Caseflicks

Supreme Court of the United States • 1991

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

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Takeaway

In short, this case holds that a State may pursue victim compensation and prevent criminals from retaining crime profits, but it may not selectively burden speech about crime through a law so broad that it reaches protected expression far beyond actual criminal proceeds.

Background

New York’s “Son of Sam” law required a person or entity that contracted with an accused or convicted criminal to pay for a book, film, article, or other expression recounting the crime to submit the contract and pay the criminal’s proceeds to the Crime Victims Board. The Board held the money in escrow for at least five years, making it available first to crime victims and then to other creditors. The law also reached persons who admitted committing a crime in their work even if they had never been charged or convicted.

Simon & Schuster published Wiseguy, Nicholas Pileggi’s book based on extensive interviews with Henry Hill, an admitted organized-crime figure. After learning of the publishing agreement, the Board directed Simon & Schuster to stop payments to Hill and to turn over money due under the contract for escrow. Simon & Schuster brought a § 1983 action alleging that the statute violated the First Amendment. The District Court upheld the law, and a divided Second Circuit affirmed. The Supreme Court granted certiorari and reversed.

Issues

Issue #1

Whether New York’s Son of Sam law imposed a content-based burden on protected speech subject to the most demanding First Amendment review.

Holding

Yes. The law singled out speech about a criminal’s crimes for a financial burden and was therefore presumptively unconstitutional unless necessary to serve a compelling state interest and narrowly tailored to that end.

Reasoning

The statute burdened income earned from expressive activity only when the work reenacted a crime or conveyed the accused or convicted person’s thoughts, feelings, opinions, or emotions about that crime. A criminal could earn income from other activities without the same escrow requirement. Thus, whether the relevant speaker was Henry Hill or Simon & Schuster, the law created a financial disincentive to produce or publish speech with a specified content.

Escrowing speech-derived income for at least five years was constitutionally equivalent in principle to imposing a content-based tax. Both measures make speaking less financially attractive, and the First Amendment does not permit the government to burden speakers based on what they say merely by calling the burden an escrow requirement rather than a tax.

The State did not need to have an improper censorial motive for the law to violate the First Amendment. Even a law directed at legitimate governmental concerns may unduly restrict protected expression when it discriminates based on content. Nor did it matter that the statute formally applied to any contracting entity rather than only to the institutional press; an entity that contracts to disseminate a criminal’s story functions as a medium of communication, and content-based burdens are suspect regardless of the speaker’s identity.

Issue #2

Whether the Son of Sam law was narrowly tailored to New York’s compelling interests in compensating crime victims and preventing criminals from profiting from crime.

Holding

No. Although New York had compelling interests in compensating victims and depriving criminals of crime’s fruits, the statute was substantially overinclusive because it swept far beyond proceeds properly understood as profits of crime.

Reasoning

New York had a compelling interest in ensuring that victims can recover from those who injured them and in preventing wrongdoers from retaining the fruits of their crimes. The Court assumed, without deciding, that royalties covered by the statute could be treated as proceeds of crime for purposes of the case.

But the State could not define its interest as ensuring that criminals do not profit specifically from telling stories about their crimes. The State could not explain why victims had a greater claim to income from a criminal’s expressive activity than to the criminal’s other assets. That narrowed formulation merely restated the statute’s content-based distinction instead of supplying a justification for it.

The law applied to works on any subject if they included even incidental recollections or expressions concerning a crime. It also covered any author who admitted committing a crime in the work, even without prosecution or conviction. Its reach could therefore extend to autobiographical and political works such as those of Malcolm X, Thoreau, Martin Luther King, Jr., or others who described unlawful conduct.

Because a brief reference to a long-past minor crime could cause the Board to control all income from an entire autobiography for five years, the statute burdened a substantial amount of speech unrelated to compensating victims from actual criminal proceeds. It was therefore not narrowly tailored. The Court noted that the statute would fail even if viewed as content neutral, because its overbreadth meant that much of its burden on speech did not advance the State’s asserted goal.

Concurrences

Justice Blackmun

Reasoning

Justice Blackmun agreed with the Court’s judgment and its general analysis, but added that the statute was underinclusive as well as overinclusive. In his view, the Court should have identified both defects to provide fuller guidance to other States, many of which had enacted similar laws aimed at preventing criminals from profiting from their crimes.

Justice Kennedy

Reasoning

Justice Kennedy agreed that the statute was unconstitutional because it imposed severe burdens on authors and publishers solely because of what they wrote. In his view, that straightforward content discrimination against fully protected speech was itself sufficient to invalidate the law.

He disagreed with the majority’s use of the compelling-interest and narrow-tailoring test. Justice Kennedy argued that this formulation originated in equal-protection doctrine and should not be treated as a general license for government to censor speech whenever it can articulate a compelling justification.

Instead, he would begin with the principle that government has no power to restrict expression because of its message, ideas, subject matter, or content, except within historically recognized categories such as obscenity, defamation, incitement, or certain grave and imminent dangers. Because the speech regulated here fell within none of those categories, he would hold the law invalid without further balancing.