Simon and Schuster, Inc. v. Members of the New York State Crime Victims Board

502 U.S. 105

Case Year: 1991

Case Ruling: 8-0, Reversed

Opinion Justice: O'Connor

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Blackmun, Kennedy, Rehnquist, Scalia, Souter, Stevens, White


1st Concurring Opinion

Author: Blackmun


1st Dissenting Opinion



2nd Concurring Opinion

Author: Kennedy


2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


During 1977 a serial killer popularly known as the Son of Sam terrorized New York. After an extensive investigation, police arrested David Berkowitz for the murders. To keep individuals like Berkowitz from profiting from their crimes by participating in book or movie projects, the state of New York passed what became known as the Son of Sam law. The law required any entity contracting with an accused or convicted person for a depiction of a crime to submit a copy of the contract to the state crime victims board. The law further stipulated that any and all income from such projects be deposited with the board, which would hold these funds in escrow for five years. After five years, the money would be used to pay any civil damage claims filed by the victims of the crimes. If no additional civil claims were pending at the end of that period, the board would turn the remaining funds over to the party who had deposited it.

The proceeding case began in 1986, when the board became aware of a book contract between Simon & Schuster and organized crime figure Henry Hill. At the time Hill was in the federal witness protection program after spending approximately twenty-five years as a gangster before turning state's witness. Hill's biography, Wiseguy: Life in a Mafia Family, enjoyed critical and commercial acclaim. More than one million copies of the book were printed within the first two years of its publication, and a successful motion picture, Goodfellas, was based on the story. After examining the book and the contract, the board concluded that the project was covered by the Son of Sam law and ordered all proceeds to be turned over and held in escrow to compensate the victims of Hill's crimes. Simon & Schuster filed suit to have the Son of Sam law declared unconstitutional as a violation of the First Amendment.



... A statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech.... As we emphasized in invalidating a content-based magazine tax, "official scrutiny of the content of publications as the basis for imposing a tax is entirely incompatible with the First Amendment's guarantee of freedom of the press." Arkansas Writers' Project, Inc. v. Ragland (1987).

This is a notion so engrained in our First Amendment jurisprudence that last Term we found it so "obvious" as to not require explanation. Leathers [ v. Medlock, 1991]. It is but one manifestation of a far broader principle: "Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment."... In the context of financial regulation, it bears repeating ... 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. The First Amendment presumptively places this sort of discrimination beyond the power of the Government. "'The constitutional right of free expression is ... intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us ... in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.'" ... Cohen v. California (1971).

The Son of Sam law is such a content-based statute. It 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. Whether the First Amendment "speaker" is considered to be Henry Hill, whose income the statute places in 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.

The Board tries unsuccessfully to distinguish the Son of Sam law from the discriminatory tax at issue in Arkansas Writers' Project. While the Son of Sam law escrows all of the speaker's speech-derived income for at least five years, rather than taxing a percentage of it outright, this difference can hardly serve as the basis for disparate treatment under the First Amendment. Both forms of financial burden operate as disincentives to speak; indeed, in many cases it will be impossible to discern in advance which type of regulation will be more costly to the speaker.

The Board next argues that discriminatory financial treatment is suspect under the First Amendment only when the legislature intends to suppress certain ideas. This assertion is incorrect; our cases have consistently held that "[i]llicit legislative intent is not the sine qua non of a violation of the First Amendment." Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue (1983). Simon & Schuster need adduce "no evidence of an improper censorial motive."... As we concluded in Minneapolis Star, "[w]e have long recognized that even regulations aimed at proper governmental concerns can restrict unduly the exercise of rights protected by the First Amendment."...

The Son of Sam law establishes a financial disincentive to create or publish works with a particular content. In order to justify such differential treatment, "the State must show that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end."...

The Board disclaims, as it must, any state interest in suppressing descriptions of crime out of solicitude for the sensibilities of readers.... As we have often had occasion to repeat, "'[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection.'" Hustler Magazine, Inc. v. Falwel (1988).... "'If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.'" United States v. Eichman (1990) (quoting Texas v. Johnson(1989)). The Board thus does not assert any interest in limiting whatever anguish Henry Hill's victims may suffer from reliving their victimization.

There can be little doubt, on the other hand, that the State has a compelling interest in ensuring that victims of crime are compensated by those who harm them. Every State has a body of tort law serving exactly this interest. The State's interest in preventing wrongdoers from dissipating their assets before victims can recover explains the existence of the State's statutory provisions for prejudgment remedies and orders of restitution....

The State likewise has an undisputed compelling interest in ensuring that criminals do not profit from their crimes....

The Board attempts to define the State's interest more narrowly, as ensuring that criminals do not profit from storytelling about their crimes before their victims have a meaningful opportunity to be compensated for their injuries.... Here the Board is on far shakier ground. The Board cannot explain 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. Nor can the Board offer any justification for a distinction between this expressive activity and any other activity in connection with its interest in transferring the fruits of crime from criminals to their victims. Thus even if the State can be said to have an interest in classifying a criminal's assets in this manner, that interest is hardly compelling.

We have rejected similar assertions of a compelling interest in the past. In ... Minneapolis Star, we observed that while the State certainly has an important interest in raising revenue through taxation, that interest hardly justified selective taxation of the press, as it was completely unrelated to a press/non-press distinction.... The distinction drawn by the Son of Sam law has nothing to do with the State's interest in transferring the proceeds of crime from criminals to their victims.

Like the government entities in the above cases, the Board has taken the effect of the statute and posited that effect as the State's interest. If accepted, this sort of circular defense can sidestep judicial review of almost any statute, because it makes all statutes look narrowly tailored. As Judge Newman pointed out in his dissent from the opinion of the Court of Appeals, such an argument "eliminates the entire inquiry concerning the validity of content-based discriminations. Every content-based discrimination could be upheld by simply observing that the state is anxious to regulate the designated category of speech."...

In short, 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. We must therefore determine whether the Son of Sam law is narrowly tailored to advance the former, not the latter, objective.

As a means of ensuring that victims are compensated from the proceeds of crime, the Son of Sam law is significantly overinclusive. As counsel for the Board conceded at oral argument, 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.... In addition, 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....

These two provisions 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 Biography 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 vineyard.... 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 protest against nuclear weapons. The argument that a statute like the Son of Sam law would prevent publication ofall 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....

The Federal Government and many of the States have enacted statutes designed to serve purposes similar to that served by the Son of Sam law. Some of these statutes may be quite different from New York's, and we have no occasion to determine the constitutionality of these other laws. We conclude simply that in the Son of Sam law, New York has singled out speech on a particular subject for a financial burden that it places on no other speech and no other income. The State's interest in compensating victims from the fruits of crime is a compelling one, but the Son of Sam law is not narrowly tailored to advance that objective. As a result, the statute is inconsistent with the First Amendment.

The judgment of the Court of Appeals is accordingly