Wising Up: 'Son of Sam' Laws and the Speech and Press Clauses

61 Pages Posted: 22 Oct 2011

See all articles by Garrett Epps

Garrett Epps

University of Baltimore School of Law

Date Written: January 1, 1992

Abstract

"Son of Sam" laws aim to compensate victims of crime by awarding them the income earned when the criminals who injured them sell the stories of their illegal exploits to the media. The prevalence of these statutes, which forty-three states and the federal government have enacted, reflects overwhelming popular approval of their underlying policy: "the victim must be more important than the criminal. "The broad reach of "Son of Sam" provisions, however, raises the question whether this well-meant social legislation impermissibly burdens constitutionally protected rights of free expression.

In this Article, Garrett Epps relates the tale of New York mobster Henry Hill, the writing of his autobiographical book Wiseguy, and the litigation it spawned. The Hill saga illustrates the conflict between preventing criminals from profiting at the expense of their victims and protecting the First Amendment rights of criminal authors. Mr. Epps first surveys the breadth of "Son of Sam" statutes, identifying the complex issues of free speech and press they create. He then recounts the history of the Wiseguy case, pointing out the confused approaches that state and lower federal courts have taken when analyzing the constitutionality of "Son of Sam" statutes. Mr. Epps resolves this confusion by noting that "Son of Sam" laws are targeted at the content of expressive activity, and therefore are subject to the strict-scrutiny analysis required by Supreme Court precedent. He asserts that although the sweeping "Son of Sam" statutes further a legitimate governmental interest in compensating victims of crime, they are not narrowly tailored to achieve that goal because they do not attach to a criminal's assets generally, but only to the proceeds from his literary ventures. Mr. Epps argues further that, even if "Son of Sam" laws are not unconstitutional per se, the overbreadth of many such statutes violates the Speech and Press Clauses. In particular, he contends that sequestering the proceeds of publishers and others who contract with criminal authors constitutes both a prior restraint and a licensing of publishers in violation of the First Amendment. Mr. Epps concludes that the rights of even criminal authors are firmly rooted in the Constitution. He thus calls for a "wising up" with regard to the constitutional issues raised by the Wiseguy case and for the striking down of "Son of Sam" laws as unjustifiable restrictions on free speech and a free press.

Keywords: Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board, Simon & Schuster v. Fischetti, Henry Hill, Wiseguy, Crime, Criminals, Criminal Law, Constitutional Law, Organized Crime, Victim Compensation, New York, First Amendment, Fourteenth Amendment

JEL Classification: K19, K29, K39, L82

Suggested Citation

Epps, Garrett, Wising Up: 'Son of Sam' Laws and the Speech and Press Clauses (January 1, 1992). North Carolina Law Review, Vol. 70, No. 2, pp. 493-552, January 1992, Available at SSRN: https://ssrn.com/abstract=1947477 or http://dx.doi.org/10.2139/ssrn.1947477

Garrett Epps (Contact Author)

University of Baltimore School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States

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