Click the back button to return to the publication.
BARRY KEENAN, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY,
Respondent; FRANK SINATRA, JR., Real Party in Interest.
S080284
SUPREME COURT OF CALIFORNIA
27 Cal. 4th 413; 40 P.3d 718;
117 Cal. Rptr. 2d 1
February 21, 2002, Filed
We confront a claim that
California's "Son of Sam law" facially violates constitutional
protections of speech by appropriating, as compensation for crime victims, all
monies due to a convicted felon from expressive materials that include the
story of the crime. We conclude that [*416] these provisions of the California
statute are facially invalid under both the free speech clause of the First
Amendment to the federal Constitution n1 as applied to the states through the
Fourteenth Amendment, and the liberty of speech clause of the California
Constitution (art. I, § 2, subd. (a)). n2
The
California law was first enacted in 1983 as Civil Code section 2224.1. n3
(Stats. 1983, ch. 1016, § 2, pp. 3581-3584.) In 1986, the law was renumbered as
section 2225 (Stats. 1986, ch. 820, §§ 7, 8, pp. 2730-2733), and it has since
been amended on several occasions (see Stats. 1992, ch. 178, § 2, p. 882;
Stats. 1994, ch. 556, § 1, p. 2823; Stats. 1995, ch. 262, § 1; Stats. 2000, ch.
261, § 2). As currently in effect, the law seeks to prevent a convicted felon,
or a profiteer, from exploiting the felon's
crimes for financial gain while victims of crime go uncompensated.
One
prong of the California statute, in effect since the law's inception, imposes
an involuntary trust, in favor of damaged and uncompensated crime victims as
"beneficiaries," on a convicted felon's "proceeds" from
expressive "materials" (books, films, magazine and newspaper
articles, video and sound recordings, radio and television appearances, and
live presentations) that "include or are based on" the
"story" of a felony for which the felon was convicted, except where
the materials mention the felony only in "passing . . .,as in a footnote
or bibliography." ( § 2225, subds. (a)(4), (6), (7), (9), (b)(1); see
former § 2224.1, subds. (a)(4), (6), (7), (9), (b), Stats. 1983, ch. 1016, § 2,
p. 3581.) For convenience, we sometimes hereafter refer to this portion of the
statute, governing proceeds from expressive materials that include the story of
the crime, by its operative provision, section 2225, subdivision (b)(1)
(section 2225(b)(1)).
More recent amendments to the
California statute attack the financial exploitation of crime from a second,
distinctly different angle. Since 1994, the law's involuntary trust provisions
have also applied to "profits" received by the felon, or his or her
representative, from the sale or transfer of any "thing" or
"right," the value of which "is enhanced by the notoriety gained
from the commission of a felony for which a convicted felon was
convicted." ( § 2225, subd. (a)(10), italics added; see also id., subd.
(b)(2).) In 2000, the involuntary trust
provisions were further extended, with limited
exceptions, to "profiteers of the felony," i.e., "any
persons" who derive income by selling memorabilia, property, rights, or
things for values enhanced by their felony-related notoriety. ( § 2225, subds.
(a)(3)(B), (10), (b)(2)). [*417] As necessary, we sometimes hereafter refer to
this prong of the statute, governing profits from things sold for their
felony-related notoriety value, by its operative provision, section 2225,
subdivision (b)(2) (section 2225(b)(2)). n4
In 1991, the United States
Supreme Court held that a somewhat similar New York law violated the First
Amendment. (Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims
Bd. (1991) 502 U.S. 105, 116 L. Ed. 2d 476, 112 S. Ct. 501 (Simon &
Schuster).) In provisions somewhat like California's section 2225(b)(1), the
statute at issue confiscated, for the benefit of crime victims, all monies a
criminal was due under contract with respect to a "reenactment" of
the crime, or from the expression of
his or her personal thoughts or feelings about the crime, in a film, broadcast,
print, recording, or live performance format.
Finding the New York law facially invalid, the Simon & Schuster
majority reasoned that the statute, as a direct regulation of speech based on
content, must fall unless it satisfied a strict level of constitutional
scrutiny. The New York law failed this test, said the majority, because
although the state had a compelling interest in compensating crime victims from
the fruits of crime, the statute at issue was not narrowly tailored to that
purpose. ( Simon & Schuster, supra, 502 U.S. 105, 121-123.)
The
flaw most clearly identified by the Simon & Schuster majority was that
the New York statute was overinclusive.
The majority noted two respects in which the New York law regulated speech too
broadly for its compelling purpose. First, the law applied to expressive works
in which one merely admitted crimes for which he or she had not been convicted.
Second, it confiscated all profits from expressive works in which one made even
incidental or tangential mention of his or her past crimes for nonexploitative
purposes. ( Simon & Schuster, supra, 502 U.S. 105, 121.)
California's analogous
provision, section 2225(b)(1), similarly imposes a content-based financial
penalty on protected speech. Yet section 2225(b)(1), like its New York
counterpart, fails to satisfy strict scrutiny because it, too, is
overinclusive. Section 2225(b)(1) contains the fundamental defect identified in
Simon & Schuster; it reaches beyond a criminal's profits from the crime or
its exploitation to reach all income from the [*418] criminal's speech or expression on any theme or subject, if the
story of the crime is included.
Though section 2225(b)(1),
unlike the New York law, applies only to persons actually convicted of
felonies, and states an exemption for mere "passing mention of the felony,
as in a footnote or bibliography" (id., subd. (a)(7)), these differences
do not cure the California statute's constitutional flaw. By any reasonable
construction, the California statute is still calculated to confiscate all
income from a wide range of protected expressive works by convicted felons, on
a wide variety of subjects and themes, simply because those works include
substantial accounts of the prior felonies.
Because we conclude, contrary to the Court
of Appeal, that section 2225(b)(1) is invalid, we will reverse the judgment of
the Court of Appeal.
FACTS
On
July 8, 1998, Frank Sinatra, Jr. (Sinatra, Jr.), son of the late singer, filed
a complaint in Los Angeles Superior Court. Named as defendants were Barry
Keenan, Joseph Amsler, John Irwin, Peter Gilstrap, Columbia Pictures (a
division of Sony Pictures Entertainment, Inc.), and New Times, Inc. (New
Times).
As
pertinent here, the complaint alleged as follows: In 1963, Keenan and Amsler,
acting pursuant to a conspiracy with Irwin, kidnapped Sinatra, Jr., from his
Nevada hotel room and drove him to Los Angeles, where he was held until his
father paid a ransom. During his captivity, Sinatra, Jr., suffered economic
loss, physical suffering, and emotional distress. Keenan, Amsler, and Irwin
were later apprehended, tried, convicted of felony offenses, and incarcerated
under California law. n5 Following their arrests, the kidnappers made media
statements, since admitted to be false, that Sinatra, Jr., had conspired in his
own kidnapping to extract money from his father. These defamatory statements
caused further damage to Sinatra, Jr.'s business and reputation.
The
complaint further alleged: In January 1998, Keenan and one or both accomplices
arranged with Gilstrap, or with New Times (publisher of New Times Los Angeles,
a tabloid magazine), for Gilstrap to interview Keenan [*419] about the
kidnapping. The purpose was to produce
a story for sale to print, broadcast, and film media. Monies derived from
exploiting the kidnapping story would be split among Gilstrap, New Times, and
the kidnappers. An article entitled Snatching Sinatra, authored by
Gilstrap, appeared in a January 1998
issue of New Times Los Angeles. In late January 1998 and thereafter, other
magazines reported that Columbia Pictures had bought the motion picture rights
to Snatching Sinatra for up to $1.5 million. In February 1998, citing section
2225, Sinatra, Jr., made demand on Columbia Pictures to withhold from the
kidnappers, and from Gilstrap and New Times as the kidnappers'
"representatives," any monies otherwise due such persons or entities
for the motion picture rights. Columbia Pictures refused to do so without a
court order.
The complaint asserted that under section
2225, all monies due to the kidnappers, or to their "representatives"
Gilstrap and New Times, for preparation for sale of the story of Sinatra,
Jr.'s, kidnapping, the sale of the rights to the story, or the sale of
materials that included or were based on the story, were "proceeds"
as defined by subdivision (a)(9) and "profits" as defined by
subdivision (a)(10), and were thus subject to an involuntary trust in favor of
Sinatra, Jr., a statutory "beneficiary" (id., subd. (a)(4)(A)). The
complaint sought an order that the defendants, particularly Columbia Pictures
and New Times, hold such present and future proceeds and profits in trust for
Sinatra, Jr. It also sought an injunction to (1) prevent Columbia Pictures and
New Times from paying such proceeds and profits to any other defendant, and (2)
require that all such payments be made instead to Sinatra, Jr., to the extent
of his damages or, in the alternative, to the superior court for distribution
for the benefit of the victims of the kidnapping.
On
August 5, 1998, after a hearing at which only Sinatra, Jr., Columbia Pictures,
and New Times appeared, the trial court issued a preliminary injunction
prohibiting Columbia Pictures, during the pendency of the action, from paying
any monies to Keenan, Amsler, Irwin, or their representatives or assigns in
connection with the motion picture
rights to the story of Sinatra, Jr.'s, kidnapping. n6
On
November 19, 1998, Keenan first appeared in the action by filing, on his own
behalf only, a demurrer to the complaint. At the same time, Keenan moved to
dissolve the preliminary injunction. The demurrer asserted, among other things,
that section 2225 was facially invalid under the speech clauses [*420] of the
federal and state Constitutions. Keenan's constitutional attack was based
solely on a comparison between section 2225 and the New York law struck down in
Simon & Schuster, supra, 502 U.S. 105.
In
this regard, Keenan noted that because the California statute, like its New
York counterpart, targeted a criminal's income from telling the story of his
crime, it penalized the content of speech, required strict scrutiny, and was not narrowly tailored to
compensate crime victims from the profits of crime. Keenan urged that, by the
standards set forth in Simon & Schuster, supra, 502 U.S. 105, the
California statute was both underinclusive, because it reached only expressive
activity, not other sources of
crime-related income, and overinclusive, because it penalized all expressive
works by convicted felons which included more than passing mention of their
crimes.
In
response, Sinatra, Jr., asserted that the Simon & Schuster majority had
only found New York's law overinclusive. Sinatra, Jr., argued that section 2225
solves the overinclusiveness problem identified in Simon & Schuster by
covering only "convicted" felons and exempting expressive materials
that contain only a "passing mention of [the] felony." Moreover, he
contended, section 2225 is not underinclusive because it is precisely drawn to
ensure that victims of crime are compensated before the felon profits from
telling the story of their victimization.
On
December 22, 1998, the trial court issued an order overruling Keenan's demurrer
"for the reasons stated in [Sinatra, Jr.'s,] opposition papers." In
the same order, the court denied Keenan's motion to dissolve the preliminary
injunction, reiterating its findings, made when the injunction was granted,
that "section 2225 [is] not unconstitutional as written . . . [and] . . .
was narrowly drafted to overcome the over-inclusive effects found by the
Supreme Court" in Simon & Schuster.
On
December 31, 1998, Keenan filed in the Court of Appeal the instant petition for
mandate or other appropriate relief. The petition requested a writ directing
the superior court to vacate its orders overruling his demurrer and granting
the preliminary injunction, to enter a new order sustaining the demurrer
without leave to amend, and to dissolve the preliminary injunction. On January 14,
1999, the Court of Appeal stayed proceedings in the trial court, ordered the
parties to appear for oral argument on the merits of the petition, and called
for the filing of a return and reply. n7
The
parties' briefs in the Court of Appeal, like those in the trial court, focused
entirely on comparisons between California's Son of Sam law and [*421]the New
York counterpart addressed in Simon & Schuster. Again Keenan claimed the
California statute singled out expressive activity for regulation on the basis
of content, required strict scrutiny, and was both overinclusive and
underinclusive by the standards set in that case. Again Sinatra, Jr., urged
that section 2225 solved the overinclusiveness problem identified in Simon
& Schuster because, unlike the New York statute, California's law applied
only to convicted felons and exempted expressive materials which made mere
"passing mention" of the felony.
The
Court of Appeal denied writ relief, concluding, among other things, that section
2225 does not infringe constitutional rights of speech. In this regard, the
Court of Appeal accepted Sinatra, Jr.'s, arguments that section 2225 lacks the
defects of overbreadth identified in Simon & Schuster, because it is
limited to convicted felons and does not confiscate a felon's proceeds from
expressive materials that contain mere "passing mention" of the
felony.
The
Court of Appeal declined to decide
whether the California statute was impermissibly underinclusive. The court
reasoned it need not do so because, contrary to Keenan's insistence, Simon
& Schuster had not expressly found the New York statute underinclusive.
Because Keenan "does not otherwise elaborate on the issue of underinclusiveness," said the court,
"and since [his] attack on section 2225 is limited to those issues
considered in Simon & Schuster, our discussion of the statute is similarly
limited." We granted review. n8 We now reverse.
DISCUSSION
In
the late 1970s, New York was terrorized by serial killer David Berkowitz,
popularly known as the Son of Sam. By the time Berkowitz was apprehended,
publicity about the case had enhanced the value of the rights to his story. New
York's Legislature sought to prevent Berkowitz and other notorious criminals
from exploiting for profit the tales of their sensational crimes while their
victims went uncompensated. The resulting statute, discussed in greater detail
below, was dubbed the "Son of Sam law." (Simon & Schuster ,
supra, 502 U.S. 105, 108-110, 116 L. Ed. 2d 476, 112 S. Ct. 501.) In 2000, the
United States and over 40 states, including California, had some form of Son of
Sam law. (See Kealy, A Proposal for a New Massachusetts Notoriety for Profit
Law (2000) 22 W. New Eng. L.Rev. 1, 22; Comment, Son of Sam Laws (1999) 20 Whittier
L.Rev. 949, 953, & fns. 48, 49.) n9
California's version, as pertinent here, provides that all past and
future "proceeds" ( § 2225, subds. (a)(9), (b)(1)) paid or owing to a
"convicted felon" (id., subds. (a)(1), (b)(1)) from the sale of
expressive "materials" n10 or the rights thereto ( § 2225, subds.
(a)(6), (b)(1)) are subject to an involuntary trust for designated
"beneficiaries" ( § 2225(b)(1)) if the materials "include or are
based on the story" of the felony (ibid.). A "convicted felon"
is one "convicted . . .,or found not guilty by reason of insanity"
(id., subd. (a)(1)) of a felony, as defined by "any California or United
States statute" (id., subd. (a)(2)), which was committed in California
(id., subd. (a)(1)). "Story" means "a depiction, portrayal, or
reenactment of a felony" but "shall not be taken to mean a passing
mention of the felony, as in a footnote or bibliography." (Id., subd.
(a)(7).) A "beneficiary" is one who has a legal claim against the
convicted felon, including a survivorship or wrongful death claim, for
physical, mental, or emotional injury, or pecuniary loss, caused by the felony.
(Id., subd. (a)(4).)
The
trust continues for five years from the conviction, or from the payment of any
covered proceeds to the felon, whichever is later. ( § 2225(b)(1).) The felon's
unpaid obligations for restitution, restitution and penalty fines, and
crime-related attorney fees have first
priority against the trust. (Id., subd. (d).) Within the five-year trust
period, beneficiaries may bring actions to recover their respective interests
in the remaining funds (id., subd. (c)(1),(2)), and the filing of such an
action extends the trust period until such actions are concluded (id., subd.
(b)(1)). Each beneficiary's interest is an equitable share, given the funds
available, of his or her recoverable damages from the crime, less any
compensation already received from the felon or from the Restitution Fund (id.,
subds. (a)(5), (d)). Payment to the beneficiary may be ordered from proceeds
already received [*423] by the felon and, as necessary, from proceeds to be
received in the future. (Id., subd. (c)(3).)
Within one year after the conviction or the felon's receipt of covered
proceeds, whichever is later ( § 2225, subd. (e)(2)), the Attorney General may
also bring an action to impose an "express trust" on covered
proceeds, thus requiring their placement in a bank depositary (id., subd. (e)(1); see also id., subd. (e)(3)), if he
proves it is "more probable than not" that there are beneficiaries entitled
to compensation for the felony (id., subd. (e)(3)). Either a beneficiary or the
Attorney General may, in appropriate circumstances, obtain a preliminary
injunction to prevent waste of proceeds subject to the involuntary trust. (Id.,
subd. (f)(1), (2).)
Funds subject to the trust, but not claimed by a beneficiary at the end
of the trust period, do not revert to the felon's ownership. Instead, they must
be transferred to the Controller for allocation to the Restitution Fund. ( §
2225(b)(1); see also id., subd. (e)(3).)
As
indicated above, the United States Supreme Court struck down a similar New York
law in Simon & Schuster, supra, 502 U.S. 105. We conclude the analysis of
Simon & Schuster governs this case and renders section 2225(b)(1) invalid
as well. Both the New York and California laws impose content-based financial
penalties on protected speech. Thus they must, at a minimum, satisfy strict
constitutional scrutiny. Both laws seek to serve compelling interests in
preventing criminals from exploiting their crimes for profit, and in
compensating crime victims from the profits of crime. Yet both laws are
overinclusive for those purposes, because they confiscate all income from all
expressive materials, whatever their general themes or subjects, that include
significant discussions of their creators' past crimes.
Our
reasoning requires, of course, a detailed examination of Simon & Schuster .
The New York statute there at issue provided that if any person "accused
or convicted of a crime in this state" was due money under contract with
respect to a "reenactment" of the crime " 'by way of a movie,
book, magazine article, tape recording, phonograph record, radio or television
presentation, [or] live entertainment of any kind,' " or for expressions
of the person's thoughts or feelings about the crime, the contract must be
reported to the New York State Crime Victims Board (New York Board), and the
money due must be paid over to the New York Board to be placed in an escrow
account, primarily for the benefit of victims who, within five years
thereafter, won money judgments against the criminal. (Simon & Schuster,
supra, 502 U.S. 105, 109; see N.Y. Exec. Law § 632-a(1), (4) [*424] (McKinney
1982 & 1991 supp.).) The statute defined "convicted" persons to
include those who had "voluntarily and intelligently admitted" crimes
for which they were not prosecuted. (Simon & Schuster, supra, at p. 110,
italics omitted; N.Y. Exec. Law, § 632-a(10)(b).) n11
While the law was in effect, Simon & Schuster, Inc., contracted to
finance and publish a book by Henry Hill, a former gangster turned government
witness. The book would tell the story of Hill's organized crime career. After
considerable investment of time and effort by Hill and his coauthor, the book,
Wiseguy, was published in 1986. Its colorful account of Hill's many criminal
exploits, and of life inside the Mafia, met with commercial and critical
success.
When the New York Board learned of Wiseguy's publication, it invoked the
Son of Sam law. After reviewing the book, and Simon & Schuster's contract
with Hill, the New York Board determined that all moneys paid or owed to Hill
under the contract were subject to the statute's escrow provisions. Simon &
Schuster was ordered to pay the New York Board all future sums due to Hill, and
Hill was ordered to pay the New York Board all sums already remitted to him.
Simon & Schuster filed a federal suit, seeking a declaration, under 42
United States Code section 1983, that the New York law was facially invalid under
the First Amendment. The federal district court granted the New York Board's
motion for summary judgment, and a divided court of appeals affirmed. ( Simon
& Schuster, supra, 502 U.S. 105, 115.)
The
United States Supreme Court unanimously concluded that the judgment of the
court of appeals must be reversed. n12 Six justices, in an opinion authored by
Justice O'Connor, first noted that "[a] statute is presumptively
inconsistent with the First Amendment if it imposes a financial burden on
speakers because of the content of their speech. Leathers v. Medlock, 499 U.S. 439, 447, 113 L. Ed. 2d 494, 111 S.
Ct. 1438 (1991). . . . [P] In the context of financial regulation, it bears
repeating, as we did in [*425] Leathers, that the government's ability to impose
content-based burdens on speech raises the specter that the government may
effectively drive certain ideas or viewpoints from the marketplace. 499 U.S. at 448-449. The First Amendment
presumptively places this sort of discrimination beyond the power of the
government." (Simon & Schuster, supra, 502 U.S. 105, 115-116.)
New
York's Son of Sam law was a presumptively invalid content-based burden on
speech, said the majority, because "it singles out income derived from
expressive activity for a burden the State places on no other income, . . . is
directed only at works with a specified content," and "plainly
imposes a financial disincentive only on speech of a particular content."
(Simon & Schuster, supra, 502 U.S. 105, 116.) Because the statute penalized
speech on the basis of its content, the majority concluded, the law must
survive "strict" constitutional scrutiny, i.e., " 'the State
must show that its regulation is necessary to serve a compelling state interest
and is narrowly drawn to achieve that
end.' [Citation.]" ( Id., 502 US at p. 118.)
The
majority emphasized that the state had no compelling interest in shielding
readers and victims from negative emotional responses to a criminal's public retelling
of his misdeeds. Indeed, the majority observed, the protection of offensive and
disagreeable ideas is at the core of the First Amendment. (Simon &
Schuster, supra, 502 U.S. 105, 118.) On the other hand, the majority agreed,
states do have compelling interests in "ensuring that victims of crime are
compensated by those who harm them" (ibid.), "preventing wrongdoers
from dissipating their assets before victims can recover" (ibid.),
"ensuring that criminals do not profit from their crimes" ( id., 502
US at p. 119), and transferring the fruits of crime from the criminals to their
victims ( id., 502 US at pp. 119-120). Moreover, the majority concluded it
could "assume without deciding" that royalties from a criminal's book
about his crimes, the form of income at issue in the case before it,
"represent[ ] the fruits of crime." ( Id. , 502 US at p. 119.)
Of
course, the majority observed, New York could not defend its statute by
narrowly defining the interest at stake in terms of the actual operation of its
law. New York claimed a compelling interest in preventing criminals from
retaining the profits of storytelling about their crimes before their victims
were compensated. However, the majority noted, the state could not show why it
had a greater interest in compensating crime victims from the profits of such
storytelling than from the criminal's other assets. "Nor [could the state]
justify . . . a distinction between this expressive activity and any [*426]
other activity in connection with its interest in transferring the fruits of
crime from criminals to their victims." ( Simon & Schuster, 502 U.S.
105, 119-120, 116 L. Ed. 2d 476, 112 S. Ct. 501.) "In short," the
majority concluded, "the State has a compelling interest in compensating
victims from the fruits of the crime, but little if any interest in limiting
such compensation to the proceeds of the wrongdoer's speech about the
crime." ( Id., at pp. 120-121.)
Accordingly, the majority reasoned, it must examine whether New York's
statute was "narrowly tailored to advance the former, not the latter,
objective." (Simon & Schuster, supra, 502 U.S. 105, 121.) The New York
statute was not so tailored, the majority determined, for "as a means of
ensuring that victims are compensated from the proceeds of crime, the Son of
Sam law is significantly overinclusive." (Ibid., italics added.) In the
majority's view, two factors in particular illustrated the statute's
overbreadth. First, "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. [Citation]" (Ibid., italics in
original.) Second, "the statute's broad definition of 'person convicted of
a crime' enables the Board to escrow the income of any author who admits in his
work to having committed a crime, whether or not the author was ever actually
accused or convicted. [Citation.]" ( Ibid.)
"These two provisions," said the majority, "combine to
encompass a potentially very large number of works. Had the Son of Sam law been
in effect at the time and place of publication, it would have escrowed payment
for such works as The Autobiography of Malcolm X, which describes crimes
committed by the civil rights leader before he became a public figure; Civil
Disobedience, in which Thoreau acknowledges his refusal to pay taxes and recalls his experience in jail; and even
the Confessions of Saint Augustine, in which the author laments 'my past foulness and the carnal corruptions of my
soul,' one instance of which involved the theft of pears from a neighboring
[orchard]. [Citations.] Amicus Association of American Publishers, Inc., has
submitted a sobering bibliography listing hundreds of works by American
prisoners and ex-prisoners, many of which contain descriptions of the crimes
for which the authors were incarcerated, including works by such authors as
Emma Goldman and Martin Luther King, Jr. A list of prominent figures whose
autobiographies would be subject to the statute if written is not difficult to
construct: The list could include Sir Walter Raleigh, who was convicted of
treason after a dubiously conducted 1603 trial; Jesse Jackson, who was arrested
in 1963 for trespass and resisting arrest after attempting to be served at a
lunch counter in North Carolina; and Bertrand Russell, who was jailed for seven
days at the age of 89 for participating in a sit-down [*427] protest against
nuclear weapons. The argument that a statute like the Son of Sam law would
prevent publication of all of these works is hyperbole - some would have been
written without compensation - but the Son of Sam law clearly reaches a wide
range of literature that does not enable a criminal to profit from his crime
while a victim remains uncompensated." (Simon & Schuster, supra, 502
U.S. 105, 121-122, fn. omitted, italics in original.)
In
sum, said the majority, New York's Son of Sam law "has singled out speech
on a particular subject for a financial burden that it places on no other
speech and no other income. The State's interest in compensating victims from
the fruits of crime is a compelling one, but the Son of Sam law is not narrowly
tailored to advance that objective. As a result, the statute is inconsistent
with the First Amendment." (Simon & Schuster, supra, 502 U.S. 105, 123.)
In
separate opinions, Justices Blackmun and Kennedy concurred in the judgment.
Justice Blackmun opined that the New York law was underinclusive as well as
overinclusive, and "we should say so." (Simon & Schuster, supra,
502 U.S. 105, 123-124 (conc. opn. of Blackmun,J.).) Justice Kennedy suggested
that a statute is unconstitutional per se if it regulates the specific content
of speech which is neither defamatory, nor tantamount to a criminal act, nor an
impairment of some other constitutional right, nor an incitement to lawless
action, nor calculated to bring about an imminent harm the state has the
substantive power to prevent. A statute that regulates the content of speech
beyond these narrow limits, said Justice Kennedy, cannot be saved by finding
that it is narrowly tailored to serve a compelling state interest. ( Id., at
pp. 124-128 (conc. opn. of Kennedy,J.).) n13
In his efforts to distinguish section 2225(b)(1), Sinatra, Jr., first
makes a cursory argument that California's statute, unlike New York's, is not a
presumptively invalid content-based regulation of speech. The effort must fail.
Section 2225(b)(1), like the New York statute at issue in Simon & Schuster,
places a direct financial disincentive
on speech or expression about a particular subject. The California statute
explicitly targets and confiscates a convicted felon's proceeds from books,
films, articles, recordings, broadcasts, interviews, or performances that
include the story of the felon's crime. [*428] While certain classes of speech -
obscenity, fighting words, some defamation - may be subject to
viewpoint-neutral regulation because of their directly injurious nature (see.
e.g., R.A.V. v. St. Paul (1992) 505 U.S. 377, 382-390, 120 L. Ed. 2d 305, 112
S. Ct. 2538; Chaplinsky v. New Hampshire (1942) 315 U.S. 568, 571-572, 86 L.
Ed. 1031, 62 S. Ct. 766), discussions of crime have never been included in this
limited category. n14
Sinatra, Jr., asserts that laws imposing financial penalties on speech
do not necessarily violate the First Amendment. He cites cases for the
principle that the government need not subsidize the exercise of free speech or
other constitutional rights. (E.g., Lyng v. Automobile Workers (1988) 485 U.S.
360, 99 L. Ed. 2d 380, 108 S. Ct. 1184 [denial of food stamps to household with
striking worker]; Regan v. Taxation With Representation of Wash. (1983) 461
U.S. 540, 76 L. Ed. 2d 129, 103 S. Ct. 1997 [denial of tax exemption to
organizations engaged in lobbying]; Harris v. McRae (1980) 448 U.S. 297, 65 L.
Ed. 2d 784, 100 S. Ct. 2671 [denial of federal funds to reimburse abortions].)
But he fails to show how section
2225(b)(1), by confiscating income from speech based on its content, departs
from the presumptively unconstitutional form of statute at issue in Simon &
Schuster.
Nor
does it matter that New York's law focused on media entities' contracts for
crime stories, while section 2225(b)(1) targets crime story proceeds in the
hands of the criminal himself. As Simon & Schuster noted with respect to
the facts in that case: "Whether the First Amendment 'speaker' is
considered to be Henry Hill, whose income the statute places in [*429] escrow
because of the story he has told, or Simon & Schuster, which can publish
books about crime with the assistance of only those criminals willing to forgo
remuneration for at least five years, the statute plainly imposes a financial
disincentive only on speech of a particular content." (Simon &
Schuster, supra, 502 U.S. 105, 116.) " The government's power to impose
content-based financial disincentives on speech surely does not vary with the
identity of the speaker" ( Simon & Schuster, supra, at p. 117), and
section 2225(b)(1), like the New York statute, "establishes a financial
disincentive to create or publish works with a particular content" ( Simon
& Schuster, supra, at p. 118, italics added). n15
Section 2225(b)(1) is thus a suspect content-based regulation of speech.
As such, the section is unconstitutional unless, at a minimum, it is narrowly
tailored to serve compelling state interests. (Simon & Schuster, supra, 502
U.S. 105, 118; Sable Communications of Cal., Inc. v. FCC (1989) 492 U.S. 115,
126, 106 L. Ed. 2d 93, 109 S. Ct. 2829.) In applying this standard, we must
first determine what, if any, such compelling interests section 2225(b)(1)
seeks to serve.
By its terms, section 2225(b)(1)
confiscates, for the benefit of uncompensated victims of crime, sums due or
owing to a convicted felon from expressive materials that include the story of
the felony. It thus appears the purpose of section 2225(b)(1) is to assure that
the "fruits" of one's crimes - in this case, proceeds from exploiting
the story of those crimes - will be used to compensate crime victims.
Statements of legislative intent confirm
this inference. When the predecessor of section 2225(b)(1) was adopted in 1983,
the Legislature declared, as justification for the law, that "victims of
felonies have a special relationship to proceeds from the sale of stories about
those felonies which are written by persons convicted of committing them."
(Stats. 1983, ch. 1016, § 1, p. 3581.) It further recited that the new law
"amplifies [and] supplements [Civil Code] sections 2224 [making one an
involuntary trustee, for the [*430]benefit of the true owner, of any thing
gained by fraud, accident, mistake, undue influence, violation of trust, or
other wrongful act] and 3517 [confirming the duty to compensate for injury or
damage caused by one's legal wrong]." (Id., § 3, p. 3584.) In connection
with more recent amendments to section 2225, the Legislature asserted, in a
paraphrase from Simon & Schuster, that "the state has a compelling
interest in ensuring that convicted felons do not profit from their crimes and
that the victims of crime are compensated by those who harm them." (Stats.
2000, ch. 261, § 1, subd. (b)).
Though there is no compelling
interest in targeting a criminal's storytelling proceeds in particular for the
purpose of compensating crime victims (Simon & Schuster, supra, 502 U.S.
105, 119-120), the state does have a compelling interest in using the fruits of
crime generally for that purpose. ( Id., at pp. 118-121.) We may assume, in
this regard, that the fruits of crime
include a criminal's proceeds from exploiting the story of the crime. ( Id., at
p. 119.) The question thus arises whether section 2225(b)(1), within its sphere
of operation, is narrowly tailored to ensure that the fruits of crime are used
to compensate the victims of crime.
Of
course, to be narrowly tailored does not require "that there be no
conceivable alternative, but only that the regulation not 'burden substantially
more speech than is necessary to further the government's legitimate interests'
[citation]." ( Board of Trustees, State Univ. of N.Y. v. Fox (1989) 492
U.S. 469, 478, 106 L. Ed. 2d 388, 109 S. Ct. 3028.) We examine whether section
2225(b)(1) meets this test. n16
Keenan urges that section 2225(b)(1) is underinclusive, because it
confiscates profits from expressive activity, i.e., storytelling about one's
crimes, [*431] while leaving undisturbed other gains and profits the criminal
might realize from the crimes or their exploitation. Portions of the majority's
discussion in Simon & Schuster, supra, 502 U.S. 105, imply such a flaw in
the New York statute there at issue. At several points, the majority stressed
that the statute singled out a criminal's profits from expressive activity to
the exclusion of all other crime-related profits, and suggested that the state
could demonstrate no compelling interest in such a distinction when fashioning
a law to compensate crime victims from the fruits of crime. ( Id., at pp. 116,
119-121, 123.) Justice Blackmun suggested this was tantamount to a conclusion
that the New York statute was underinclusive. ( Id., at pp. 123-124 (conc. opn.
of Blackmun,J.).)
However, having determined that the New York law was overinclusive, the
high court expressly stated it need not decide whether the law was
underinclusive as well. (Simon & Schuster, supra, 502 U.S. 105, 122, fn.*). Noting that Keenan's attack on
the California statute was focused primarily on Simon & Schuster, the
instant Court of Appeal similarly refused to address the issue of underinclusiveness.
Because we hereafter conclude that California's law, like New York's, is
overinclusive in any event, we pursue a similar course.
Indeed, any conclusion that the New York statute was underinclusive
might not apply to California's law. As noted above, the California statute,
unlike New York's, does confiscate at least one additional category of a
criminal's crime-related profits, those derived from sales of memorabilia,
property, things, or rights for a value enhanced by their crime-related
notoriety value. ( § 2225(b)(2).) In the posture of this case, and lacking
further development of the issue by the parties in their briefs, we need not
and do not decide whether the California statute, which includes but reaches
beyond speech-related profits, is underinclusive.
We are persuaded, however, that
section 2225(b)(1), like the New York law at issue in Simon & Schuster, is
overinclusive and therefore invalid. As did the New York statute, section
2225(b)(1) penalizes the content of speech to an extent far beyond that
necessary to transfer the fruits of crime from criminals to their uncompensated
victims. Even if the fruits of crime may include royalties from exploiting the
story of one's crimes, section 2225(b)(1) does not confine itself to such
income. Instead, it confiscates all a convicted felon's proceeds from speech or
expression on any theme or subject which includes the story of the felony,
except by mere [*432] passing mention. By this financial disincentive, section
2225(b)(1), like its New York counterpart, discourages the creation and
dissemination of a wide range of ideas and expressive works which have little
or no relationship to the exploitation of one's criminal misdeeds.
In at least one respect, the
involuntary trust provision of section 2225(b)(1) operates more harshly against
expressive materials that depict the creator's past crimes than did the escrow
account provided for by the New York law at issue in Simon & Schuster.
Under the New York statute, proceeds from a crime story contract were to be
turned over to the New York Board for placement in escrow, but if, at the end
of five years, no valid claims of the criminal's victims or creditors were
pending, remaining funds in the account were returned to the criminal. (Simon
& Schuster, supra, 502 U.S. 105, 109; see N.Y Exec. Law, § 632-a(4).) Under
section 2225(b)(1), by contrast, any entrusted amounts not subject to
legitimate individual claims at the end of the five-year trust period are
turned over to the Controller for allocation to the Restitution Fund. n17
The Attorney General responds that the state has a compelling
interest in using the fruits of a particular crime not only to compensate that
crime's direct victims, but also as a source of criminal restitution generally.
As we conclude elsewhere in this opinion, section 2225(b)(1) is overbroad in
any event, because it confiscates speech-related income on the basis of its
content, and thus discourages such protected speech, far beyond the degree
necessary to reach the fruits of crime.
Sinatra, Jr., nonetheless urges that two features of section 2225(b)(1)
cure the overinclusiveness problem identified in Simon & Schuster. First,
he notes, section 2225(b)(1), unlike New York's law, applies only to persons
actually found guilty of felonies committed in this state. ( § 2225, subd.
(a)(1), (2).) Thus, Sinatra, Jr., points out, California's statute, unlike New
York's, presents no danger that an innocent person will be penalized, or that
income from an expressive work will be confiscated simply for inclusion of a
past offense that was minor, or for which the work's creator was never
prosecuted. Second, Sinatra, Jr., observes, section 2225(b)(1) applies only to
[*433]expressive materials that include the "story" of a felony for
which one was convicted, and exempts
mere "passing mention of the felony, as in a footnote or
bibliography." (Id., subd. (a)(7).) These restrictions, Sinatra, Jr.,
insists, negate Simon & Schuster's concern, with respect to the New York
statute, that all profits from an expressive work would be confiscated though
the work mentioned a past offense only "tangentially or
incidentally." (Simon & Schuster, supra, 502 U.S. 105, 121.)
We
are not persuaded. In Simon & Schuster, the Supreme Court illustrated the
overbroad sweep of the New York statute by showing that it encompassed even
minor, unprosecuted offenses or mere "tangential[ ] or incidental[ ]"
mention of past crimes in a larger context. ( Simon & Schuster, supra, 502
U.S. 105, 121.) But we do not read Simon & Schuster as suggesting that a
statute which exhibited marginal narrowing in these particular regards would
necessarily pass constitutional muster.
Instead, the court's concern was with the essential values of the First
Amendment. As the court's lengthy discussion discloses, the vice of the New
York law was that in order to serve a relatively narrow interest - compensating
crime victims from the fruits of crime - the statute targeted, segregated, and
confiscated all income from, and thus unduly discouraged, a wide range of expressive
works containing protected speech on themes and subjects of legitimate
interest, simply because material of a certain content - reference to one's
past crimes - was included.
Thus, the California statute's limitation to felony convictions does not
suffice to avoid an overbroad infringement of speech. As Simon & Schuster
made clear, one motivated in part by compensation might discuss his or her past
crimes, including those that led to felony convictions, in many contexts not
directly connected to exploitation of the crime. One might mention past
felonies as relevant to personal redemption; warn from experience of the
consequences of crime; critically evaluate one's encounter with the criminal
justice system; document scandal and corruption in government and business; n18
describe the conditions of prison life; or provide an inside look at the
criminal underworld.
Mention of one's past felonies in these contexts may have little or
nothing to do with exploiting one's crime for profit, and thus with the state's
interest in compensating crime victims
from the fruits of crime. Yet section 2225(b)(1) entrusts and permanently
confiscates all income, whenever received, from all expressive materials,
whatever their subject, theme, or commercial appeal, that include a
substantial description of such offenses, whatever their nature and however
long in the past they were committed. n19 Thus, even as so limited to felony
convictions, section 2225(b)(1) is not narrowly tailored to achieve the
compelling interests it purports to
serve.
As
indicated above, the Simon & Schuster majority also found overbreadth in
the New York statute because it confiscated profits from expressive works that
"expressed the author's thoughts or recollections about his crime, however
tangentially or incidentally." (Simon & Schuster, supra, 502 U.S. 105,
212, italics added.) Sinatra, Jr., urges that the California statute avoids
this defect because it applies only to expressive materials containing the
"story" of the felony - i.e., a "depiction, portrayal, or
reenactment" of the criminal episode ( § 2225, subd. (a)(7)), and because
it expressly exempts mere "passing mention of the felony, as in a footnote
or bibliography" (ibid.). Thus, Sinatra, Jr., suggests, the California
statute applies only when an expressive work provides narrative detail about a
felony for which the work's author or creator was convicted, and does not
discourage mere acknowledgement of a prior felony conviction in the context of
another subject.
The
Attorney General echoes this view, suggesting that a "story," as
defined by the section 2225, subdivision (a)(7), is a "vivid"
depiction, portrayal, or reenactment. Further, the Attorney General suggests,
the exemption is for "passing mention . . .,as in a footnote or
bibliography" (ibid., italics added), demonstrating that the example given
is illustrative only, and that other forms of "passing mention" are
also exempt.
These arguments do not convince us that section 2225(b)(1) focuses with
sufficient precision on the fruits of crime, while leaving other speech-related
income undisturbed. Simon & Schuster illustrated the overbreadth of the New
York statute by observing that it reached even incidental and tangential
mention of past crimes, but nothing in Simon & Schuster suggests the New
York law could have cured its overinclusive effect simply by providing an
exemption for tangential or incidental references. Moreover, Simon & Schuster
neither stated nor implied that the federal Constitution might allow
confiscation, on behalf of crime victims, of all proceeds from any expressive
work that includes a descriptive account, or even a vivid account, of a past
crime committed by the author.
[*435]
Such arbitrary demarcation lines do not comport with the basic rationale of
Simon & Schuster. A statute that confiscates all profits from works which
make more than a passing, nondescriptive reference to the creator's past crimes
still sweeps within its ambit a wide range of protected speech, discourages the discussion of crime
in nonexploitative contexts, and does so by means not narrowly focused on
recouping profits from the fruits of crime.
Indeed, Keenan, joined by his amici curiae, urges that the "passing
mention" exemption is so imprecise and unclear that it constitutes an
impermissibly vague basis for the censorship of protected speech. ( Grayned v.
City of Rockford (1972) 408 U.S. 104, 109, 33 L. Ed. 2d 222, 92 S. Ct. 2294;
see also Reno v. American Civil Liberties Union (1997) 521 U.S. 844, 874.) We
need not resolve the vagueness issue, because we are persuaded that, by any
reasonable interpretation, the statute remains overinclusive. Certainly the
statutory definition of "story" includes any substantial account of
the facts and circumstances of a past felony which led to conviction, and the
"passing mention" exemption would not provide safe harbor to
materials containing such a substantial account. But there are multiple contexts
in which expressive materials, with diverse subjects and themes unrelated to
the exploitation of one's crimes, might include substantial accounts of those
episodes.
Had
section 2225(b)(1) been in effect at the time and place of publication, the
statute would have applied to numerous works by authors whose discussions of
larger subjects make substantial, and often vividly descriptive, contextual
reference to prior felonies of which they were convicted. n20 A statute which
operates in this fashion disturbs or discourages protected speech to a degree
substantially beyond that necessary to serve the state's compelling interest in
compensating crime victims from the fruits of crime. Accordingly, we conclude,
in conformity with Simon & Schuster, that section 2225(b)(1) is facially
invalid under the First Amendment to the United States Constitution.
We
reach a similar result under the liberty of speech clause of the California
Constitution (art. I, § 2, subd. (a)). n21
The California provision provides similar, and sometimes greater,
protection of speech than the First Amendment (e.g., Los Angeles Alliance for
Survival v. City of Los Angeles (2000) 22 Cal.4th 352, 366-367 & fn. 12,
993 P.2d 334), and neither party suggests any reason why it should provide lesser
protection under the circumstances of this case. n22
Finally, because we conclude that section 2225(b)(1) is
overbroad for its legitimate purpose, we need not and do not address Keenan's
contention, derived from Justice Kennedy's concurring opinion in Simon &
Schuster, that a content-based regulation of speech is unconstitutional per se,
and can never be justified by an interest of the state.
However, as indicated above, neither the parties nor the Court
of Appeal have focused on the "notoriety value" provisions of section
2225(b)(2), which is clearly severable, but have debated only whether section
2225(b)(1), dealing with storytelling about the crime, is constitutional. At
oral argument, Sinatra, Jr.'s, counsel acknowledged that, despite its brief prayer
for statutory "profits" ( § 2225, subds. (a)(10), (b)(2)) as well as
"proceeds" (id., subds. (a)(9), (b)(1)), Sinatra, Jr.'s, complaint is
premised solely on section 2225(b)(1), the storytelling provision. Counsel for
both parties agreed that the applicability and validity of section 2225(b)(2)
are not before us except as raised, for the first time in this court, by the
Attorney General as amicus curiae. Under the circumstances, we decline the
Attorney General's invitation to opine upon the constitutionality of section
2225(b)(2), and we leave that issue for a case presenting it more directly.
Similarly, because we conclude that the challenged provisions
are invalid infringements on speech, we need not and do not address Keenan's
argument, raised at all stages, that application to him of section 2225, which
was enacted long after the kidnapping of Sinatra, Jr., violates federal and
state constitutional prohibitions of ex post facto legislation.
CONCLUSION
The trial court overruled Keenan's
demurrer to Sinatra, Jr.'s, complaint, reasoning that the storytelling
provision of California's statute ( § 2225(b)(1)), on which the complaint is
solely based (see fn. 22, ante), is not unconstitutional. The Court of Appeal
affirmed on similar grounds. Because we have concluded, contrary to both lower
courts, that section 2225(b)(1) is invalid, we must reverse the judgment of the
Court of Appeal.
The
judgment of the Court of Appeal is reversed, and the cause is remanded for further
proceedings consistent with the views expressed in this opinion.
BAXTER, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CONCURBY: BROWN
CONCUR: CONCURRING OPINION BY BROWN, J.
The
majority correctly observes Civil Code section 2225, subdivision (b)(1), n1
shares the essential constitutional flaws condemned in Simon & Schuster, Inc. v. Members of N.
Y. State Crime Victims Bd. (1991) 502 U.S. 105, 116 L. Ed. 2d 476, 112 S. Ct.
501 (Simon & Schuster). Lest it seem the moral of the story is crime does
pay, I write separately to dispel the
understandable misconception that every "Son of Sam" law is
unconstitutional. A properly drafted statute can separate criminals from
profits derived from their crimes while complying with the First Amendment.
The
Simon & Schuster court recognized the fundamental difference between works
like The Confessions of Saint Augustine or Letter from Birmingham Jail and a
ghost-written work entitled Snatching Sinatra. In the former examples, it is
the public prominence, fame, wit, passion and eloquence of the authors that
make these stories valuable. The "crimes" caused negligible harm to
any actual victim and added nothing to the marketability of the stories. In contrast,
Mr. Keenan's crime involved both a serious harm and is the source of his work's
profitability; judging by the title of his literary effort, it is the celebrity
status of his victim that makes the story noteworthy.
Notwithstanding today's decision, the state may constitutionally seize any asset of a criminal to redress the
harm inflicted upon his victim. Additionally, the state may seize the fruits of
the crime to render it unprofitable. For some works, like The Autobiography of
Malcolm X, it may be difficult to determine the extent to which royalties
result from the author's criminal [*438] involvement or his literary skill. But
the existence of hard cases that might win an as-applied challenge does not
mean all such laws are facially unconstitutional. The First Amendment protects
schlock journalism as well as great literature. Thus, Mr. Keenan has every
right to tell his story. That does not mean the First Amendment guarantees he
can keep the money. And therein lies the tale.
In Simon & Schuster, supra, 502 U.S. at
pages 118-119, the United States Supreme Court found New York's law could
further two compelling state interests, which reflect the notion that crime
should neither impoverish the victim nor enrich the criminal. Toward the former
imperative, the court recognized the compelling interest in "ensuring that
victims of crime are compensated by those who harm them." ( Id. at p.
118.) Toward the latter end, the court acknowledged the compelling interest in
"ensuring that criminals do not profit from their crimes." ( Id. at
p. 119.) The fulfillment of these interests restores both victim and criminal
to the status quo ante and nullifies the tangible effects of the crime.
Simon & Schuster invalidated the New York law, however, because it seized
speech-generated revenues without necessarily serving either state interest.
"Should a prominent figure write his autobiography at the end of his
career, and include . . . a brief recollection of having stolen . . . a nearly
worthless item . . . the Board would control his entire income . . . ."
(Simon & Schuster, supra, 502 U.S. at p. 123.) Because the book's
popularity would be due to the author's lawful prominence rather than his
(perhaps previously undiscovered) crime, the author's income would not be a
fruit of the crime, and thus seizure would not serve the antiprofit interest.
Since the stolen item was nearly worthless, seizure would not serve the
compensation interest. Accordingly, the court found the law "significantly
overinclusive." ( Id. at p. 121.) A properly structured statute could
avoid this overinclusivity by seizing only assets that would compensate the
victim or render crime unprofitable.
The
hypothetically prominent figure who mentions a minor theft in his autobiography
bears a strong resemblance to Saint Augustine, and very little to defendant.
Defendant's kidnapping created more than trivial harm, and it appears the notoriety of his criminal
conduct is substantially responsible for the salability of his literary efforts. Thus, seizure of defendant's
royalties serves one or both of the compelling state interests. If so, the
state may constitutionally distinguish between Snatching Sinatra and The
Confessions of Saint Augustine.
The constitutionality of seizing a criminal's
assets to compensate his victims is beyond dispute. As Simon & Schuster
observed, every state has a [*439] body of tort law serving this exact
interest. (Simon & Schuster, supra, 502 U.S. at p. 118.) To effect
compensation, it is immaterial whether the funds come from the fruits of crime
or the defendant's other assets.
Although compensation may have been a goal of New York's law, it failed
to achieve it constitutionally. The law seized only those assets generated by
the offender's storytelling. The problem was not the law's underinclusivity per
se; after all, a statute need not solve every problem to be constitutional. A
law would be underinclusive if it granted the victim only a partial share of
the profits or compensation only up to a maximum sum. n2 These limitations,
however, would not create the constitutional defect cited in Simon &
Schuster: the content-based nature of the speech restriction.
The
high court deemed the law presumptively unconstitutional because it imposed a
financial burden on speakers due to the content of their speech. (Simon &
Schuster, supra, 502 U.S. at pp. 115-116.) The New York statute "singles
out income derived from expressive activity for a burden the State places on no
other income, and it is directed only at works with a specified content."
( Id. at p. 116.) The dissenting opinion of Judge Newman in the court below
demonstrated this content-based discrimination. ( Simon & Schuster, Inc. v.
Fischetti (2d Cir. 1990) 916 F.2d 777, 784 (Fischetti) (dis. opn. of Newman,
J.).) Judge Newman observed the New York Crime Victims Board applied the law to
the autobiography of Jean Harris, who had killed " 'Scarsdale Diet' Doctor
Herman Tarnower" (Simon & Schuster, at p. 111) because the book
referred to the homicide in two chapters. (Fischetti, at p. 785.) If her book
had concerned only the conditions at her prison, her royalties, though enhanced
by the notoriety of her crime, would have been protected from seizure. (Ibid.)
The distinction between the treatment of the actual book and the hypothetical
book shows how "the Son of Sam law establishes a financial disincentive to create or publish works with
a particular content." (Simon & Schuster, at p. 118.)
The content-based discrimination triggered strict scrutiny, whereby the
state must show the law is narrowly drawn to further a compelling state
interest. (Simon & Schuster, supra, 502 U.S. at p. 118.) But New York
limited the law's reach to " 'storytelling' " only; the [*440] court
found no rational reason "why the State should have any greater interest
in compensating victims from the proceeds of such 'storytelling' than from any
of the criminal's other assets." ( Id. at p. 119.) The content-based
limitation thus not only created the need to establish a compelling interest, it also rendered the
state's interest less than compelling: "the State has a compelling
interest in compensating victims from the fruits of the crime, but little if
any interest in limiting such compensation to the proceeds of the wrongdoer's
speech about the crime." (Id. at pp. 120-121.) A law that shields assets
such as Ms. Harris's home or stock portfolio from a compensation order hardly
serves that interest.
The
high court's reasoning shows that a law without this limitation would likely
survive review, because the law would not be content based (thus avoiding
strict scrutiny) and the law would narrowly serve the compelling interest of
victim compensation, and thus, a fortiori, survive a lesser level of scrutiny.
The Rhode Island Supreme Court discussed the validity of such a broader law in
Bouchard v. Price (R.I. 1997) 694 A.2d 670 (Bouchard). n3 "Neither
plaintiffs nor the Attorney General justified the act's applicability solely to
expressive activity. The state's compelling interest in compensating victims
from the proceeds of crime would be better served, for example, by making
available to a victim all the criminal's assets, however and wherever derived.
Such an expansion of the resources potentially available to a victim would
avoid the statute's Achilles' heel of singling out only expressive activity for
a special burden. We note that victims of a crime may normally bring a civil
action against the offender to recover damages. After a judgment has been
obtained, a victim may proceed against the defendant's assets whether or not
these assets represent royalties obtained from the commercial exploitation of
the crime. The enforcement of such a civil judgment against a defendant's
assets following a personal injury or property loss has not heretofore presented
a First Amendment problem." (Bouchard, at pp. 677-678, fn. omitted.)
Indeed, Simon & Schuster itself approved of New York's content-neutral
"statutory provisions for prejudgment remedies and orders of
restitution." (Simon & Schuster, supra, 502 U.S. at p. 118), and the
majority likewise observes the propriety of content-neutral seizure of a
defendant's assets to compensate a victim. (Maj. opn., ante, at p. 30, fn. 21.)
[*441] A state may thus seize a defendant's assets in a content-neutral
manner to ensure compensation. "Simon & Schuster does not . . . stand
for the proposition that the government cannot recoup the proceeds of
expressive activity relating to crime. Rather, the government cannot single out
those proceeds for special treatment while ignoring other assets." (
United States v. Seale (3d Cir. 1994) 20 F.3d 1279, 1285, fn. 7.) Courts may
thus constitutionally order restitution from sources including, but not limited
to, the defendant's income from storytelling. (Ibid.; U.S. v. Jackson (5th Cir. 1992) 978 F.2d 903, 915.) The law may
prevent a criminal from enjoying any of his wealth while his victim remains
uncompensated.
The state may also pursue the compelling
interest of depriving criminals of their profits. New York's law was defective
in this regard; it did not fully deprive criminals of their profits, only those
profits resulting from storytelling. If Jean Harris exploited her criminal
notoriety by writing a book, the state could confiscate those royalties. If
instead of telling her story she chose to exploit her notoriety by charging $25
for underwear depicting the "Scarsdale Diet" logo with a red slash
through it, n4 these royalties would be protected from seizure. The law's
message was not that crime doesn't pay but that speaking about crime doesn't
pay. Deterring crime is a compelling state interest, deterring speech is not.
The disparate treatment accorded the income from her book and from the
hypothetical merchandise reveals the discriminatory nature of the New York law.
Furthermore, the discrimination undermined
the compelling nature of the interest served by the law. The state could not
"offer any justification for a distinction between [storytelling] and any
other activity in connection with its interest in transferring the fruits of crime from criminals to their
victims." (Simon & Schuster, supra, 502 U.S. at pp. 119-120.) There is
a compelling interest in depriving criminals of their profits, but little if
any interest in limiting such deprivation to the proceeds of the wrongdoer's
storytelling. (See id. at pp. 120-121.)
Whether the law pursues the compensation or antiprofit interest, a
limitation on the law's scope to storytelling is the Achilles' heel of a Son of
Sam provision. Virginia law, therefore, bars a defendant from exploiting her
criminal notoriety through any means. It seizes "any proceeds or profits
received or to be received directly or indirectly by a defendant or a
transferee of that defendant from any source, as a direct or indirect result of
his [*442]crime or sentence, or the notoriety which such crime or sentence has
conferred upon him." ( Va. Code Ann. § 19.2-368.20.) Regardless of whether
a Virginia criminal profited by selling her account of the crime, her
autograph, n5 or her furniture for an
exorbitant price, n6 she could not enjoy such revenues under this law. n7
Section 2225, subdivision (b)(2) similarly avoids content discrimination
in its seizure of profits. In conjunction with section 2225, subdivision
(a)(10), it authorizes seizure of "all income from anything sold or
transferred by the felon . . . including any right, the value of which thing or
right is enhanced by the notoriety gained from the commission of a felony . . .
." The statute is indifferent to the thing's expressive or nonexpressive
character, and if expressive, its content. The majority correctly observes
section 2225, subdivision (b)(2) is "clearly severable" from
subdivision (b)(1) (maj. opn., ante, at p. 31, fn. 22), and today's decision
does not affect the continuing validity of the former provision.
The
content neutrality of section 2225, subdivision (b)(2) is arguable, insofar as
the law distinguishes between income-generating activity that exploits criminal
notoriety and that which does not. For example, if Mr. Keenan published a book
of poetry anonymously, the royalties would probably not qualify as profits as
defined by the subdivision. But if he marketed the poems as "Sizzling
Sonnets from the Sinatra Snatcher," the royalties would be enhanced by his
criminal notoriety, and thus subject to seizure. n8
On
the other hand, Simon & Schuster observed statutes may be content neutral,
and thus avoid strict scrutiny, where they are intended to serve [*443]
purposes unrelated to the content of the regulated speech, notwithstanding
their incidental effects on some speakers or messages but not others. (Simon
& Schuster, supra, 502 U.S. at p. 122, fn. *, citing Ward v. Rock Against
Racism (1989) 491 U.S. 781, 105 L. Ed. 2d 661, 109 S. Ct. 2746; City of Renton v. Playtime Theatres, Inc.
(1986) 475 U.S. 41, 89 L. Ed. 2d 29, 106 S. Ct. 925.) Although New York's law
was too overinclusive to qualify, a more narrowly drawn statute might face only
intermediate scrutiny under Ward and City of Renton. (Simon & Schuster, supra,
at p. 122, fn. *.) Moreover, even if held to be content based, a statute that
pursues a compelling interest (depriving criminals of all their profits) and is
narrowly drawn (seizing only profits) could survive strict scrutiny.
A
law that neutrally seizes all profits of crime comports with Simon &
Schuster, supra, 502 U.S. 105 and thus the First Amendment. Even when his
victim has been fully compensated, a criminal is not entitled to profit from
his crimes.
As the foregoing analysis shows, a state may
constitutionally seize assets by pursuing the compelling interest of
compensating victims, in which case the state may seize assets from any source
(including assets that are not the fruits of the crime) up to the amount of the
victim's damages. Likewise, a state may constitutionally seize assets by
pursuing the compelling interest of depriving criminals of assets that are the
fruits of crime. And there is no apparent reason why a state must select only
one compelling interest to pursue. A state may pursue both interests
separately; seizing all assets up to the amount of damage under the
compensation rationale, and then all fruits of crime under the antiprofit
theory. Because each phase would neutrally seize assets in furtherance of a
compelling state interest, the law would avoid the constitutional pitfalls
noted in Simon & Schuster.
BROWN, J.
FOOTNOTES TO MAIN OPINION:
n1 "Congress shall make no law . . . abridging the freedom
of speech, or of the press . . . ."
n2 "Every person may
freely speak, write and publish his or her sentiments on all subjects, being
responsible for the abuse of this right. A law may not restrain or abridge
liberty of speech or press." (Cal. Const., art. 1, § 2, subd. (a).)
n3 All statutory references are to the Civil Code unless otherwise
stated.
n4 As indicated in detail below, this case does not, in fact,
present a challenge to section 2225(b)(2), the distinct portion of the statute
that confiscates profits from memorabilia, property, things, or rights sold for
values enhanced by their felony-related notoriety value. We therefore do not
address the constitutionality of this clearly severable provision. (See Stats.
2000, ch. 261, § 3.)
n5 In a memorandum of points
and authorities accompanying his subsequent motion for a preliminary
injunction, Sinatra, Jr., alleged that the kidnappers sustained federal
convictions (see 18 U.S.C., §§ 2, 371, 875(a), 1201, 1202) and served their
time in the federal penitentiary, but nonetheless qualify as "convicted
felons" for purposes of section 2225, because they were convicted of
felonies, as defined by either California or United States statutes, that were
committed in California. ( § 2225, subd.(a)(1), (2).)
n6 In his written motion for
a preliminary injunction, Sinatra, Jr., had sought similar injunctive relief
against New Times and Gilstrap, but prior to the August 5, 1998, hearing on the
motion, Sinatra, Jr., stipulated he would not proceed at that time with the
injunctive portion of his application.
n7 We deem this procedure as
equivalent to an order for the issuance of an alternative writ, and the parties
have proceeded under that assumption. (But see Code Civ. Proc., §§ 1086- 1087;
Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-178, 203
Cal. Rptr. 626, 681 P.2d 893.)
n8 In addition to the
parties' briefs on the merits in this court, several amicus curiae briefs have
also been filed. The Attorney General of California (Attorney General) has
filed an amicus curiae brief in support of Sinatra, Jr. In support of Keenan,
an amicus curiae brief has been filed on behalf of the ACLU Foundation of
Southern California (ACLU), and a joint amicus curiae brief has been filed on
behalf of the Association of American Publishers, Inc., The American
Booksellers Foundation for Free Expression, Magazine Publishers of America,
Inc., and PEN American Center.
n9 "Ironically, the
[New York] statute was never applied to the Son of Sam himself; David Berkowitz
was found incompetent to stand trial, and the statute at that time applied only to criminals who had actually been
convicted. [Citation.] According to the [New York State Crime Victims] Board,
Berkowitz voluntarily paid his share of the royalties from the book Son of Sam,
published in 1981, to his victims or their estates. [Citation.]" (Simon
& Schuster, supra, 502 U.S. 105, 111.)
n10 Section 2225, subdivision (a)(6) defines "materials"
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."
n11 The New York law, like
section 2225(b)(1), established priorities of claims against the account, including
the criminal's valid claim for expenses of legal representation. (Simon &
Schuster, supra, 502 U.S. 105, 110; see N.Y. Exec. Law, § 632-a(7), (8), (11).)
Unlike section 2225(b)(1), the New York law allowed general creditors of the
criminal to reach the impounded funds (Simon & Schuster, supra, at p. 110;
see N.Y. Exec. Law, § 632-a(11)(c)), but provided that if no claims against the
account were pending at the end of the five-year period, remaining funds in the
account would be repaid to the criminal ( Simon & Schuster, supra, at p.
109; see N.Y. Exec. Law, § 632-a(4)).
n12 Justice Thomas did not
participate.
n13 One jurisdiction's Son
of Sam law has been invalidated since Simon & Schuster. ( Bouchard v. Price
(R.I. 1997) 694 A.2d 670, 675-678.) The laws in two other states have been
challenged, but the appeals in those matters were decided on grounds other than
the constitutionality of the statutes at issue. (See Rolling v. State ex rel.
Butterworth (Fla.Dist.Ct.App. 1994) 630 So. 2d 635; Curran v. Price
(Md.Ct.Spec.App. 1994) 334 Md. 149, 638 A.2d 93.)
n14 Concluding that the New
York's Son of Sam law was a content-based regulation of speech, the Simon &
Schuster majority noted, in a brief passage, that the law "singles out
income derived from expressive activity for a burden the State places on no
other income." (Simon & Schuster, supra, 502 U.S. 105, 116.) As noted
above, California's Son of Sam law has a feature New York's did not; besides
confiscating a convicted felon's income from telling his crime story, the
California statute, by amendments adopted after Simon & Schuster, also
confiscates profits earned by a convicted felon, or a profiteer, from the sale
of memorabilia, property, things, or rights for a value enhanced by their felony-related
notoriety value. ( § 2225(b)(2).) Thus, it cannot be said that California's
law, read as a whole, burdens income from speech as distinct from all other
crime-related income. The Attorney General urges that this distinction between
the California and New York statutes means the California law is not a
content-based regulation of speech. We disagree. California's effort to reach
the fruits of crime beyond those derived from storytelling about the crime
might bear on whether our statute is unconstitutionally underinclusive, an
issue we need not and do not decide. However, we do not read this brief
language of Simon & Schuster to mean that a statute can escape examination
as a content-based regulation of speech merely by targeting, in separate provisions,
nonspeech income as well. There can be no doubt that section 2225(b)(1) itself
meets the definition of a content-based speech regulation; it focuses directly
and solely on income from speech and "is directed only at works with a
specified content." (Simon & Schuster, supra, 502 U.S. 105, 116.)
n15 By denying compensation
for an expressive work, a law may chill not only the free speech rights of the
author or creator, but the reciprocal First Amendment right of the work's
audience to receive protected communications. ( Va. Pharmacy Bd. v. Va.
Consumer Council (1976) 425 U.S. 748, 756, 48 L. Ed. 2d 346, 96 S. Ct. 1817;
see Pacific Gas. & Elec. Co. v. Public Util. Comm'm (1986) 475 U.S. 1, 8,
89 L. Ed. 2d 1, 106 S. Ct. 903 (plur. opn. of Powell,J.).) The chilling effect
of financial disincentives was recognized again in United States v. Treasury
Employees (1995) 513 U.S. 454, 468-470, where the court struck down a
congressional ban on the receipt by certain high level government employees of
honoraria for speeches. (See also Va. Pharmacy Bd., supra, 425 U.S. at pp.
756-757; Mine Workers v. Illinois Bar Ass'n. (1967) 389 U.S. 217, 222, 19 L.
Ed. 2d 426, 88 S. Ct. 353; Mazer v. Stein (1954) 347 U.S. 201, 219, 98 L. Ed.
630, 74 S. Ct. 460.)
n16 Though it elsewhere
clearly concluded that New York's Son of Sam law was a content-based regulation
of speech which must be narrowly tailored to serve a compelling state interest,
the Simon & Schuster majority also
noted that "because the [New York] law is so overinclusive," there
was no need to address the Board's claim that the statute was content neutral
under the test set forth in such cases as Ward v. Rock Against Racism (1989)
491 U.S. 781, 105 L. Ed. 2d 661, 109 S. Ct. 2746 and Renton v. Playtime
Theaters, Inc. (1986) 475 U.S. 41, 89 L. Ed. 2d 29, 106 S. Ct. 925. (Simon
& Schuster, supra, 502 U.S. 105, 122, asterisked fn.) As Simon &
Schuster majority explained, Ward and Renton fall within a line of authority
suggesting that regulations are content neutral, despite their incidental
effect on some but not all speakers, if they are justified by concerns
unrelated to the content of speech. (Ward, supra, at p. 791 [anti-noise
regulation requiring city sound equipment and city sound technician for outdoor
concert, as applied to anti-racism organization]; Renton, supra, at p. 48
[zoning regulation of adult theaters].) The Simon & Schuster majority
indicated that although a content-neutral regulation of expression need not
serve a compelling state interest, it must nonetheless be "narrowly
tailored" to serve whatever nonspeech interest the state asserts. (Simon
& Schuster, supra, at p. 122, fn.*)
The majority concluded that even if New York's Son of Sam law was analyzed as
content neutral rather than content based, it was still "too
overinclusive" to meet this test. (Ibid.) For reasons explained below, we
reach a similar conclusion with respect to section 2225(b)(1).
n17 The ACLU suggests that, for this reason alone, the
statute is an impermissibly overbroad deterrent to creative expression for
compensation, since it forces a convicted felon to give up speech-related
income for the benefit of crime victims generally, even after his own victims
have been compensated. Section 2225(b)(1) does appear to impose an involuntary
trust on the convicted felon's proceeds from materials that include the story
of the crime, and to confiscate such proceeds after five years for the benefit
of crime victims generally, even if there never were "beneficiaries"
with specific claims against the felon. In order to impose an "express
trust" in a bank depositary, the Attorney General must show it is
"more probable than not" that beneficiaries exist (id., subd.
(e)(3)), and only a beneficiary or the Attorney General may obtain a preliminary
injunction to prevent waste or dissipation of entrusted funds (id., subd.
(f)(1)). However, the trust character of the proceeds in the felon's hands, and
their ultimate forfeiture to the state's Restitution Fund, do not appear to
depend on the actual existence of uncompensated victims of the felon's crime.
n18 As Publishers Association points out, discussion
of governmental affairs is at the core of the First Amendment. ( Gentile v.
State Bar of Nevada (1991) 501 U.S. 1030, 1034-1035, 115 L. Ed. 2d 888, 111 S.
Ct. 2720.)
n19 As indicated above, section 2225(b)(1) imposes an
involuntary trust upon all "proceeds . . . received by or owing to" a
convicted felon for expressive materials that include the story of the crime
(id., subd. (a)(9). The statute imposes no limit on the time that may elapse
between the crime and receipt of the proceeds. The trust period begins when
proceeds are received or due, then continues, as extended pending the
completion of suits by beneficiaries, for five years after the conviction, or
five years after the payment of proceeds to the felon, "whichever is
later." ( § 2225(b)(1).)
n20 These include, for example, Alex Haley and Malcolm
X's The Autobiography of Malcolm X (Ballantine Books ed. 1992), in which the
murdered civil rights leader describes early burglaries for which he was
convicted (id., pp. 161-172); Eldridge Cleaver's Soul on Ice (1968), which
discusses his rapes of White women, for which he was incarcerated, as
since-repented acts of racial rage (id., pp. 14-15); memoirs by Charles Colson
(Born Again (1976)), G. Gordon Liddy (Will! (1980)), and John Dean (Blind
Ambition: The White House Years (1976)) detailing their criminal roles in the
Watergate coverup; and the memoirs of Patricia Hearst, the scion of a
publishing dynasty, who was kidnapped by the Symbionese Liberation Army and
later participated with her captors in an armed bank robbery for which she was
imprisoned (Hearst & Moscow, Every Secret Thing (1981)).
n21 We
stress the narrow nature of our holding under both the federal and California
Constitutions. We conclude only that section 2225(b)(1) is an overinclusive
infringement of protected speech because it targets and confiscates all a
convicted felon's proceeds from expressive materials that include any
substantial account of the felony, in whatever context. We express no views on
whether a statute targeting the income gained from expressive works that
include accounts of the author's crimes could be drafted narrowly and precisely
enough to overcome this problem of constitutional overbreadth. Moreover,
nothing we say here precludes a crime victim, as a judgment creditor, from
reaching a convicted felon's assets, including those derived from expressive
materials that describe the crime, by generally applicable remedies for the
enforcement and satisfaction of judgments. (See generally Code Civ. Proc., §§
481.010 et seq., 680.010 et seq.) Nor do we intend, by our analysis in this
case, to preclude further legislative steps, not directly related to the
content of speech, to ensure that a convicted felon's income and assets,
including those derived from storytelling about the crimes, are and remain
available to compensate persons injured or damaged by the felon's crimes.
n22 The Attorney General argues that even if section
2225(b)(1), confiscating proceeds from expressive materials that include a
felon's story of the crime, is invalid, we should affirmatively uphold section
2225(b)(2), which confiscates profits from memorabilia, property, things, or
rights sold for values enhanced by their felony-related notoriety. The Attorney
General represents that he has pending a case, Lockyer v. Brown, aka
"X-Raided" (Super.Ct. Sacramento County, 1999, No. 99AS02640) seeking
to confiscate, under section 2225(b)(2), "profits" from a compact disc
entitled Unforgiven, which features defendant Brown, a rap artist and convicted
murderer. At the Attorney General's request, we have taken judicial notice of
the complaint in the Sacramento action.
FOOTNOTES TO CONCURRENCE:
n1 All statutory references are to the Civil Code
unless otherwise stated.
n2 Indiana law, for example, seizes only 90 percent of
income derived from crime. ( Ind. Code Ann. § 5-2-6.3-3(a)(1)(B).) According to
the logic underlying the Laffer curve (i.e., by suppressing the profit
incentive, a 100 percent taxation rate will not yield revenue), a defendant who
may retain some profits will be more inclined to write about his crime, thereby
generating income with which to compensate the victim. To a significant degree,
the compensation and antiprofit imperatives are thus in tension.
n3 The Bouchard court struck down a statute resembling
New York's law in that it confiscated royalties from storytelling: i.e., "
'any publication, reenactment, dramatization, interview, depiction,
explanation, or expression through any medium of communication which is
undertaken for financial consideration. The term includes . . . a movie, book,
magazine or newspaper article, tape recording, still photograph, radio or
television program, live presentation, or reproduction or presentation of any
kind.' " (Bouchard, supra, 694 A.2d at p. 674, quoting definition of
"commercial exploitation" in Criminal Royalties Distribution Act of
1983, R.I. Gen. Laws § 12-25.1-2(3).)
n4 (See Learned, The Constitutionality of Cashing in
on Crime: Free Expression, Free Enterprise, and Not-Profit Conditions of
Probation (1995) 1 Suffolk J. Trial & Appellate Advoc. 79, fn. 10 (Learned)
[describing the $25 boxer shorts marketed by convicted call girl/panderer Heidi
Fleiss].)
n5 (See Rolling v. State ex rel. Butterworth (Fla.
Dist.Ct.App. 1999) 741 So. 2d 627.)
n6 (See Learned, supra, 1 Suffolk J. Trial &
Appellate Advoc. at p. 79, fn. 4 [describing sale of serial killer Jeffrey
Dahmer's household goods].)
n7 Some states seizing profits do not expressly cover
the fruits of criminal notoriety, instead defining as profits "any
property obtained through or income generated from the commission of a crime;
any property obtained by or income generated from the sale, conversion or
exchange of proceeds of a crime, including any gain realized by such a sale,
conversion or exchange; and any property that the offender obtained by
committing the crime or 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, as well as any property obtained by or income generated from the sale,
conversion or exchange of the property and any gain realized by such a sale,
conversion or exchange." ( Me. Rev. Stat. Ann. tit. 14, § 752-E; see also
Colo. Rev. Stat. Ann. § 24-4.1-201; N.Y. Crime Victims Board Law § 632-a; N.D.
Cent. Code § 32-07.1-01; W. Va. Code § 14-2B-3; Wyo. Stat. Ann. § 1-40-302.) It
is not evident whether proceeds from writings about subjects unrelated to the
crime would qualify as "income generated as a result of having committed
the crime." ( Me. Rev. Stat. Ann. tit. 14, § 752-E.)
n8 Statutes
that exclude from coverage works about topics unrelated to the crime would face
an even stronger challenge, as the topic (content) would determine whether the
state seized the royalties.
Click the back button to
return to the publication.