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Son of Sam Goes Incognito

Permanent Link: http://ufdc.ufl.edu/UFE0021760/00001

Material Information

Title: Son of Sam Goes Incognito Emerging Trends in Criminal Anti-Profit Statutes
Physical Description: 1 online resource (50 p.)
Language: english
Creator: Locke, Christina M
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2007

Subjects

Subjects / Keywords: amendment, antiprofit, berkowitz, constitution, criminal, expression, first, forfeiture, law, sam, schuster, son, storytelling
Journalism and Communications -- Dissertations, Academic -- UF
Genre: Mass Communication thesis, M.A.M.C.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation

Notes

Abstract: Laws preventing criminals from profiting from crimes, especially by telling their stories, exist in most states. Twenty-eight states have laws similar to New York's original 'Son of Sam' law declared unconstitutional in 1991. However, a growing number of states have eliminated references to expressive materials from their anti-profit statutes. Some states also are using general forfeiture statutes to seize proceeds from criminal storytelling. Eliminating references to expressive materials and pursuing relief through general forfeiture statutes are promising ways for states to achieve the compelling interests of preventing criminal profiteering and compensating victims without violating the First Amendment. However, analysis of procedural provisions of the laws reveals that these goals can be thwarted by the way the laws are administered.
General Note: In the series University of Florida Digital Collections.
General Note: Includes vita.
Bibliography: Includes bibliographical references.
Source of Description: Description based on online resource; title from PDF title page.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Statement of Responsibility: by Christina M Locke.
Thesis: Thesis (M.A.M.C.)--University of Florida, 2007.
Local: Adviser: Chance, Sandra F.

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2007
System ID: UFE0021760:00001

Permanent Link: http://ufdc.ufl.edu/UFE0021760/00001

Material Information

Title: Son of Sam Goes Incognito Emerging Trends in Criminal Anti-Profit Statutes
Physical Description: 1 online resource (50 p.)
Language: english
Creator: Locke, Christina M
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2007

Subjects

Subjects / Keywords: amendment, antiprofit, berkowitz, constitution, criminal, expression, first, forfeiture, law, sam, schuster, son, storytelling
Journalism and Communications -- Dissertations, Academic -- UF
Genre: Mass Communication thesis, M.A.M.C.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation

Notes

Abstract: Laws preventing criminals from profiting from crimes, especially by telling their stories, exist in most states. Twenty-eight states have laws similar to New York's original 'Son of Sam' law declared unconstitutional in 1991. However, a growing number of states have eliminated references to expressive materials from their anti-profit statutes. Some states also are using general forfeiture statutes to seize proceeds from criminal storytelling. Eliminating references to expressive materials and pursuing relief through general forfeiture statutes are promising ways for states to achieve the compelling interests of preventing criminal profiteering and compensating victims without violating the First Amendment. However, analysis of procedural provisions of the laws reveals that these goals can be thwarted by the way the laws are administered.
General Note: In the series University of Florida Digital Collections.
General Note: Includes vita.
Bibliography: Includes bibliographical references.
Source of Description: Description based on online resource; title from PDF title page.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Statement of Responsibility: by Christina M Locke.
Thesis: Thesis (M.A.M.C.)--University of Florida, 2007.
Local: Adviser: Chance, Sandra F.

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2007
System ID: UFE0021760:00001


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353d67083ab487afb0071a0d432ca577c03ec9a6







SON OF SAM GOES INCOGNITO:
EMERGING TRENDS IN CRIMINAL ANTI-PROFIT STATUTES





















By

CHRISTINA M. LOCKE


A THESIS PRESENTED TO THE GRADUATE SCHOOL
OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT
OF THE REQUIREMENTS FOR THE DEGREE OF
MASTER OF ARTS IN MASS COMMUNICATION

UNIVERSITY OF FLORIDA

2007

































2007 Christina M. Locke




























To the memories of my father, brother, and sister:
Joseph Earl Locke Sr., Joseph Earl Locke Jr., and Kimberly Locke.









ACKNOWLEDGMENTS

First, I would like to thank my supervisory committee chair, Professor Sandra F. Chance,

and committee members Professor William McKeen and Professor Ted Spiker, for their

guidance. I am also indebted to Professor Chance, Alana Kolifrath, and everyone at the

Brechner Center for Freedom of Information. Through the Center, I have gained not only

knowledge, but an invaluable source of support during tough times. I would also like to thank

Marion Brechner and her late husband Joseph Brechner for their generous support of the College

of Journalism and Communications and my individual education.

I thank the late Charlotte Hayes for giving me a firsthand look at the dissertation writing

process as she pursued her PhD. in order to make the world a better place for impoverished

children. I am glad she was able to realize her dream of earning that degree, even though her life

was cut short before she could achieve her other goals. Charlotte's daughter, and my best friend

since childhood, Amelia Hayes Saavedra, has been a constant in my life as we have helped each

other through the hard times and enjoyed the good times. I am so grateful for her love and

respect.

I could not have made it through the process of getting a master's degree and a law degree

without the support of my media law buddies and empire builders especially Ana-Klara Hering

and Kimberly Lopez. Miriam and Dana Hill have been like a second family to me in

Gainesville, opening their home to me for countless TV nights to take a break from school and

making marathon Saturday lunches a favorite pastime.

My journey to higher education is due in no small part to the support and advice of my

teachers and mentors along the way. I would like to thank Joan Dyer, Jo Ann Norris, and Debbie

Foster, some of my former grade school teachers, for their inspiration and encouragement.

Without their guidance, I would never have realized my potential.









Finally, I thank the woman who has showed me the meaning of resilience-my mother,

Stephanie Locke. She is a true survivor, and her perseverance is admirable. I expect to be

reading her master's thesis in the near future.











TABLE OF CONTENTS
page

A CK N O W LED G M EN T S ................................................................. ........... ............. .....

LIST OF TABLES ......... ..... .... ....................................................7

ABSTRAC T .........................................................................................

CHAPTER

1 INTRODUCTION ............... .............................................................9

2 FIRST AMENDMENT THEORY AND JURISPRUDENCE ............................................12

V alue of the F first A m endm ent .................................................................... ..................... 12
Protected Speech...................................................13
Non-Protected Speech ................................ .................... ............ 14
Standards of R review ..................................... ............... .. .... ........ .... ......14
Simon & Schuster v. New York State Crime Victims Board.................................................15

3 L IT E R A TU R E R E V IE W ............................ ................................................... .................. 18

4 METHODOLOGY .............................. ...................... ............20

5 CATEGORIES OF "SON OF SAM" LAWS.................................... ........................ 21

Expression-Specific "Son of Sam Law s ........................................ .......................... 21
Unique Knowledge "Son of Sam Law s ........................................... ......................... 26
B roader A nti-Profit R em edies ......... ........................................................ .........................31

6 PROCEDURAL PROVISIONS OF "SON OF SAM" LAWS ...........................................37

7 SU M M AR Y AN D CON CLU SION ............................ ................................ .....................42

S u m m ary ............ ................. ..................................................................................................4 2
C o n c lu sio n ...................... ........................................................................................................4 2

L IST O F R EFER EN CE S ......... ............................................................................... 45

B IO G R A PH IC A L SK E T C H .............................................................................. .....................50










6









LIST OF TABLES

Table page

5-1 Categories of "Son of Sam law s ................................................. ............................... 28

6-2 R recipients of seized funds ............................................................................ .....................4 1









Abstract of Thesis Presented to the Graduate School
of the University of Florida in Partial Fulfillment of the
Requirements for the Degree of Master of Arts in Mass Communication

SON OF SAM GOES INCOGNITO:
EMERGING TRENDS IN CRIMINAL ANTI-PROFIT STATUTES

By

Christina M. Locke

December 2007

Chair: Sandra F. Chance
Major: Mass Communication

Laws preventing criminals from profiting from crimes, especially by telling their stories,

exist in most states. Twenty-eight states have laws similar to New York's original "Son of Sam"

law declared unconstitutional in 1991. However, a growing number of states have eliminated

references to expressive materials from their anti-profit statutes. Some states also are using

general forfeiture statutes to seize proceeds from criminal storytelling. Eliminating references to

expressive materials and pursuing relief through general forfeiture statutes are promising ways

for states to achieve the compelling interests of preventing criminal profiteering and

compensating victims without violating the First Amendment. However, analysis of procedural

provisions of the laws reveals that these goals can be thwarted by the way the laws are

administered.











CHAPTER 1
INTRODUCTION

When the time came for serial killer David Berkowitz, AKA the "Son of Sam," to tell the

story of how he shot and killed several people in New York City during 1976 and 1977, he chose

to collaborate with forensic psychiatrist David Abrahamsen. Apparently, Berkowitz was not

concerned with profiting from the book Confessions of Son of Sam. "I feel that by helping you it

will also be helping society. I want no financial rewards for my cooperation," Berkowitz wrote

in June 1979, nearly two years after his arrest. Berkowitz later agreed to donate twenty-five

percent of book royalties to the victims of his crimes.2

Despite Berkowitz's self-professed altruism, his killing spree and subsequent sale of

rights to his story led to a new breed of laws that prevent criminals from benefiting financially by

telling their stories. The media attention surrounding his crimes provoked the New York

legislature to enact a law calling for the forfeiture of criminals' profits from books, movies, and

other mediums in which crimes are depicted. Proof of Berkowitz's influence on the laws is

evident in the fact that these laws to prevent criminal profiteering, in effect in thirty-nine states,3



1 DAVID ABRAHAMSEN, CONFESSIONS OF SON OF SAM ix (Columbia Univ. Press 1985). David Berkowitz, also
known as the ".44 caliber killer," was arrested Aug. 10, 1977. Id. Berkowitz, who left notes for police signed "Son
of Sam," was found mentally incompetent to stand trial for the six murders he committed, but in June 1978 he was
sentenced to several hundred years in prison for the murders. Id.
21d.

3 See ALA. CODE 41-9-80 (2006); ALASKA STAT. 12.61.020 (2006); ARIZ. REV. STAT. 13-4202 (2006); ARK.
CODE ANN. 16-90-308 (2006); COLO. REV. STAT. 24-4.1-201 (2006); CONN. GEN STAT. 54-218 (2006); DEL.
CODE ANN. tit. 11, 9103 (2006); FLA. STAT. ANN. 944.512 (2006); GA. CODE ANN. 17-14-31 (2006); HAW.
REV. STAT. 351-81 -88 (2006); IDAHO CODE 19-5301 (2006); IND. CODE ANN. 5-2-6.3-1 -7 (2006); IOWA
CODE 910.15 (2005); KAN. STAT. ANN. 74-7319 (2006); KY. REV. STAT. ANN. 346.165 (2006); ME. REV.
STAT. ANN., tit. 14, 752-E (2005); MD. CODE ANN., CRIM. PROC. 11-621 TO -632 (2006); MICH. STAT. ANN.
780.768 (2006); MINN. STAT. 611A.68 (2005); MISS. CODE ANN. 99-38-1 TO -11 (2006); MONT. CODE ANN.
53-9-104 (2006); NEB. REV. STAT. 81-1836 TO -1839 (2006); N.J. STAT. 52:4B-62 -70 (2006); N. M. STAT.
ANN. 31-22-22 (2006); N.Y. EXEC. LAW 632-a (2006); N.D. CENT. CODE 32-07.1-01 (2006); OHIO REV.
CODE ANN. 2969.02 (2005); OKLA. STAT., tit. 22 17 (2006); OR. REV. STAT. 147.275 (2006); 42 PA. CONS.
STAT. 8312 (2006); R.I. GEN. LAWS 12-25.1-3 (2006); S.D. CODIFIED LAWS 23A-28A-1 TO -14 (2006); TEX.
CRIM. PROC. CODE art. 59.06 (2006); UTAH CODE ANN. 77-18.8.3 (2006); VA. CODE ANN. 19.2-368.19 TO -










are commonly referred to as "Son of Sam" laws. Most "Son of Sam" laws are modeled after the

original New York statute.4 Although he was the namesake for the laws, the statute never

applied to Berkowitz. The original statute only applied to convicted criminals, not those

declared incompetent to stand trial, like Berkowitz.5

Despite goals of compensating crime victims and preventing criminals from profiting

from their crimes, "Son of Sam" laws like the one New York enacted in 1977 have not been

embraced by the courts. In 1991, the U.S. Supreme Court struck down the New York statute in

Simon & Schuster v. New York State Crime Victims Board. The Court held that the law did not

pass the strict scrutiny required for content-based restrictions to be valid and was therefore

inconsistent with the First Amendment.

The result of Simon & Schuster has been a state statutory landscape of "Son of Sam"

laws that is increasingly diverse and is likely to continue changing as states receive more

challenges to their anti-profit laws. This thesis diverges from the traditional approach to "Son of

Sam" laws in that it does not focus solely on constitutional analysis but instead examines every

anti-profit statute in the nation. Chapter 2 provides an overview of First Amendment theory and

jurisprudence and discusses the Supreme Court's decision in Simon & Schuster. Chapter 3

presents the general trends and theories in legal literature regarding "Son of Sam" laws.

22 (2006); WASH. REV. CODE 7.68.200 TO -290 (2006); W. VA. CODE 14-2B-1 TO -11 (2006); WIs. STAT.
949.165 (2006); WYo. STAT. ANN. 1-40-301 TO -308 (2006).

4 N.Y Exec. Law 632-a(1) (Mckinney 1982) reads:

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. Id.
5 Simon & Schuster, Inc. v. N.Y. Crime Victims Bd., 502 U.S. 105, 111 (1991).









Research methodology is presented in Chapter 4. Chapter 5 examines "Son of Sam" laws across

the nation according to the degree they target specific mediums of expression. Relevant case law

is used to illustrate the various incarnations of"Son of Sam" laws. Chapter 6 analyzes the

general statutory provisions for administering the laws. After a summary of the research

findings, Chapter 7 concludes that the majority of "Son of Sam" laws are unconstitutional,

though a new trend in anti-profit statutes may offer a way for states to compensate victims and

prevent criminal profiteering in a way that can withstand constitutional scrutiny. But more

disturbing is that the procedural aspects of the laws reveal that the compelling government

interests advanced by "Son of Sam" laws compensating victims and preventing criminal

profiteering are undermined by statutory provisions that allow the laws to function as schemes

to offset state costs in prosecuting, defending, and imprisoning criminals.












CHAPTER 2
FIRST AMENDMENT THEORY AND JURISPRUDENCE

Congress shall make no law... abridging the freedom of speech, or of the press ....
-First Amendment to the U.S. Constitution

Value of the First Amendment

The free speech provision of the First Amendment embodies different values for different

people. Generally, the First Amendment is valuable for its contributions to: the attainment of

truth, self-governance, personal fulfillment and autonomy, and as a checking function against

government power. Ideas espoused by the First Amendment find their roots in John Milton's

classic 1644 work Areopagitica, in which he railed against the British government's publication

licensing scheme:

And though all the winds of doctrine were let loose to play upon the earth, so
Truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt
her strength. Let her and Falsehood grapple; who ever knew Truth put to the
worse, in a free and open encounter?2

Milton's metaphor gave way to the popular "marketplace of ideas" concept of the First

Amendment. U.S. Supreme Court Justice Holmes, in his dissenting opinion in the 1919 case

Abrams v. United States, invoked this metaphor in opposition to the majority's decision to affirm

the convictions of Russian immigrants arrested for circulating anarchist leaflets. "[T]he best test

of truth is the power of the thought to get itself accepted in the competition of the market...,"

Holmes wrote.3 The injection of ideas into the market, whether through leaflets, newspaper

stories, or books, is not a guarantee for all speakers. First Amendment jurisprudence has resulted


1 See Vincent Blasi, Holmes and the Marketplace ofldeas, 2004 S. CT. REV. 1, 1 (" 1i14); KENT R. MIDDLETON,
WILLIAM E. LEE & BILL F. CHAMBERLIN, THE LAW OF PUBLIC COMMUNICATION 25-31 (2005).
2 .1.. .1,_. r in 32 GREAT BOOKS OF THE WESTERN WORLD 409 (1952).

3 Abrams v. United States, 250 U.S. 616 (1919).









in a "hierarchy" of speech, from speech that receives the most protection under the Constitution

to speech that receives no constitutional protection.

Protected Speech

The types of speech most protected by the First Amendment are political and social

speech, sometimes referred to as "core" speech. Speech that falls into these categories will

receive the most protection when challenged in the courts. In New York Times v. Sullivan, for

example, the U.S. Supreme Court established a high standard for public officials to overcome if

they wished to sue the media for libel.4 The underlying theory behind the holding in Sullivan is

that political speech specifically, speech drawing attention to the activities of public officials -

is central to the meaning of the First Amendment.

Commercial speech and (non-obscene) sexual expression will receive constitutional

protection but to a lesser degree than the protection received by political or social speech. More

regulation is tolerated in connection with commercial speech and sexual expression than other

types of speech protected under the First Amendment. In Central Hudson Gas v. Public Service

Commission of New York, the U.S. Supreme Court set forth a test for determining whether

commercial speech is protected by the First Amendment: 1) it should not be misleading and

related to lawful activity; 2) the government interest should be substantial; 3) if the first two

prongs are met, the government regulation should advance the government's interest; and 4) the

government's interest could be carried out by less restrictive means.5 If the commercial speech

at issue meets the Central Hudson test, then the speech will be protected by the First

Amendment.


4 N.Y. Times v. Sullivan, 376 U.S. 254 (1964).

5 Central Hudson Gas v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557 (1980). See also Nike, Inc. v. Kasky, 539 U.S.
654 (2003).









Non-Protected Speech

Unlike, political, social, commercial, and non-obscene speech, some categories of speech

are so outside the bounds of the purpose of the First Amendment that they receive no

constitutional protection. Fighting words, threats, false advertising, fraud, and obscenity are

categories of unprotected speech. The protection exception for fighting words originated in the

1942 case Chaplinsky v. New Hampshire.6 Chaplinsky was a member of the Jehovah's Witness

religious group convicted under a New Hampshire statute for calling the City Marshall a "God

damned racketeer" and "a damned Fascist."7 The U.S. Supreme Court upheld Chaplinsky's

conviction, noting that "it is well understood that the right of free speech is not absolute at all

times and under all circumstances."8 According to the Court, Chaplinsky's words were of"no

essential part of any exposition of ideas, and [were] of such slight social value as a step to truth

that any benefit that may be derived from them is clearly outweighed by the social interest in

order and morality."9 The justifications outlined by the Chaplinsky Court extend to the other

categories of unprotected speech.

Standards of Review

Although some speech, such as social or political speech, is protected by the First

Amendment, this protection is not absolute. Protected speech may still be subject to government

regulation. In determining the validity of a particular governmental regulation on expression,

courts have formulated two judicial tests: strict scrutiny and intermediate scrutiny. Strict

scrutiny is the more difficult test to pass, requiring the government to have compelling interests


6 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

7Id.

Id.

9 d.









behind the regulation, and that the regulation is narrowly tailored to achieve these compelling

interests. Intermediate scrutiny allows the government to meet a lower burden in regulating free

speech: the regulation must serve a substantial government interest, be unrelated to the

suppression of free expression, and be "no greater than is essential to the furtherance of that

interest." 10

In order to determine which test to apply-strict scrutiny or intermediate scrutiny-courts

must first determine what type of regulation is at issue. If the regulation is content-based, strict

scrutiny will apply. Content-based regulations are those that restrict expression based on the

content of the message i.e., works depicting a crime. If the statute is content-neutral,

intermediate scrutiny applies. Examples of content-neutral laws include restrictions on times of

parades or rules against burning draft cards.

Simon & Schuster v. New York State Crime Victims Board

"Son of Sam" laws are examples of content-based speech regulations that call for the

application of strict scrutiny the government must have a compelling interest and the regulation

must be narrowly tailored to achieve that interest. While the serial killer "Son of Sam" prompted

the enactment of New York's criminal anti-profit statute, a mobster was at the center of the case

that led to the statute's downfall. Publishing company Simon & Schuster initiated the action in

1987, challenging the New York State Crime Victims Board's claim to book royalties earned by

gangster Henry Hill.11 Hill and author Nicholas Pileggi collaborated to produce a book titled







10 United States v. O'Brien, 391 U.S. 367 (1968).
1 Simon & Schuster, 502 U.S. at 114, 115.










Wiseguy: Life in a Mafia Family.12 The book recounted Hill's criminal career involving theft,

robbery, extortion, and drug trafficking. 13

The board invoked the New York "Son of Sam" law, which allowed the board to seize

profits from a person accused or convicted of a crime who tells his or her story.14 Simon &

Schuster challenged the statute on grounds that it violated the First Amendment. 15 The board

argued the law was not enacted with any illicit intent to suppress the exchange of ideas and that

victim compensation, not prohibition of offensive speech, was the intention of the law.16 Both

the Southern District Court of New York and the U.S. Court of Appeals for the Second Circuit

sided with the board, holding the statute to be consistent with the First Amendment. 17

The U.S. Supreme Court, however, reversed the lower courts' rulings and held that New

York's "Son of Sam" law was overbroad and violated the First Amendment. The Court deemed

the New York statute a content-based restriction because it "singled out speech on a particular

subject for a financial burden that it places on no other speech and no other income."18 The

Court applied the strict scrutiny standard of review to the New York statute, concluding that

although the state had compelling interests to compensate victims and prevent criminals from

profiting from their crimes, the New York law was not narrowly tailored to meet these


1Id. at 112.

13 Id

14 Id

15 Id. at 115.

16 Simon & Schuster, 502 U.S. at 117.

17 Id

18 Id. at 123. See also Leathers v. Medlock, 499 U.S. 439 (1991) (holding that Arkansas' sales tax application to
cable television services but not print media does not violate the First Amendment); Ark. Writers' Project, Inc. v.
Ragland, 481 U.S. 221 (1987) (holding that Arkansas' taxing of general interest magazines but not newspapers,
trade journals, etc., violates the First Amendment).










interests.19 The law encompassed works on any subject in which crimes were mentioned, even if

only in a cursory fashion.20 Additionally, the statute's broad definition of a "person convicted of

a crime" included "any person who has voluntarily and intelligently admitted the commission of

a crime for which such person is not prosecuted" and extended the law's application to authors of

expressive material who were never convicted or even accused of crimes.21 The Court pointed

out that under the New York "Son of Sam" law, potential proceeds from valuable works such as

The Autobiography ofMalcolm Xand Confessions of St. Augustine would be subject to seizure,

even though the books are not primarily about criminal wrongdoing.22



























19 Simon & Schuster, 502 U.S. at 123. "We conclude simply that in the Son of Sam law, New York has singled out
speech on a particular subject for a financial burden 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." Id.
20 Id. at 121.

21 Id. at 110.

22 Id. at 121.










CHAPTER 3
LITERATURE REVIEW

In Simon & Schuster, the U.S. Supreme Court deemed the New York "Son of Sam" law a

content-based restriction on speech. When applying strict scrutiny to the law, the Court found

that the state did have compelling interests in compensating crime victims and ensuring that

criminals do not profit from their crimes.2 However, the state did not narrowly tailor the law to

achieve these interests. The Court's determination that New York's "Son of Sam" law was

content-based and its use of strict scrutiny have dominated the commentary regarding "Son of

Sam" laws. Many scholarly articles3 have focused on the O 'Brien test for content-neutral

statutes. The O 'Brien test, enunciated by the U.S. Supreme Court in the 1968 case United States

v. 0 'Brien, offers an intermediate scrutiny standard for analyzing content-neutral regulations: the

regulation must further a substantial government interest in a way that only incidentally limits

First Amendment freedoms.4 A student Note5 cited by the Court in Simon & Schuster argues

that the Southern District of New York's decision6 to scrutinize New York's "Son of Sam" law

using the O 'Brien test was appropriate. The Note argues that the law is content-neutral because

SId. at 116.
2 Id. at 118-19.

3 See, e.g., Karen M. Ecker & Margot J. O'Brien, Note, Simon & Schuster, Inc. v. Fuschetti: Can New York's Son of
Sam Law Survive FirstAmendment (C ill,. ig-.?, 66 NOTRE DAME L. REV. 1075 (1991) (concluding that New York's
"Son of Sam" law only incidentally burdens speech, and should be upheld); Lisa Ann Morelli, Simon & Schuster,
Inc. v. Members of the New York State Crime Victims Board: How the Characterization of a Speech P.,. imlr. ',, Can
Effectively Destroy a I,., irir.." Law, 42 CATH. U.L. REV. 651 (1993) (proposing intermediate scrutiny review of
"Son of Sam" laws because they combine speech and non-speech regulation and because public policy supports a
lower standard of review); Gilbert O'Keefe Greenman, Son of Simon & Schuster: A "True Crime Story of Motive,
Opportunity and the FirstAmendment, 18 HAWAII L. REV. 201 (1996) (suggesting the Court's strict scrutiny
analysis in Simon & Schuster negatively affected First Amendment jurisprudence).

4 United States v. O'Brien, 391 U.S. 367 (1968). See also JOHN H. GARVEY & FREDERICK SCHAUER, THE FIRST
AMENDMENT: A READER 240 (2d ed. 1996).

5 Karen M. Ecker & Margot J. O'Brien, Note, Simon & Schuster, Inc. v. Fuschetti: Can New York's Son of Sam
Law Survive FirstAmendment ( ,11i,. ig,.?, 66 NOTRE DAME L. REV. 1075 (1991).
6 Simon & Schuster v. N.Y. Crime Victims Bd., 724 F. Supp. 170 (S.D.N.Y. 1989).










it restricts the proceeds of the speech, not the speech itself, and that any limits on the speech are

incidental.7 Other legal commentaries utilize the O 'Brien test as a standard in formulating model

laws that would achieve the same goals of compensating victims and preventing criminal profit

but would be constructed to withstand intermediate scrutiny.8

A 1994 study of crime victim statutes looked at "Son of Sam" laws throughout the

nation.9 The article found that forty-one out of the forty-five "crime victimization statutes" in

existence at that time were unconstitutional under Simon & Schuster.10 Using statutes from 2006

and legal challenges to "Son of Sam" laws in the past decade, this thesis offers a current picture

of criminal anti-profit laws in the United States. This thesis also illustrates the path that some of

those forty-one states have taken since Simon & Schuster to ensure that their "Son of Sam" laws

will be effective. Additionally, this thesis analyzes the statutory provisions for administering

"Son of Sam" laws, contributing to a greater understanding of how the administration of crime

victimization statutes can negate the intent of the laws.














7 Karen M. Ecker & Margot J. O'Brien, Note, Simon & Schuster, Inc. v. Fuschetti: Can New York's Son of Sam
Law Survive FirstAmendment ( lill,. I.-.?, 66 NOTRE DAME L. REV. 1075, 1100 (1991).

8 See Sean J. Kealy, A Proposalfor a New Massachusetts Notoriety-for-Profit Law: The Grandson of Sam, 22 W.
NEW ENG. L. REV. 1 (2000); Gilbert O'Keefe Greenman, Son ofSimon & Schuster: A "True Crime Story of
Motive, Opportunity and the FirstAmendment, 18 HAWAII L. REV. 201 (1996).

9 Debra Shields, The Constitutionality of Current Crime Victimization Statutes: A Survey, 4 FORDHAM INTELL.
PROP. MEDIA & ENT. L.J. 929 (1994).

10 Id. at 933.










CHAPTER 4
METHODOLOGY

To gain an accurate picture of the varying ways states legislate to prevent criminal

profiteering and compensate crime victims, relevant statutes in all fifty states will be analyzed

for their approach to pursuing these goals. Categories were constructed from the language of the

statutes themselves, with close attention paid to the degree each statute targets expressive

material and the specific ways the law is required to be administered. In order to locate the

relevant statutes, the First Amendment Center's1 compilation of "Son of Sam" laws, circa 2000,

was used as a starting point. Using the legal research database LexisNexis, each statute's

citation information was entered, producing the current statute in force. The text of each statute

was then analyzed and compared with other statutes. To ensure the timeliness of this analysis,

the statutes were garnered from LexisNexis at the beginning of the research process and in the

initial stages of publication preparation, approximately two years later.






















1 See David L. Hudson Jr., "Son of Sam Laws"
hup \ \ \ .firstamendmentcenter.org//speech/arts/topic.aspx?topic=son of sam










CHAPTER 5
CATEGORIES OF "SON OF SAM" LAWS

Criminal anti-profit statutes across the country can be organized into two major

categories according to the degree they target specific mediums of expression: expression-

specific laws and unique knowledge laws.1 In addition, some states supplement their "Son of

Sam" laws with broader statutes that target all funds of inmates, regardless of how the funds

were obtained.

Expression-Specific "Son of Sam" Laws

The majority of "Son of Sam" laws currently in effect are closely patterned after the

original New York law. Twenty-eight states2 have laws that allow seizure of proceeds from "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," using this phrase or wording very similar.3 Arizona, for example, has

added "internet or online presentation or depiction."4 Montana includes "play" as a medium.5

Virginia is the only state to specifically include the newspaper as a medium of expression subject

to the law.6


1 There are seven states that will not be discussed because they do not have active "Son of Sam" statutes. They are
Massachusetts, Missouri, Nevada, New Hampshire, North Carolina, South Carolina, and Vermont.
2 The states target specific mediums of expression are Alabama, Alaska, Arizona, Arkansas, Connecticut, Delaware,
Florida, Georgia, Hawaii, Idaho, Indiana, Kansas, Kentucky, Maryland, Michigan, Minnesota, Mississippi,
Montana, Nebraska, New Mexico, Ohio, Oklahoma, South Dakota, Texas, Utah, Virginia, Washington, and
Wisconsin.

3 This wording was taken from the New York statute struck down in Simon & Schuster. See N.Y Exec. Law 632-
a(1) (McKinney 1982).
4 ARIZ. REV. STAT. 13-4202 (2006).

5 MONT. CODE ANN. 53-9-104 (2006).
6 VA. CODE ANN. 19.2-368.19 TO -22 (2006).









One aspect of the original New York law criticized by the U.S. Supreme Court in Simon

& Schuster was that the statute applied to works on any subject that included a reenactment or

thoughts about a crime, even if the depiction of crime is only incidental.7 In response to this

weakness, five states are more specific about what books, movies, and other expressive materials

are subject to anti-profit statutes.8 In these states, expression concerning the crime must

comprise a substantial portion of the entire work. Delaware, for example, uses the phrase

"primary contents of the work."9 In Oklahoma and Virginia, a work is subject to the law only if

an "integral portion" of the work refers to the crime.

The twenty-eight states that specifically target expression are the most vulnerable to

constitutional challenges to their laws. Simon & Schuster paved the way for declaring these

types of laws unconstitutional, and state courts have reached similar conclusions to the Simon &

Schuster Court when addressing challenges to these laws. 10

Keenan v. Sinatra

In the 2002 case Keenan v. Sinatra, the California Supreme Court struck down

California's version of the "Son of Sam" law, which targeted expressive materials." In 1963,

Barry Keenan, acting with accomplices, kidnapped singer Frank Sinatra's nineteen-year-old son



7 Simon & Schuster v. N.Y. Crime Victims Bd., 502 U.S. 105, 121 (1991). "As a means of ensuring that victims are
compensated from the proceeds of crime, the Son of Sam law is significantly over inclusive. .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." Id.

8 DEL. CODE ANN. tit. 11, 9103 (2006); KAN. STAT. ANN. 74-7319 (2006); OKLA. STAT., tit. 22 17 (2006); VA.
CODE ANN. 19.2-368.19 TO-22 (2006); WIs. STAT. 949.165 (2006).

9 DEL. CODE ANN. tit. 11, 9103 (2006).

10 See Bouchard v. Price, 694 A.2d 670 (1997) (holding that Rhode Island's "Son of Sam" law was not narrowly
tailored and thus unconstitutional); Keenan v. Sinatra, 40 P.3d 718 (2002); Seres v. Lerner, 102 P.3d 91 (2"1 '). See
also Curranv. Price, 334 Md. 149 (1994).

11 Keenan v. Sinatra, 40 P.3d 718, 721 (2002).










from a Nevada hotel room. 12 Keenan and his two accomplices were later apprehended, tried, and

convicted for the kidnapping.13 In January 1998, Keenan was interviewed by a writer for the Los

Angeles tabloid New Times for an article titled "Snatching Sinatra."14 Subsequent reports

indicated that Columbia Pictures had purchased the movie rights to Keenan's story.15 Frank

Sinatra Jr. commenced action against Keenan under California's "Son of Sam" law for any

storytelling proceeds. 16

The California statute was very similar to the New York law invalidated by the Simon &

Schuster Court. The California law targeted proceeds from expressive materials "based on the

story of a felony for which a convicted felon was convicted."17 Sinatra argued that the

California law avoided the overinclusiveness of the New York law by 1) only applying the law to

persons actually convicted of a felony; and 2) exempting expressive materials that include only a

"passing mention of the felony, as in a footnote or bibliography."18 Keenan argued that despite

these diversions from the New York law, California's anti-profit statute was still overinclusive

and did not pass a strict scrutiny standard of review.19





121d. at 722.

13 Id

141d. at 722-23.

15 d. 723.

16 See CAL. CIV. CODE 2225 (2002). "All proceeds from the preparation for the purpose of sale, the sale of the
rights to, or the sale of materials that include or are based on the story of a felony for which a convicted felon was
convicted, shall be subject to an involuntary trust for the benefit of the beneficiaries set forth in this section." Id.
Materials are defined as "books, magazine or newspaper articles, movies, films, videotapes, sound recordings,
interviews or appearances on television and radio stations, and live presentations of any kind." Id.
17 Id

18 Keenan, 40 P.3d at 732.

191d. at 724.










The California Supreme Court held that the statute was facially invalid under the First

Amendment. It reasoned that although the California law was limited to convicted felons, such

convicted felons might still have valuable stories to tell in a way not directly connected to

exploiting their crimes.20 The Court mentioned works that could warn about the consequences

of crime, evaluate the criminal justice system, or describe conditions of prison life.21 The Court

stated that the exemption for passing references to crime still includes "within its ambit a wide

range of protected speech, discourages the discussion of crime in no exploitative contexts, and

does so by means not narrowly focused on recouping profits from the fruits of crime."22

California's "Son of Sam" law would affect those same works mentioned in the Simon &

Schuster decision, such as The Autobiography ofMalcolm X.23 Therefore, the California

Supreme Court overruled lower courts' rulings that the law did not infringe on the First

Amendment, and the law was struck down. In response, the California Legislature enacted "Son

of Sam II," which extended the statute of limitations for victims to bring suits for damages

against defendants convicted of serious felonies to ten years after conviction.24

Seres v. Lerner


20 Id. at 732
21 Id

221d. at 733.

23 d. at 734 n.20.
24 "'Son of Sam' statutes: federal and state summary." The First Amendment Center,
(last visited Oct. 10, 2007). In another high-profile
California case, a judge ordered the rights to O.J. Simpson's unreleased book "If I Did It" be auctioned off for the
benefit of the family of the late Ron Goldman. O.J. Simpson can't have book, TVproceeds, THE ASSOCIATED
PRESS, March 14, 2007. In 1995, former football star and actor O.J. Simpson was acquitted of the murders of his
wife, Nicole Brown Simpson, and her friend, Ron Goldman. Id. Goldman's family was later awarded a $33.5
million judgment against Simpson after he was found liable for the murders in a wrongful-death lawsuit. Id.
Goldman's family had been unsuccessful in collecting on the judgment, prompting Los Angeles County Superior
Court Judge Gerald Rosenburg to order the auction of the rights for Simpson's book, which reportedly explained
how Simpson would have committed the crimes. Id. Amid public outrage, the book and accompanying television
interview were never released. Id.










Another "Son of Sam" law targeting expressive materials that failed to meet the strict

scrutiny test after Simon & Schuster was that of Nevada. In late 2004, the Nevada Supreme

Court declared that state's "Son of Sam" law unconstitutional under Simon & Schuster.25 In

Seres v. Lerner, Donna Seres sued Jimmy Lerner under Nevada's "Son of Sam" statute to

recover proceeds from a book Lerner authored.26 Lerner was convicted in 1998 of manslaughter

in connection with the death of Mark Slavin, Seres' brother.27 Lerner published a book, You Got

Nothing Coming, Notes from a Prison Fish, in 1999.28 The Nevada "Son of Sam" law allowed a

felony victim to recover from the felon any proceeds generated from published materials based

on or substantially related to the offense. 29 Actions brought forth to claim publication proceeds

under the Nevada statute received an extension of the five-year statute of limitations for

wrongful death suits.30 Seres brought the action after the five-year period expired.31

The Nevada Supreme Court determined the statute to be content-based because it allowed

for the filing of claims against publication proceeds after the statute of limitations had expired

for other tort actions, exclusively applying to income derived from speech.32 The Court

recognized that Nevada had compelling interests in compensating victims of crimes and

preventing criminal profiteering, but the Nevada law was not narrowly tailored to meet those



25 Seres v. Lerner, 102 P.3d 91 (2" 114).

26 Id. at 92. Seres sued on behalf of her mother.
27 d.

28 Id.
281d

-Ni REV. STAT. 217.007 (21"14).

30 Id

31 Seres, 102 P.3d at 92.

32d. at 96.










interests.33 The Seres Court found the law overbroad because it allowed for recovery of

proceeds from works "substantially" related to the felony.34 Lerner's book was only partially

related to the homicide and was mostly about life in prison and his religious experiences.35

Additionally, Nevada's "Son of Sam" law was constitutionally overinclusive because the statute

did not require conviction for the statute to apply.36 The Court reasoned that the definition of

"person who committed the felony" could be construed to include individuals never accused or

even convicted of felonies.37 The Court held that the Nevada law suffered from the same defects

the New York "Son of Sam" law did when the Simon & Schuster Court invalidated it.

Unique Knowledge "Son of Sam" Laws

In response to the negative judicial treatment of "Son of Sam" laws that target specific

mediums of expression and the thoughts and feelings of criminal defendants, several states have

revised their laws to eliminate such references. Instead, these eleven states target profits

obtained as a result of committing a crime.38 These new "Son of Sam" laws seek to recover

"assets obtained through the use of unique knowledge obtained during commission of or in

preparation for a crime." This phrase is used in eight states.39 Iowa uses the phrase "fruits of the


33Id. at 98.

341d.

35 Id. at 97-98.

36 Id. at 98.

37 Id.
38 The states that seek to recover income obtained as a result of committing a crime are Colorado, Iowa, Maine, New
Jersey, New York, North Dakota, Oregon, Pennsylvania, Rhode Island, West Virginia, and Wyoming. See COLO.
REV. STAT. 24-4.1-201 (2006); IOWA CODE 910.15 (2006); ME. REV. STAT. ANN., tit. 14, 752-E (2005);
N.J.STAT. 52:4B-62 TO -70 (2006); N.Y. EXEC. LAW 632-a (2006); N.D. CENT. CODE 32-07.1-01 (2006);
OR. REV. STAT. 147.275 (2006); 42 PA. CONS. STAT. 8312 (2006); R.I. GEN. LAWS 12-25.1-3 (2006); W. VA.
CODE 14-2B-1 TO-11 (2006); WYO. STAT. ANN. 1-40-301 TO -308 (2006).

39 The states that use the term "unique knowledge" are Colorado, Maine, New Jersey, New York, North Dakota,
Pennsylvania, West Virginia, and Wyoming. See COLO. REV. STAT. 24-4.1-201 (2006); ME. REV. STAT. ANN., tit.
14, 752-E (2005); N.J.STAT. 52:4B-62 TO -70 (2006); N.Y. EXEC. LAW 632-a (2006); N.D. CENT. CODE









crime" in its statute.40 Oregon describes the profits subject to forfeiture as those that were

gained as a result of the crime.41 In Rhode Island, criminals who commercially exploit their

crimes are required to turn proceeds over to the state.42

The advantage of laws that do not contain specific references to expression is that

because they lack such references, they are more likely to be reviewed using intermediate

scrutiny. This less demanding standard of review increases the possibility that these "Son of

Sam" laws will be considered valid under the First Amendment.


32-07.1-01 (2006); 42 PA. CONS. STAT. 8312 (2006); W. VA. CODE 14-2B-1 TO-11 (2006); WYO. STAT. ANN.
1-40-301 TO -308 (2006).
40 IOWA CODE 910.15 (2006).
41 OR. REV. STAT. 147.275 (2006).

42 R.I. GEN. LAWS 12-25.1-3 (2006).









Table 5-1 Categories of "Son of Sam" laws
States Expression-specific Unique knowledge
Alabama X
Alaska X
Arizona X
Arkansas X
Colorado X
Delaware X
Florida X
Georgia X
Hawaii X
Idaho X
Indiana X
Iowa X
Kansas X
Kentucky X
Maine X
Maryland X
Michigan X
Minnesota X
Mississippi X
Montana X
Nebraska X
New Jersey X
New Mexico X
New York X
North Dakota X
Ohio X
Oklahoma X
Oregon X
Pennsylvania X
Rhode Island X
South Dakota X
Texas X
Utah X
Virginia X
Washington X
West Virginia X
Wisconsin X
Wyoming X









Sandusky v. McCummings

There is little case law involving these increasingly popular43 "unique knowledge" laws.

In New York, there have been at least two major challenges to that state's law since Simon &

Schuster, but neither directly addressed First Amendment issues. The first, Sandusky v.

McCummings, did not involve proceeds from a book, movie, or other type of expression but a

settlement awarded to a convicted criminal.44 In 1984, Bernard McCummings was shot twice in

the back by a New York Transit Authority officer who observed McCummings beating and

strangling a seventy-two-year-old man in a subway station.45 McCummings was paralyzed and

later received a $4.3 million verdict against the Transit Authority for the officer's negligence.46

Sandusky, McCummings' elderly victim, invoked New York's revised "Son of Sam" law

when he sought compensation for personal injuries against his assailant. The New York law

allows for victims to bring actions for damages against "income generated as a result of having

committed the crime, including any assets obtained through the use of unique knowledge

obtained during the commission of, or in preparation for the commission of, the crime."47 The

central question for the New York trial court when it addressed the case in 1995 was whether the

$4.3 million verdict constituted "income generated as a result of having committed the crime."48






43 See Debra Shields, The Constitutionality of Current Crime Victimization Statutes: A Survey, 4 FORDHAM INTELL.
PROP. MEDIA & ENT. L.J. 929, 933 (1994). There were only four such statutes in 1994. Id.

44 Sandusky v. McCummings, 164 Misc. 2d 700 (1995).

45 Id. at 701. McCummings later pleaded guilty to the felony charge of attempted robbery and was incarcerated. Id.
46 Id

47 N.Y. EXEC. LAW 632-a (21 r 4).
48 Sandusky, 164 Misc. 2d at 702.









The court held that the verdict did not fall under the assets outlined in the New York

"Son of Sam" law.49 It reasoned that the shooting was "an intervening event that broke any

causal connection with the crime itself."50 It stated that to apply the "Son of Sam" law to the

case would distort the legislative intent of the law.51

New York State Crime Victims Board v. T.J.M. Productions

The other pertinent case to this class of "unique knowledge" laws also occurred in New

York, and like Sandusky v. McCummings, it did not directly address First Amendment issues. In

New York State Crime Victims Board v. TJ.M. Productions, a New York appellate court held

that the New York State Crime Victims Board on its own did not have statutory authority to seek

publication proceeds from a convicted felon.52 The Board sought proceeds paid to mobster

Salvatore "Sammy the Bull" Gravano for the book Underboss.53 Gravano, a former member of

the Gambino crime family, had been convicted of violating the federal racketeering act.54 The

board sued T.J.M. Productions, a company created by Underboss author Peter Maas; Maas

individually; and other entities associated with the book.55

The Court dismissed the Board's claim because New York's "Son of Sam" law gave the

"right to bring a civil action to recover monies identified as the profits from the crime" to victims

or the Board on behalf of victims, not the Board alone.56 The Board brought the action itself and


49 Id. at 706.

50 Id. at 705.
51 Id. at 706.

52 N.Y. Crime Victims Bd. v. T.J.M. Prods., 265 A.D.2d 38, 47 (2000).

53Id. at 43.

54Id. See also 18 U.S.C.S. 1962(c).

55 T.J.M. Prods., 265 A.D.2d at 43.

56 d. at 44.









not on behalf of victims, and therefore had exceeded its statutory authority.5 Additionally, the

Court relied on a lower court's finding that New York's "Son of Sam" law did not apply to

Gravano. Gravano was convicted in federal court, and the New York law was limited to

defendants convicted of felonies defined by New York.58 In its opinion, the Court alluded to the

unresolved constitutional issue of whether publication proceeds truly represent profits of the

crime but stated that the "significant constitutional question" was raised in an action that the

Board had no authority to bring.59

Broader Anti-Profit Remedies

In addition to statutes that clearly state a public policy against criminal compensation for

storytelling proceeds, general forfeiture statutes serve to complement state efforts to compensate

victims. For example, Tennessee has a victim compensation statute that is procedurally similar

to the other laws presented in this chapter but instead allows the attorney general to "collect all

income, from whatever source derived, which is owing to the defendant, or representative or

assignee of the defendant, after the date of the crime."60 These broad anti-profit remedies have

proved successful in allowing victims to claim defendant funds obtained from expressive activity

related to crimes, as well as other sources.

Arizona v. Gravano

Although Arizona has a "Son of Sam" law modeled after the original New York law, it

chose to pursue book proceeds from a well-known mobster under a general forfeiture statute. In




57 Id.

58 Id. at 47.

59 d.
60 TENN. CODE ANN. 29-13-402 TO 410 (2006).









fact, the state of Arizona was able to accomplish what New York couldn't: seizing proceeds from

Salvatore Gravano's book Underboss.

A few weeks before a New York appellate court in Board v. TJ.M. Productions

dismissed the New York State Crime Victims Board's claim against Gravano's royalties from

the book Underboss, Gravano was arrested in Arizona on charges of distributing the illegal drug

Ecstasy.61 Two months after his arrest, Arizona sought to forfeit money and property owned by

Gravano as proceeds of his Ecstasy distribution ring, which they alleged was conducted through

racketeering.62 The state asserted that under the Arizona Racketeering Act and the Arizona

Forfeiture Reform Act, royalties from Underboss also were subject to forfeiture.63 The state

argued that these proceeds were traceable to Gravano's criminal activities in New York and were

used to fund racketeering and drug distribution in Arizona.64 Gravano argued that Arizona's

seizure of the book royalties violated the First Amendment.65

The Arizona Supreme Court determined that the forfeiture statutes were content-neutral

because they contained no reference to expressive materials and were based on a causal

connection between racketeering and property.66 The laws applied if the value of the

commercial contract was substantially a result of racketeering and did not depend on the content

of the work.67 The Court held that the Arizona statutes not only passed the O 'Brien standard of

intermediate scrutiny required of content-neutral statutes, but they also passed a strict scrutiny

61 Arizona v. Gravano, 204 Ariz. 106, 108 (2000).

62 Id. at 109.

63 Id. See also ARIZ. REV. STAT. 13-2301 to -2318; ARIZ. REV. STAT. 13-4301 to -4316.

64 Gravano, 204 Ariz. at 109-111.

65 Id. at 109.

66 d. at 113.
67 Id.










standard of review.68 The Court also held that the forfeiture laws advanced the compelling

government interests of ensuring that victims are compensated and preventing criminals from

profiting from their crimes, and the laws were narrowly tailored to do so.69 The $420,000 in

profits from Underboss were later distributed to eight families whose loved ones were killed by

Gravano during his time with the Gambino crime family. 70

Snuszki v. Wright

After its unsuccessful attempt to obtain publication proceeds from Gravano in T.JM

Productions, New York amended its "Son of Sam" law to expand the definition of "funds of a

convicted person" to all of an inmate's monies, excluding child support or earned income.n

Victims of specified crimes can bring civil actions for money damages from the inmate, provided

they file suit within three years of learning of the inmate's funds.72 The change in the law

stepped away from the traditional model of seizing expression-related funds. The revised New

York statute has been unsuccessfully challenged on constitutional grounds,73 though the cases

have not involved First Amendment challenges to seized proceeds from expressive activity.74



68 Id. at 114.

69Id. at 115.

In sum, the application of Arizona's forfeiture laws is limited to preventing racketeers from
benefiting from their crimes, and to compensating victims for their losses and the State for costs
incurred in the prosecution of racketeers. We conclude that Arizona's forfeiture statutes not only
survive intermediate scrutiny, but also are narrowly tailored to further the compelling interests of the
State, and therefore satisfy a strict scrutiny standard as well. We therefore hold that Arizona's
forfeiture statutes, as applied to Gravano's royalties from Underboss, do not violate either federal or
state freedom of speech provisions. Id.

70 Greg B. Smith, Kin ofGravano's Victims Get 420G in Payback, NEW YORK DAILY NEWS, July 22, 2004, at 3.
71 N.Y. EXEC. LAW 632-a (2006).

72 Id

73 See N.Y. Crime Victims Bd. v. Majid, 193 Misc.2d 710 (2002) (rejecting defendant's claim that the seizure of
$15,000 resulting from the settlement of a federal civil rights lawsuit was unconstitutional on ex post facto, due
process, or equal protection grounds); Romero v. Pataki, 2006 WL 842177 (S.D.N.Y., Mar. 31, 2006) (declining to










In Snuszki v. Wright, Melanie Snuszki, daughter of a woman murdered by Thomas

Wright, sued Wright under the revised "Son of Sam" law after learning that he received $25,000

in his prison account.75 The $25,000 was the result of a settlement of Wright's claims that New

York correctional officers violated his civil rights.76 Wright requested the New York trial court

dismiss Snuszki's complaint, challenging the "Son of Sam" law as unconstitutional because it

inhibited his right of access to the courts; 77 violated his right to equal protection under the law;78

and violated his due process rights.79 The court rejected all of his constitutional claims and

granted Snuszki's request to freeze Wright's funds. First, the supposed disincentive for inmates

to file civil rights claims in the courts was rejected because there was no "actually injury" or

restrictions on Wright's ability to pursue legal relief, and the purpose of the federal civil rights

statute to deter wrongdoing was still served, regardless of whether a victim's money damages

were later used to satisfy a judgment against the defendant.80 Second, the inmate was not denied

equal protection because he was not a member of a "suspect class" and he was not deprived of




adjudicate certain constitutional claims against New York's revised "Son of Sam" statute because they were not
ripe).

74 However, a pending New York case involving rap artist "Shyne," whose real name is Jamal Barrow, may involve
future First Amendment claims against New York's revised "Son of Sam" law. Barrow was convicted of, inter alia,
first-degree assault following a shooting at nightclub on Dec. 27, 1999. Thompson v. 76 Corp., 2007 WL 414437,
* 1 (N.Y.A.D. 2 Dept., Feb. 6, 2007). Barrow was sentenced to ten years in prison. Id. Following his imprisonment,
Barrow entered into a recording agreement with Island Def Jam Music Group valued at up to $3 million. Id.
Natania Reuben was shot in the face by Barrow during the nightclub incident, and she sought an injunction to
prevent Barrow from spending money that she might receive. Id.

75 Snuszki v. Wright, 193 Misc.2d 490 (2002). Wright was the estranged husband of Melanie Wright Snuszki's
mother, Peggy Ann Bannach Wright. Id. at 491.
76Id

77 Id. at 492.

78 Id. at 493.

79 Id. at 494.

80Id. at 492-493.










any fundamental constitutional right.81 Finally, the court rejected Wright's substantive due

process claim because he was not being deprived of any fundamental right.82 Snuszki was later

awarded $1 million in damages against Wright.83

Rolling v. Florida

In Florida, a general forfeiture statute, not that state's "Son of Sam" law, prevented serial

killer Danny Rolling and his Cyberr wife" Sondra London from making money in connection

with a book of his artwork and the sale of his autographs.84 By his own admission, Rolling

killed five Gainesville, Florida, college students in 1990.85 He pleaded guilty to five counts of

first-degree murder in 1994 and was subsequently sentenced to death.86

Long before Rolling's gruesome killing spree, the state of Florida was quick to enact a

"Son of Sam" law in 1977, following New York's lead.87 Florida's "Son of Sam" law allows the

state to impose a lien on proceeds from "any literary, cinematic, or other account of the crime"

for which a person was convicted.88 More than twenty years after Florida's "Son of Sam" law



81 Id. at 493. The court noted that the "there is no fundamental right to the protection of a state's statute of
limitations" in response to Wright's claim that the extended statute of limitations for crime victims denied him a
fundamental right. Id.

82 d. at 494.

83 Snuszki v. Wright, No. 08409, slip op. (A.D.N.Y., 4th D. Nov. 17, 2006).
84 Florida v. Rolling, et al., No. 93-265-CA, (Fla. 8th Cir., Dec. 31, 1997).

85 Bryan Robinson, "Florida v. London and Rolling," (last
visited Oct. 10, 2007).
86 Id. Rolling was executed in October 2006. Bridget Murphy, Danny Rolling diesfor 5 brutal killings, FLA.
TIMES-UNION (Jacksonville), Oct. 26, 2006, at Al.

8 FLA. STAT. 944.512 (2006).

88 Id. Even before his conviction, the state of Florida attempted to enforce section 944.512 against Rolling. In
1993, a circuit court judge granted the state a temporary injunction against the disbursement of any proceeds from
Rolling's recounting of his crimes, pursuant to the statute. On appeal, the First District Court of Appeal in Florida
ruled that since the statute confined the law to those convicted of a crime, the injunction didn't apply to Rolling,
who had yet to be convicted of the crimes. See Rolling v. Florida, 630 So. 2d. 635 (Fla. Dist. Ct. App. 1994).









was enacted, Florida's First District Court of Appeal considered Rolling's and London's claim

that the state's attempt to seize proceeds from his autographs and a book titled The Making of a

Serial Killer was unconstitutional.89 The appellate court did not address the law's

constitutionality.90 Instead, the court held that proceeds from Rolling's art and writings were

subject to a lien under another portion of Florida law.91 The 1994 Civil Restitution Lien and

Crime Victims' Remedy Act92 provided a way for the state and crime victims to recover

damages via a lien on the criminal's "real and personal property," which would conceivably

include proceeds from any work, including literary or artistic expression.93 Since the state had

the ability to enforce the lien under statutes other than the "Son of Sam" law, and these other

statutes were not constitutionally challenged by Rolling or London, the appellate court affirmed a

circuit court's judgment for the state.94


















89 Rolling & London v. Florida, 741 So. 2d 627 (Fla. Dist. Ct. App. 1999).

90 Id. at 629.

91 Id.
92 Bryan Robinson, "Florida v. London and Rolling," (last
visited Oct. 10, 2007).

93 FLA. STAT. 960.29 (2006).

94 Rolling, 741 So. 2d at 627. See also Florida v. Rolling (Fla. 8th Cir., Dec. 31, 1997).










CHAPTER 6
PROCEDURAL PROVISIONS OF "SON OF SAM" LAWS

Regardless of whether particular states' "Son of Sam" laws target specific mediums of

expression, the procedure by which the laws are administered is generally as follows: First,

individuals or businesses who contract with the defendant must turn over the defendant's

proceeds to the state. The proceeds are then placed in an escrow account. The state must make

efforts to notify victims, through both direct contact and publication of legal notice in a

newspaper. Next, victims have approximately five years to bring civil actions to recover damage

awards from the account. In addition to victims, the public defender's office, the state, and even

the criminal are permitted by law to receive distributions from the account. This chapter

examines how "Son of Sam" statutes require the laws to be administered.

A contract between a person or business and the defendant is required for the "Son of

Sam" law to be effective in thirty-six of the thirty-nine states that have such laws. For example,

in Simon & Schuster, the contract existed between publishing company Simon & Schuster and







1 The state "Son of Sam" laws that require a contract for enforcement are: Alabama, Alaska, Arizona, Arkansas,
Colorado, Connecticut, Delaware, Georgia, Hawaii, Idaho, Indiana, Kansas, Kentucky, Maine, Maryland, Michigan,
Minnesota, Mississippi, Montana, Nebraska, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma,
Oregon, Pennsylvania, Rhode Island, South Dakota, Utah, Virginia, Washington, West Virginia, Wisconsin, and
Wyoming. See ALA. CODE 41-9-80 (2006); ALASKA STAT. 12.61.020 (2006); ARIZ. REV. STAT. 13-4202
(2006); ARK. CODE ANN. 16-90-308 (2006); COLO. REV. STAT. 24-4.1-201 (2006); CONN. GEN STAT. 54-218
(2006); DEL. CODE ANN. tit. 11, 9103 (2006); GA. CODE ANN. 17-14-31 (2006); HAW. REV. STAT. 351-81
TO -88 (2006); IDAHO CODE 19-5301 (2006); IND. CODE ANN. 5-2-6.3-1 TO -7 (2006); KAN. STAT. ANN. 74-
7319 (2006); KY. REV. STAT. ANN. 346.165 (2006); ME. REV. STAT. ANN., tit. 14, 752-E (2005); MD. CODE
ANN., CRIM. PROC. 11-621 TO -632 (2006); MICH. STAT. ANN. 780.768 (2006); MINN. STAT. 611A.68
(2005); MISS. CODE ANN. 99-38-1 TO -11 (2006); MONT. CODE ANN. 53-9-104 (2006); NEB. REV. STAT.
81-1836 TO -1839 (2006); N.J.STAT. 52:4B-62 TO -70 (2006); N. M. STAT. ANN. 31-22-22 (2006); N.Y. EXEC.
LAW 632-a (2006); N.D. CENT. CODE 32-07.1-01 (2006); OHIO REV. CODE ANN. 2969.02 (2006); OKLA.
STAT., tit. 22 17 (2006); OR. REV. STAT. 147.275 (2006); 42 PA. CONS. STAT. 8312 (2006); R.I. GEN. LAWS
12-25.1-3 (2006); S.D. CODIFIED LAWS 23A-28A-1 TO -14 (2006); UTAH CODE ANN. 77-18.8.3 (2006); VA.
CODE ANN. 19.2-368.19 TO -22 (2006); WASH. REV. CODE 7.68.200 TO -290 (2006); W. VA. CODE 14-2B-
1 TO -11 (2006); WIS. STAT. 949.165 (2006); WYo. STAT. ANN. 1-40-301 TO -308 (2006).









organized crime figure Henry Hill. Additionally, sixteen of these states require that a copy of the

contract or written notice be submitted to the state.2

When the proceeds of such contracts are turned over to the state, they are generally

deposited in an escrow account.3 A departure from the escrow account scheme is found in

Arizona, which describes a "crime victim account";4 in Minnesota a "special account";5 North

Dakota calls for a "constructive trust";6 an "offender's profit fund" is utilized in Ohio;7 and

Rhode Island describes the account as a "criminal royalties fund."8 Utah is unique in that its

"Son of Sam" law does not seek forfeiture of proceeds from a contract but allows for a special

condition of sentencing that prohibits defendants from ever engaging in a contract related to

expressing themselves regarding their crimes.9

While compensating victims is a stated goal of "Son of Sam" laws, victims do not simply

receive a check in the mail if funds are turned over to the state. Victims must bring action in civil

court within a specified amount of time, usually three to five years. Thirty-five states with "Son

of Sam" laws require that the victim file a civil action or apply to the state Florida, Montana,




2 The states that require a copy of the contract or written notice to be submitted to the board are Colorado, Delaware,
Georgia, Hawaii, Indiana, Maryland, Mississippi, New Jersey, New Mexico, New York, Pennsylvania, Rhode
Island, South Dakota, Washington, West Virginia, and Wisconsin.
3 Escrow accounts are statutorily required in Alabama, Arkansas, Colorado, Connecticut, Delaware, Hawaii, Idaho,
Indiana, Iowa, Maryland, Michigan, Minnesota, Mississippi, Montana, New Mexico, Oklahoma, Oregon, South
Dakota, Tennessee, Texas, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.

4 ARIZ. REV. STAT. 13-4202 (2006).

5 MINN. STAT. 611A.68 (2005).

6 N.D. CENT. CODE 32-07.1-01 (2006).

7 OHIO REV. CODE ANN. 2969.92 (2006).

SR.I. GEN. LAWS 12-25.1-3 (2006).

9 UTAH CODE ANN. 77-18.8.3 (2006).










Ohio, and Utah do not have such provisions.10 In thirteen states, victims have five years from

the establishment of the escrow account to file a claim against the account. Five states share a

similar statutory provision that allows victims three years from discovering the proceeds to take

action.12 Other states vary in their approach to how much time victims have to take advantage of

the "Son of Sam" statutes. In Connecticut, for example, the five-year statute of limitations

begins running on the date of the crime, which could be problematic if a criminal is not

apprehended within five years of the crime. 13 Kansas only allows victims six months after being

notified to file actions against the criminal.14

Though the intent of "Son of Sam" laws is to compensate victims, victims must compete

for crime proceeds with other entities, such as the public defender and the defendant, who are

often statutorily authorized to receive proceeds from expressive materials about crime. In fact,

only eight states name victims as the sole beneficiaries of proceeds forfeited under "Son of Sam"

laws.15 More than half of the states with anti-profit statutes allow the criminal to petition a court

to use some of the funds to pay for legal representation. 16 Two of these states Rhode Island

and Wisconsin even list public defender costs as a higher priority for payment than victim

10 FLA. STAT. ANN. 944.512 (2006); MONT. CODE ANN. 53-9-104 (2006); OHIO REV. CODE ANN. 2969.92
(2006); UTAH CODE ANN. 77-18.8.3 (2006).

1 The states that allow for victim actions within five years of the establishment of an escrow account are Arizona,
Colorado, Delaware, Idaho, Kentucky, Maryland, Michigan, Minnesota, New Mexico, Oregon, Texas, Washington,
and Wyoming.
12 The state allow for victim actions with three years of discovery of profits are Maine, Nebraska, New York,
Pennsylvania, and West Virginia.

13 CONN. GEN STAT. 54-218 (2006).

14 KAN. STAT. ANN. 74-7319 (2006).
15 The states that name victims as the sole beneficiaries of forfeited proceeds are Alabama, Maine, New Jersey, New
York, North Dakota, Pennsylvania, Texas, and Wyoming.
16 The twenty-two states that allow proceeds to be used for legal representation of defendant are Arizona, Arkansas,
Connecticut, Delaware, Georgia, Hawaii, Idaho, Indiana, Iowa, Maryland, Minnesota, Mississippi, Nebraska, New
Mexico, Oklahoma, Rhode Island, South Dakota, Tennessee, Virginia, Washington, West Virginia, and Wisconsin.









compensation.17 Other statutory provisions which allow states to recoup costs they incur when a

person is convicted of a crime include allowing for costs of incarceration to be distributed from

the accounts. 8 In Montana, proceeds may eventually end up in the state's general fund. 19

Criminal defendants and their minor dependents are also potential beneficiaries of funds forfeited

under "Son of Sam" laws. Fifteen states permit monies left in the account after the statute of

limitations has expired to be returned to defendants.20 For defendants with children, three states

(Florida, Minnesota, and Mississippi) have provisions that allow for distributions from the

accounts to dependents.21

The procedural components of "Son of Sam" laws are often overshadowed by the

constitutional debate surrounding the laws, but these aspects of the laws are valuable as subjects

of commentary themselves. In particular, the varying ways in which states distribute forfeited

funds can have a significant impact on the ability of states to reach the goals (victim

compensation and prevention of criminal profiteering) of "Son of Sam" laws.













17 R.I. GEN. LAWS 12-25.1-3 (2006); Wis. STAT. 949.165 (2006).

18 The states that provide for costs of incarceration to be withdrawn from anti-profit funds are Florida, Indiana,
Michigan, Oklahoma, and South Dakota.

19 MONT. CODE ANN. 53-9-104 (2006).
20 The states that return money to criminals if no victim action is taken are Colorado, Delaware, Georgia, Hawaii,
Idaho, Kentucky, Maryland, Nebraska, New Mexico, Oregon, South Dakota, Washington, West Virginia, and
Wisconsin.

21 FLA. STAT. ANN. 944.512 (2006); MINN. STAT. 611A.68 (2005); MIss. CODE ANN. 99-38-1 TO -11 (2006).












Table 6-2 Recipients of seized funds
State Victims only Legal costs Prison costs Defendant Dependents
AlahIam X
Arizona X
Arkansas X
Colorado X
Connecticut X
Delaware X X
Florida X X
Georgia X X
Hawaii X X
Idaho X X
Indiana X X
Iowa X
Kentucky X
Maine X
Maryland X X
Michigan X
Minnesota X X
MississiDDi X X
Nebraska X X
New Jersey X
New Mexico X X
New York X
North Dakota X
Oklahoma X X
Oregon X
Pennsylvania X
Rhode Island X
South Dakota X X X
Tennessee X
Texas X
Virginia X
Washington X X
West Virginia X X
Wisconsin X X
Wyoming X










CHAPTER 7
SUMMARY AND CONCLUSION

Summary

The findings presented in the previous chapters show that "Son of Sam" laws in the fifty

states are very similar in how they dictate that such anti-profit laws are carried out. In thirty-six

of the thirty-nine states with active "Son of Sam" laws, there must be a contract in existence in

order for the law to be effective. Funds are then deposited in an escrow account or other

designated fund, making them available for victims to file claims against. And, while victim

compensation is one goal of "Son of Sam" laws, victims must often compete with other potential

recipients of the money, including public defenders, court-appointed attorneys, the state, and

dependents of criminals.

Most states, twenty-eight, still target the specific mediums of expression and thoughts of

the defendant as outlined in the New York law struck down in Simon & Schuster. A growing

trend among states is to eliminate references to expression in favor of laws that target proceeds

derived from a "unique knowledge" of a crime, as eleven states have done. Finally, some states

use their general forfeiture statutes to pursue criminal storytelling proceeds. The potential

success for this approach has been illustrated in cases involving Arizona, New York, and Florida.

Conclusion

A survey of "Son of Sam" laws across the country lends itself to two major conclusions.

First, although "Son of Sam" laws have been touted as a way to compensate crime victims and

prevent criminals from profiting from their crimes, an examination of the statutory provisions

regarding the administration of criminal anti-profit laws reveals that neither goal is guaranteed.

Most states allow for defendants to use criminal profits for legal representation, which would

likely go to the public defender or a court-appointed attorney. In fact, Wisconsin and Rhode









Island prioritize public defender costs before victim reparations. Another five states allow the

seized funds to be used to pay for incarcerating the criminal. And Montana has a provision for

unused funds to go in the state's general fund. Thus, while the stated intent of these laws is to

compensate victims and prevent criminal profiteering, in practice they often serve as a tool for

states to defray the costs of giving a defendant a fair trial and any subsequent incarceration. The

goal of preventing criminals from profiting from their wrongdoing cannot be obtained if, as in

sixteen states, there are funds still available after the statute of limitations for victim action has

expired. These states simply return the money to the defendant. If certain individuals' First

Amendment rights are to be compromised by "Son of Sam" laws similar to New York's original

statute, then it is vital that the government's compelling interests have the opportunity to be

realized. In many states, procedural provisions of "Son of Sam" statutes thwart the goals of such

laws.

A second major observation of this fifty-state survey is that in light of the case law

presented in Chapter 5, the twenty-eight states that continue to have laws that target expressive

materials would be wise to amend their laws. State case law since Simon & Schuster regarding

these types of laws has reiterated how vulnerable these statutes are to constitutional challenges.

Eleven states have already steered clear of targeting works such as books or movies and

instead choose to focus on assets the defendant received as a result of the crime, including those

obtained through a "unique knowledge" of the crime. While these types of laws have not

advanced in the courts to the point of First Amendment scrutiny, it appears that they would fare

much better in the courts than expression-specific laws. As many authors have suggested, these

laws would likely be analyzed using intermediate scrutiny and are likely to pass such a standard

of review.









States who wish to revise their laws could take an even further step away from

expression-specific laws by using forfeiture statutes that extend to all income or property, as

Tennessee, Arizona, New York, and Florida have done, to obtain proceeds from expressive

materials. These broad laws have been successful when challenged in the courts and offer yet

another option for the twenty-eight states whose current laws are likely unconstitutional under

Simon & Schuster. These states with constitutionally vulnerable "Son of Sam" laws should not

wait for a legal challenge to revise their laws. "Son of Sam" laws are rarely challenged, but

when they are, it is usually because an individual has committed a particularly heinous or

notorious crime. Rather than wait and allow such criminals to profit from their crimes because

of poor legislation, states should take proactive measures to ensure that the legislative intent of

anti-profit laws is realized.









LIST OF REFERENCES

David Abrahamsen, CONFESSIONS OF SON OF SAM ix (Columbia Univ. Press 1985).

Abrams v. United States, 250 U.S. 616 (1919).

Ala. Code 41-9-80 (2006).

Alaska Stat. 12.61.020 (2006).

Areopagitica, in 32 GREAT BOOKS OF THE WESTERN WORLD 409 (1952).

Arizona v. Gravano, 204 Ariz. 106, 108 (2000).

Ariz. Rev. Stat. 13-2301 to -2318 (2006).

Ariz. Rev. Stat. 13-4202 (2006).

Ariz. Rev. Stat. 13-4301 to -4316 (2006).

Ark. Code Ann. 16-90-308 (2006).

Ark. Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987).

Vincent Blasi, Holmes and the Marketplace of Ideas, 2004 S. CT. REV. 1, 1 (2004).

Bouchard v. Price, 694 A.2d 670 (1997).

Cal. Civ. Code 2225 (2002).

Central Hudson Gas v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557 (1980).

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

Colo. Rev. Stat. 24-4.1-201 (2006).

Conn. Gen Stat. 54-218 (2006).

Curran v. Price, 334 Md. 149 (1994).

Del. Code Ann. tit. 11, 9103 (2006).

Karen M. Ecker & Margot J. O'Brien, Note, Simon & Schuster, Inc. v. Fuschetti: Can New
York's Son of Sam Law Survive First Amendment Challenge?, 66 NOTRE DAME L. REV.
1075 (1991).

Florida v. Rolling, et al., No. 93-265-CA, (Fla. 8th Cir., Dec. 31, 1997).










Fla. Stat. Ann. 944.512 (2006).

Fla. Stat. 960.29 (2006).

John H. Garvey & Frederick Schauer, THE FIRST AMENDMENT: A READER 240 (2d ed. 1996).

Ga. Code Ann. 17-14-31 (2006).

Gilbert O'Keefe Greenman, Son of Simon & Schuster: A "True Crime" Story of Motive,
Opportunity and the First Amendment, 18 HAWAII L. REV. 201 (1996).

Haw. Rev. Stat. 351-81 to -88 (2006).

David L. Hudson Jr., "Son of Sam Laws"
http://www.firstamendmentcenter.org//speech/arts/topic.aspx?topic=sonof sam

Idaho Code 19-5301 (2006).

Ind. Code Ann. 5-2-6.3-1 -7 (2006).

Iowa Code 910.15 (2005).

Kan. Stat. Ann. 74-7319 (2006).

Sean J. Kealy, A Proposalfor a New Massachusetts Notoriety-for-Profit Law: The Grandson of
Sam, 22 W. NEW ENG. L. REV. 1 (2000).

Keenan v. Sinatra, 40 P.3d 718 (2002).

Ky. Rev. Stat. Ann. 346.165 (2006).

Leathers v. Medlock, 499 U.S. 439 (1991).

Me. Rev. Stat. Ann., tit. 14, 752-E (2005).

Md. Code Ann., Crim. Proc. 11-621 to -632 (2006).

Mich. Stat. Ann. 780.768 (2006).

Kent R. Middleton, William E. Lee & Bill F. Chamberlin, THE LAW OF PUBLIC COMMUNICATION
25-31 (2005).

Minn. Stat. 611A.68 (2005).

Miss. Code Ann. 99-38-1 to -11 (2006).









Mont. Code Ann. 53-9-104 (2006).

Lisa Ann Morelli, Simon & Schuster, Inc. v. Members of the New York State Crime Victims
Board: How the Characterization of a Speech Regulation Can Effectively Destroy a
Legitimate Law, 42 CATH. U.L. REV. 651 (1993).

Bridget Murphy, Danny Rolling dies for 5 brutal killings, FLA. TIMES-UNION (Jacksonville), Oct.
26, 2006, at Al.

Neb. Rev. Stat. 81-1836 to -1839 (2006).

Nev. Rev. Stat. 217.007 (2004).

N.J. Stat. 52:4B-62 -70 (2006).

N. M. Stat. Ann. 31-22-22 (2006).

N.Y. Crime Victims Bd. v. Majid, 193 Misc.2d 710 (2002).

N.Y. Crime Victims Bd. v. T.J.M. Prods., 265 A.D.2d 38, 47 (2000).

N.Y Exec. Law 632-a(1) (Mckinney 1982).

N.Y. Exec. Law 632-a (2004).

N.Y. Exec. Law 632-a (2006).

N.Y. Times v. Sullivan, 376 U.S. 254 (1964).

Nike, Inc. v. Kasky, 539 U.S. 654 (2003).

N.D. Cent. Code 32-07.1-01 (2006).

Ohio Rev. Code Ann. 2969.02 (2005).

O.J. Simpson can't have book, TV proceeds, THE ASSOCIATED PRESS, Mar. 14, 2007.

Okla. Stat., tit. 22 17 (2006).

Or. Rev. Stat. 147.275 (2006).

42 Pa. Cons. Stat. 8312 (2006).

R.I. Gen. Laws 12-25.1-3 (2006).









Bryan Robinson, "Florida v. London and Rolling,"
http://www.courttv.com/archive/verdicts/rolling.html

Rolling v. Florida, 630 So. 2d. 635 (Fla. Dist. Ct. App. 1994).

Rolling & London v. Florida, 741 So. 2d 627 (Fla. Dist. Ct. App. 1999).

Romero v. Pataki, 2006 WL 842177 (S.D.N.Y., Mar. 31, 2006).

Sandusky v. McCummings, 164 Misc. 2d 700 (1995).

Seres v. Lemer, 102 P.3d 91 (2004).

Debra Shields, The Constitutionality of Current Crime Victimization Statutes: A Survey, 4
FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 929 (1994).

Simon & Schuster v. N.Y. Crime Victims Bd., 724 F. Supp. 170 (S.D.N.Y. 1989).

Simon & Schuster, Inc. v. N.Y. Crime Victims Bd., 502 U.S. 105, 111 (1991).

Greg B. Smith, Kin of Gravano's Victims Get 420G in Payback, NEW YORK DAILY NEWS, July
22, 2004, at 3.

Snuszki v. Wright, 193 Misc.2d 490 (2002).

Snuszki v. Wright, No. 08409, slip op. (A.D.N.Y., 4th D. Nov. 17, 2006).

"'Son of Sam' statutes: federal and state summary." The First Amendment Center,
http://www.firstamendmentcenter.org/about.aspx?id=12746.

S.D. Codified Laws 23A-28A-1 to -14 (2006).

Tenn. Code Ann. 29-13-402 to 410 (2006).

Tex. Crim. Proc. Code art. 59.06 (2006).

Thompson v. 76 Corp., 2007 WL 414437, *1 (N.Y.A.D. 2 Dept., Feb. 6, 2007).

United States v. O'Brien, 391 U.S. 367 (1968).

Utah Code Ann. 77-18.8.3 (2006).

Va. Code Ann. 19.2-368.19 to -22 (2006).

Wash. Rev. Code 7.68.200 to -290 (2006).








W. Va. Code 14-2B-1 to -11 (2006).

Wis. Stat. 949.165 (2006).

Wyo. Stat. Ann. 1-40-301 to -308 (2006).









BIOGRAPHICAL SKETCH

Christina M. Locke was raised in Okeechobee, Florida. She graduated from the University

of Florida with a B.A. in English, cum laude, in 2002. In 2004, she entered the joint J.D./M.A.

program in media law at the University of Florida. Christina has worked as a reporter and

photographer for the Okeechobee News and as a copy editor for the Gainesville Sun. She spent

much of her time in the graduate program working at the Brechner Center for Freedom of

Information as both a research assistant and editor of The Brechner Report.





PAGE 1

1 SON OF SAM GOES INCOGNITO: EMERGING TRENDS IN CRIMINAL ANTI-PROFIT STATUTES By CHRISTINA M. LOCKE A THESIS PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS IN MASS COMMUNICATION UNIVERSITY OF FLORIDA 2007

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2 2007 Christina M. Locke

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3 To the memories of my father, brother, and sister: Joseph Earl Locke Sr., Joseph Earl Locke Jr., and Kimberly Locke.

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4 ACKNOWLEDGMENTS First, I would like to thank my supervisory committee chair, Professor Sandra F. Chance, and committee members Professor William McKeen and Professor Ted Spiker, for their guidance. I am also indebted to Professor Chance, Alana Kolifrath, and everyone at the Brechner Center for Freedom of Information. Through the Center, I have gained not only knowledge, but an invaluable source of support during tough times. I would also like to thank Marion Brechner and her late husband Joseph Brechner for their generous support of the College of Journalism and Communications and my individual education. I thank the late Charlotte Hayes for giving me a firsthand look at the dissertation writing process as she pursued her PhD. in order to make the world a better place for impoverished children. I am glad she was able to realize her dream of earning that degree, even though her life was cut short before she could achieve her other goals. Charlottes daughter, and my best friend since childhood, Amelia Hayes Saavedra, has been a constant in my life as we have helped each other through the hard times and enjoyed the good times. I am so grateful for her love and respect. I could not have made it through the process of getting a masters degree and a law degree without the support of my media law buddies and empire builders especially Ana-Klara Hering and Kimberly Lopez. Miriam and Dana Hill have been like a second family to me in Gainesville, opening their home to me for countless TV nights to take a break from school and making marathon Saturday lunches a favorite pastime. My journey to higher education is due in no small part to the support and advice of my teachers and mentors along the way. I would like to thank Joan Dyer, Jo Ann Norris, and Debbie Foster, some of my former grade school teachers, for their inspiration and encouragement. Without their guidance, I would never have realized my potential.

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5 Finally, I thank the woman who has showed me the meaning of resiliencemy mother, Stephanie Locke. She is a true survivor, and her perseverance is admirable. I expect to be reading her masters thesis in the near future.

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6 TABLE OF CONTENTS page ACKNOWLEDGMENTS...............................................................................................................4 LIST OF TABLES................................................................................................................. ..........7 ABSTRACT....................................................................................................................... ..............8 CHAPTER 1 INTRODUCTION................................................................................................................... .9 2 FIRST AMENDMENT THEORY AND JURISPRUDENCE...............................................12 Value of the First Amendment...............................................................................................12 Protected Speech............................................................................................................... ......13 Non-Protected Speech........................................................................................................... .14 Standards of Review............................................................................................................ ...14 Simon & Schuster v. New York State Crime Victims Board ...................................................15 3 LITERATURE REVIEW.......................................................................................................18 4 METHODOLOGY.................................................................................................................20 5 CATEGORIES OF SON OF SAM LAWS.........................................................................21 Expression-Specific Son of Sam Laws...............................................................................21 Unique Knowledge Son of Sam Laws................................................................................26 Broader Anti-Profit Remedies................................................................................................31 6 PROCEDURAL PROVISIONS OF SON OF SAM LAWS..............................................37 7 SUMMARY AND CONCLUSION.......................................................................................42 Summary........................................................................................................................ .........42 Conclusion..................................................................................................................... .........42 LIST OF REFERENCES............................................................................................................. ..45 BIOGRAPHICAL SKETCH.........................................................................................................50

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7 LIST OF TABLES Table page 5-1 Categories of "Son of Sam" laws............................................................................................28 6-2 Recipients of seized funds................................................................................................. ......41

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8 Abstract of Thesis Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Master of Arts in Mass Communication SON OF SAM GOES INCOGNITO: EMERGING TRENDS IN CRIMINAL ANTI-PROFIT STATUTES By Christina M. Locke December 2007 Chair: Sandra F. Chance Major: Mass Communication Laws preventing criminals from profiting from crimes, especially by telling their stories, exist in most states. Twenty-eight states have laws similar to New Yorks original Son of Sam law declared unconstitutional in 1991. However, a growing number of states have eliminated references to expressive materials from their an ti-profit statutes. Some states also are using general forfeiture statutes to seize proceeds from criminal storytelling. Eliminating references to expressive materials and pursuing relief through ge neral forfeiture statutes are promising ways for states to achieve the compelling interests of preventing criminal profiteering and compensating victims without violating the First Am endment. However, analysis of procedural provisions of the laws reveals that these goals can be thwarted by the way the laws are administered.

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9 CHAPTER 1 INTRODUCTION When the time came for serial killer David Berkowitz, AKA the Son of Sam, to tell the story of how he shot and killed several people in New York City during 1976 and 1977, he chose to collaborate with forensic psychiatrist Davi d Abrahamsen. Apparently, Berkowitz was not concerned with profiting from the book Confessions of Son of Sam I feel that by helping you it will also be helping society. I want no financ ial rewards for my cooperation, Berkowitz wrote in June 1979, nearly two years after his arrest.1 Berkowitz later agreed to donate twenty-five percent of book royalties to the victims of his crimes.2 Despite Berkowitzs self-professed altruism, his killing spree and subsequent sale of rights to his story led to a new breed of laws th at prevent criminals from benefiting financially by telling their stories. The media attention surrounding his crimes provoked the New York legislature to enact a law calling for the forfeitu re of criminals profits from books, movies, and other mediums in which crimes are depicted. Proof of Berkowitzs influence on the laws is evident in the fact that these laws to prevent crim inal profiteering, in effect in thirty-nine states,3 1 DAVID ABRAHAMSEN, CONFESSIONS OF SON OF SAM ix (Columbia Univ. Press 1985). David Berkowitz, also known as the .44 caliber killer, was arrested Aug. 10, 1977. Id. Berkowitz, who left notes for police signed Son of Sam, was found mentally incompetent to stand trial fo r the six murders he committed, but in June 1978 he was sentenced to several hundred years in prison for the murders. Id. 2 Id. 3 See ALA. CODE 41-9-80 (2006); ALASKA STAT. 12.61.020 (2006); ARIZ. REV. STAT. 13-4202 (2006); ARK. CODE ANN. 16-90-308 (2006); COLO. REV. STAT. 24-4.1-201 (2006); CONN. GEN STAT. 54-218 (2006); DEL. CODE ANN. tit. 11, 9103 (2006); FLA. STAT. ANN. 944.512 (2006); GA. CODE ANN. 17-14-31 (2006); HAW. REV. STAT. 351-81 -88 (2006); IDAHO CODE 19-5301 (2006); IND. CODE ANN. 5-2-6.3-1 -7 (2006); IOWA CODE 910.15 (2005); KAN. STAT. ANN. 74-7319 (2006); KY. REV. STAT. ANN. 346.165 (2006); ME. REV. STAT. ANN., tit. 14, 752-E (2005); MD. CODE ANN., CRIM. PROC. 11-621 TO -632 (2006); MICH. STAT. ANN. 780.768 (2006); MINN. STAT. 611A.68 (2005); MISS. CODE ANN. 99-38-1 TO -11 (2006); MONT. CODE ANN. 53-9-104 (2006); NEB. REV. STAT. 81-1836 TO -1839 (2006); N.J. STAT. 52:4B-62 -70 (2006); N. M. STAT. ANN. 31-22-22 (2006); N.Y. EXEC. LAW 632-a (2006); N.D. CENT. CODE 32-07.1-01 (2006); OHIO REV. CODE ANN. 2969.02 (2005); OKLA. STAT., tit. 22 17 (2006); OR. REV. STAT. 147.275 (2006); 42 PA. CONS. STAT. 8312 (2006); R.I. GEN. LAWS 12-25.1-3 (2006); S.D. CODIFIED LAWS 23A-28A-1 TO -14 (2006); TEX. CRIM. PROC. CODE art. 59.06 (2006); UTAH CODE ANN. 77-18.8.3 (2006); VA. CODE ANN. 19.2-368.19 TO -

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10 are commonly referred to as Son of Sam laws. Most Son of Sam laws are modeled after the original New York statute.4 Although he was the namesake for the laws, the statute never applied to Berkowitz. The original statute onl y applied to convicted criminals, not those declared incompetent to stand trial, like Berkowitz.5 Despite goals of compensating crime victims and preventing criminals from profiting from their crimes, Son of Sam laws like the one New York enacted in 1977 have not been embraced by the courts. In 1991, the U.S. Supreme Court struck down the New York statute in Simon & Schuster v. New York State Crime Victims Board. The Court held that the law did not pass the strict scrutiny required for content-based restrictions to be valid and was therefore inconsistent with the First Amendment. The result of Simon & Schuster has been a state statutory landscape of Son of Sam laws that is increasingly diverse and is likely to continue changing as states receive more challenges to their anti-profit laws. This thesis diverges from the traditional approach to Son of Sam laws in that it does not focus solely on constitutional analysis but instead examines every anti-profit statute in the nation. Chapter 2 provides an overview of First Amendment theory and jurisprudence and discusses the Supreme Courts decision in Simon & Schuster Chapter 3 presents the general trends and theories in legal literature regarding Son of Sam laws. 22 (2006); WASH. REV. CODE 7.68.200 TO -290 (2006); W. VA. CODE 14-2B-1 TO -11 (2006); WIS. STAT. 949.165 (2006); WYO. STAT. ANN. 1-40-301 TO -308 (2006). 4 N.Y Exec. Law 632-a(1) (Mckinney 1982) reads: 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 pe rsons 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. Id. 5 Simon & Schuster, Inc. v. N.Y. Crime Victims Bd., 502 U.S. 105, 111 (1991).

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11 Research methodology is presented in Chapter 4. Chapter 5 examines Son of Sam laws across the nation according to the degree they target specific mediums of expression. Relevant case law is used to illustrate the various incarnations of Son of Sam laws. Chapter 6 analyzes the general statutory provisions for administering the laws. After a summary of the research findings, Chapter 7 concludes that the majority of Son of Sam laws are unconstitutional, though a new trend in anti-profit statutes may offer a way for states to compensate victims and prevent criminal profiteering in a way that can withstand constitutional scrutiny. But more disturbing is that the procedural aspects of the laws reveal that the compelling government interests advanced by Son of Sam laws compensating victims and preventing criminal profiteering are undermined by statutory provisions that allow the laws to function as schemes to offset state costs in prosecuting, defending, and imprisoning criminals.

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12 CHAPTER 2 FIRST AMENDMENT THEORY AND JURISPRUDENCE Congress shall make no lawabridging the freedom of speech, or of the press . First Amendment to the U.S. Constitution Value of the First Amendment The free speech provision of the First Amendmen t embodies different values for different people. Generally, the First Amendment is valuable for its contributions to: the attainment of truth, self-governance, personal fulfillment and autonomy, and as a checking function against government power.1 Ideas espoused by the First Amendment find their roots in John Miltons classic 1644 work Areopagitica in which he railed against the British governments publication licensing scheme: And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriousl y, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter?2 Miltons metaphor gave way to the popular marketplace of ideas concept of the First Amendment. U.S. Supreme Court Justice Holmes, in his dissenting opinion in the 1919 case Abrams v. United States, invoked this metaphor in opposition to the majoritys decision to affirm the convictions of Russian immigrants arrested for circulating anarchist leaflets. [T]he best test of truth is the power of the thought to get its elf accepted in the competition of the market, Holmes wrote.3 The injection of ideas into the market, whether through leaflets, newspaper stories, or books, is not a guarantee for all speakers. First Amendment jurisprudence has resulted 1 See Vincent Blasi, Holmes and the Marketplace of Ideas, 2004 S. CT. REV. 1, 1 (2004); KENT R. MIDDLETON, WILLIAM E. LEE & BILL F. CHAMBERLIN, THE LAW OF PUBLIC COMMUNICATION 25-31 (2005). 2 Areopagitica in 32 GREAT BOOKS OF THE WESTERN WORLD 409 (1952). 3 Abrams v. United States, 250 U.S. 616 (1919).

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13 in a hierarchy of speech, from speech that receives the most protection under the Constitution to speech that receives no constitutional protection. Protected Speech The types of speech most protected by the First Amendment are political and social speech, sometimes referred to as core speech. Speech that falls into these categories will receive the most protection when challenged in the courts. In New York Times v. Sullivan for example, the U.S. Supreme Court established a high standard for public officials to overcome if they wished to sue the media for libel.4 The underlying theory behind the holding in Sullivan is that political speech specifically, speech drawing attention to the activities of public officials is central to the meaning of the First Amendment. Commercial speech and (non-obscene) sexual expression will receive constitutional protection but to a lesser degree than the protection received by political or social speech. More regulation is tolerated in connection with commercial speech and sexual expression than other types of speech protected under the First Amendment. In Central Hudson Gas v. Public Service Commission of New York the U.S. Supreme Court set forth a test for determining whether commercial speech is protected by the First Amendment: 1) it should not be misleading and related to lawful activity; 2) the government interest should be substantial; 3) if the first two prongs are met, the government regulation should advance the governments interest; and 4) the governments interest could be carried out by less restrictive means.5 If the commercial speech at issue meets the Central Hudson test, then the speech will be protected by the First Amendment. 4 N.Y. Times v. Sullivan, 376 U.S. 254 (1964). 5 Central Hudson Gas v. Pub. Serv. Commn of N.Y., 447 U.S. 557 (1980). See also Nike, Inc. v. Kasky, 539 U.S. 654 (2003).

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14 Non-Protected Speech Unlike, political, social, commercial, and non-obscene speech, some categories of speech are so outside the bounds of the purpose of the First Amendment that they receive no constitutional protection. Fighting words, threats, false advertising, fraud, and obscenity are categories of unprotected speech. The protection exception for fighting words originated in the 1942 case Chaplinsky v. New Hampshire.6 Chaplinsky was a member of the Jehovahs Witness religious group convicted under a New Hampshire statute for calling the City Marshall a God damned racketeer and a damned Fascist.7 The U.S. Supreme Court upheld Chaplinskys conviction, noting that it is well understood that the right of free speech is not absolute at all times and under all circumstances.8 According to the Court, Chaplinskys words were of no essential part of any exposition of ideas, and [were] of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.9 The justifications outlined by the Chaplinsky Court extend to the other categories of unprotected speech. Standards of Review Although some speech, such as social or political speech, is protected by the First Amendment, this protection is not absolute. Protected speech may still be subject to government regulation. In determining the validity of a particular governmental regulation on expression, courts have formulated two judicial tests: st rict scrutiny and intermediate scrutiny. Strict scrutiny is the more difficult test to pass, requiring the government to have compelling interests 6 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). 7 Id. 8 Id. 9 Id.

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15 behind the regulation, and that the regulation is narrowly tailored to achieve these compelling interests. Intermediate scrutiny allows the government to meet a lower burden in regulating free speech: the regulation must serve a substantial government interest, be unrelated to the suppression of free expression, and be no greater than is essential to the furtherance of that interest.10 In order to determine which test to applystrict scrutiny or intermediate scrutinycourts must first determine what type of regulation is at issue. If the regulation is content-based strict scrutiny will apply. Content-based regulations ar e those that restrict expression based on the content of the message i.e., works depicting a crime. If the statute is content-neutral intermediate scrutiny applies. Examples of content-neutral laws include restrictions on times of parades or rules against burning draft cards. Simon & Schuster v. New York State Crime Victims Board Son of Sam laws are examples of content-based speech regulations that call for the application of strict scrutiny the government must have a compelling interest and the regulation must be narrowly tailored to achieve that interest. While the serial killer Son of Sam prompted the enactment of New Yorks criminal anti-profit statute, a mobster was at the center of the case that led to the statutes downfall. Publishing company Simon & Schuster initiated the action in 1987, challenging the New York State Crime Victims Boards claim to book royalties earned by gangster Henry Hill.11 Hill and author Nicholas Pileggi collaborated to produce a book titled 10 United States v. OBrien, 391 U.S. 367 (1968). 11 Simon & Schuster 502 U.S. at 114, 115.

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16 Wiseguy: Life in a Mafia Family .12 The book recounted Hills criminal career involving theft, robbery, extortion, and drug trafficking.13 The board invoked the New York Son of Sam law, which allowed the board to seize profits from a person accused or convicted of a crime who tells his or her story.14 Simon & Schuster challenged the statute on grounds that it violated the First Amendment.15 The board argued the law was not enacted with any illicit intent to suppress the exchange of ideas and that victim compensation, not prohibition of offensive speech, was the intention of the law.16 Both the Southern District Court of New York and th e U.S. Court of Appeals for the Second Circuit sided with the board, holding the statute to be consistent with the First Amendment.17 The U.S. Supreme Court, however, reversed the lower courts rulings and held that New Yorks Son of Sam law was overbroad and violated the First Amendment. The Court deemed the New York statute a content-based restricti on because it singled out speech on a particular subject for a financial burden that it places on no other speech and no other income.18 The Court applied the strict scrutiny standard of re view to the New York statute, concluding that although the state had compelling interests to compensate victims and prevent criminals from profiting from their crimes, the New York law was not narrowly tailored to meet these 12 Id. at 112. 13 Id. 14 Id. 15 Id. at 115. 16 Simon & Schuster, 502 U.S. at 117. 17 Id. 18 Id. at 123. See also Leathers v. Medlock, 499 U.S. 439 (1991) (holdi ng that Arkansas sales tax application to cable television services but not print media does not violate the First Amendment); Ark. Writers Project, Inc. v. Ragland, 481 U.S. 221 (1987) (holding that Arkansas taxi ng of general interest magazines but not newspapers, trade journals, etc., violates the First Amendment).

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17 interests.19 The law encompassed works on any subject in which crimes were mentioned, even if only in a cursory fashion.20 Additionally, the statutes broad definition of a person convicted of a crime included any person who has voluntarily and intelligently admitted the commission of a crime for which such person is not prosecuted and extended the laws application to authors of expressive material who were never convicted or even accused of crimes.21 The Court pointed out that under the New York Son of Sam law, potential proceeds from valuable works such as The Autobiography of Malcolm X and Confessions of St. Augustine would be subject to seizure, even though the books are not primarily about criminal wrongdoing.22 19 Simon & Schuster, 502 U.S. at 123. We conclude simply that in the Son of Sam law, New York has singled out speech on a particular subject for a financial burden it pl aces on no other speech and no ot her income. The States 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. Id. 20 Id. at 121. 21 Id. at 110. 22 Id. at 121.

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18 CHAPTER 3 LITERATURE REVIEW In Simon & Schuster the U.S. Supreme Court deemed the New York Son of Sam law a content-based restriction on speech.1 When applying strict scrutiny to the law, the Court found that the state did have compelling interests in compensating crime victims and ensuring that criminals do not profit from their crimes.2 However, the state did not narrowly tailor the law to achieve these interests. The Courts determination that New Yorks Son of Sam law was content-based and its use of strict scrutiny have dominated the commentary regarding Son of Sam laws. Many scholarly articles3 have focused on the OBrien test for content-neutral statutes. The OBrien test, enunciated by the U.S. Supreme Court in the 1968 case United States v. OBrien, offers an intermediate scrutiny standard for analyzing content-neutral regulations: the regulation must further a substantial government interest in a way that only incidentally limits First Amendment freedoms.4 A student Note5 cited by the Court in Simon & Schuster argues that the Southern District of New Yorks decision6 to scrutinize New Yorks Son of Sam law using the OBrien test was appropriate. The Note argues that the law is content-neutral because 1 Id. at 116. 2 Id. at 118-19. 3 See, e.g., Karen M. Ecker & Margot J. OBrien, Note, Simon & Schuster, Inc. v. Fuschetti: Can New Yorks Son of Sam Law Survive First Amendment Challenge? 66 NOTRE DAME L. REV. 1075 (1991) (concluding that New Yorks Son of Sam law only incidentally burdens sp eech, and should be upheld); Lisa Ann Morelli, Simon & Schuster, Inc. v. Members of the New York State Crime Victims B oard: How the Characterizati on of a Speech Regulation Can Effectively Destroy a Legitimate Law 42 CATH. U.L. REV. 651 (1993) (proposing intermediate scrutiny review of Son of Sam laws because they combine speech and non-speech regulation and because public policy supports a lower standard of review); Gilbert OKeefe Greenman, Son of Simon & Schuster: A True Crime Story of Motive, Opportunity and the First Amendment 18 HAWAII L. REV. 201 (1996) (suggesting the Courts strict scrutiny analysis in Simon & Schuster negatively affected First Amendment jurisprudence). 4 United States v. OBrien, 391 U.S. 367 (1968). See also JOHN H. GARVEY & FREDERICK SCHAUER, THE FIRST AMENDMENT: A READER 240 (2d ed. 1996). 5 Karen M. Ecker & Margot J. OBrien, Note, Simon & Schuster, Inc. v. Fusc hetti: Can New Yorks Son of Sam Law Survive First Amendment Challenge? 66 NOTRE DAME L. REV. 1075 (1991). 6 Simon & Schuster v. N.Y. Crime Victims Bd., 724 F. Supp. 170 (S.D.N.Y. 1989).

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19 it restricts the proceeds of the speech, not the speech itself, and that any limits on the speech are incidental.7 Other legal commentaries utilize the OBrien test as a standard in formulating model laws that would achieve the same goals of compensating victims and preventing criminal profit but would be constructed to withstand intermediate scrutiny.8 A 1994 study of crime victim statutes looked at Son of Sam laws throughout the nation.9 The article found that forty-one out of the forty-five crime victimization statutes in existence at that time were unconstitutional under Simon & Schuster .10 Using statutes from 2006 and legal challenges to Son of Sam laws in the past decade, this thesis offers a current picture of criminal anti-profit laws in the United States. This thesis also illustrates the path that some of those forty-one states have taken since Simon & Schuster to ensure that their Son of Sam laws will be effective. Additionally, this thesis analyzes the statutory provisions for administering Son of Sam laws, contributing to a greater understanding of how the administration of crime victimization statutes can negate the intent of the laws. 7 Karen M. Ecker & Margot J. OBrien, Note, Simon & Schuster, Inc. v. Fusc hetti: Can New Yorks Son of Sam Law Survive First Amendment Challenge? 66 NOTRE DAME L. REV. 1075, 1100 (1991). 8 See Sean J. Kealy, A Proposal for a New Massachusetts Noto riety-for-Profit Law: The Grandson of Sam 22 W. NEW ENG. L. REV. 1 (2000); Gilbert OKeefe Greenman, Son of Simon & Schuster: A True Crime Story of Motive, Opportunity and the First Amendment 18 HAWAII L. REV. 201 (1996). 9 Debra Shields, The Constitutionality of Current Crim e Victimization Statutes: A Survey 4 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 929 (1994). 10 Id at 933.

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20 CHAPTER 4 METHODOLOGY To gain an accurate picture of the varying ways states legislate to prevent criminal profiteering and compensate crime victims, relevant statutes in all fifty states will be analyzed for their approach to pursuing these goals. Categories were constructed from the language of the statutes themselves, with close attention paid to the degree each statute targets expressive material and the specific ways the law is required to be administered. In order to locate the relevant statutes, the First Amendment Centers1 compilation of Son of Sam laws, circa 2000, was used as a starting point. Using the legal research database LexisNexis, each statutes citation information was entered, producing the current statute in force. The text of each statute was then analyzed and compared with other statutes. To ensure the timeliness of this analysis, the statutes were garnered from LexisNexis at the beginning of the research process and in the initial stages of publication preparation, approximately two years later. 1 See David L. Hudson Jr., Son of Sam Laws http://www.firstamendmentcenter.org//sp eech/arts/topic.aspx?topic=son_of_sam

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21 CHAPTER 5 CATEGORIES OF SON OF SAM LAWS Criminal anti-profit statutes across the country can be organized into two major categories according to the degree they target specific mediums of expression: expressionspecific laws and unique knowledge laws.1 In addition, some states supplement their Son of Sam laws with broader statutes that target a ll funds of inmates, regardless of how the funds were obtained. Expression-Specific Son of Sam Laws The majority of Son of Sam laws currently in effect are closely patterned after the original New York law. Twenty-eight states2 have laws that allow seizure of proceeds from 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 pers ons thoughts, feelings, opinions or emotions regarding such crime, using this phrase or wording very similar.3 Arizona, for example, has added internet or online presentation or depiction.4 Montana includes play as a medium.5 Virginia is the only state to specifically include the newspaper as a medium of expression subject to the law.6 1 There are seven states that will not be discussed because they do not have ac tive Son of Sam statutes. They are Massachusetts, Missouri, Nevada, New Hampshire, North Carolina, South Carolina, and Vermont. 2 The states target specific mediums of expression are Alabama, Alaska, Ar izona, Arkansas, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Indiana, Kansas Kentucky, Maryland, Michigan, Minnesota, Mississippi, Montana, Nebraska, New Mexico, Ohio, Oklahoma, Sout h Dakota, Texas, Utah, Virginia, Washington, and Wisconsin. 3 This wording was taken from the New York statute struck down in Simon & Schuster See N.Y Exec. Law 632a(1) (McKinney 1982). 4 ARIZ. REV. STAT. 13-4202 (2006). 5 MONT. CODE ANN. 53-9-104 (2006). 6 VA. CODE ANN. 19.2-368.19 TO -22 (2006).

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22 One aspect of the original New York law criticized by the U.S. Supreme Court in Simon & Schuster was that the statute applied to works on any subject that included a reenactment or thoughts about a crime, even if the depiction of crime is only incidental.7 In response to this weakness, five states are more specific about wh at books, movies, and other expressive materials are subject to anti-profit statutes.8 In these states, expression concerning the crime must comprise a substantial portion of the entire work. Delaware, for example, uses the phrase primary contents of the work.9 In Oklahoma and Virginia, a work is subject to the law only if an integral portion of the work refers to the crime. The twenty-eight states that specifically target expression are the most vulnerable to constitutional challenges to their laws. Simon & Schuster paved the way for declaring these types of laws unconstitutional, and state courts have reached similar conclusions to the Simon & Schuster Court when addressing challenges to these laws.10 Keenan v. Sinatra In the 2002 case Keenan v. Sinatra the California Supreme Court struck down Californias version of the Son of Sam law, which targeted expressive materials.11 In 1963, Barry Keenan, acting with accomplices, kidnapped singer Frank Sinatras nineteen-year-old son 7 Simon & Schuster v. N.Y. Crime Victims Bd., 502 U.S. 105, 121 (1991). As a means of ensuring that victims are compensated from the proceeds of crime, the Son of Sam law is significantly over inclusive. .the statute applies to works on any subject, provided that they express the authors thoughts or recollections about his crime, however tangentially or incidentally. Id. 8 DEL. CODE ANN. tit. 11, 9103 (2006); KAN. STAT. ANN. 74-7319 (2006); OKLA. STAT., tit. 22 17 (2006); VA. CODE ANN. 19.2-368.19 TO -22 (2006); WIS. STAT. 949.165 (2006). 9 DEL. CODE ANN. tit. 11, 9103 (2006). 10 See Bouchard v. Price, 694 A.2d 670 (1997) (holding that Rhode Islands Son of Sam law was not narrowly tailored and thus unconstitutional); Keenan v. Sinatra, 40 P.3d 718 (2002); Seres v. Lerner, 102 P.3d 91 (2004). See also Curran v. Price, 334 Md. 149 (1994). 11 Keenan v. Sinatra, 40 P.3d 718, 721 (2002).

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23 from a Nevada hotel room.12 Keenan and his two accomplices were later apprehended, tried, and convicted for the kidnapping.13 In January 1998, Keenan was in terviewed by a writer for the Los Angeles tabloid New Times for an article titled Snatching Sinatra.14 Subsequent reports indicated that Columbia Pictures had purchased the movie rights to Keenans story.15 Frank Sinatra Jr. commenced action against Keenan under Californias Son of Sam law for any storytelling proceeds.16 The California statute was very similar to the New York law invalidated by the Simon & Schuster Court. The California law targeted proceeds from expressive materials based on the story of a felony for which a convicted felon was convicted.17 Sinatra argued that the California law avoided the overinclusiveness of th e New York law by 1) onl y applying the law to persons actually convicted of a felony; and 2) ex empting expressive materials that include only a passing mention of the felony, as in a footnote or bibliography.18 Keenan argued that despite these diversions from the New York law, Californias anti-profit statute was still overinclusive and did not pass a strict scrutiny standard of review.19 12 Id. at 722. 13 Id. 14 Id. at 722-23. 15 Id. 723. 16 See CAL. CIV. CODE 2225 (2002). All proceeds from the preparation for the purpose of sale, the sale of the rights to, or the sale of materials that include or are based on the story of a felony for which a convicted felon was convicted, shall be subject to an involuntary trust for the benefit of the beneficiaries set forth in this section. Id. Materials are defined as books, magazine or newspaper articles, movies, films, videotapes, sound recordings, interviews or appearances on television and radio stations, and live presentations of any kind. Id. 17 Id. 18 Keenan 40 P.3d at 732. 19 Id. at 724.

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24 The California Supreme Court held that the statute was facially invalid under the First Amendment. It reasoned that although the California law was limited to convicted felons, such convicted felons might still have valuable stories to tell in a way not directly connected to exploiting their crimes.20 The Court mentioned works that could warn about the consequences of crime, evaluate the criminal justice system, or describe conditions of prison life.21 The Court stated that the exemption for passing references to crime still includes within its ambit a wide range of protected speech, discourages the discussion of crime in no exploitative contexts, and does so by means not narrowly focused on recouping profits from the fruits of crime .22 Californias Son of Sam law would affect those same works mentioned in the Simon & Schuster decision, such as The Autobiography of Malcolm X .23 Therefore, the California Supreme Court overruled lower courts rulings that the law did not infringe on the First Amendment, and the law was struck down. In response, the California Legislature enacted Son of Sam II, which extended the statute of limitations for victims to bring suits for damages against defendants convicted of serious felonies to ten years after conviction.24 Seres v. Lerner 20 Id. at 732 21 Id. 22 Id. at 733. 23 Id. at 734 n.20. 24 Son of Sam statutes: federal and stat e summary. The First Amendment Center, (las t visited Oct. 10, 2007). In another high-profile California case, a judge ordered the rights to O.J. Simpsons unreleased book If I Did It be auctioned off for the benefit of the family of the late Ron Goldman. O.J. Simpson cant have book, TV proceeds, THE ASSOCIATED PRESS, March 14, 2007. In 1995, former football star and act or O.J. Simpson was acquitted of the murders of his wife, Nicole Brown Simpson, and her friend, Ron Goldman. Id. Goldmans family was later awarded a $33.5 million judgment against Simpson after he was found lia ble for the murders in a wrongful-death lawsuit. Id. Goldmans family had been unsuccessful in collecting on the judgment, prompting Los Angeles County Superior Court Judge Gerald Rosenburg to order the auction of the rights for Simpsons book, which reportedly explained how Simpson would have committed the crimes. Id. Amid public outrage, the book and accompanying television interview were never released. Id.

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25 Another Son of Sam law targeting expressive materials that failed to meet the strict scrutiny test after Simon & Schuster was that of Nevada. In late 2004, the Nevada Supreme Court declared that states Son of Sam law unconstitutional under Simon & Schuster .25 In Seres v. Lerner Donna Seres sued Jimmy Lerner under Nevadas Son of Sam statute to recover proceeds from a book Lerner authored.26 Lerner was convicted in 1998 of manslaughter in connection with the death of Mark Slavin, Seres brother.27 Lerner published a book, You Got Nothing Coming, Notes from a Prison Fish in 1999.28 The Nevada Son of Sam law allowed a felony victim to recover from the felon any proceeds generated from published materials based on or substantially related to the offense. 29 Actions brought forth to claim publication proceeds under the Nevada statute received an extension of the five-year statute of limitations for wrongful death suits.30 Seres brought the action after the five-year period expired.31 The Nevada Supreme Court determined the statute to be content-based because it allowed for the filing of claims against publication pro ceeds after the statute of limitations had expired for other tort actions, exclusively applying to income derived from speech.32 The Court recognized that Nevada had compelling interests in compensating victims of crimes and preventing criminal profiteering, but the Nevada law was not narrowly tailored to meet those 25 Seres v. Lerner, 102 P.3d 91 (2004). 26 Id. at 92. Seres sued on behalf of her mother. 27 Id. 28 Id. 29 NEV. REV. STAT. 217.007 (2004). 30 Id. 31 Seres 102 P.3d at 92. 32 Id. at 96.

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26 interests.33 The Seres Court found the law overbroad because it allowed for recovery of proceeds from works substantially related to the felony.34 Lerners book was only partially related to the homicide and was mostly about life in prison and his religious experiences.35 Additionally, Nevadas Son of Sam law was constitutionally overinclusive because the statute did not require conviction for the statute to apply.36 The Court reasoned that the definition of person who committed the felony could be construed to include individuals never accused or even convicted of felonies.37 The Court held that the Nevada law suffered from the same defects the New York Son of Sam law did when the Simon & Schuster Court invalidated it Unique Knowledge Son of Sam Laws In response to the negative judicial treatment of Son of Sam laws that target specific mediums of expression and the thoughts and feelings of criminal defendants, several states have revised their laws to eliminate such references. Instead, these eleven states target profits obtained as a result of committing a crime.38 These new Son of Sam laws seek to recover assets obtained through the use of unique knowledge obtained during commission of or in preparation for a crime. This phrase is used in eight states.39 Iowa uses the phrase fruits of the 33 Id. at 98. 34 Id. 35 Id. at 97-98. 36 Id. at 98. 37 Id. 38 The states that seek to recover income obtained as a result of committing a crime are Colorado, Iowa, Maine, New Jersey, New York, North Dakota, Oregon, Pennsylvani a, Rhode Island, West Virginia, and Wyoming. See COLO. REV. STAT. 24-4.1-201 (2006); IOWA CODE 910.15 (2006); ME. REV. STAT. ANN., tit. 14, 752-E (2005); N.J.STAT. 52:4B-62 TO -70 (2006); N.Y. EXEC. LAW 632-a (2006); N.D. CENT. CODE 32-07.1-01 (2006); OR. REV. STAT. 147.275 (2006); 42 PA. CONS. STAT. 8312 (2006); R.I. GEN. LAWS 12-25.1-3 (2006); W. VA. CODE 14-2B-1 TO -11 (2006); WYO. STAT. ANN. 1-40-301 TO -308 (2006). 39 The states that use the term unique knowledge are Colorado, Maine, New Jersey, New York, North Dakota, Pennsylvania, West Virginia, and Wyoming. See COLO. REV. STAT. 24-4.1-201 (2006); ME. REV. STAT. ANN., tit. 14, 752-E (2005); N.J.STAT. 52:4B-62 TO -70 (2006); N.Y. EXEC. LAW 632-a (2006); N.D. CENT. CODE

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27 crime in its statute.40 Oregon describes the profits subject to forfeiture as those that were gained as a result of the crime.41 In Rhode Island, criminals who commercially exploit their crimes are required to turn proceeds over to the state.42 The advantage of laws that do not contain specific references to expression is that because they lack such references, they are more likely to be reviewed using intermediate scrutiny. This less demanding standard of review increases the possibility that these Son of Sam laws will be considered valid under the First Amendment. 32-07.1-01 (2006); 42 PA. CONS. STAT. 8312 (2006); W. VA. CODE 14-2B-1 TO -11 (2006); WYO. STAT. ANN. 1-40-301 TO -308 (2006). 40 IOWA CODE 910.15 (2006). 41 OR. REV. STAT. 147.275 (2006). 42 R.I. GEN. LAWS 12-25.1-3 (2006).

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28 Table 5-1 Categories of "Son of Sam" laws States Ex p ression-s p ecificUni q ue knowled g e Alabama X Alaska X Arizona X Arkansas X Colorado X Delaware X Florida X Geor g ia X Hawaii X Idaho X Indiana X Iowa X Kansas X Kentuck y X Maine X Mar y lan d X Michi g an X Minnesota X Mississi pp i X Montana X Nebraska X New Jerse y X New Mexico X New Yor k X North Dakota X Ohio X Oklahoma X Ore g on X Penns y lvania X Rhode Islan d X South Dakota X Texas X Utah X Vir g inia X Washin g ton X West Vir g inia X Wisconsin X W y omin g X

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29 Sandusky v. McCummings There is little case law involving these increasingly popular43 unique knowledge laws. In New York, there have been at least two major challenges to that states law since Simon & Schuster but neither directly addressed First Amendment issues. The first, Sandusky v. McCummings did not involve proceeds from a book, movi e, or other type of expression but a settlement awarded to a convicted criminal.44 In 1984, Bernard McCummings was shot twice in the back by a New York Transit Authority officer who observed McCummings beating and strangling a seventy-two-year-old man in a subway station.45 McCummings was paralyzed and later received a $4.3 million verdict against the Transit Authority for the officers negligence.46 Sandusky, McCummings' elderly victim, invoked New Yorks revised Son of Sam law when he sought compensation for personal injuries against his assailant. The New York law allows for victims to bring actions for damages against income generated as a result of having committed the crime, including any assets obtained through the use of unique knowledge obtained during the commission of, or in preparation for the commission of, the crime.47 The central question for the New York trial court when it addressed the case in 1995 was whether the $4.3 million verdict constituted income generated as a result of having committed the crime.48 43 See Debra Shields, The Constitutionality of Current Crim e Victimization Statutes: A Survey 4 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 929, 933 (1994). There were only four such statutes in 1994. Id. 44 Sandusky v. McCummings, 164 Misc. 2d 700 (1995). 45 Id at 701. McCummings later pleaded guilty to the felony charge of attempted robbery and was incarcerated. Id. 46 Id. 47 N.Y. EXEC. LAW 632-a (2004). 48 Sandusky 164 Misc. 2d at 702.

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30 The court held that the verdict did not fall under the assets outlined in the New York Son of Sam law.49 It reasoned that the shooting was an intervening event that broke any causal connection with the crime itself.50 It stated that to apply the Son of Sam law to the case would distort the legislative intent of the law.51 New York State Crime Victims Board v. T.J.M. Productions The other pertinent case to this class of unique knowledge laws also occurred in New York, and like Sandusky v. McCummings it did not directly address First Amendment issues. In New York State Crime Victims Board v. T.J.M. Productions a New York appellate court held that the New York State Crime Victims Board on its own did not have statutory authority to seek publication proceeds from a convicted felon.52 The Board sought proceeds paid to mobster Salvatore Sammy the Bull Gravano for the book Underboss .53 Gravano, a former member of the Gambino crime family, had been convicted of violating the federal racketeering act.54 The board sued T.J.M. Productions, a company created by Underboss author Peter Maas; Maas individually; and other entities associated with the book.55 The Court dismissed the Boards claim because New Yorks Son of Sam law gave the right to bring a civil action to recover monies identified as the profits from the crime to victims or the Board on behalf of victims, not the Board alone.56 The Board brought the action itself and 49 Id. at 706. 50 Id. at 705. 51 Id. at 706. 52 N.Y. Crime Victims Bd. v. T.J.M. Prods., 265 A.D.2d 38, 47 (2000). 53 Id. at 43. 54 Id. See also 18 U.S.C.S. 1962(c). 55 T.J.M. Prods ., 265 A.D.2d at 43. 56 Id. at 44.

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31 not on behalf of victims, and therefore had exceeded its statutory authority.57 Additionally, the Court relied on a lower courts finding that New Yorks Son of Sam law did not apply to Gravano. Gravano was convicted in federal court, and the New York law was limited to defendants convicted of fel onies defined by New York.58 In its opinion, the Court alluded to the unresolved constitutional issue of whether publication proceeds truly represent profits of the crime but stated that the significant constitutional question was raised in an action that the Board had no authority to bring.59 Broader Anti-Profit Remedies In addition to statutes that clearly state a public policy against criminal compensation for storytelling proceeds, general forfeiture statutes serve to complement state efforts to compensate victims. For example, Tennessee has a victim compensation statute that is procedurally similar to the other laws presented in this chapter but instead allows the attorney general to collect all income, from whatever source derived, which is owing to the defendant, or representative or assignee of the defendant, after the date of the crime.60 These broad anti-profit remedies have proved successful in allowing victims to claim de fendant funds obtained from expressive activity related to crimes, as well as other sources. Arizona v. Gravano Although Arizona has a Son of Sam law modeled after the original New York law, it chose to pursue book proceeds from a well-known mobster under a general forfeiture statute. In 57 Id. 58 Id. at 47. 59 Id. 60 TENN. CODE ANN. 29-13-402 TO 410 (2006).

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32 fact, the state of Arizona was able to accomplis h what New York couldn t: seizing proceeds from Salvatore Gravanos book Underboss A few weeks before a New York appellate court in Board v. T.J.M. Productions dismissed the New York State Crime Victims Bo ards claim against Gravanos royalties from the book Underboss Gravano was arrested in Arizona on charges of distributing the illegal drug Ecstasy.61 Two months after his arrest, Arizona sought to forfeit money and property owned by Gravano as proceeds of his Ecstasy distributi on ring, which they alleged was conducted through racketeering.62 The state asserted that under the Arizona Racketeering Act and the Arizona Forfeiture Reform Act, royalties from Underboss also were subject to forfeiture.63 The state argued that these proceeds were traceable to Gravanos criminal activities in New York and were used to fund racketeering and drug distribution in Arizona.64 Gravano argued that Arizonas seizure of the book royalties violated the First Amendment.65 The Arizona Supreme Court determined that the forfeiture statutes were content-neutral because they contained no reference to expressive materials and were based on a causal connection between racketeering and property.66 The laws applied if the value of the commercial contract was substantially a result of racketeering and did not depend on the content of the work.67 The Court held that the Arizona statutes not only passed the OBrien standard of intermediate scrutiny required of content-neutral statutes, but they also passed a strict scrutiny 61 Arizona v. Gravano, 204 Ariz. 106, 108 (2000). 62 Id. at 109. 63 Id See also ARIZ. REV. STAT. 13-2301 to -2318; ARIZ. REV. STAT. 13-4301 to -4316. 64 Gravano 204 Ariz. at 109-111. 65 Id. at 109. 66 Id. at 113. 67 Id.

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33 standard of review.68 The Court also held that the forfeiture laws advanced the compelling government interests of ensuring that victims are compensated and preventing criminals from profiting from their crimes, and the laws were narrowly tailored to do so.69 The $420,000 in profits from Underboss were later distributed to eight families whose loved ones were killed by Gravano during his time with the Gambino crime family. 70 Snuszki v. Wright After its unsuccessful attempt to obtain publication proceeds from Gravano in T.J.M Productions New York amended its Son of Sam law to expand the definition of funds of a convicted person to all of an inmates monies, excluding child support or earned income.71 Victims of specified crimes can bring civil actions for money damages from the inmate, provided they file suit within three years of learning of the inmates funds.72 The change in the law stepped away from the traditional model of seiz ing expression-related funds. The revised New York statute has been unsuccessfully challenged on constitutional grounds,73 though the cases have not involved First Amendment challenges to seized proceeds from expressive activity.74 68 Id. at 114. 69 Id. at 115. In sum, the application of Arizonas forfeiture laws is limited to preventing racketeers from benefiting from their crimes, and to compensating victims for their losses and the State for costs incurred in the prosecution of racketeers. We conclude that Arizonas forfeiture statutes not only survive intermediate scrutiny, but also are narrowly tailored to further the compelling interests of the State, and therefore satisfy a strict scrutiny sta ndard as well. We therefore hold that Arizonas forfeiture statutes, as applied to Gravanos royalties from Underboss do not violate either federal or state freedom of speech provisions. Id. 70 Greg B. Smith, Kin of Gravanos Victims Get 420G in Payback NEW YORK DAILY NEWS, July 22, 2004, at 3. 71 N.Y. EXEC. LAW 632-a (2006). 72 Id. 73 See N.Y. Crime Victims Bd. v. Majid, 193 Misc.2d 710 (2002) (rejecting defendants claim that the seizure of $15,000 resulting from the settlement of a federal civil ri ghts lawsuit was unconstitutional on ex post facto, due process, or equal protection grounds); Romero v. Pa taki, 2006 WL 842177 (S.D.N.Y., Mar. 31, 2006) (declining to

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34 In Snuszki v. Wright, Melanie Snuszki, daughter of a woman murdered by Thomas Wright, sued Wright under the revised Son of Sam law after learning that he received $25,000 in his prison account.75 The $25,000 was the result of a settlement of Wrights claims that New York correctional officers violated his civil rights.76 Wright requested the New York trial court dismiss Snuszkis complaint, challenging the Son of Sam law as unconstitutional because it inhibited his right of access to the courts;77 violated his right to equal protection under the law;78 and violated his due process rights.79 The court rejected all of his constitutional claims and granted Snuszkis request to freeze Wrights funds. First, the supposed disincentive for inmates to file civil rights claims in the courts was rejected because there was no actually injury or restrictions on Wrights ability to pursue legal relief, and the purpose of the federal civil rights statute to deter wrongdoing was still served, regardless of whether a victims money damages were later used to satisfy a judgment against the defendant.80 Second, the inmate was not denied equal protection because he was not a member of a suspect class and he was not deprived of adjudicate certain constitutional claims against New Yorks revised Son of Sam stat ute because they were not ripe). 74 However, a pending New York case involving rap artist Shy ne, whose real name is Jamal Barrow, may involve future First Amendment claims against New Yorks re vised Son of Sam law. Barrow was convicted of, inter alia, first-degree assault following a shooting at nightclub on Dec. 27, 1999. Thompson v. 76 Corp., 2007 WL 414437, *1 (N.Y.A.D. 2 Dept., Feb. 6, 2007). Barrow was sentenced to ten years in prison. Id. Following his imprisonment, Barrow entered into a recording ag reement with Island Def Jam Music Group valued at up to $3 million. Id. Natania Reuben was shot in the face by Barrow during the night club incident, and she s ought an injunction to prevent Barrow from spending money that she might receive. Id. 75 Snuszki v. Wright, 193 Misc.2d 490 (2002). Wright wa s the estranged husband of Melanie Wright Snuszkis mother, Peggy Ann Bannach Wright. Id. at 491. 76 Id. 77 Id. at 492. 78 Id. at 493. 79 Id. at 494. 80 Id. at 492-493.

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35 any fundamental constitutional right.81 Finally, the court rejected Wrights substantive due process claim because he was not bei ng deprived of any fundamental right.82 Snuszki was later awarded $1 million in damages against Wright.83 Rolling v. Florida In Florida, a general forfeiture statute, not that states Son of Sam law, prevented serial killer Danny Rolling and his cyber wife Sondra London from making money in connection with a book of his artwork and the sale of his autographs.84 By his own admission, Rolling killed five Gainesville, Florida, college students in 1990.85 He pleaded guilty to five counts of first-degree murder in 1994 and was subsequently sentenced to death.86 Long before Rollings gruesome killing spree, the state of Florida was quick to enact a Son of Sam law in 1977, following New Yorks lead.87 Floridas Son of Sam law allows the state to impose a lien on proceeds from any literary, cinematic, or other account of the crime for which a person was convicted.88 More than twenty years after Floridas Son of Sam law 81 Id. at 493. The court noted that the there is no fundamental right to the protection of a states statute of limitations in response to Wrights claim that the extended statute of limitations for crime victims denied him a fundamental right. Id. 82 Id. at 494. 83 Snuszki v. Wright, No. 08409, slip op. (A.D.N.Y., 4th D. Nov. 17, 2006). 84 Florida v. Rolling, et al., No. 93-265-CA, (Fla. 8th Cir., Dec. 31, 1997). 85 Bryan Robinson, Flori da v. London and Rolling, (last visited Oct. 10, 2007). 86 Id. Rolling was executed in October 2006. Bridget Murphy, Danny Rolling dies for 5 brutal killings FLA. TIMES-UNION (Jacksonville), Oct. 26, 2006, at A1. 87 FLA. STAT. 944.512 (2006). 88 Id Even before his conviction, the state of Florida attempted to enfor ce section 944.512 against Rolling. In 1993, a circuit court judge granted the state a temporary injunction against the disbur sement of any proceeds from Rollings recounting of his crimes, pursuant to the statute. On appeal, the First District Court of Appeal in Florida ruled that since the statute confined the law to those convicted of a crime, the injunction didnt apply to Rolling, who had yet to be convicted of the crimes. See Rolling v. Florida, 630 So. 2d. 635 (Fla. Dist. Ct. App. 1994).

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36 was enacted, Floridas First District Court of Appeal considered Rollings and Londons claim that the states attempt to seize proceeds from his autographs and a book titled The Making of a Serial Killer was unconstitutional.89 The appellate court did not address the laws constitutionality.90 Instead, the court held that proceeds from Rollings art and writings were subject to a lien under another portion of Florida law.91 The 1994 Civil Restitution Lien and Crime Victims Remedy Act92 provided a way for the state and crime victims to recover damages via a lien on the criminals real and personal property, which would conceivably include proceeds from any work, including literary or artistic expression.93 Since the state had the ability to enforce the lien under statutes other than the Son of Sam law, and these other statutes were not constitutionally challenged by Rolling or London, the appellate court affirmed a circuit courts judgment for the state.94 89 Rolling & London v. Florida, 741 So. 2d 627 (Fla. Dist. Ct. App. 1999). 90 Id. at 629. 91 Id. 92 Bryan Robinson, Flo rida v. London and Rolling, (last visited Oct. 10, 2007). 93 FLA. STAT. 960.29 (2006). 94 Rolling 741 So. 2d at 627. See also Florida v. Rolling (Fla. 8th Cir., Dec. 31, 1997).

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37 CHAPTER 6 PROCEDURAL PROVISIONS OF SON OF SAM LAWS Regardless of whether particular states Son of Sam laws target specific mediums of expression, the procedure by which the laws are administered is generally as follows: First, individuals or businesses who contract with the defendant must turn over the defendants proceeds to the state. The proceeds are then placed in an escrow account. The state must make efforts to notify victims, through both direct contact and publication of legal notice in a newspaper. Next, victims have approximately five years to bring civil actions to recover damage awards from the account. In addition to victims, the public defenders office, the state, and even the criminal are permitted by law to receive distributions from the account. This chapter examines how Son of Sam statutes require the laws to be administered. A contract between a person or business and the defendant is required for the Son of Sam law to be effective in thirty-six of the thirty-nine states that have such laws.1 For example, in Simon & Schuster, the contract existed between publishing company Simon & Schuster and 1 The state Son of Sam laws that re quire a contract for enforcement are: Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Georgi a, Hawaii, Idaho, Indiana, Kansas, Kentucky, Maine, Maryland, Michigan, Minnesota, Mississippi, Montana, Nebraska, New Jersey, New Mexico, New York, Nort h Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Utah Virginia, Washington, West Virginia, Wisconsin, and Wyoming. See ALA. CODE 41-9-80 (2006); ALASKA STAT. 12.61.020 (2006); ARIZ. REV. STAT. 13-4202 (2006); ARK. CODE ANN. 16-90-308 (2006); COLO. REV. STAT. 24-4.1-201 (2006); CONN. GEN STAT. 54-218 (2006); DEL. CODE ANN. tit. 11, 9103 (2006); GA. CODE ANN. 17-14-31 (2006); HAW. REV. STAT. 351-81 TO -88 (2006); IDAHO CODE 19-5301 (2006); IND. CODE ANN. 5-2-6.3-1 TO -7 (2006); KAN. STAT. ANN. 747319 (2006); KY. REV. STAT. ANN. 346.165 (2006); ME. REV. STAT. ANN., tit. 14, 752-E (2005); MD. CODE ANN., CRIM. PROC. 11-621 TO -632 (2006); MICH. STAT. ANN. 780.768 (2006); MINN. STAT. 611A.68 (2005); MISS. CODE ANN. 99-38-1 TO -11 (2006); MONT. CODE ANN. 53-9-104 (2006); NEB. REV. STAT. 81-1836 TO -1839 (2006); N.J.STAT. 52:4B-62 TO -70 (2006); N. M. STAT. ANN. 31-22-22 (2006); N.Y. EXEC. LAW 632-a (2006); N.D. CENT. CODE 32-07.1-01 (2006); OHIO REV. CODE ANN. 2969.02 (2006); OKLA. STAT., tit. 22 17 (2006); OR. REV. STAT. 147.275 (2006); 42 PA. CONS. STAT. 8312 (2006); R.I. GEN. LAWS 12-25.1-3 (2006); S.D. CODIFIED LAWS 23A-28A-1 TO -14 (2006); UTAH CODE ANN. 77-18.8.3 (2006); VA. CODE ANN. 19.2-368.19 TO -22 (2006); WASH. REV. CODE 7.68.200 TO -290 (2006); W. VA. CODE 14-2B1 TO -11 (2006); WIS. STAT. 949.165 (2006); WYO. STAT. ANN. 1-40-301 TO -308 (2006).

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38 organized crime figure Henry Hill. Additionally, sixt een of these states require that a copy of the contract or written notice be submitted to the state.2 When the proceeds of such contracts are turned over to the state, they are generally deposited in an escrow account.3 A departure from the escrow account scheme is found in Arizona, which describes a crime victim account;4 in Minnesota a special account;5 North Dakota calls for a constructive trust;6 an offenders profit fund is utilized in Ohio;7 and Rhode Island describes the account as a criminal royalties fund.8 Utah is unique in that its Son of Sam law does not seek forfeiture of pr oceeds from a contract but allows for a special condition of sentencing that prohibits defendants from ever engaging in a contract related to expressing themselves regarding their crimes.9 While compensating victims is a stated goal of Son of Sam laws, victims do not simply receive a check in the mail if funds are turned over to the state. Victims must bring action in civil court within a specified amount of time, usually thr ee to five years. Thirty-five states with Son of Sam laws require that the victim file a civil action or apply to the state Florida, Montana, 2 The states that require a copy of the contract or written notice to be submitted to the board are Colorado, Delaware, Georgia, Hawaii, Indiana, Maryland, Mississippi, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, South Dakota, Washington, West Virginia, and Wisconsin. 3 Escrow accounts are statutorily required in Alabama, Ar kansas, Colorado, Connecticut Delaware, Hawaii, Idaho, Indiana, Iowa, Maryland, Michigan, Minnesota, Mississippi, Montana, New Mexico, Oklahoma, Oregon, South Dakota, Tennessee, Texas, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. 4 ARIZ. REV. STAT. 13-4202 (2006). 5 MINN. STAT. 611A.68 (2005). 6 N.D. CENT. CODE 32-07.1-01 (2006). 7 OHIO REV. CODE ANN. 2969.92 (2006). 8 R.I. GEN. LAWS 12-25.1-3 (2006). 9 UTAH CODE ANN. 77-18.8.3 (2006).

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39 Ohio, and Utah do not have such provisions.10 In thirteen states, victims have five years from the establishment of the escrow account to file a claim against the account.11 Five states share a similar statutory provision that allows victims three years from discovering the proceeds to take action.12 Other states vary in their approach to how much time victims have to take advantage of the Son of Sam statutes. In Connecticut, for example, the five-year statute of limitations begins running on the date of the crime, which could be problematic if a criminal is not apprehended within five years of the crime.13 Kansas only allows victims six months after being notified to file actions against the criminal.14 Though the intent of Son of Sam laws is to compensate victims, victims must compete for crime proceeds with other entities, such as the public defender and the defendant, who are often statutorily authorized to receive proceeds fr om expressive materials about crime. In fact, only eight states name victims as the sole beneficiaries of proceeds forfeited under Son of Sam laws.15 More than half of the states with anti-pr ofit statutes allow the criminal to petition a court to use some of the funds to pay for legal representation.16 Two of these states Rhode Island and Wisconsin even list public defender costs as a higher priority for payment than victim 10 FLA. STAT. ANN. 944.512 (2006); MONT. CODE ANN. 53-9-104 (2006); OHIO REV. CODE ANN. 2969.92 (2006); UTAH CODE ANN. 77-18.8.3 (2006). 11 The states that allow for victim actions within five years of the establishment of an escrow account are Arizona, Colorado, Delaware, Idaho, Kentucky, Maryland, Michig an, Minnesota, New Mexico, Oregon, Texas, Washington, and Wyoming. 12 The state allow for victim actions with three years of discovery of profits are Maine, Nebraska, New York, Pennsylvania, and West Virginia. 13 CONN. GEN STAT. 54-218 (2006). 14 KAN. STAT. ANN. 74-7319 (2006). 15 The states that name victims as the sole beneficiarie s of forfeited proceeds are Alabama, Maine, New Jersey, New York, North Dakota, Pennsylvania, Texas, and Wyoming. 16 The twenty-two states that allow pr oceeds to be used for legal representa tion of defendant are Arizona, Arkansas, Connecticut, Delaware, Georgia, Hawaii, Idaho, Indian a, Iowa, Maryland, Minnesota, Mississippi, Nebraska, New Mexico, Oklahoma, Rhode Island, South Dakota, Tennessee, Virginia, Washington, West Virginia, and Wisconsin.

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40 compensation.17 Other statutory provisions which allow states to recoup costs they incur when a person is convicted of a crime include allowing for costs of incarceration to be distributed from the accounts.18 In Montana, proceeds may eventually end up in the states general fund.19 Criminal defendants and their minor dependents are also potential beneficiaries of funds forfeited under Son of Sam laws. Fifteen states permit monies left in the account after the statute of limitations has expired to be returned to defendants.20 For defendants with children, three states (Florida, Minnesota, and Mississippi) have provisi ons that allow for distributions from the accounts to dependents.21 The procedural components of Son of Sam laws are often overshadowed by the constitutional debate surrounding the laws, but these aspects of the laws are valuable as subjects of commentary themselves. In particular, the va rying ways in which states distribute forfeited funds can have a significant impact on the ability of states to reach the goals (victim compensation and prevention of criminal profiteering) of Son of Sam laws. 17 R.I. GEN. LAWS 12-25.1-3 (2006); WIS. STAT. 949.165 (2006). 18 The states that provide for costs of incarceration to be withdrawn from anti-profit funds are Florida, Indiana, Michigan, Oklahoma, and South Dakota. 19 MONT. CODE ANN. 53-9-104 (2006). 20 The states that return money to criminals if no victim action is taken are Colorado, Delaware, Georgia, Hawaii, Idaho, Kentucky, Maryland, Nebraska, New Mexico, Or egon, South Dakota, Washington, West Virginia, and Wisconsin. 21 FLA. STAT. ANN. 944.512 (2006); MINN. STAT. 611A.68 (2005); MISS. CODE ANN. 99-38-1 TO -11 (2006).

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41 Table 6-2 Recipients of seized funds State Victims onl y Le g al costsPrison costsDefendant De p endents Alabama X Arizona X Arkansas X Colorado X Connecticut X Delaware XX Florida X X Geor g ia XX Hawaii XX Idaho XX Indiana XX Iowa X Kentuck y X Maine X Mar y lan d XX Michi g an X Minnesota X X Mississi pp i X X Nebraska XX New Jerse y X New Mexico XX New Yor k X North Dakota X Oklahoma XX Ore g on X Penns y lvania X Rhode Islan d X South Dakota XXX Tennessee X Texas X Vir g inia X Washin g ton XX West Vir g inia XX Wisconsin XX W y omin g X

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42 CHAPTER 7 SUMMARY AND CONCLUSION Summary The findings presented in the previous chapters show that Son of Sam laws in the fifty states are very similar in how they dictate that su ch anti-profit laws are carried out. In thirty-six of the thirty-nine states with active Son of Sam laws, there must be a contract in existence in order for the law to be effective. Funds are then deposited in an escrow account or other designated fund, making them available for victims to file claims against. And, while victim compensation is one goal of Son of Sam laws, victims must often compete with other potential recipients of the money, including public defenders court-appointed attorneys, the state, and dependents of criminals. Most states, twenty-eight, still target the specific mediums of expression and thoughts of the defendant as outlined in the New York law struck down in Simon & Schuster A growing trend among states is to eliminate references to expression in favor of laws that target proceeds derived from a unique knowledge of a crime, as eleven states have done. Finally, some states use their general forfeiture statutes to pursue criminal storytelling proceeds. The potential success for this approach has been illustrated in cases involving Arizona, Ne w York, and Florida. Conclusion A survey of Son of Sam laws across the country lends itself to two major conclusions. First, although Son of Sam laws have been touted as a way to compensate crime victims and prevent criminals from profiting from their crim es, an examination of the statutory provisions regarding the administration of criminal anti-profit laws reveals that neither goal is guaranteed. Most states allow for defendants to use criminal profits for legal representation, which would likely go to the public defender or a court-appointed attorney. In fact, Wisconsin and Rhode

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43 Island prioritize public defender costs before victim reparations. Another five states allow the seized funds to be used to pay for incarcerating the criminal. And Montana has a provision for unused funds to go in the states general fund. Thus, while the stated intent of these laws is to compensate victims and prevent criminal profiteering, in practice they often serve as a tool for states to defray the costs of giving a defendant a fair trial and any subsequent incarceration. The goal of preventing criminals from profiting from their wrongdoing cannot be obtained if, as in sixteen states, there are funds still available after the statute of limitations for victim action has expired. These states simply return the money to the defendant. If certain individuals First Amendment rights are to be compromised by Son of Sam laws similar to New Yorks original statute, then it is vital that the governments compelling interests have the opportunity to be realized. In many states, procedural provisions of Son of Sam statutes thwart the goals of such laws. A second major observation of this fifty-state survey is that in light of the case law presented in Chapter 5, the twenty-eight states that continue to have laws that target expressive materials would be wise to amend their laws. State case law since Simon & Schuster regarding these types of laws has reiterated how vulnerable these statutes are to constitutional challenges. Eleven states have already steered clear of targeting works such as books or movies and instead choose to focus on assets the defendant received as a result of the crime, including those obtained through a unique knowledge of the crime. While these types of laws have not advanced in the courts to the point of First Amendment scrutiny, it appears that they would fare much better in the courts than expression-specific laws. As many authors have suggested, these laws would likely be analyzed using intermediate scrutiny and are likely to pass such a standard of review.

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44 States who wish to revise their laws could take an even further step away from expression-specific laws by using forfeiture statut es that extend to all income or property, as Tennessee, Arizona, New York, and Florida have done, to obtain proceeds from expressive materials. These broad laws have been successful when challenged in the courts and offer yet another option for the twenty-eight states whose current laws are likely unconstitutional under Simon & Schuster These states with constitutionally vulnerable Son of Sam laws should not wait for a legal challenge to revise their laws. Son of Sam laws are rarely challenged, but when they are, it is usually because an individual has committed a particularly heinous or notorious crime. Rather than wait and allow such criminals to profit from their crimes because of poor legislation, states should take proactive measures to ensure that the legislative intent of anti-profit laws is realized.

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45 LIST OF REFERENCES David Abrahamsen, CONFESSIONS OF SON OF SAM ix (Columbia Univ. Press 1985). Abrams v. United States, 250 U.S. 616 (1919). Ala. Code 41-9-80 (2006). Alaska Stat. 12.61.020 (2006). Areopagitica, in 32 GREAT BOOKS OF THE WESTERN WORLD 409 (1952). Arizona v. Gravano, 204 Ariz. 106, 108 (2000). Ariz. Rev. Stat. 13-2301 to (2006). Ariz. Rev. Stat. 13-4202 (2006). Ariz. Rev. Stat. 13-4301 to (2006). Ark. Code Ann. 16-90-308 (2006). Ark. Writers Project, Inc. v. Ragland, 481 U.S. 221 (1987). Vincent Blasi, Holmes and the Marketplace of Ideas 2004 S. CT. REV. 1, 1 (2004). Bouchard v. Price, 694 A.2d 670 (1997). Cal. Civ. Code 2225 (2002). Central Hudson Gas v. Pub. Serv. Commn of N.Y., 447 U.S. 557 (1980). Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Colo. Rev. Stat. 24-4.1-201 (2006). Conn. Gen Stat. 54-218 (2006). Curran v. Price, 334 Md. 149 (1994). Del. Code Ann. tit. 11, 9103 (2006). Karen M. Ecker & Margot J. OBrien, Note, Simon & Schuster, Inc. v. Fuschetti: Can New Yorks Son of Sam Law Survive First Amendment Challenge? 66 NOTRE DAME L. REV. 1075 (1991). Florida v. Rolling, et al., No. 93-265-CA, (Fla. 8th Cir., Dec. 31, 1997).

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46 Fla. Stat. Ann. 944.512 (2006). Fla. Stat. 960.29 (2006). John H. Garvey & Frederick Schauer, THE FIRST AMENDMENT: A READER 240 (2d ed. 1996). Ga. Code Ann. 17-14-31 (2006). Gilbert OKeefe Greenman, Son of Simon & Schuster: A True Crime Story of Motive, Opportunity and the First Amendment 18 HAWAII L. REV. 201 (1996). Haw. Rev. Stat. 351-81 to -88 (2006). David L. Hudson Jr., Son of Sam Laws http://www.firstamendmentcenter.org//speech/arts/topic.aspx?topic=son_of_sam Idaho Code 19-5301 (2006). Ind. Code Ann. 5-2-6.3-1 -7 (2006). Iowa Code 910.15 (2005). Kan. Stat. Ann. 74-7319 (2006). Sean J. Kealy, A Proposal for a New Massachusetts Notoriety-for-Profit Law: The Grandson of Sam 22 W. NEW ENG. L. REV. 1 (2000). Keenan v. Sinatra, 40 P.3d 718 (2002). Ky. Rev. Stat. Ann. 346.165 (2006). Leathers v. Medlock, 499 U.S. 439 (1991). Me. Rev. Stat. Ann., tit. 14, 752-E (2005). Md. Code Ann., Crim. Proc. 11-621 to -632 (2006). Mich. Stat. Ann. 780.768 (2006). Kent R. Middleton, William E. Lee & Bill F. Chamberlin, THE LAW OF PUBLIC COMMUNICATION 25-31 (2005). Minn. Stat. 611A.68 (2005). Miss. Code Ann. 99-38-1 to -11 (2006).

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47 Mont. Code Ann. 53-9-104 (2006). Lisa Ann Morelli, Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board: How the Characterization of a Speech Regulation Can Effectively Destroy a Legitimate Law 42 CATH. U.L. REV. 651 (1993). Bridget Murphy, Danny Rolling dies for 5 brutal killings FLA. TIMES-UNION (Jacksonville), Oct. 26, 2006, at A1. Neb. Rev. Stat. 81-1836 to -1839 (2006). Nev. Rev. Stat. 217.007 (2004). N.J. Stat. 52:4B-62 -70 (2006). N. M. Stat. Ann. 31-22-22 (2006). N.Y. Crime Victims Bd. v. Majid, 193 Misc.2d 710 (2002). N.Y. Crime Victims Bd. v. T.J.M. Prods., 265 A.D.2d 38, 47 (2000). N.Y Exec. Law 632-a(1) (Mckinney 1982). N.Y. Exec. Law 632-a (2004). N.Y. Exec. Law 632-a (2006). N.Y. Times v. Sullivan, 376 U.S. 254 (1964). Nike, Inc. v. Kasky, 539 U.S. 654 (2003). N.D. Cent. Code 32-07.1-01 (2006). Ohio Rev. Code Ann. 2969.02 (2005). O.J. Simpson cant have book, TV proceeds THE ASSOCIATED PRESS, Mar. 14, 2007. Okla. Stat., tit. 22 17 (2006). Or. Rev. Stat. 147.275 (2006). 42 Pa. Cons. Stat. 8312 (2006). R.I. Gen. Laws 12-25.1-3 (2006).

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48 Bryan Robinson, Florida v. London and Rolling, http://www.courttv.com/archive/verdicts/rolling.html Rolling v. Florida, 630 So. 2d. 635 (Fla. Dist. Ct. App. 1994). Rolling & London v. Florida, 741 So. 2d 627 (Fla. Dist. Ct. App. 1999). Romero v. Pataki, 2006 WL 842177 (S.D.N.Y., Mar. 31, 2006). Sandusky v. McCummings, 164 Misc. 2d 700 (1995). Seres v. Lerner, 102 P.3d 91 (2004). Debra Shields, The Constitutionality of Current Crime Victimization Statutes: A Survey 4 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 929 (1994). Simon & Schuster v. N.Y. Crime Victims Bd., 724 F. Supp. 170 (S.D.N.Y. 1989). Simon & Schuster, Inc. v. N.Y. Crime Victims Bd., 502 U.S. 105, 111 (1991). Greg B. Smith, Kin of Gravanos Victims Get 420G in Payback NEW YORK DAILY NEWS, July 22, 2004, at 3. Snuszki v. Wright, 193 Misc.2d 490 (2002). Snuszki v. Wright, No. 08409, slip op. (A.D.N.Y., 4th D. Nov. 17, 2006). Son of Sam statutes: federal and state summary. The First Amendment Center, http://www.firstamendmentcenter.org/about.aspx?id=12746 S.D. Codified Laws 23A-28A-1 to -14 (2006). Tenn. Code Ann. 29-13-402 to 410 (2006). Tex. Crim. Proc. Code art. 59.06 (2006). Thompson v. 76 Corp., 2007 WL 414437, *1 (N.Y.A.D. 2 Dept., Feb. 6, 2007). United States v. OBrien, 391 U.S. 367 (1968). Utah Code Ann. 77-18.8.3 (2006). Va. Code Ann. 19.2-368.19 to -22 (2006). Wash. Rev. Code 7.68.200 to -290 (2006).

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49 W. Va. Code 14-2B-1 to -11 (2006). Wis. Stat. 949.165 (2006). Wyo. Stat. Ann. 1-40-301 to -308 (2006).

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50 BIOGRAPHICAL SKETCH Christina M. Locke was raised in Okeechobee, Florida. She graduated from the University of Florida with a B.A. in English, cum laude in 2002. In 2004, she entered the joint J.D./M.A. program in media law at the University of Florida. Christina has worked as a reporter and photographer for the Okeechobee News and as a copy editor for the Gainesville Sun. She spent much of her time in the graduate program working at the Brechner Center for Freedom of Information as both a research assistant and editor of The Brechner Report