with a popular book.
Everyone is familiar with the old axiom which asserts that "crime does not pay." Is it fair for Ms. Stewart to have committed a crime and then profit from the proceeds of a book whose topic would not exist but for the crime itself? The other side of the coin is, of course, that a restriction on an individual’s writing might be contrary to the First Amendment to the Constitution, which states that "Congress shall make no law . . . abridging the freedom of speech."10 The legal question as to whether Ms. Stewart would be able to profit from her proposed book stems from the existence of civil forfeiture laws, which are commonly referred to as "Son of Sam" laws. These laws are named after David Berkowitz (the individual upon whom the Son of Sam moniker was placed), and are generally designed so that the old maxim of "crime does not pay" can be legally enforced.
The first commonly cited theory for Son of Sam laws goes all the way back to 1889. In Riggs v. Palmer a young man murdered his grandfather so that he would receive his grandfather’s estate.11 The trial court did not allow the young murderer to take the estate, however, precisely because he killed his grandfather.12 The court stated that a criminal should not "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."13 This theory became codified as a Son of Sam law after David Berkowitz’s brutal killings in New York City in 1977.
Fear gripped the city of New York in the hot summer of 1977. David Berkowitz was randomly murdering young women with a .44 caliber handgun, ominously "leaving behind a signature note bearing ‘Son of Sam’ at the crime scenes."14 Due to the extensive media coverage of Mr. Berkowitz’s crimes and the resulting manhunt, by the time he was apprehended the rights to his story had become quite valuable.15 The general public, although quite interested in hearing all the sordid details of his crimes, was outraged at the prospect of Mr. Berkowitz selling his story for a tidy profit.16 The New York state legislature agreed, with one legislator in particular stating that the idea of Mr. Berkowitz profiting from these heinous crimes offended a "sense of justice and decency."17 As a result, the legislature quickly passed section 632-a of the Executive Law.18 This law and its progeny prevent a criminal from receiving any profit from his or her crime by placing all profits from television, book and movie contracts that describe the crime(s) into a state-controlled escrow account.19 This money is held by the state until it is disbursed to any victims who have prevailed in civil suits against the criminal.20 One may wonder why a special statute was needed to assist victims and their families when a judgment in traditional tort law can attach to any of the criminal’s assets, including profits from books, movies, and etcetera. The answer is that Son of Sam statutes extend or re-open the statute of limitations for a traditional tort lawsuit, thereby allowing civil lawsuits against the criminal that otherwise would have been barred by the statute of limitations.21
This Son of Sam law had, without a doubt, a worthy cause: ensuring that the victims or the families of victims were compensated before the criminal himself/herself was. Apparently quite a few states in the union liked New York’s Son of Sam law, because shortly after the New York law was passed "many other states and the federal government . . . quickly enact[ed] similar legislation."22 Forty-seven of the fifty states have at some point adopted at least a variation of New York’s original Son of Sam law.23
In fact, these laws were so popular that when courts were faced with these statutes many applied them while completely ignoring the question of whether they were even constitutional.24 Predictably, courts that did examine the question of constitutionality usually held in favor of the laws "because of deference to the legislative body and because the laws promoted a ‘noble’ intent."25 The State of Illinois, certainly not one to be left behind, passed its own Son of Sam statute.26 However, our legislature eventually repealed it without drafting a replacement.27 The main reason Illinois and many other states either repealed or at least amended their Son of Sam statutes was because the constitutionality of these laws was finally legitimately challenged.
The Supreme Court, in Simon & Schuster v. Members of the New York State Crime Victims Board,28 unanimously struck down the New York Son of Sam law.29 In that case a notorious ex-mobster, Henry Hill, wrote a book entitled Wiseguy: Life in a Mafia Family that quickly sold more than one million copies.30 In the book Mr. Hill detailed his life of crime as a member of the Mafia.31 Because he discussed his crimes in the book he was subject to the New York Son of Sam law.32 Mr. Hill’s publisher, Simon & Schuster, challenged the constitutionality of the law when New York State, under section 632-a, attempted to seize more than $100,000 that Simon & Schuster had agreed to pay Mr. Hill.33 The case made it all the way to the Supreme Court of the United States.34 The Court unanimously held that the law, as written, violated the First Amendment’s guarantee of right to free expression.35
The Court used the strict scrutiny standard when reviewing the New York Son of Sam law.36 In order "[t]o withstand strict scrutiny, the state must prove that there is a compelling government interest in upholding the law and that the law is narrowly tailored to meet that interest."37 The Court found that the state had two compelling interests in preventing criminals from profiting from their crimes and in compensating victims.38 However, ultimately the Court held that the law was not narrowly tailored because it was over-inclusive.39 The Court determined that the law was over-inclusive because it could apply to any author who wrote about a crime, regardless of the seriousness and regardless of whether he or she had actually been convicted of the crime described.40
"[T]he Court summarized its ruling in the following manner: the statute singled out ‘speech on a particular subject,’ subjected it to a financial burden not placed on any other speech or income, and was not narrowly tailored to advance its goal of compensating victims from criminal profits."41 Hence the statute was held to be unconstitutional.42 However, it should be noted that the Court’s holding was not as broad as it certainly could have been. In its opinion "[t]he Court hinted that more narrowly tailored legislation could possibly pass constitutional muster under strict scrutiny."43
As a result of this decision many states amended their Son of Sam statutes,44 almost certainly in an attempt at making the statutes more narrowly tailored. However, making proper amendments has proven to be harder in practice than in theory. In fact, "[d]espite the amendments made to the laws after Simon & Schuster, no Son of Sam statute has been upheld as constitutional after being attacked in court."45 Only one court46 has held that a criminal’s book profits can be forfeited, but that was under a much more broad forfeiture statute and not a Son of Sam law.47
Interestingly, the Federal statute was never amended and remains in its original form today.48 Its constitutionality has not been challenged as of the date of this writing even though it probably has the same deficiencies as the original New York statute.49 To that end, any profits from Martha Stewart’s proposed book could still be challenged under the federal statute. However, a few issues stand in the way of a successful challenge.
First, Ms. Stewart would have to write about some details of her crime in order for her profits to be seized under the federal statute. Ms. Stewart has stated that her proposed book will detail her dealings with the federal court system, and specifically give advice on how to handle a federal criminal charge.50 Even though Ms. Stewart’s proposed book stems from the crime and would not be possible without it, unless Ms. Stewart includes "thoughts, feelings or opinions regarding [her] crime" the statute will not apply.51 If the book is truly just a "how-to" guide and does not detail the crime at all there could be no challenge.52
Second, Ms. Stewart would in all probability be able to mount a successful challenge to the constitutionality of the federal Son of Sam statute. The federal statute has not been amended since the Supreme Court declared the original New York statute unconstitutional.53 Since the federal statute in large part is quite similar to the original New York statute, a court would probably find that the federal statute is unconstitutional as well.54
Third, this is a unique case in that Ms. Stewart probably has enough money without the proceeds from this proposed book to satisfy any and all civil claims that will be filed against her in this matter. Ms. Stewart is facing a plethora of civil suits, "including those filed by the Securities and Exchange Commission and the irate shareholders of Martha Stewart Living Omnimedia Inc."55 There certainly will also be civil suits brought against Ms. Stewart by the individuals who purchased the ImClone stock that Ms. Stewart sold. However, unlike your "average" criminal, Ms. Stewart probably has enough money to satisfy all of these claims. Hence one of the tenets of Son of Sam laws, ensuring victim compensation, is really a moot point here. All victims are almost ensured of receiving their compensation if they prevail in their respective civil suits against Ms. Stewart.
It appears that there is not a Son of Sam statute that will prevent Ms. Stewart from keeping all the profits from her proposed book. So far no Son of Sam statute has survived a challenge to its constitutionality, even though the Supreme Court hinted that a properly worded statute with substantially the same ends could pass constitutional muster.56 The door is certainly open for a more narrow Son of Sam statute. And although the Martha Stewart scenario does not necessarily demonstrate this,57 a constitutional Son of Sam law makes a lot of sense, at least from an emotional standpoint. Most people would agree with the legislator from New York who claimed that allowing criminals to profit from their crimes offends a sense of justice and fairness.58 After all, who wants to see a murderer make another killing, this time on book or movie profits, while his victims and their families stay uncompensated for the horrors they suffered through? In a vacuum it is easy to support the First Amendment’s guarantee of free speech, but it becomes much harder for most when they are faced with the reality of dead bodies and a convicted criminal who could be making millions. However, there are no laws or principles in this country that need to be upheld like our Constitution and its amendments. It seems, then, that legislatures need to get to work on a constitutionally sound version of a Son of Sam laws in order to keep both the David Berkowitzs and Martha Stewarts of the world from profiting from their crimes, violent or not, and to ensure victim compensation.
1 Bos. Globe, July 25, 2004 at E9.
3 Milwaukee J. & Sent., June 20, 2004 at 8B.
4 Fin. Times, March 6, 2004 at 1.
8 Stewart to pen book about her experience, Star Ledger (Newark N.J.), July 20, 2004 at 11.
10 U.S. Const. amend. I.
11 Riggs v. Palmer, 22 N.E. 188, 189 (N.Y. 1889).
12 Id. at 191.
13 Id. at 190.
14 Kathleen Howe, Is Free Speech Too High a Price to Pay for Crime? Overcoming the Constitutional Inconsistencies in Son of Sam Laws, 24 Loy. L.A. Ent. L. Rev. 341, 344-345 (2004).
15 Orly Nosrati, Son of Sam Laws: Killing Free Speech or Promoting Killer Profits?, 20 Whittier L. Rev. 949, 952 (1999).
19 N.Y. Exec. Law § 632-a (McKinney 1996).
20 N.Y. Exec. Law § 632-a (McKinney 1996).
21 Jessica Yager, Investigating New York’s 2001 Son of Sam Law: Problems with the Recent Extension of Tort Liability for People Convicted of Crimes, 48 N.Y.L. Sch. L. Rev. 433, 471-472 (2004).
22 Kathleen Howe, Is Free Speech Too High a Price to Pay for Crime? Overcoming the Constitutional Inconsistencies in Son of Sam Laws, 24 Loy. L.A. Ent. L. Rev. 341, 345 (2004).
23 Jessica Yager, Investigating New York’s 2001 Son of Sam Law: Problems with the Recent Extension of Tort Liability for People Convicted of Crimes, 48 N.Y.L. Sch. L. Rev. 433, 438 (2004).
24 Orly Nosrati, Son of Sam Laws: Killing Free Speech or Promoting Killer Profits?, 20 Whittier L. Rev. 949, 955 (1999).
26 725 Ill. Comp. Stat. Ann. § 145/4-14 (West 2000) (repealed 1992).
28 502 U.S. 105 (1991).
29 Id. at 123.
30 Orly Nosrati, Son of Sam Laws: Killing Free Speech or Promoting Killer Profits?, 20 Whittier L. Rev. 949, 957 (1999).
33 Id. at 957-958.
34 Simon & Schuster, 502 U.S. 105 (1991).
35 Id. at 123.
36 Id. at 118.
37 Kathleen Howe, Is Free Speech Too High a Price to Pay for Crime? Overcoming the Constitutional Inconsistencies in Son of Sam Laws, 24 Loy. L.A. Ent. L. Rev. 341, 348 (2004).
38 Simon & Schuster, 502 U.S. at 119.
39 Simon & Schuster, 502 U.S. at 121.
41 Orly Nosrati, Son of Sam Laws: Killing Free Speech or Promoting Killer Profits?, 20 Whittier L. Rev. 949, 960 (1999), quoting Simon & Schuster.
42 Simon & Schuster, 502 U.S. at 123.
43 Kathleen Howe, Is Free Speech Too High a Price to Pay for Crime? Overcoming the Constitutional Inconsistencies in Son of Sam Laws, 24 Loy. L.A. Ent. L. Rev. 341, 349 (2004).
44 Jessica Yager, Investigating New York’s 2001 Son of Sam Law: Problems with the Recent Extension of Tort Liability for People Convicted of Crimes, 48 N.Y.L. Sch. L. Rev. 433, 435 (2004).
45 Kathleen Howe, Is Free Speech Too High a Price to Pay for Crime? Overcoming the Constitutional Inconsistencies in Son of Sam Laws, 24 Loy. L.A. Ent. L. Rev. 341, 350 (2004).
46 Arizona v. Gravano, 60 P.3d. 246, 255-57 (Ariz. Ct. App. 2002).
47 Kathleen Howe, Is Free Speech Too High a Price to Pay for Crime? Overcoming the Constitutional Inconsistencies in Son of Sam Laws, 24 Loy. L.A. Ent. L. Rev. 341, 350 (2004).
48 18 U.S.C. § 3681 (1988).
49 See id.
50 Stewart to pen book about her experience, Star Ledger (Newark N.J.), July 20, 2004 at 11.
51 Jon Allyn Soderberg, Son of Sam Laws: A Victim of the First Amendment?, 49 Wash. & Lee L. Rev. 629, 635 (1992).
53 Simon & Schuster, 502 U.S. at 123.
54 See N.Y. Exec. Law § 632-a (McKinney 1996); 18 U.S.C. § 3681 (1988).
55 Stewart Guilty on all Counts; Lifestyle Guru Faces up to 20 Years Behind Bars, $1 Million in Fines; First Case is Finished, but Stewart Isn’t Done Yet, Daily Press (Va.), March 6, 2004 at A1.
56 Kathleen Howe, Is Free Speech Too High a Price to Pay for Crime? Overcoming the Constitutional Inconsistencies in Son of Sam Laws, 24 Loy. L.A. Ent. L. Rev. 341, 349 (2004).
57 Martha Stewart is a white-collar criminal who did not cause anyone physical harm in the commission of her crime. Although certainly not just, as the name suggests the Son of Sam laws were designed in large part with more violent criminals in mind.
58 Orly Nosrati, Son of Sam Laws: Killing Free Speech or Promoting Killer Profits?, 20 Whittier L. Rev. 949, 952 (1999).
Michael Delcomyn is a third-year law student at Northern Illinois University College of Law, and is the Editor-in-Chief for the Northern Illinois University Law Review.