*1 S080284.Feb. 2002.] [No. Petitioner, KEENAN, v.
BARRY COUNTY, Respondent; OF LOS ANGELES COURT THE SUPERIOR JR., SINATA, in Interest. Real Party FRANK
Counsel Rohde & and F. Rohde for Petitioner. Victoroff Stephen ACLU Dilan Peter J. and Mark D. Rosenbaum for A. Esper; Eliasberg Foundation of Southern as Amicus Curiae on behalf of Petitioner. California Weil, Rich, Bloom, Gotshal & R. Bruce Jonathan Heather R. Manges, Goldstein, Josh A. Krevitt and J. Cox for The Association Christopher Publishers, Inc., American American Booksellers Foundation for Free America, Inc., American Publishers of PEN Magazine Expression, Center as Amici Curiae on behalf of Petitioner.
No appearance Respondent. Steelman,
Corbett & Richard and Mark M. Monachino for Real B. Specter in Interest. Party Frank, General, Chief Assistant Attorney
Bill Richard M. Lockyer, Attorney General, Komblum, General, Carole Ritts Assistant Peter K. Shack Attorney General, as Amici Curiae on behalf and Kelvin C. Gong, Attorneys Deputy of Real in Interest. Party
Opinion “Son of Sam law” BAXTER, We confrontclaim California’s J. as violates constitutional facially protections speech appropriating, victims, to a felon from for crime all monies due convicted compensation conclude that materials that include the of the crime. We these of the California statute are invalid under both the provisions facially free clause of the First Amendment to the federal Constitution1 as speech Amendment, to the states the Fourteenth and the applied through liberty I, 2, (art. clause of the California Constitution (a)).2 § The California law was first enacted in Civil Code section 1983, 1016, 2, 1986, (Stats. 2224.1.3 3581-3584.) ch. In the law was pp. § 1986, 820, 7, 8, (Stats. renumbered as section 2225 2730-2733), ch. pp. §§ 1992, 178, and it has since been amended on (see several occasions Stats. ch. 882; 556, 1, 2823; 262, 1; Stats. ch. p. Stats. ch. Stats. § § § effect, 2). ch. As the law seeks to currently prevent felon, convicted or a the felon’s crimes for finan- profiteer, exploiting cial while victims of crime gain go uncompensated. statute,
One of the California in effect since the prong law’s inception, trust, an in favor of imposes involuntary damaged crime uncompensated *4 “beneficiar[ies],” victims as on a convicted felon’s from “proceeds” expres- films, (books, articles, sive “materials” video and magazine newspaper sound radio and television and live recordings, appearances, presentations) that “include or are based on” the of a for which the felon was “story” felony convicted, where the materials mention the except felony only “passing , 2225, (§ . . . as in a footnote or (a)(4), (6), (7), (9), subds. bibliography.” 2224.1, (b)(1); 1983, (a)(4), (6), (7), (b), see former subds. (9), Stats. ch. § 1016, 2, convenience, 3581.) For we sometimes hereafter refer to this § statute, of the materials that portion governing proceeds crime, 2225, include the of the its section by operative provision, (b)(1) (section subdivision 2225(b)(1)).
More recent amendments to the California statute attack the financial second, 1994, of crime from a exploitation different Since distinctly angle. the law’s trust have also received involuntary provisions applied “profits” felon, or his or her from the sale or transfer of by representative, or the value of “is enhanced “thing” “right,” notoriety which by gained from the commission of a for which a convicted felon was con- felony 2225, added; id., (§ (a)(10), (b)(2).) victed.” subd. italics see also subd. In 2000, extended, trust were further with limited involuntary provisions i.e., of the who derive exceptions, “profiteer[s] felony,” “any person[s]” memorabilia, income or en- by selling values property, rights, things 2225, (§ (a)(3)(B), (10), hanced their subds. by felony-related notoriety. 1“Congress abridging speech, press shall make no law . . . the freedom of or of the . . . .” 2“Every person may freely speak, publish subjects, his or her on all write sentiments being responsible right. abridge liberty for the of this A abuse law not restrain or I, Const., (Cal. (a).) speech press.” or art. statutory 3All references are to the Code unless stated. Civil otherwise to this hereafter refer (b)(2).) prong As we sometimes necessary, statute, notoriety their felony-related sold for things governing profits (b)(2) (section value, subdivision its operative provision, 2225(b)(2)).4 similar held that a somewhat the United States Court
In Supreme v. (Simon & Inc. the First Amendment. York law violated New Bd. Members N. Y. State Crime Victims like Schuster).) somewhat (Simon L.Ed.2d In provisions 476] confiscated, for the 2225(b)(1), the statute at issue California’s section victims, a criminal due under contract with benefit of crime all monies was crime, of his or her to a “reenactment” of the or from the expression respect crime, film, broadcast, about the in a print, thoughts feelings personal or live format. recording, performance invalid, York the Simon & majority law Schuster
Finding facially content, statute, based on reasoned that the as a direct regulation must fall unless it satisfied a strict of constitutional The New scrutiny. level test, York law failed this said the because the state had although majority, crime interest in from the fruits of victims compensating the statute at issue to that was not tailored purpose. 501, 511-512].) supra, 502 U.S.
The most identified & Schuster majority flaw Simon clearly that the statute noted New York was overinclusive. two majority *5 in too for its which the New York law respects regulated speech broadly First, the to works in which one law compelling purpose. applied expressive Second, admitted crimes for which he or she had not been convicted. merely it confiscated all one made even works in which profits incidental or of his or her crimes for tangential mention past nonexploitative U.S. purposes. 2225(b)(1),
California’s section im similarly analogous provision, a content-based financial on Yet section poses penalty protected speech. 2225(b)(1), to strict like its New York fails satisfy scrutiny counterpart, it, too, contains the fundamen 2225(b)(1) because is overinclusive. Section criminal’s defect tal identified in Simon & reaches beyond from the from the crime or its to reach all income exploitation not, fact, below, challenge present this does to section 4As indicated detail case memorabilia, 2225(b)(2), profits from portion the distinct of the statute that confiscates things, rights felony-related notoriety We property, or sold for values enhanced their value. (See constitutionality clearly provision. do not of this severable Stats. therefore address 3.) ch. criminars on theme or if expression any subject, crime is included. law, 2225(b)(1), unlike the New York
Though applies felonies, mere convicted of and states an persons actually exemption (id., mention of the as in a footnote or “passing felony, bibliography” (a)(7)), these differences do not cure the California statute’s constitutional construction, flaw. reasonable the California statute is still calculated By to confiscate all income from a wide works range protected expressive felons, themes, on a convicted wide and because variety subjects simply those works include substantial accounts of the felonies. prior conclude,
Because we to the Court of that section contrary Appeal, invalid, 2225(b)(1) is we will reverse the of the Court of judgment Appeal.
Facts 8, 1998, Sinatra, (Sinatra, Jr.), On Frank Jr. son of late July singer, filed a in Los Court. Named as defendants were Angeles complaint Superior Keenan, Amsler, Irwin, John Peter Columbia Pictures Barry Joseph Gilstrap, Entertainment, Times, (a Inc.), (New division of Pictures and Inc. Sony Times). here,
As as follows: In Keenan and alleged pertinent complaint Amsler, Irwin, Sinatra, Jr., to a with acting pursuant conspiracy kidnapped from his Nevada hotel room and drove him to Los where he was Angeles, Sinatra, Jr., held until his father ransom. his suffered During paid captivity, loss, Keenan, Amsler, economic and emotional distress. physical suffering, tried, offenses, later Irwin were convicted apprehended, felony arrests, incarcerated under California their law.5 Following kidnappers statements, false, Sinatra, Jr., made media since admitted to be had in his own to extract from his father. These money conspired kidnapping Sinatra, statements caused further Jr.’s business and defamatory damage reputation. *6 1998, Keenan and one or both
The further In alleged: January complaint with or with New Times of New accomplices arranged Gilstrap, (publisher Times Los a tabloid for to interview Keenan Angeles, magazine), Gilstrap accompanying subsequent 5In a and his motion for a points memorandum of authorities Sinatra, Jr., injunction, alleged kidnappers preliminary sustained convictions federal 2, 371, (see 875(a), 1201,1202) penitentiary, 18 U.S.C. and served their time in the federal §§ they for of section because were qualify purposes but nonetheless as “convicted felons” felonies, statutes, by as defined either California or United States that were convicted (2).) (§ (a)(1), committed in California. subd. for sale to a story print, was to produce The purpose about kidnapping. broadcast, kidnapping Monies derived exploiting and film media. Times, An and the kidnappers. New among be Gilstrap, would story split Sinatra, in a Janu- authored by Gilstrap, appeared entitled Snatching article and late January Los In issue of New Times Angeles. ary thereafter, Pictures had bought that Columbia other magazines reported $1.5 million. In February to to Sinatra Snatching up motion rights picture Sinatra, Jr., on Columbia Pictures made demand citing Times as the and New and from Gilstrap to withhold from kidnappers, or due such monies otherwise persons any “representatives,” kidnappers’ do so refused to Columbia Pictures the motion rights. entities for picture a court order. without to the all monies due that under section asserted complaint Times, for and New prepa- or to their Gilstrap “representatives”
kidnappers, Sinatra, Jr.’s, sale of the rights for sale of the story kidnapping, ration on the or were based story, or the sale of materials that included to the story, defined (a)(9) and as defined subdivision “profits” were “proceeds” an trust in favor (a)(10), involuntary and thus to subject subdivision were Sinatra, Jr., (id., (a)(4)(A)). The complaint a statutory “beneficiary” defendants, Pictures and New that the Columbia an order sought particularly Sinatra, Times, and in trust for hold such and future present Columbia Pictures and New (1) It also an to Jr. sought injunction prevent defendant, other Times from such and profits any paying Jr., Sinatra, to the extent of be made instead to that all such payments require alternative, or, court for distribution for in the to the his damages superior victims of the the benefit kidnapping. Sinatra, Jr., 5, 1998, Columbia after a at which hearing
On August Pictures, court issued a Times the trial preliminary New appeared, action, Pictures, Columbia during pendency injunction prohibiting Keenan, Amsler, Irwin, or their representatives monies paying to the rights connection with the motion picture assigns Sinatra, Jr.’s, kidnapping.6 19, 1998, on filing, in the action by Keenan first
On November
appeared
time, Keenan
to the
At the same
his
behalf
a demurrer
complaint.
own
only,
asserted, among
The demurrer
moved to dissolve the
injunction.
preliminary
clauses
under the
that section 2225
invalid
facially
other
things,
Sinatra,
Jr.,
sought
similar
had
injunction,
a preliminary
6In his written motion for
5, 1998, hearing
August
on
prior to the
injunctive
against
Gilstrap,
Times and
but
relief
motion, Sinatra, Jr.,
injunctive
time with the
proceed
stipulated
he would
portion
application.
*7
of his
of the federal and state Constitutions. Keenan’s constitutional attack was
based
on a
solely
between
2225 and the New York law
comparison
struck down in
Simon
In this Keenan noted that because the regard, California like its criminal’s New York income from targeted counterpart, telling story his the content of strict and was penalized speech, required scrutiny, not to crime. tailored crime victims from the narrowly compensate profits that, Keenan the standards set forth in Simon & urged by underinclusive, U.S. California statute was both because it income, reached not other sources of only activity, crime-related expressive overinclusive, and because it all works convicted penalized by felons included more which than mention of their crimes. passing Sinatra, Jr.,
In asserted that the Simon & Schuster had response, majority Sinatra, Jr., found York’s law overinclusive. that section only argued 2225 solves the identified overinclusiveness in Simon & Schuster problem “convicted” felons and materials that covering only exempting expressive Moreover, contended, contain mention of he “passing felony.” [the] section 2225 is not underinclusive because it is drawn to ensure precisely that victims of crime are before felon compensated telling of their victimization. 22, 1998,
On December the trial court issued an order overruling [Sinatra, Jr.’s,] Keenan’s demurrer “for the reasons stated in opposition order, In the same the court denied Keenan’s motion to papers.” dissolve its made when the preliminary injunction, reiterating findings, injunction that “section unconstitutional as written . . . granted, [is] . . . was drafted to overcome the effects over-inclusive [and] found Court” in Simon & Schuster. Supreme 31, 1998,
On December Keenan filed in the Court of the instant Appeal for mandate or other relief. The a writ petition appropriate petition requested court to vacate its orders his demurrer and directing overruling superior to enter a new order granting injunction, sustaining preliminary amend, demurrer without leave to dissolve the injunction. preliminary 14, 1999, On the Court of in the trial January Appeal stayed proceedings court, ordered the for oral on the merits of the parties appear argument and called for the of a return and filing petition, reply.7 court, briefs in the Court of like those in the trial parties’ Appeal, focused on between California’s Son of Sam entirely comparisons law writ, procedure equivalent 7We deem this to an order for the issuance of an alternative Proc., (But parties proceeded assumption. and the under that see Code 1086- §§ have Civ. *8 Keenan Again York addressed in Simon & Schuster. the New counterpart out for activity regulation the California statute singled claimed expressive content, and was both overinclusive on the basis of strict scrutiny, required Sinatra, Jr., urged the standards set in that case. Again and underinclusive & identified in Simon that section 2225 solved the overinclusiveness problem because, statute, unlike the York California’s law applied Schuster made mere to convicted felons and materials which exempted expressive mention” of the felony. “passing relief, other things,
The Court of denied writ concluding, among Appeal constitutional of In this rights that section 2225 does not infringe speech. Sinatra, Jr.’s, that section the Court of regard, arguments Appeal accepted identified in Simon & 2225 lacks defects overbreadth because it is limited to felons and does not confiscate a felon’s convicted that contain mere materials mention” “passing the felony.
The Court of declined to decide the California statute was whether Appeal because, The reasoned it need not do so underinclusive. court impermissibly insistence, to Keenan’s had not found Simon & Schuster contrary expressly the New York statute Because Keenan “does not otherwise underinclusive. court, underinclusiveness,” elaborate on the issue since said “[a]nd attack on 2225 is to those considered in limited issues Simon [his] Schuster, our discussion of the statute is limited.” We similarly granted review.8 We now reverse.
Discussion 1970’s, In the late New York terrorized serial killer David was Berkowitz, known as the Son of Sam. the time Berkowitz was popularly By enhanced case about the had value of apprehended, rights publicity other his New York’s Berkowitz and story. Legislature sought prevent notorious criminals from the tales of their sensational exploiting profit statute, crimes their victims dis- resulting while went uncompensated. below, dubbed the “Son of Sam cussed in detail law.” greater {Simon Fasteners, 1087; Cal.Rptr. Palma v. Inc. Cal.3d 177-178 U.S. Industrial 681 P.2d court, several amicus curiae briefs parties’ 8In addition to the briefs on merits this General) Attorney (Attorney an have also been filed. The General of California has filed Sinatra, Keenan, support support amicus curiae brief in Jr. In an amicus curiae brief has (ACLU), joint of Southern California and a been filed on behalf of ACLU Foundation Publishers, Inc., on behalf of the Association of American amicus curiae brief has been filed America, Expression, Magazine Publishers of The American Booksellers Foundation for Free Inc., and Pen American Center. 504-505].) In *9 states, California, the United States and had some form over 40 of including (See Son of Sam law. A a Kealy, Proposal Notoriety- New Massachusetts for 1, 22; (2000) Law: The Grandson Sam. L.Rev. W. New Eng. for-Profit Comment, Son Sam Laws: Free or Killer Killing Speech Promoting Prof 949, 953, 48, 49.)9 its? 20 Whittier L.Rev. & fns. version, here, California’s that all and future pertinent provides past 2225, (§ (b)(1)) (a)(9), subds. or to a “convicted “proceeds” owing paid (id., (a)(1), (b)(1)) felon” the subds. from sale of “materials”10or (§ (a)(6), (b)(1)) the thereto subds. are to an rights subject involuntary (§ 2225(b)(1)) trust for “beneficiaries” if the materials “include designated (ibid.). or are based on the A “convicted felon” is one story” felony , (id., “convicted . . . or found not reason of subd. guilty by insanity” (a)(1)) of a as defined California or United States statute” felony, by “any (id., (id., (a)(2)), (a)(1)). committed in California subd. subd. means “a or reenactment of a but “shall “Story” depiction, portrayal, felony” not be taken to mean a mention of the as in footnote or passing felony, (Id., (a)(7).) subd. A is one who has a legal bibliography.” “beneficiary” felon, claim the convicted or death against wrongful including survivorship claim, mental, loss, for or emotional or caused physical, injury, pecuniary (Id., (a)(4).) the subd. felony. conviction,
The trust continues for five from the or from the years felon, to the covered whichever is later. payment any proceeds restitution, (§ 2225(b)(1).) The felon’s for restitution and unpaid obligations fines, and crime-related fees first the have penalty attorney priority against (Id., (d).) trust. subd. Within the trust beneficiaries five-year may period, (id., actions to their in the funds recover interests bring respective remaining (c)(1),(2)), subd. and the of such an action extends the trust filing period (id., (b)(1)). until such actions are concluded subd. Each beneficiary’s share, available, his or her interest is an funds given equitable re- recoverable from the less damages any compensation already (id., (a)(5), (d)). or from the Fund subds. ceived from felon Restitution to the be ordered from received already Payment beneficiary may himself; 9“Ironically, to the applied statute was never Son of Sam David [New York] trial, applied only at that time to incompetent Berkowitz was found to stand the statute actually According to York State criminals who had been convicted. [Citation.] [New Board, voluntarily paid royalties from the book Crime Berkowitz his share of Victims] Sam, published in to his victims or their estates. Son of [Citation.]” 501, 506].) U.S. “books, (a)(6) magazine newspaper defines “materials” as or 10Section subdivision films, articles, movies, recordings, appearances sound or on television videotapes, interviews stations, presentations kind.” and radio live in the future. be received and, felon as necessary, (c)(3).) subd. {Id., of covered the felon’s receipt the conviction or one after
Within year General (e)(2)), (§ Attorney subd. is later whichever proceeds, on covered proceeds, an trust” “express also an action bring impose also {id., (e)(1); see subd. in a bank their depositary thus requiring placement that there are than not” id., it is “more (e)(3)), if he probable subd. proves (e)(3)). {id., felony entitled to beneficiaries compensation circum- General Attorney may, appropriate beneficiary Either *10 stances, subject waste of proceeds to injunction prevent obtain a preliminary (f)(1), (2).) {Id., subd. trust. involuntary the end of trust, at not claimed by beneficiary to the but
Funds subject Instead, must be they to the felon’s ownership. the trust do not revert period, Fund. to the Restitution for allocation transferred to the Controller id., (e)(3).) (§ 2225(b)(1); see also above, struck down Court indicated the United States Supreme
As
Schuster,
We
Our reasoning requires, that if any person The York statute there at issue provided Schuster. New under contract in this state” was due money “accused or convicted of a crime “ movie, book, of a “reenactment” of the crime ‘by way with to a respect record, or television article, radio recording, magazine tape phonograph ” kind,’ or for live entertainment of any expressions presentation, [or] be the contract must reported or about feelings thoughts person’s Board), and (New Board York York State Crime Victims in an York Board to be be over to the New placed due must money paid who, account, of victims within five years for the benefit escrow primarily thereafter, (Simon & the criminal. against won money judgments 504-505]; Exec. Law see N.Y. 632-a(l), (4) § 1982 & The (McKinney statute defined “con supp.).) victed” to include those persons who had “voluntarily intelligently admitted” crimes for which were not they (Simon prosecuted. omitted; 505], S.Ct. at p. italics N.Y. Exec. Law 632-a(10)(b).)11 effect, Schuster, Inc.,
While the law was in Simon & contracted to finance Hill, a book publish a former Henry turned gangster government witness. book would tell the of Hill’s crime career. organized After considerable coauthor, investment of time and effort Hill and his book, Wiseguy, 1986. Its colorful published account of Hill’s Mafia, criminal many and of life inside the met exploits, with commercial and critical success.
When the New York Board learned of Wiseguy’s publication, invoked book, the Son of Sam After law. and Simon & reviewing Schuster’s Hill, contract with the New York Board determined that all monies paid owed to Hill under the contract were to the statute’s subject escrow provi- sions. Simon & Schuster was ordered to the New York Board pay all future *11 Hill, sums due to and Hill was ordered to the New York Board all pay sums suit, remitted to already him. Simon & Schuster filed a federal a seeking declaration, 1983, under 42 United States Code section that New York law was invalid under facially the First Amendment. The federal district court the New York granted Board’s motion for and a summary judgment, Schuster, divided court of (Simon 105, affirmed. & appeals 502 supra, U.S. 501, 115 507-508].) S.Ct. [112
The United States Court Supreme concluded that the unanimously judg ment of the court of must be reversed.12 Six appeals an justices, opinion O’Connor, authored Justice first noted that statute is presumptively “[a] inconsistent with the First Amendment if it a financial burden on imposes Medlock, because of the content speakers of their Leathers v. speech. 499 439, 1438, 1443-1444, U. S. 447 S.Ct. (1991). 113 L.Ed.2d [111 . . . 494] . . .In the context of financial regulation, bears as we did in [¶] repeating, law, 2225(b)(1), 11The New York like section priorities against established of claims account, including the expenses (Simon criminal’s valid claim for legal representation. & Schuster, 105, 501, supra, 505]; 632-a(7), 502 U.S. 110 (8), S.Ct. see N.Y. Exec. [112 Law § (11).) 2225(b)(1), Unlike section general New York law allowed creditors of the criminal Schuster, (Simon to reach impounded 505]; funds supra, p. & at p. 110 S.Ct. at see [112 632-a(11)(c)), N.Y. Exec. provided Law but against that if no claims the account were pending five-year at the end period, remaining funds in the account be repaid would Schuster, (Simon supra, 504-505]; criminal & p. at at pp. 109 S.Ct. see N.Y. Exec. [112 632-a(4)). Law § participate. 12Justice Thomas did not
425 burdens on Leathers, content-based ability impose that the government’s certain drive effectively that the government may raises the speech specter S., at S.Ct. U. 448-449 from the marketplace. [111 ideas or viewpoints this sort Amendment places The First presumptively at pp. 1444-1445]. Schuster, (Simon of the government.” discrimination beyond power 501, 508].) S.Ct. 502 U.S. supra, [112 invalid content-based a York’s Son of Sam law was presumptively out income derived because singles on said the majority, burden speech, “[i]t on no other in- the State for a burden activity places from expressive content,” come, “plainly is directed at works with only specified ... financial of a content.” disincentive on particular imposes 508].) Because S.Ct. (Simon & 502 U.S. [112 content, con- the basis of its the majority the statute on penalized speech “ i.e., cluded, ‘the State “strict” constitutional scrutiny, the law must survive state interest that is to serve compelling must show its regulation necessary (Id., at that end.’ p. and is drawn to achieve [Citation.]” interest in had no the state majority compelling emphasized to a crimi- emotional readers and victims shielding negative responses observed, Indeed, misdeeds. the majority nal’s his retelling public First at the core of the of offensive and ideas is disagreeable protection Amendment. hand, the states do have
509-510].) On the other majority agreed, who of crime are those interests in victims “ensuring compensated their assets (ibid.), them” from dissipating harm “preventing wrongdoers do not (ibid.), can that criminals profit before victims recover” “ensuring *12 the 510]), crimes” and (id., transferring their at S.Ct. at from p. p. [112 (id., at of crime from the criminals to their victims 119-120 pp. fruits [112 Moreover, it could “assume 510-511]). the concluded S.Ct. at majority pp. crimes, about his the from a criminal’s book without deciding” royalties it, fruits of the form of income at issue in the case before “represent^ 510].) at (Id., crime.” at S.Ct. p. p. [112 observed, course, defend its statute York could not
Of the New majority of in terms of the actual operation the interest at stake by narrowly defining criminals interest in York claimed a preventing its law. New compelling crimes before their about their from of storytelling retaining profits noted, However, the state could not were majority victims compensated. crime from in victims it had a interest greater compensating show why assets. “Nor than from the criminal’s other of such storytelling [could activity any between this ... a distinction justif[y] state] other in connection with its interest in the fruits of crime activity transferring (Simon to their victims.” criminals 119-120 short,” concluded, 510].) S.Ct. “In “the State has a majority [112 crime, interest in from the fruits of the but victims compensating little if interest in such to the any limiting compensation (Id,., about the at crime.” wrongdoer’s speech pp. 511].) reasoned, it must examine whether New York’s
Accordingly, majority former, latter, statute was tailored to advance the not the “narrowly objec- tive.” supra, 502 U.S. tailored, determined, York statute not so for majority “[a]s means of that victims are of ensuring compensated
crime, (Ibid., the Son of Sam law is italics overinclusive.” significantly view, added.) In the two factors in illustrated the majority’s particular First, statute’s overbreadth. “the statute to works on any subject, applies the author’s or recollections about his they thoughts provided express crime, (Ibid., italics in however tangentially incidentally. [Citation.]” Second, “the broad definition of convicted of a statute’s original.) ‘person crime’ author admits in enables Board to escrow the income of who his committed a whether or not the author was ever work having (Ibid.) accused or convicted. actually [Citation.]” “These two said the “combine to provisions,” majority, encompass number of works. Had the Son of Sam law been in potentially very large effect at the time and it would have escrowed place publication, payment X, as The Malcolm which describes crimes such works Autobiography committed the civil leader before he became a Civil figure; by rights public Disobedience, in his taxes and which Thoreau refusal acknowledges pay recalls his and even the Confessions of Saint Augustine, experience jail; and the carnal which the author laments foulness ‘my past corruptions soul,’ one instance of involved the theft of from a neigh- which my pears Publishers, American Amicus Association of boring [orchard]. [Citations.] Inc., has submitted a hundreds of works listing sobering bibliography contain American which many descriptions prisoners ex-prisoners, incarcerated, such the crimes for the authors were works including which Emma and Martin Luther Jr. A list of authors as Goldman King, prominent *13 be to the statute if written is whose would figures subject autobiographies The list could include Sir Walter who was Raleigh, not difficult to construct: Jackson, trial; Jesse convicted of treason after a conducted 1603 dubiously after to in for and arrest resisting attempting who was arrested 1963 trespass Carolina; Russell, who be at a lunch counter in North and Bertrand served in a sit-down at the of for age for seven 89 jailed days participating the Son of a like that statute The argument nuclear weapons. against protest is these works hyperbole—some of all of law would prevent publication Sam of Sam law the Son compensation—but been written without have would a criminal to not enable that does of literature a wide range reaches clearly (Simon & a victim remains uncompensated.” crime while from his profit omitted, 501, 511], fn. Schuster, 121-122 S.Ct. U.S. supra, [112 italics in original.) out “has law sum, singled York’s Son of Sam New said the majority,
In other on no financial that a burden places subject on a speech particular victims interest compensating income. State’s and no other speech one, law is not of Sam but Son of crime is a compelling from the fruits result, is a the statute that As to advance objective. tailored narrowly Schuster, U.S. (Simon & the First Amendment.” inconsistent with 512].) 123 [112 concurred Kennedy Blackmun Justices In separate opinions, underinclu York law was New Justice Blackmun opined judgment. overinclusive, so.” and “we should say sive as well as (conc. opn. 123-124 512-513] unconstitutional Blackmun, that a statute is J.).) Kennedy suggested Justice is neither defama which if it content speech se regulates specific per act, of some other nor an to a criminal impairment nor tantamount tory, action, calculated to nor an incitement to lawless nor right, constitutional the substantive prevent. imminent harm the state has power about an bring limits, these narrow beyond A the content regulates speech statute that it is be saved a finding Justice cannot said Kennedy, S.Ct. at (Id., at a state interest. pp. tailored to serve compelling (conc. J.).)13 of Kennedy, pp. opn. 512-514] Sinatra, Jr., first 2225(b)(1), distinguish
In his efforts
York’s,
statute,
is
unlike New
that California’s
argument
makes
cursory
The effort
content-based regulation
speech.
invalid
presumptively
at issue in Simon
York statute
2225(b)(1), like
must fail. Section
about
disincentive on
expression
a direct financial
places
confiscates
statute
targets
The California
explicitly
subject.
particular
articles,
films,
broad
books,
recordings,
a convicted felon’s proceeds
crime.
interviews,
of the felon’s
casts,
that include the story
or performances
(Bou
since Simon & Schuster.
has been invalidated
jurisdiction’s Son of Sam law
13One
670, 675-678.)
been
other states have
(R.I. 1997)
The laws in two
chard v. Price
A.2d
grounds other
than
decided on
challenged,
in those matters were
appeals
but
(See Rolling
ex rel. Butterworth
v. State
constitutionality
issue.
statutes
635;
A.2d
v. Price
1994)
While certain classes of speech—obscenity, some defama- fighting be tion—may subject because of their di- viewpoint-neutral regulation (see, R.A.V. v. St. Paul 377, nature rectly injurious (1992) e.g., 505 U.S. 2538, 3542-3547, 382-390 S.Ct. v. 305]; 120 L.Ed.2d Chaplinsky [112 568, Hampshire (1942) 766, 768-769, 315 U.S. S.Ct. 86 L.Ed. [62 1031]), discussions of crime have never been included in this limited category.14
Sinatra, Jr., asserts that laws
financial
on
do
imposing
penalties
speech
violate the First
necessarily
Amendment. He cites cases for the
principle
need not
government
subsidize the exercise of free
or other
speech
constitutional
v. Automobile Workers
Lyng
rights. (E.g.,
(1988)
Nor does it matter that New York’s law focused on media entities’ stories, contracts for crime while 2225(b)(1) section crime targets in the hands of the criminal himself. As Simon & Schuster noted with to the facts in that case: respect “Whether the First Amendment Hill, is considered to be ‘speaker’ whose income the statute in Henry places 14Concluding that the New regulation York’s Son of Sam a law was content-based noted, speech, majority Simon & Schuster passage, “singles a brief that the law out income expressive activity derived from places for burden the State no other on income.” Schuster, (Simon above, 508.) 502 U.S. As noted not; California’s Son of Sam law has a feature confiscating New York’s did besides statute, telling convicted felon’s story, income from his crime by California amendments adopted felon, after Simon & also confiscates earned a convicted or a memorabilia, profiteer, from the sale of property, things, rights for a value enhanced Thus, felony-related notoriety (§ 2225(b)(2).) their value'. it cannot be said that California’s law, whole, read aas burdens income speech as distinct from all other crime-related Attorney income. The urges General that this distinction between the California and New York statutes regulation means California law is not a speech. content-based We disagree. California’s effort to reach beyond storytell the fruits of crime those derived from underinclusive, ing might about the crime unconstitutionally bear on whether our statute is an However, issue we need not and do not language decide. we do not read this brief of Simon & Schuster to mean that escape regulation a statute can examination as a content-based speech merely by targeting, separate provisions, nonspeech income as well. There can be 2225(b)(1) no doubt itself meets the speech definition of a content-based regulation; directly solely focuses on income and “is directed specified works with content.”
429 Schuster, told, can & which he has or Simon escrow because of story criminals willing of those only about crime with the assistance books publish a least five the statute plainly imposes remuneration for at years, to forgo (Simon & a content.” on of particular financial disincentive only speech 501, Schuster, 105, 508].) “The government’s U.S. 116 S.Ct. 502 supra, [112 does on surely content-based financial disincentives to power impose Schuster, at 117 (Simon supra, & p. with the of the identity speaker” not vary statute, York 2225(b)(1), like the New 509]), at and section S.Ct. p. [112 works with publish disincentive to create or “establishes financial 509], at (Simon 118 S.Ct. supra, p. content” p. particular [112 added).15 italics content-based 2225(b)(1) regulation is thus a
Section suspect minimum, unless, such, it is at a As the section is unconstitutional speech. state interests. tailored to serve compelling 105, 501, 509-510]; Communications 502 U.S. 118 S.Ct. Sable [112 2836-2837, 115, 2829, Cal., 106 (1989) Inc. v. U.S. 126 S.Ct. FCC 492 [109 standard, what, if 93].) determine any, L.Ed.2d In this we must first applying 2225(b)(1) seeks to serve. such interests section terms, confiscates, 2225(b)(1) for the benefit of uncompen- its section By from due or to a convicted felon sated victims of sums owing It thus materials that include the story felony. appears expressive the “fruits” of one’s 2225(b)(1) of section is to assure purpose case, crimes— crimes—in this of those exploiting will be used to crime victims. compensate intent confirm this inference. When prede-
Statements
legislative
declared,
1983,
2225(b)(1)
the Legislature
cessor of section
was adopted
law,
rela-
felonies
for the
have
special
justification
“[v]ictims
are
of stories about those felonies which
sale
tionship
1983,
1016,
(Stats.
them.”
ch.
written
convicted
committing
persons
1,
3581.) It
recited that the new law “amplifies
supple-
further
[and]
p.
§
trustee,
for
2224
one an involuntary
ments
sections
[making
[Civil Code]
work,
the free
denying
an
a law
chill
15By
compensation for
creator,
right of the
reciprocal
First Amendment
speech rights of the author or
but also
(Va. Pharmacy Bd. v. Va. Consumer
protected
to receive
communications.
work’s audience
1822-1823,
1817,
346];
748,
(1976)
see
S.Ct.
48 L.Ed.2d
Council
425 U.S.
756 [96
Pacific
903, 907-908,
1,
(1986)
U.S.
8
S.Ct.
89
& Elec. Co. v. Public Util. Comm’n
[106
Gas
Powell, J.).)
chilling
of financial disincentives
(plur. opn. of
effect
L.Ed.2d 1]
454,
(1995)
Treasury Employees
again
[115
v.
513 U.S.
recognized
United States
1014-1015,
964],
congressional ban
down a
130 L.Ed.2d
where the court struck
S.Ct.
(See
speeches.
for
high-level government employees of honoraria
receipt by
on the
certain
1822-1823];
Bd.,
Mine
Pharmacy
pp.
S.Ct. at
pp.
Of
to be
tailored does not
“that there be
narrowly
no
require
alternative,
conceivable
but
that the
not ‘burden
regulation
substantially
more
than is
to further the
speech
inter
necessary
government’s legitimate
Trustees,
(Board
ests’
(1989)
State Univ. N.Y. v. Fox
492
[citation].”
469,
3028, 3034,
U.S.
478
S.Ct.
106 L.Ed.2d
We examine
[109
2225(b)(1)
whether section
meets this test.16
underinclusive,
Keenan
2225(b)(1)
is
urges
because
confis-
i.e.,
crimes,
cates
about one’s
profits
expressive activity,
storytelling
16Though
clearly
it elsewhere
concluded that New York’s Son of
a
Sam law was
content-
regulation
based
compelling
which must be
tailored to serve a
state
interest,
majority
the Simon & Schuster
also noted that
law is so
“[b]ecause
[New York]
overinclusive,” there was no need to address the New York Board’s claim that the statute was
(1989)
Against
content neutral under the test set forth in such cases
v. Rock
as Ward
Racism
2746,
Theatres,
Playtime
U.S.
491
781
S.Ct.
105 L.Ed.2d
and Renton v.
Inc.
[109
661]
Schuster,
(Simon
supra,
However, that the New York law was determined having *17 the court stated it need not decide whether law was the high expressly 105, 122, Schuster, fn.* (Simon underinclusive as well. 501, 511-512].) Keenan’s attack on the California Noting Schuster, on the instant Court statute was focused Simon & primarily to address the issue of underinclusiveness. Because refused similarly Appeal York’s, law, is overinclu- we hereafter conclude that California’s like New event, sive in we a similar course. any pursue
Indeed, conclusion that the New York statute was underinclusive any above, statute, the to California’s law. As noted California might apply York’s, unlike confiscate at least one additional does category memorabilia, sales of criminal’s crime-related those derived from profits, for a enhanced their crime-related by value property, things, rights case, (§ 2225(b)(2).) value. In the of this notoriety lacking posture briefs, in their need not further of the issue we by development parties statute, and do not decide the California which includes but reaches whether is underinclusive. beyond speech-related profits, however, 2225(b)(1), like the New We are that section persuaded, and therefore York law at issue in Simon & is overinclusive statute, 2225(b)(1) invalid. As did the New York section penalizes to transfer the fruits content of to an extent far beyond necessary speech their Even if the fruits of of crime from criminals to victims. uncompensated crimes, one’s include story crime royalties exploiting Instead, it confis 2225(b)(1) not confine itself to such income. section does on any all a felon’s or expression cates convicted mere of the felony, by theme or which includes subject story except below, based, (Ibid.) explained For reasons it was still “too overinclusive” to meet this test. 2225(b)(1). respect to section we reach a similar conclusion with disincentive, mention. this financial passing By 2225(b)(1), like its New York the creation and counterpart, discourages dissemination of a wide of ideas and range works which little have or no to relationship of one’s criminal misdeeds. exploitation In at least one trust respect, involuntary of section provision 2225(b)(1) more operates harshly materials that against expressive depict creator’s crimes than did the escrow past account the New provided York at issue statute, law in Simon & Schuster. Under the New York from a crime contract were to be turned over to the New York escrow, if, Board for but at the placement end of five no valid years, claims of the criminal’s victims or creditors were funds pending, remaining in the account were returned to the criminal.
U.S. 504-505]; 632-a(4).) see N.Y. Exec. Law contrast, 2225(b)(1), Under section entrusted amounts not to subject individual claims at the legitimate end of the trust are turned five-year period over to the Controller for allocation Restitution Fund.17
Sinatra, Jr., nonetheless that two features of section urges 2225(b)(1) cure First, overinclusiveness identified in Simon & Schuster. he problem notes, law, section 2225(b)(1), unlike New York’s applies only persons actually guilty (§ committed in (a)(1), this state. found felonies Thus, Sinatra, Jr., (2).) out, statute, York’s, California’s points unlike New *18 no that an presents danger innocent will be or that income person penalized, from an work will be expressive confiscated for inclusion of a simply past minor, offense that was or for which the work’s creator was never pros- Second, Sinatra, Jr., observes, ecuted. 2225(b)(1) section to applies only that, alone, suggests 17The ACLU for this reason an impermissibly statute is overbroad deterrent expression compensation, to creative give since it forces a felon to up convicted generally, speech-related income for the benefit of crime victims even after his own victims 2225(b)(1) compensated. have been appear Section does to an impose involuntary trust on the convicted felon’s materials include the of the and to years confiscate such after five generally, for the benefit of crime victims even if there never were specific against “beneficiaries” with claims the felon. impose In order to an “express trust” in a depositary, Attorney bank probable General must show it is “more (id., (e)(3)), than only not” that beneficiaries exist subd. beneficiary Attorney a or the preliminary injunction General obtain a prevent dissipation to waste or of entrusted funds (id., However, (f)(1)). hands, subd. the trust the proceeds character of in the felon’s and their Fund, ultimate forfeiture to the state’s Restitution do not appear depend on the actual uncompensated existence of victims of the felon’s crime. Attorney responds General that the a compelling using state has interest in of fruits victims, particular crime not compensate that crime’s direct but also as source of 2225(b)(1) generally. criminal restitution As conclude in opinion, we elsewhere this is event, overbroad in speech-related because it confiscates income on the basis of its content, discourages protected and thus speech, beyond degree necessary such far to reach the fruits of crime. one was for which felony include the of “story” materials that expressive as in a footnote convicted, mention of the felony, mere “passing exempts Sinatra, Jr., insists, restrictions, (Id., (a)(7).) These or bibliography.” statute, concern, York to the New with & Schuster's respect Simon negate though be confiscated work would that all from an expressive (Simon & or incidentally.” mentioned a offense only “tangentially work past Schuster, 502 U.S. illustrated Court In Supreme
We are not Simon persuaded. it encom- statute showing of the New York the overbroad sweep minor, or inciden- or mere “tangential[ offenses even unprosecuted ] passed crimes in a context. larger mention of past ]” tal read Simon & 511].) But we do not in narrowing which exhibited marginal that a statute suggesting Schuster muster. constitutional these would regards necessarily pass particular Instead, values of the First court’s concern was with essential discloses, the vice of the New As the court’s discussion Amendment. lengthy narrow York law that in order to serve a relatively interest—compen- segre- from the fruits of crime—the statute targeted, crime victims sating from, a wide discouraged, and confiscated all income and thus unduly gated, on themes and sub- containing works range protected speech interest, material of a certain content— because legitimate jects simply crimes—was reference to one’s included. past
Thus, convictions does not the California statute’s limitation to felony As Simon & Schuster suffice to avoid an overbroad infringement speech. clear, discuss his or her made one might motivated part compensation convictions, crimes, contexts many those that led to felony past including One mention might past connected to crime. directly exploitation warn from experience felonies as relevant to redemption; personal crime; encounter the criminal evaluate one’s with critically consequences *19 and busi- scandal and in government document system; corruption justice life; ness;18 an inside look at the describe the conditions of or provide prison criminal underworld. have little or nothing
Mention of one’s felonies in these contexts may past the state’s interest one’s crime for and thus with to do with exploiting profit, Yet the fruits of crime. section crime victims from compensating income, re- confiscates all whenever 2225(b)(1) entrusts and permanently theme, materials, ceived, or their subject, from all whatever expressive out, Publishers, Inc., governmental discussion of points American 18As the Association of (Gentile 501 U.S. State Bar Nevada at the core of the First Amendment. v. affairs is 2720, 2723-2725, 115 L.Ed.2d offenses, commercial that include a substantial of such appeal, description their nature and in the were committed.19 they whatever however long past convictions, Thus, 2225(b)(1) section is not even as so limited to felony tailored to achieve the interests it serve. purports above, As indicated the Simon & Schuster also found overbreadth majority in the New York statute because it confiscated works expressive crime, the author’s or recollections about his “express[ed] thoughts incidentally.” however or tangentially Sinatra, Jr., 511], added.) italics that the urges defect
California statute avoids this because expressive applies materials containing “story” felony—i.e., “depiction, portrayal, (§ (a)(7)), reenactment” the criminal subd. and because it or episode in a footnote or mere mention of as felony, expressly exempts “passing Thus, Sinatra, Jr., statute (ibid.). California suggests, bibliography” an work narrative detail about when applies only expressive provides convicted, creator and does not for which the work’s author or felony in the context mere of a conviction discourage acknowledgement felony prior of another subject. view,
The this that a as General echoes Attorney suggesting “story,” (a)(7), defined the section subdivision is “vivid” by depiction, Further, the ex- or reenactment. General Attorney suggests, portrayal, ..., mention in a footnote or is for “passing bibliography” emption (ibid., added), that the is illustrative given italics demonstrating example are and that other forms of mention” also only, exempt. “passing 2225(b)(1) do not us that section focuses with These convince arguments other leaving sufficient on fruits of while speech-related precision the overbreadth of the New income undisturbed. Simon & Schuster illustrated York statute that it reached even incidental tangential by observing crimes, but the New suggests mention of Simon & Schuster nothing past an York law could have cured its overinclusive effect simply by providing Moreover, or incidental references. Simon for tangential exemption nor that the federal Constitution allow might Schuster neither stated implied confiscation, victims, on behalf of crime of all proceeds any expressive account, account, of a includes a or even a vivid past work that descriptive crime committed the author. above, 2225(b)(1) involuntary “proceeds all imposes upon an trust 19As indicated materials that include the owing . . . received to” a convicted felon for (id., (a)(9)). imposes elapse no limit on the time that of the crime statute begins *20 are period of the The trust when receipt proceeds. between the crime and beneficiaries, continues, due, by of pending completion then as extended suits received felon, conviction, years payment of to the years
for five after the or five after (§ 2225(b)(1).) later.” “whichever is do the basic rationale Such demarcation lines with arbitrary comport of Simon & Schuster. A statute that confiscates all from works which than reference to the creator’s make more nondescriptive past passing, crimes still within its ambit a wide range protected speech, sweeps contexts, so the discussion of crime in and does discourages nonexploitative means not focused on crime. by recouping profits fruits of Indeed, Keenan, curiae, his amici that the joined by urges “passing mention” is so and unclear that it constitutes an imprecise exemption imper basis for the v. missibly vague (Grayned City censorship protected speech. 2294, 2299, (1972) 33 L.Ed.2d 408 U.S. of Rockford 222]; see also Reno v. American Civil Liberties Union 2329, 2345-2346, 138 L.Ed.2d We need not resolve issue, that, because are vagueness we reasonable by any persuaded the statute remains defi overinclusive. interpretation, Certainly statutory nition of includes and circum “story” substantial account facts conviction, stances of a which led to and the mention” past felony “passing would not safe harbor to materials such exemption provide containing substantial account. But there are contexts in which multiple materials, with diverse and themes unrelated to subjects exploitation crimes, one’s include substantial accounts of those might episodes. Had 2225(b)(1) been in effect at the and time place publication, the statute would have discus- numerous works authors whose applied substantial, sions of make often larger subjects vividly descriptive, contextual reference to felonies of which were convicted.20 A prior they statute which in this fashion disturbs or operates discourages protected to a to serve the state’s degree substantially beyond necessary interest in crime victims from the fruits of crime. compensating conclude, Accordingly, we with that section conformity Simon 2225(b)(1) is under the invalid First Amendment to the United facially States Constitution. include, example, Haley 20These for Alex Mal Autobiography Malcolm X’s The (Ballantine 1992), colm X rights early Books ed. in which the murdered civil leader describes (id., 161-172);
burglaries Eldridge pp. which he was convicted Cleaver’s Soul on Ice incarcerated, (1968), women, which rapes discusses his of White for which he was (id., (Bom since-repented 14-15); Again rage pp. acts of racial Charles Colson memoirs (1976)), (Will! (1980)), (Blind Liddy G. Gordon and John Dean Ambition: The White House (1976)) detailing Watergate coverup; Years their criminal roles in the and the memoirs of Hearst, publishing dynasty, kidnapped by Symbionese Patricia the scion of a who was Army robbery Liberation and later participated captors with her in an armed bank for which Moscow, (Hearst (1981)). Every Thing imprisoned she was Secret *21 We reach a similar result under the of clause of the liberty speech I, 2, (a)).21 (art. California Constitution The California provision similar, and sometimes of than the First provides greater, protection speech City Los Alliance Survival v. Los Angeles Angeles Amendment (e.g., for 334]), 22 CalAth 366-367 & fn. 12 993 P.2d Cal.Rptr.2d and lesser neither reason should suggests any why provide protection party under the circumstances of this case.22 holding 21We stress the narrow nature of our under both the federal and California 2225(b)(1) infringement only Constitutions. We conclude that section is an overinclusive protected targets because it and all a from speech confiscates convicted felon’s expressive felony, materials that include substantial account of the in whatever context. express targeting gained expressive We on the from no views whether statute income works precisely enough that include accounts of the author’s crimes could be drafted Moreover, nothing say problem to overcome this of constitutional overbreadth. we here victim, creditor, assets,
precludes judgment reaching a crime as a from a convicted felon’s crime, including by generally derived from that those materials describe (See applicable judgments. generally remedies for the enforcement and satisfaction of Code case, Proc., intend, by analysis et seq., seq.) Civ. 481.010 et 680.010 Nor do we our in this §§ legislative directly preclude steps, speech, further related the content of to ensure assets, including storytelling that a convicted felon’s income and those derived from about the crimes, compensate persons injured damaged by are and remain available to or the felon’s crimes. 2225(b)(1) Finally, legitimate because we conclude that section is overbroad for its contention, purpose, we need not and do not address Keenan’s derived from Justice regulation Kennedy’s concurring opinion Simon & that a content-based se, per justified by is unconstitutional and can never be an interest of the state. 2225(b)(1), Attorney argues confiscating proceeds 22The General that even if section crime, invalid, affirma expressive materials include a felon’s is we should memorabilia, 2225(b)(2), tively uphold property, confiscates which things, rights felony-related notoriety. Attorney sold for values enhanced their case, Brown, Lockyer represents pending (Super. General that he has v. aka “X-Raided” Ct. confiscate, 99AS02640) 2225(b)(2), County, seeking to under section Sacramento No. Brown, compact Unforgiven, rap entitled features defendant “profits” from a disc which judicial have Attorney request, artist and convicted murderer. At the General’s we taken action. complaint notice of the the Sacramento above, However, Appeal indicated neither the nor the Court of have focused on parties as severable, 2225(b)(2), “notoriety provisions clearly of section which is but have value” 2225(b)(1), dealing storytelling consti- debated whether section with about is Jr.’s, that, Sinatra, argument, acknowledged despite prayer its brief tutional. At oral counsel (id., (§ (a)(10), (b)(2)) (a)(9), as as subds. statutory “profits” “proceeds” for subds. well Jr.’s, Sinatra, 2225(b)(1), (b)(1)), complaint premised solely storytelling is on section parties agreed applicability validity for both that the of section provision. Counsel raised, court, 2225(b)(2) Attorney except are not before us for the first time in this circumstances, Attorney curiae. we decline the General’s General as amicus Under 2225(b)(2), upon constitutionality of section and we leave that issue opine invitation to directly. presenting a case it more challenged provisions infringements are invalid on Similarly, because we conclude that argument, stages, raised at all speech, need not and do not address Keenan’s we Sinatra, long kidnapping him of section was enacted after the application to which Jr., legislation. prohibitions post of ex facto violates federal and state constitutional
Conclusion Sinatra, Jr.’s, The trial Keenan’s demurrer to com- court overruled of California’s statute plaint, reasoning storytelling provision 22, ante), (§ 2225(b)(1)), (see on which the is based fn. is complaint solely not unconstitutional. The Court of affirmed on similar grounds. Appeal concluded, courts, Because we to both lower that section have contrary invalid, 2225(b)(1) is we must reverse the Court of judgment Appeal. reversed, of the Court of is and the cause is judgment Appeal remanded for further consistent with views this proceedings expressed opinion. J., Kennard, J., J., Chin, J., Moreno, J., C.
George, Werdegar, concurred.
BROWN, J., observes Civil Code Concurring. The majoritycorrectly (b)(1),1 subdivision shares the essential constitutional flaws condemned in Simon & Inc. v. Members N. Y. State Crime VictimsBd. 116 L.Ed.2d 476] Schuster). Lest it seem the moral of the is crime I does write story pay, the understandable separately “Son of dispel every misconception Sam” law is unconstitutional. A drafted statute can crimi properly separate nals from derived from their crimes while with the First complying Amendment.
The Simon & Schuster court the fundamental difference be- recognized tween works like The Confessions of Saint or Letter from Bir- Augustine Jail and a mingham work entitled Sinatra. In the ghost-written Snatching fame, wit, former it is the and elo- examples, public prominence, passion of the authors that make these quence stories valuable. The “crimes” caused harm to actual victim and added to the negligible any nothing marketability contrast, of the stories. In Mr. Keenan’s crime involved both a harm serious and is the source of his work’s title of his profitability; judging by effort, it is the literary status his victim that makes the celebrity noteworthy. decision, the state seize
Notwithstanding today’s may constitutionally asset of a criminal to redress the harm inflicted his victim. Addition- upon the state seize the fruits of the crime ally, to render For may unprofitable. works, X, some like The of Malcolm it be difficult to Autobiography determine the extent to result from the which author’s criminal royalties statutory
1All references are to the Civil Code unless otherwise stated. of hard cases that might skill. But the existence involvement or his literary are facially not mean all such laws does challenge win an as-applied as well First Amendment schlock journalism unconstitutional. The protects Thus, That to tell his story. Mr. Keenan has every right literature. great And money. Amendment he can keep not mean the First guarantees does therein lies the tale.
I. *23 at 118-119 S.Ct. pages supra, pages In Simon & [112 law could 509-510], Court found New York’s the United States Supreme interests, that crime which reflect the notion state further two compelling the the criminal. Toward the victim nor enrich should neither impoverish in “ensuring the interest the court recognized compelling former imperative, (Id. at harm them.” p. are those who that victims of crime compensated end, the the court acknowledged at the latter S.Ct. Toward p. 118 [112 from their that criminals do not interest in “ensuring profit compelling these 510].) The fulfillment of at (Id. crimes.” at 119 S.Ct. p. p. [112 and nullifies criminal to the status ante both victim and quo interests restores effects of the crime. the tangible law, however, it because York invalidated
Simon & Schuster either state necessarily serving revenues without seized speech-generated of his his at the end write autobiography interest. “Should a figure prominent career, stolen ... a having nearly a brief recollection of and include ... . . . .” control his entire income item . . the Board would worthless . Schuster, 512].) Because at U.S. at 123 supra, p. 502 p. [112 rather be due to the author’s lawful prominence would book’s popularity crime, income undiscovered) the author’s his than (perhaps previously not serve and thus seizure would be a fruit of the would not worthless, seizure would item was nearly interest. Since stolen antiprofit the court found the law interest. Accordingly, not serve compensation 511].) A at (Id. properly p. overinclusive.” p. “significantly [112 assets that by seizing only could avoid this overinclusivity structured statute crime the victim or render unprofitable. would compensate minor theft in his mentions a who figure The hypothetically prominent little and very to Saint Augustine, bears a resemblance strong autobiography harm, it than trivial created more Defendant’s kidnapping to defendant. is substantially responsible his criminal conduct notoriety appears Thus, of defendant’s royalties efforts. seizure of his literary the salability so, may If the state state interests. both of the serves one or and The Confessions Sinatra Snatching between constitutionally distinguish of Saint Augustine.
II. his criminal’s assets to compensate constitutionality seizing The observed, state has every & Schuster As Simon victims is beyond dispute. (Simon of tort law this exact interest. serving body 509-510].) it is To effect compensation, U.S. at S.Ct. at pp. the defend- come from the fruits of crime or immaterial whether funds ant’s other assets. law, York’s have been a of New goal
Although
compensation
The
seized
those assets
only
gener-
failed to achieve it
law
constitutionally.
underin-
ated
the offender’s
The
was not
law’s
storytelling.
problem
se;
all,
to be
after
a statute need not solve
clusivity
every problem
per
A
be
if it
the victim
constitutional.
law would
underinclusive
granted
to a maximum sum.2
share of the
only up
partial
compensation
limitations, however,
not create the constitutional defect cited
These
would
in Simon & Schuster: the content-based nature of
restriction.
court deemed the law
unconstitutional because it
high
presumptively
a financial burden on
due to the content of their
imposed
speakers
speech.
(Simon &
502 U.S. at
S.Ct. at
pp.
pp.
*24
507-508].) The
out income
New York statute
derived
“singles
expres
income,
sive
for a burden the
on no other
and it is
State
activity
places
(Id.
directed
at works with a
content.”
at
116
S.Ct. at
only
specified
p.
[112
508].) The
Newman in the court below
dissenting
p.
opinion
Judge
Schuster,
(Simon
demonstrated this content-based discrimination.
&
Inc. v.
Newman,
(2d
1990)
(Fischetti)
Fischetti
(dis.
Cir.
916 F.2d
784
opn.
J.).)
Board
Judge Newman observed
New York State Crime Victims
“
Harris,
the law to the
of Jean
who had killed ‘Scars-
applied
autobiography
Schuster,
dale Diet’ Doctor Herman
(Simon
Tamower”
&
at
111
p.
[112
506])
S.Ct. at
because the book referred to the homicide in two
p.
chapters.
(Fischetti,
785.)
at
If her book had concerned
the conditions at her
only
p.
crime,
enhanced
her
her
would
prison,
royalties, though
notoriety
been
(Ibid.)
have
from seizure.
The distinction between the treat
protected
ment of the actual book and the
book shows how
Son
hypothetical
“[t]he
Sam law establishes a financial
to create or
works with
disincentive
publish
(Simon
509].)
a
content.”
at
118
S.Ct. at
particular
p.
p.
[112
The content-based discrimination
strict
triggered
scrutiny, whereby
a
state must show the law is
drawn to further
state
narrowly
compelling
at
interest.
likely content based strict and the law would serve the avoiding scrutiny) compelling thus, fortiori, interest of victim survive a lesser level of compensation, The Rhode Island Court discussed the scrutiny. of such a Supreme validity (R.I. 1997) broader law in Bouchard v. Price (Bouchard).3 A.2d 670 “Neither nor the General the act’s plaintiffs Attorney justified applicability The state’s interest in solely expressive activity. compensating served, victims from the of crime would be better for example, by assets, to a available victim all the criminal’s however and making wherever derived. Such an of the resources available to a victim expansion potentially would avoid the statute’s Achilles’ heel out singling only expressive burden. We note that victims of a crime activity special may normally action civil the offender to recover After a bring against damages. judg *25 obtained, ment has been a victim the defendant’s assets may against proceed whether or not these assets obtained from the commercial represent royalties The crime. enforcement of such a civil exploitation against judgment a defendant’s assets a or loss has not following personal injury property (Bouchard, heretofore a First Amendment at 677- presented problem.” pp. 678, Indeed, omitted.) fn. Simon & Schuster itself York’s New approved content-neutral for remedies and orders of “statutory provisions prejudgment (Simon restitution.” supra, 502 U.S. at S.Ct. at p. pp. [112 509-510]), and the likewise observes the of content- majority propriety neutral seizure of a defendant’s assets to a victim. (Maj. compensate opn., ante, 436, 21.) at fn. p. resembling 3The Bouchard court struck down a statute York’s in that it New law confis “ i.e., reenactment, dramatization, royalties storytelling: cated ‘any publication, from inter
view, depiction, explanation, expression through any or medium of communication is which movie, book, magazine undertaken for financial The term includes consideration. ... or article, recording, newspaper tape photograph, program, presen still radio or television live ” tation, (Bouchard, reproduction any or presentation p. kind.’ 694 A.2d at quoting exploitation” Royalties definition of “commercial Act of Criminal Distribution 12-25.1-2(3).) R.I. Gen. Laws § in a content-neutral manner to thus seize a defendant’s assets A state may not . . . stand for the & Schuster does propo- ensure “Simon compensation. cannot the activity sition that the government recoup proceeds Rather, cannot out those single to crime. government relating (3d (U.S. other assets.” v. Seale Cir. treatment while ignoring special order 1994) 7.) fn. Courts thus constitutionally 20 F.3d may to, income from but not limited the defendant’s restitution sources including, 1992) 915.) (Ibid.; (5th v. Cir. 978 F.2d from U.S. Jackson storytelling. his a criminal from of his wealth while any The law may prevent enjoying victim remains uncompensated.
III. interest of criminals The state also compelling depriving pursue their York’s was defective in this it did not regard; fully New law profits. their those criminals of profits resulting storytell- deprive profits, book, Harris criminal writing If Jean her ing. notoriety by exploited state could confiscate those If instead of her she chose telling royalties. $25 her for underwear “Scars- notoriety by charging exploit depicting it,4 these would be dale Diet” with a red slash logo through royalties The law’s not that crime pay seizure. doesn’t protected message but that about crime doesn’t crime is a speaking pay. Deterring compelling interest, is treatment accorded the state not. deterring speech disparate income from her book and from the merchandise reveals the hypothetical nature York law. discriminatory
Furthermore,
undermined
nature of the
discrimination
compelling
interest served
the law. The state could not “offer
for a
any justification
distinction between
other
in connection with
any
activity
[storytelling]
its interest in
the fruits of crime from criminals to their victims.”
transferring
at
Section subdivision avoids similarly (a)(10), it its seizure of In with section subdivision profits. conjunction authorizes seizure of “all income from sold or transferred the anything by felon . . . the value of which or is enhanced thing right including any right, . .” The statute from the commission of . . notoriety gained felony by character, or and if is indifferent to thing’s expressive nonexpressive observes section subdi- its content. majority correctly expressive, ante, (b)(1) (b)(2) is severable” from subdivision “clearly (maj. opn., vision 22), and decision does not affect the continuing validity fn. today’s p. of the former provision. (b)(2) is
The content of section subdivision neutrality arguable, between activity insofar as law distinguishes income-generating and that does not. For if Mr. criminal which notoriety example, exploits would Keenan a book of anonymously, royalties prob- published poetry defined the subdivision. But if he marketed as as ably by qualify profits Snatcher,” Sonnets from the Sinatra the royalties as “Sizzling poems and thus to seizure.8 be enhanced his criminal by notoriety, subject would hand, Schuster observed statutes be content On the other Simon & neutral, are intended to serve and thus avoid strict where scrutiny, they 627.) 1999) 5(See Rolling (Fla.Dist.Ct.App. v. State ex rel. Butterworth 741 So.2d Learned, 6(See [describing Appellate Trial & Advoc. at fn. 4 sale Suffolk J. Jeffrey goods].) killer Dahmer’s household of serial notoriety, instead seizing expressly do not cover the fruits of criminal profits 7Some states through generated the commission defining “any property obtained or income from sale, crime; by generated income from the conversion or any property of a obtained or sale, crime, by or exchange including any gain of a realized such conversion by committing the crime income exchange; any that the offender obtained or property crime, any through having including assets obtained generated as a result of committed of, preparation for the knowledge during obtained the commission or unique the use of of, generated obtained or income property as well as commission sale, sale, any gain conversion exchange property realized such conversion or 14, 752-E; (Me. Stat. Ann. 24-4.1- exchange.” § Stat. Ann. tit. see also Colo. Rev. § Rev. 32-07.1-01; 632-a; 201; W. Va. Code Board N.D. Cent. Code § N.Y. Crime Victims Law § 14-2B-3; 1-40-302.) writings It Wyo. Stat. Ann. is not evident whether § § generated having as a result of subjects qualify to the crime would as “income about unrelated 14, 752-E.) (Me. the crime.” Rev. Stat. Ann. tit. committed the crime face coverage topics about unrelated to would that exclude from works 8Statutes (content) determine whether the state seized stronger challenge, topic as the would an even royalties. *27 notwithstanding content of the regulated speech, unrelated to the purposes but not others. some or messages incidental effects on speakers their * 511-512], citing S.Ct. at at fn. pp. 502 U.S. [112 2746, S.Ct. U.S. 781 v. Rock Racism Against [109 Ward Theatres, (1986) 475 U.S. 661]; Inc. Playtime Renton v. City L.Ed.2d too over- York’s law was Although 89 L.Ed.2d inter face might only a more drawn statute narrowly inclusive to qualify, Schuster, supra, Renton. City mediate under Ward scrutiny {Simon * Moreover, be 511-512].) even if held to fn. at p. pp. based, crimi interest (depriving content a statute that compelling pursues could only all their and is drawn (seizing profits) nals of profits) survive strict scrutiny. of crime with Simon &
A seizes all comports law neutrally his thus First Amendment. Even when entitled to been a criminal is not profit victim has fully compensated, his crimes.
IV. shows, a state seize assets constitutionally As the foregoing analysis may victims, in which case interest of by pursuing compelling compensating assets that are not the the state seize assets from source (including Likewise, a crime) fruits of the to the amount of the victim’s damages. up interest of state seize assets may constitutionally by pursuing compelling of crime. And there is no criminals of assets that are the fruits depriving reason must select one interest a state apparent why compelling A state both interests all assets seizing up may pursue separately; pursue. rationale, and then all fruits the amount of under the damage compensation crime under the Because each would neutrally antiprofit theory. phase interest, the would avoid seize assets in furtherance of a state law noted in Schuster. constitutional Simon & pitfalls