Son of Sam Laws

‘‘Son of Sam’’ laws are designed to prevent criminals from profiting from their misdeeds and to enhance the ability of crime victims to collect tort damages from the persons who cause them harm. New York enacted the first such law in 1977 in response to widespread concern that David Berkowitz, a notorious serial killer popularly known as the ‘‘Son of Sam,’’ might sell the rights to his story for a substantial sum.

The New York law, as later amended, required any entity that contracted with an ‘‘accused or convicted’’ person for a work recounting his crime or describing his thoughts or feelings about his crime to submit a copy of the contract to the state Victims Compensation Board and turn over any monies owed under that contract. The board was required to hold these monies in escrow for the benefit of any crime victim who, within five years of the account’s establishment, brought a civil action against the criminal author. The law was designed to enhance the tort law remedies available to crime victims in two respects: first, the escrow account prevented the authors from spending the profits generated by their crime stories before their victims could obtain judgments against them; and second, once the escrow account was established, the tort statute of limitations recommenced, giving the crime victim additional time to file suit. New York’s law quickly became a national model, and Congress and all but a handful of state legislatures subsequently adopted similar laws.

In 1991, in Simon & Schuster v. Members of the New York State Crime Victims Board, the Supreme Court unanimously invalidated New York’s Son of Sam law on First Amendment grounds. The Court found that the law was a Content-Based Regulation of Speech and thus could be upheld only if it could withstand strict scrutiny. Although the Court acknowledged that the state interests supporting the law—ensuring that criminals do not profit from their misdeeds and that crime victims are compensated by those who harm them—were both ‘‘compelling,’’ it determined that the law was unnecessarily broad for two reasons. First, the law applied to works on any subject or theme that ‘‘express the author’s thoughts or recollections about his crime, however tangentially or incidentally.’’ Second, the law’s ‘‘broad definition of ‘person convicted of a crime’ enable[d] the Board to escrow the income of any author who admit[ted] in his work to having committed a crime, whether or not the author was ever actually accused or convicted.’’ Thus, the law potentially reached many literary works, ranging from St. Augustine’s Confessions to The Autobiography of Malcolm X, whose commercial value was not attributable to their accounts of criminal activities and whose authors did not owe their fame to criminal activity.

After Simon & Schuster, a number of states repealed their Son of Sam laws, while others, including New York, amended their laws in an effort to cure the constitutional defects identified by the Court. Some of these revised laws have since been invalidated by state courts, and it is uncertain whether any content- based law of this kind will be able to withstand First Amendment challenge.

MICHAEL MADOW

Cases and Statutes Cited

• Simon & Schuster v. Members of the New York State Crime Victims Board, 502 U.S. 105 (1991)
• N.Y. Exec. Law }632-a(1) (McKinney 1982 & Supp. 1991)
• 18 United States Code } 3681(2005)

See also Content-Based Regulation of Speech