The "Son of Sam" Case: Legislative Implications

The "Son of Sam" Case: Legislative Implications

Order Code 92-56 A
CRS Report for Congress
Received through the CRS Web
The “Son of Sam” Case:
First Amendment Analysis
and Legislative Implications
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Updated February 27, 2002
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Henry Cohen
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Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

The “Son of Sam” Case: First Amendment Analysis
and Legislative Implications
Summary
In Simon & Schuster, Inc. v. Members of the New York State Crime Victims
Board, the United States Supreme Court held that New York State’s “Son of Sam”
law was inconsistent with the First Amendment’s guarantee of freedom of speech and
press. The Son of Sam law, in the Court’s words, “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.” “[T]he Federal Government and most of the States
have enacted statutes with similar objectives.” This report examines the Supreme
Court decision and then considers whether its rationale renders the federal law
unconstitutional. Concluding that it likely does, we consider whether it would be
possible to enact a constitutional Son of Sam statute. Finally, we take note of some
state Son-of-Sam statutes that have been enacted since the Supreme Court decision.
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The Court struck down the New York statute apparently because it was both
underinclusive in that it applied solely to income derived from the exercise of First
Amendment rights, and overinclusive in that it could have applied to books such as
Saint Augustine’s Confessions, the inclusion of which would not have advanced the
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government’s legitimate interest in depriving criminals of the profits of their crimes
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and using these funds to compensate victims. The federal Son of Sam statute would
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appear to be unconstitutional for the same reasons, and it remains extremely
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speculative whether it would be possible to devise a constitutional Son of Sam law.
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Contents
The New York Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Supreme Court Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Federal Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A Constitutional Son of Sam Statute? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Underinclusiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Overinclusiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Developments since Simon & Schuster . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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The “Son of Sam” Case: First Amendment
Analysis and Legislative Implications
In Simon & Schuster, Inc. v. Members of the New York State Crime Victims
Board, the United States Supreme Court held that New York State’s “Son of Sam”
law was inconsistent with the First Amendment’s guarantee of freedom of speech and
press.1 The Son of Sam law, in the Court’s words, “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.”2 “[T]he Federal Government and most of the States
have enacted statutes with similar objectives.”3 This report examines the Supreme
Court decision and then considers whether its rationale renders the federal law
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unconstitutional. Concluding that it likely does, we consider whether it would be
possible to enact a constitutional Son of Sam statute.4 Finally, we take note of some
state Son-of-Sam statutes that have been enacted since the Supreme Court decision.
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The New York Statute
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The New York statute that the Supreme Court struck down required that anyone
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who contracts to pay a person accused or convicted of a crime in New York for such
person’s “reenactment of such crime,” by way of a movie, book, magazine article,
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tape recording, or the like, or for such person’s “thoughts, feelings, opinions or
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emotions regarding such crime,” shall pay over to the Crime Victims Board “any
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moneys which would otherwise, by terms of such contract, be owing to the person so
accused or convicted or his representatives.” The Board was then required to deposit
the money in an escrow account and pay it to any victims of the accused or convicted
person’s crimes who file a claim within five years of the date the escrow account is
established. Remaining funds in the account were to be paid to other creditors of the
accused or convicted person. The statute defined “person convicted of a crime” to
include “any person who has voluntarily and intelligently admitted the commission of
a crime,” even if such person has never been accused or convicted of it.
1 502 U.S. 105 (1991).
2 Id. at 108, summarizing N.Y. Executive Law § 632-a.
3 Id. at 115. The federal statute is codified at 18 U.S.C. § 3681. The state statutes in force
at the time are listed in Note, Simon & Schuster, Inc. v. Fischetti: Can New York’s Son of
Sam Law Survive First Amendment Challenge?, 66 Notre Dame L. Rev. 1075, 1075 n.6
(1991) (Fischetti was the lower-court version of the Supreme Court case).
4 “Son of Sam” was the nickname of David Berkowitz, a serial killer whose 1977 crimes gave
rise to the New York statute in question.

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The First Amendment
The First Amendment to the Constitution provides, in pertinent part, that
“Congress shall make no law . . . abridging the freedom of speech, or of the press,”
and it equally limits the states.5 Any law that limits speech on the basis of its content,
including a law that imposes a financial burden on speakers because of the content of
their speech, is presumptively unconstitutional.6 To overcome this presumption of
unconstitutionality, “the State must show that its regulation is necessary to serve a
compelling state interest and is narrowly drawn to achieve that end.”7 Thus, a state’s
compelling interest in maintaining public safety might allow it to prohibit “falsely
shouting fire in a theatre” – if it did not at the same time restrict speech in a manner
beyond what was necessary to maintain public safety.8
The Supreme Court Decision
The Supreme Court found that the New York statute served two compelling
interests: “ensuring that victims of crime are compensated by those who harm them,”
and “ensuring that criminals do not profit from their crimes.”9 The Court found that
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the state, however, had no compelling interest in “ensuring that criminals do not profit
from storytelling about their crimes. . . . The [New York State Crime Victims]
Board cannot explain why the State should have any greater interest in compensating
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victims from the proceeds of such ‘storytelling’ than from any of the criminal’s other
assets.”10 “In short,” Justice O’Connor wrote for the Court, “the State has a
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compelling interest in compensating victims from the fruits of the crime, but little if
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any interest in limiting such compensation to the proceeds of the wrongdoer’s speech
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about the crime. We must therefore determine whether the Son of Sam law is
narrowly tailored to advance the former, not the latter, objective.11
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The Court in this last sentence seems to be asking whether the statute is
underinclusive, in that it applies only to speech. It might appear that the Court had
already answered the question in its previous sentence when it said that “the State has
. . . little if any interest in limiting such compensation to the proceeds of the
wrongdoer’s speech about the crime.” But the Court did not think it had, as it said
5 Gitlow v. New York, 268 U.S. 652 (1925).
6 See, Simon & Schuster, supra note 1, at 115.
7 Id. at 118. The Court has indicated that, in the case of a content-based restriction on speech,
such as that imposed by New York’s Son of Sam statute, “narrowly drawn” means that the
regulation must constitute “the least restrictive means to further the articulated interest.”
Sable Communications of California, Inc. v. Federal Communications Commission, 492 U.S.
115, 126 (1989).
8 The quotation is from Justice Holmes’ opinion for the Court in Schenck v. United States,
249 U.S. 47, 52 (1919).
9 Simon & Schuster, supra note 1, at 118, 119.
10 Id. at 119.
11 Id. at 120-121

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elsewhere in the opinion that it “need not decide whether . . . the Son of Sam law is
underinclusive. . . .”12
In any case, the Court at this point begins to address not whether the statute is
underinclusive, in applying only to speech, but whether the statute is overinclusive,
in applying to too much speech – i.e., in applying to speech to which it need not apply
in order to advance its compelling interests. It concludes that it is. Here are three
comments it makes on this subject:
As a mean of ensuring that victims are compensated from the proceeds of crime,
the Son of Sam law is significantly overinclusive. . . . [T]he statute applies to
works on any subject, provided that they express the author’s thoughts or
recollections about his crime, however tangentially or incidentally. In addition, the
statute’s broad definition of a “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.13
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
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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
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corruptions of my soul,” one instance of which involved the theft of pears from a
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neighboring vineyard.14
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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
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income from the book for five years, and would make that income available to all
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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.15
After these comments on the statute’s overinclusiveness (in applying to too
much speech), the court appears to conclude that the statute is underinclusive (in
applying only to speech), though it has said that it “need not decide whether” it “is
underinclusive as well as overinclusive.”16 It writes:
12 Id. at 122, n.* (the Court uses an asterisk instead of a number presumably because this is
the only footnote in the opinion).
13 Id. at 121 (italics in original; citations omitted).
14 Id.
15 Id. at 123.
16 See, note 12, supra.

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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.17
Although the Court’s precise holding seems uncertain, it appears reasonable to
conclude that the Court considered the statute to be both underinclusive and
overinclusive. Justice Blackmun, in a concurring opinion, attempted to clarify,
writing, in full:
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 say so. Most other States have similar
legislation and deserve from this Court all the guidance it can render in this
very sensitive area.18
This is important because it suggests that the statute was both underinclusive in
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not applying to assets other than those derived from the exercise of First Amendment
rights, and was overinclusive for its potential application to works like Saint
Augustine’s Confessions.
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The Federal Statute
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The federal Son of Sam statute, 18 U.S.C. § 3681, applies to convictions under
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18 U.S.C. § 794, which makes it a federal crime to gather or deliver defense
information to aid a foreign government, and to convictions for federal crimes
“resulting in physical harm to an individual.” Thus, unlike the New York statute, the
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federal statute is limited to convictions and is limited to specified types of crimes.
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Apart from this, the federal statute is similar to the New York statute in relevant
respects. Like the New York statute, it applies to contracts relating to a depiction of
a crime in any medium, and to contracts for an expression of the defendant’s
“thoughts, opinions, or emotions regarding such crime.”19 Proceeds from such
contracts are retained in escrow in the Crime Victims Fund in the Treasury and for
five years are used for victim compensation, fines imposed by a federal court, and the
defendant’s legal representation. Remaining amounts may be paid into the Crime
Victims Fund in the Treasury.20
Like the New York statute, the federal statute is limited to proceeds received for
activities protected by the First Amendment. Therefore, there seems little doubt that
it also is unconstitutionally underinclusive. Is it also unconstitutionally overinclusive?
17 Id.
18 Id. at 123-124.
19 18 U.S.C. § 3681(a).
20 The Crime Victims Fund exists apart from the “Son of Sam” statute and receives funds
from sources other than criminals’ publication contracts. It is established at 42 U.S.C.
§ 10601.

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Unlike the New York statute, it would not apply to Saint Augustine’s theft of pears,
as his crime today would not violate the espionage statute or result in physical harm
to an individual (assuming it would violate federal law). However, the federal statute
would apply to a prominent figure who wrote his autobiography at the end of his
career, and included in an early chapter a brief recollection of a conviction for having
committed a federal crime in which he caused physical harm to an individual. This
might be a relatively minor federal crime, such as a traffic violation on federal land.21
Although the federal statute is not as overinclusive as the New York statute, it
nevertheless would apply in situations where it would not seem likely to advance the
federal interest in depriving criminals of the profits of their crimes and in using these
funds to compensate victims. Consequently, like the New York statute, it apparently
would be unconstitutionally overinclusive as well as underinclusive.
A Constitutional Son of Sam Statute?
To be constitutional, a Son of Sam statute apparently would have to avoid both
underinclusiveness and overinclusiveness. We discuss these issues in turn.
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Underinclusiveness. A Son of Sam statute could attempt to avoid
underinclusiveness by applying to a criminal’s assets beyond those derived from
speech about his crime. It might cover all his income derived from his crime, which
would include, in addition to income from writing or speaking about the crime,
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income derived directly from the crime, such as stolen money, income from
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investments of stolen money, or income derived from the sale of stolen property. Or
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it might apply not only to all income derived from a crime, but to all an individual’s
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income while in prison, or even to all his assets, including those legally acquired prior
to the commission of the crime. We will consider possible constitutional problems
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with both these possibilities.
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A Son of Sam statute that covered all income derived from a crime arguably
would have the purpose and effect primarily of limiting speech. This is because non-
speech income derived from a crime may already, to a large extent, be seized under
federal statutes, such as those that provide for fines or restitution.22 A statute’s
purpose, however, is unlikely to raise a First Amendment problem, as the Supreme
Court has said that it “will not strike down an otherwise constitutional statute on the
basis of an alleged illicit legislative motive.”23 But the effect on speech of a Son of
Sam statute that covered all income derived from a crime would raise a First
21 Section 13 of title 18, U.S. Code, provides that whoever in a place within the special
maritime and territorial jurisdiction of the United States (which includes some federal property
within a state, 18 U.S.C. § 7(3)) is guilty of an act or omission, which although not otherwise
a federal crime, is a crime in the jurisdiction where the place is situated, “shall be guilty of a
like offense and subject to a like punishment.” In other words, federal law incorporates state
law under such circumstances.
22E.g., 18 U.S.C. § 3556. In addition, the Federal Racketeer Influenced and Corrupt
Organizations Act (RICO), imposes forfeiture of “any property constituting, or derived from,
any proceeds which the person obtained, directly or indirectly, from racketeering activity
. . . .” 18 U.S.C. § 1963(a)(3).
23 United States v. O’Brien, 391 U.S. 367, 383 (1968).

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Amendment question. This is because, even if the statute were not aimed at speech,
it would still have an incidental effect on speech.
The Supreme Court, however, uses a less stringent standard to assess the
constitutionality of incidental restrictions on speech than to assess the constitutionality
of content-based restrictions on speech. In the case of incidental restrictions, rather
than requiring that the regulation constitute the least restrictive means to serve a
compelling governmental interest, it is sufficient if it “furthers an important or
substantial governmental interest; if the governmental interest is unrelated to the
suppression of free expression; and if the incidental restriction on alleged First
Amendment freedom is no greater than is essential to the furtherance of that
interest.”24 Subsequent to this statement, the Court made clear that, though it had
said that an incidental restriction must be “no greater than is essential” to further a
substantial government interest, an incidental restriction “need not be the least
restrictive or least intrusive means” of furthering the interest. Rather, the restriction
must be “narrowly tailored,” and “the requirement of narrow tailoring is satisfied ‘so
long as the . . . regulation promotes a substantial governmental interest that would be
achieved less effectively absent the regulation.’”25
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Applying the incidental restrictions test, it appears that, if, as the Court said in
Simon & Schuster, the state has a “compelling” interest in depriving criminals of the
profits of their crimes, and in using these funds to compensate victims, then it ipso
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facto would also have a “substantial” interest in furthering these interests. The
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question, then, would be whether these interests “would be achieved less effectively
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absent the regulation.” But, absent the regulation, these interests would arguably not
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be as effectively achieved, because the criminal would be permitted to retain his
income from speech. Therefore, a Son of Sam statute that applied to all income
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derived from a crime would appear not to have the underinclusiveness problem that
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the Court found the New York statute to have. It would still, however, have the
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overinclusiveness problem, which we discuss below.
Continuing to examine underinclusiveness, however, we must consider possible
constitutional problems with a Son of Sam statute that applied not only to all income
derived from a crime, but to all an individual’s income while in prison, or even to all
his assets, including those legally acquired prior to the commission of the crime. Such
a statute would apparently have to be limited to individuals convicted of a crime, as
there would be due process problems with taking property from a person accused but
24 Id. at 377.
25 Ward v. Rock Against Racism, 491 U.S. 781, 798-799 (1989). The Court was referring
here to time, place, or manner regulations, but it treats these the same as incidental
restrictions; see, Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298 (1984).
Ward makes clear that, although both the “strict scrutiny” imposed on content-based
restrictions and the test for time, place, and manner (and incidental) restrictions require
“narrow tailoring,” “the same degree of tailoring is not required” under the two; under the
time, place, or manner (and incidental restrictions) test, a “least-restrictive-alternative analysis
is wholly out of place.” Id. at 798-799 n.6.

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not convicted of a crime.26 Further, for the government to take assets unrelated to a
crime, and in excess of the amount needed to compensate victims of the crime, would
in effect be to impose a punishment in addition to the criminal’s sentence. Therefore,
it might be unconstitutional in particular cases if the forfeiture it imposed were so
disproportionate to the crime as to constitute an excessive fine or cruel and unusual
punishment in violation of the Eighth Amendment.27
Overinclusiveness. Even if a Son of Sam statute applied to all income,
speech and non-speech, and was thereby not underinclusive, it would still apparently
have to be narrowly tailored so as not to apply to writings such as Saint Augustine’s
Confessions and thereby not “burden substantially more speech than is necessary to
further the government’s legitimate interests.”28 This raises the question, what
specific types of writings or speech must be excluded because their inclusion would
not advance these governmental interests? The Court did not answer this question
explicitly. In a passage quoted above, the Court expressed disapproval of the reach
of the New York statute in two respects:
[T]he statute applies to works on any subject, provided that
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they express the author’s thoughts or recollections about his
crime, however tangentially or incidentally. . . . In addition,
the statute’s broad definition of a ‘person convicted of a
crime’ enables the Board to escrow the income of any
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author who admits in his work to having committed a
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crime, whether or not the author was ever actually accused
or convicted.
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In the first sentence of this quotation, the Court seems to imply that works
containing an author’s merely tangential or incidental recollection of his crime must
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be excluded. Suppose, however, that a prominent figure published an autobiography
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that contained a brief description of a crime he had committed, but that the crime was
particularly lurid, and not publicly known before. Revelation of the crime, even
tangentially, might greatly increase sales of the autobiography and could constitute
profiting from the crime in just the manner that it is in the government’s interest to
prevent. Consequently, one apparently cannot conclude that a Son of Sam statute
must necessarily exclude from its coverage all works with merely tangential or
incidental descriptions of their author’s crime.
In the second sentence of the above quotation, the Court seems to imply that
works containing an author’s discussion of a crime he committed but for which he
was never actually accused or convicted must be excluded. While such works may
26 This is not to say that there are no due process problems, under a Son of Sam statute that
applied only to income derived from a crime, with taking property of a person not convicted
of a crime. The Supreme Court did not address the issue in its decision.
27 See, e.g., Harmelin v. Michigan, 501 U.S. 957 (1991), in which a majority of the justices
found that the Cruel and Unusual Punishments Clause has a proportionality requirement, but
a different majority held that mandatory life in prison without parole for possession of more
than 650 grams of cocaine does not violate the clause.
28 Ward, supra, note 25, at 799.

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include those with merely brief recollections of youthful pranks, they may also include
those with confessions of serious crimes of significant public interest that would sell
precisely because of such interest. Consequently, one cannot conclude that a Son of
Sam statute must necessarily exclude from its coverage all works about crimes for
which the author was never accused or convicted.
As also quoted above, the Court gave examples of specific books that it implied
may not be covered by a Son of Sam statute.29 The Court apparently believed that
coverage of these books would not advance the governmental interest in depriving
criminals of the profits of their crimes, and in using these funds to compensate victims.
The Court did not explain, however, what these books have in common or why it
apparently believed that their coverage would not advance the stated governmental
interest.
That the books may all be considered classics, or great literature, or contain
important messages, would not appear to entitle them to additional constitutional
protection. To make any of these factors a criterion of constitutional protection
would be to discriminate on the basis of content, which is permissible only to serve
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a compelling governmental interest. In any event, most literary classics were not
deemed such at the time of publication, and it would be futile for a statute to exclude
those works that in the future will be deemed literary classics. Furthermore, even if
one could know which books would become literary classics, the fact that a book is
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considered a literary classic does not entail that its inclusion in a Son of Sam statute
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would not advance the stated governmental interests. If “Son of Sam” himself had
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written a book about the murders he committed, it is possible that his book might
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have had great literary merit. Yet depriving him of his profits and paying them to his
victims’ families would seem no less in the government’s interest.
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Another factor that the books on the Court’s list may have in common is that
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their authors may not have written them with the intention of profiting from their
crimes. Rather, they may have intended to convey a moral or political message, or
to create a work of art. However, an author’s motivation would seem immaterial to
whether the statute advanced the state’s interest in depriving criminals of the profits
of their crimes, and in using these funds to compensate victims. The state’s interest
would be advanced anytime a book by a criminal about his crime made a profit.
Further, an author’s having “lesser” motivations, such as greed, would not reduce the
First Amendment protection to which his speech is entitled.
One factor that the books do not have in common is that the crimes they discuss
were minor or political, as The Autobiography of Malcolm X describes violent crimes
that the author committed for no political motive. Another that they do not have in
common is that they all discussed crimes that had been committed many years before;
29 The Court also mentions an amicus brief containing “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 incarcerated, including works by such
authors as Emma Goldman and Martin Luther King, Jr.” 501 U.S., at 121-122. The Court
adds three other persons arrested or convicted of crimes whose autobiographies would be
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Thoreau’s Civil Disobedience concerned an adult crime (refusal to pay taxes), his
discussion of which, incidentally, was not a tangential aspect of Civil Disobedience.
In short, it does not seem possible to single out any feature common to the
books on the Court’s list that must be excluded from a Son of Sam statute in order
for the statute to avoid being found overinclusive. The government’s interest could
be advanced by seizing the profits of a book even if its description of its author’s
crimes was tangential or incidental, even if the author had never been accused or
convicted of the crime, even if the crime had occurred many years before or was a
relatively minor crime, even if the book had literary merit, and even if the author had
not written it with the intention of profiting from his crime.
Now, a defender of a Son of Sam statute that was not limited to speech might
argue that, if it is not possible to single out any feature common to the books on the
Court’s list that must be excluded from a Son of Sam statute in order for the statute
to avoid being found overinclusive, then this means that the statute may include these
books, as “a substantial governmental interest . . . would be achieved less effectively
absent the regulation.”30 But this would be overlook the Court’s explicit statement
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that the New York statute was “overinclusive” for including these books.31
There is a limitation that might be placed in a Son of Sam statute that might
increase the chances of its being found constitutional. It would be to limit the use of
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the criminal’s income or assets to compensating the victims of his crime, and returning
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to the criminal any funds that remained. Both the New York statute and the federal
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Son of Sam statute provide for funds that are not used to compensate victims of the
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crime to be used for other purposes. In its decision, the Court notes this about the
New York statute, but does not mention it in its analysis of the statute’s
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constitutionality. Therefore, one cannot conclude that the Court found this aspect of
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the statute objectionable under the First Amendment. Nevertheless, this aspect of the
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statute, although it furthers the governmental interest in depriving a criminal of the
fruits of his crime, does not further the governmental interest in compensating victims.
Consequently, to remove this aspect, and allow the criminal to recover any amounts
not claimed by victims, might increase the chances of a Son of Sam statute’s being
found constitutional.32 Of course, to narrow a statute in this manner would make no
difference if the Court were to find the statute unconstitutional for any of the other
reasons discussed above.
Developments since Simon & Schuster
After Simon & Schuster, several states revised their Son of Sam statutes in an
effort to make them constitutional. We will note those of California, Maryland, New
York, and Pennsylvania.
30 See, note 25, supra.
31 Simon & Schuster, supra note 1, at 122 n.*
32 It would also eliminate any possible Eighth Amendment problem; see, note 27, supra.

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California’s pre-Simon & Schuster statute had applied only to “proceeds”
relating to “the story of a felony for which a convicted felon was convicted.” Since
1994, it has been applied also to “profits,” which it defines as “all income from
anything sold or transferred, including any right, the value of which is enhanced by the
notoriety gained from the commission of a felony for which a convicted felon was
convicted.”33 In 2000, it was extended further to apply, with limited exceptions, to
“profiteer[s] of the felony,” i.e., “any person[s]” who derive income by selling
memorabilia, property, rights, or things for values enhanced by their felony-related
notoriety.” In 2002, the California Supreme Court ruled the statute
unconstitutional.34
The California court found that the California statute “contains the fundamental
defect identified in Simon & Schuster; it reaches beyond a criminal’s profits from the
crime or its exploitation to reach all income from the criminal’s speech or expression
on any theme or subject, if the story of the crime is included. Though [the California
statute], unlike the New York law, applies only to persons actually convicted of
felonies, and states an exemption for mere ‘passing mention of the felony, as in a
footnote or bibliography,” . . . these differences do not cure the California statute’s
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constitutional flaw. By any reasonable construction, the California statute is still
calculated to confiscate all income from a wide range of protected expressive works
by convicted felons, on a wide variety of subjects and themes, simply because those
works include substantial accounts of prior felonies.”
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Maryland’s Son of Sam statute, amended several times after Simon & Schuster,
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requires submission to the Attorney General a copy of any “notoriety of crimes
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contract” and payment to the Attorney General of any moneys or consideration
received pursuant to such contract. A “notoriety of crimes contract” is defined as a
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contract with the defendant, or a representative or assignee of the defendant, with
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respect to:
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(i) The reenactment of a crime by way of a movie, book, magazine article, tape
recording, phonograph record, radio or television presentation, or live
entertainment of any kind;
(ii) The expression of the defendant’s thoughts, feelings, opinions, or emotions
regarding a crime involving or causing personal injury, death, or property loss as
a direct result of the crime; or
(iii) The payment or exchange of any money or other consideration or the proceeds
or profits that directly or indirectly result from a crime, a sentence, or the notoriety
of a crime or sentence.35
In Curran v. Price, this statute was challenged as unconstitutional, but the
Maryland Court of Appeals avoided the question by deciding “that the statute does
not require a defendant to submit to the Attorney General a suspected notoriety of
33 California Civil Code § 2225.
34 Keenan v. Superior Court, 2002 WL 243394 (Cal.,Feb. 21, 2002).
35 Md. Ann. Code, Art. 27, § 854.

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crimes contract,” which is what was at issue in the case.36 This was because, to
require submission of a contracted that was merely suspected of being a notoriety of
crimes contract would implicate the defendant’s constitutional privilege against self-
incrimination.
New York amended its Son of Sam statute to apply to any “profits from the
crime,” which it defines to include:
(i) any property obtained through or income generated from the commission of a
crime of which the defendant was convicted;
(ii) any property obtained by or income generated from the sale, conversion or
exchange of proceeds of a crime, including any gain realized by such sale,
conversion or exchange; and
(iii) any property which the defendant obtained or income generated as a result of
having committed the crime . . . .37
The New York statute defines “crime” as “any felony defined in the penal law
or any other chapter of the consolidated laws of the state.” In New York State Crime
Victims Board v. T.J.M. Productions, Inc., the state sought to enforce the law
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“against several entities and individuals associated with the writing and publication of
the book Underboss, which recounts the life of defendant Salvatore Gravano . . . , a
former member of the Gambino crime family . . . .”38 The complaint alleged that
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Gravano had been convicted of “racketeering charges pursuant to the Federal
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Racketeer Influenced and Corrupt Organizations (“RICO”) law. . . . Thus Gravano’s
conviction was for crimes which are not ‘defined in the Penal Law of this state.’” The
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court concluded:
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The complaint fails to state a cause of action under the Son of Sam Law.
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Therefore, there is no need for this court to determine whether the Son of Sam Law
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passes constitutional muster. “Courts should not address constitutional issues
when a decision can be reached on other grounds.”
Pennsylvania’s Son of Sam statute now applies to any “profit from a crime,” the
definition of which is identical to New York’s definition of “profits from the crime,”
quoted above.39
Conclusion
As Justice Blackmun complained in his concurring opinion, the Court in Simon
& Schuster did not provide legislatures with all the guidance that it might have
provided as to the constitutionality of Son of Sam statutes that are different from the
New York statute it struck down. What apparently may be inferred from the decision
with some confidence is that a Son of Sam statute, to be constitutional, must, to avoid
36 638 A.2d 93 (Md. 1994).
37 N.Y. Executive Law § 632-a.
38 673 N.Y.S.2d 871(1998).
39 42 Pa.C.S.A. § 8312.

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underinclusiveness, encompass a criminal’s income or assets beyond those derived
from writing or speech. In addition, to avoid overinclusiveness, it must not apply to
works whose coverage by the statute would not advance the legitimate governmental
objective of compensating victims with the fruits of crime.
Fashioning a Son of Sam statute that is not overinclusive would be difficult
because the Supreme Court, rather than specifying a category of publications that
would not advance legitimate governmental interests, offered a list of books and
hypothetical books describing their authors’ crimes that appear to have no other
feature in common beyond their fame or potential fame. Consequently, even if a
statute excluded works with any apparently relevant feature of any of the books the
Court listed, it is impossible to predict whether the exclusion of additional books, not
containing any of these features, might be required by the Court.
In short, although the Court did not foreclose the possibility of a constitutional
Son of Sam statute, the possibility of such a statute, and the form such a statute
would take, remain extremely speculative.
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