436 Mass. 1201 | Mass. | 2002
To the Honorable the Senate of the Commonwealth of Massachusetts:
The Justices of the Supreme Judicial Court respectfully submit their answer to the question set forth in an order adopted by the Senate on September 17, 2001, and transmitted to the Justices on September 21, 2001.
The order indicates that grave doubt exists as to the constitutionality of the bill, if enacted into law, and requests our opinion on this question:
“Does Senate No. 1939, by restricting the ability of criminal offenders to profit from their crimes, violate the right of freedom of speech as provided by the First Amendment to the Constitution of the United States (which the Fourteenth Amendment applies to the Commonwealth) or as provided in Article XVI of the Declaration of Rights of the Commonwealth?”2
1. Provisions of the bill. Proposed G. L. c. 258D requires any entity (contracting party) contracting with a “defendant” to submit a copy of the contract to the division within thirty days of the agreement if the contracting party knows or reasonably should know that the consideration to be paid to the defendant would constitute “[p]roceeds related to a crime.” §§ 1, 2. It defines “[defendant” as “a person who is the subject of pending criminal charges or has been convicted of a crime or has voluntarily admitted the commission of a crime.” § 1. It defines “[pjroceeds related to a crime” as “any assets, material objects, monies, and property obtained through the use of unique knowledge or notoriety acquired by means and in consequence
The monies paid over by the contracting party are placed in an escrow account for the benefit of the victims of the defendant’s crime. § 5. The division must notify all known victims of the defendant’s crime that the defendant has such a contract and must publish a general notice in a newspaper every six months for a year. § 8. Within three years from the date of the last publication, victims may bring a civil action against the defendant, regardless of the earlier expiration of any applicable statute of limitations. § 9. The escrowed funds are used to satisfy any judgment obtained by the victim against the defendant; however, no funds can be transferred until the defendant is convicted of the crime or has voluntarily admitted the commission of the crime.
2. Background of the proposed legislation. Many States have enacted statutes similar to Senate No. 1939 in an attempt to
Senate No. 1939 is an attempt to reenact a similar statute in Massachusetts, addressing the concerns articulated by the United States Supreme Court in Simon & Schuster, supra. We are of the opinion that Senate No. 1939 has not successfully addressed those concerns and therefore still violates the First Amendment to the United States Constitution and art. 16 of the Declaration of Rights, as amended by art. 77 of the Amendments to the Massachusetts Constitution.
3. Analysis. We note at the outset that portions of Senate No. 1939 regulate nonexpressive activity, and those portions would not violate or otherwise impinge on the right of freedom of speech in the First Amendment or art. 16.
a. Content-based regulation. Consistent with other courts, we conclude that Senate No. 1939 is a content-based regulation of speech. See, e.g., Simon & Schuster, supra at 115, 122 n.*; Keenan v. Superior Court, 27 Cal. 4th 413, 427-430 (2002); Curran v. Price, 334 Md. 149, 161-163 (1994);
Supporters of the measure correctly note that the views and opinions being expressed about the defendant’s criminal activity are irrelevant to the application of Senate No. 1939. Although the bill does not discriminate between particular viewpoints concerning crime, “[t]he First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic.” Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 230 (1987), quoting Consolidated Edison Co. v. Public Serv. Comm’n of N.Y., 447 U.S. 530, 537 (1980). See Carey v. Brown, 447 U.S. 455, 462 n.6 (1980) (statute is content-based even if it “does not discriminate on the basis of the speaker’s viewpoint, but only on the basis of the subject matter of his message”). Here, expressive works are subject to the requirements of Senate No. 1939 based on their topic, i.e., based on the fact that they discuss or relate to a defendant’s involvement in some form of criminal activity. The bill must therefore be classified as content-based.
To pass constitutional muster under the First Amendment, a content-based regulation must be “necessary to serve a compelling state interest and . . . narrowly drawn to achieve that end.” Simon & Schuster, supra at 118, quoting Arkansas Writers’ Project, Inc. v. Ragland, supra at 231. See National Amuse-
As drafted, the proposed law extends to contracts with persons who were never even charged with any crime. A person who has “voluntarily admitted the commission of a crime” is included in the definition of “defendant.” § 1. One of the main problems with the New York statute in Simon & Schuster, supra at 121, was the statute’s similarly broad definition of “person convicted of a crime.” As the Court noted, because the definition included “any author who admits in his work to having committed a crime, whether or not the author was ever actually accused or convicted,” the New York statute reached a large pool of potential authors (such as artists, political dissidents and civil rights leaders), and thereby went far beyond what was necessary to serve the State’s compelling interest. Id. at 121-122, citing N.Y. Exec. Law § 632-a(10)(b). The Court noted that the New York statute would have an adverse chilling effect on the future creation and dissemination of important literary works and would “reachQ a wide range of literature that does not enable a criminal to profit from his crime while a victim remains uncompensated.” Id. at 122.
With respect to all types of criminal defendants, the law also would impose financial burdens and uncertainties that would, in their practical effect, operate to chill a wide range of expression. The proposed law requires that all monies owed to a defendant be held in escrow by the division for at least three years. §§ 5, 9. If claims are filed, the funds are held until the conclusion of those proceedings. Ultimately, the funds are used to satisfy any judgment obtained against the defendant, with the remainder then split between the contracting party and the general victim compensation fund. § 13. Under this system, the defendant’s funds are held for a lengthy and uncertain period of time, and one cannot predict how much of the funds (if any) will ultimately be released.
As the Supreme Court noted in Simon & Schuster, supra at 116-117, a provision that escrows a defendant’s payments under a contract operates as a “financial disincentive” on both the defendant-author and the publisher. Such a provision may deprive the defendant-author of the financial resources needed to initiate a work, as it precludes advances from the publisher to
In comparison to the bill’s proposed interference with the publishing industry’s ability to obtain information from or publish works about any criminal, we note that there are other
b. Prior restraint. Beyond our concerns about the bill’s over-breadth, we also note that, in its practical effect, it would operate as a prior restraint on speech, while lacking the procedural protections required for any such prior restraint. As discussed above, the delays and uncertainties surrounding compensation for such works will, even when they do not deter such works entirely, at least postpone their production and ultimate release. And, if the division determines that the proceeds are “substantially related to a crime,” that determination may operate to halt the production of the work entirely. Any system of prior restraints “comes . . . bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963).
In order to pass constitutional muster under the First Amend
The Supreme Court has specified three procedural requirements that must be included in any system of prior restraint. Freedman v. Maryland, supra at 58-59. First, the State must bear the burden of proving that a particular work falls within the regulatory sweep of the statute. Second, any restraint prior to judicial determination must be brief and only for the purpose of preserving the status quo; thus, the statute “cannot be administered in- a manner which would lend an effect of finality to the [State’s] determination.” Id. at 58. Third, there must be a prompt final judicial determination. Id. at 59. See Curran v. Price, supra at 168-169.
Here, the proposed initial review process fails to satisfy these procedural requirements in several respects. Although Senate No. 1939 does not have a “rebuttable presumption” that a work falls within the reach of the statute, as was the case in Maryland’s statute, see Curran v. Price, supra at 169, the proposed bill makes the division’s determination (or the program director’s decision on reconsideration) final unless the contracting party seeks judicial review. See §§ 5, 6. Thus, the division does not have the burden of initiating judicial proceedings, and there is no judicial review unless the contracting party appeals. This is in conflict with the Supreme Court’s pronouncement that “only a procedure requiring a judicial determination suffices to impose a valid final restraint” (emphasis added). Freedman v. Maryland, supra at 58.
Finally, Senate No. 1939 provides no assurance of prompt judicial determination. It has no requirement that courts hear such appeals in any specific time frame or even that they act “promptly,” and therefore the “[rjisk of delay is built into [the proposed statute], as is borne out by experience.” Id. at 55. In Freedman v. Maryland, supra, the Court held that a delay of six months is longer than permissible. Id. Here, although the bill limits the division’s initial review process to thirty days and the program director’s review on reconsideration to twenty days, see §§ 3, 6, the time period for judicial review will be far greater. The total elapsed time from submission of the contract until a final judicial determination is obtained will regularly exceed six months, which is itself already an impermissible delay. See id.
4. Conclusion. Therefore, we find that Senate No. 1939, as drafted, violates the right of freedom of speech in the First Amendment and art. 16.
The answer to the question is, “Yes.”
The foregoing answer and opinion are submitted by the Chief Justice and the Associate Justices subscribing hereto on the 14th day of March, 2002.
MARGARET H. MARSH ALT,
JOHN M. GREANEY
RODERICK L. IRELAND
FRANCIS X. SPINA
JUDITH A. COWIN
MARTHA B. SOSMAN
ROBERT J. CORDY
We invited interested parties to submit briefs which were due on November 16, 2001. Briefs were received from State Senator Cynthia Stone Creem, State Senator Cheryl A. Jacques, and State Representative Peter J. Koutoujian; National Crime Victim Law Institute, Matty Eappen Foundation, Mothers
We have not been asked to address, and therefore do not consider, any other possible constitutional infirmities of the bill.
If the criminal proceedings are terminated without a conviction, the funds are returned to the contracting party. § 12.
See Ala. Code §§ 41-9-80 to 41-9-84 (Lexis 2000); Alaska Stat. § 12.61.020 (Lexis 2000); Ariz. Rev. Stat. Ann. §§ 13-4201 to 13-4202 (West 2001 & Supp. 2001); Ark. Code Ann. § 16-90-308 (Michie 1987); Cal. Civ. Code § 2225 (West Supp. 2002); Colo. Rev. Stat. Ann. §§ 24-4.1-201 to 24-4.1-207 (2001); Conn. Gen. Stat. Ann. § 54-218 (West 2001); Del. Code Ann. tit. 11, §§ 9101-9106 (Michie 1995); Ga. Code Ann. §§ 17-14-30 to 17-14-32 (Michie 1997); Haw. Rev. Stat. §§ 351-81 to 351-88 (1993); Idaho Code § 19-5301 (Michie 1997); Iowa Code Ann. § 910.15 (West 1994); Kan. Stat. Ann. §§ 74-7319 to 74-7321 (1992); Ky. Rev. Stat. Ann. § 346.165 (Michie 1997); Me. Rev. Stat. Ann. tit. 14, § 752-E (West Supp. 2001); Md. Code Ann., Crim. Proc. §§ 11-621 to 11-633 (2001); Mich. Comp. Laws Ann. § 780.768 (West 1998); Minn. Stat. Ann. § 611A.68 (West Supp. 2002); Miss. Code Ann. §§ 99-38-1 to 99-38-11 (Lexis 2000); Mont. Code Ann. § 53-9-104 (2001); Neb. Rev. Stat. Ann. §§ 81-1835 to 81-1837 (Lexis 1999); N.J. Stat. Ann. §§ 52:4B-27 to 52:4B-33 (West 2001); N.Y. Exec. Law § 632-a (McKinney 1996); N.D. Cent. Code § 32-07.1-01 (Michie 1996); Ohio Rev. Code Ann. §§ 2969.01-2969.06 (West 1997); Okla. Stat. Ann. tit. 22, § 17 (West Supp. 2002); Or. Rev. Stat. § 147.275 (1999); 42 Pa. Cons. Stat. Ann. § 8312 (West 1998); R.I. Gen. Laws §§ 12-25.1-2 to 12-25.1-4.1 (Lexis Supp. 2001); S.D. Codified Laws §§ 23A-28A-1 to 23A-28A-14 (Michie 1998); Tenn. Code Ann. §§ 29-13-401 to 29-13-411 (2000); Va. Code Ann. §§ 19.2-368.19 to 19.2-368.22 (Michie 2000); Wash. Rev. Code Ann. §§ 7.68.200-7.68.290 (West 1992); W. Va. Code §§ 14-2B-1 to 14-2B-11 (Lexis 2000); Wis. Stat. Ann. § 949.165 (West 1996); Wyo. Stat. Ann. §§ 1-40-301 to 1-40-308 (Lexis 2001).
The term “person convicted of a crime” had included any person who “voluntarily and intelligently admitted the commission of a crime,” even if the person was never prosecuted. N.Y. Exec. Law § 632-a(10)(b) (McKinney 1982 & Supp. 1991).
The analysis under art. 16 is the same as that under the First Amendment. See Opinion of the Justices, 430 Mass. 1205, 1209 n.3 (2000), citing Walker v. Georgetown Hous. Auth., 424 Mass. 671, 674 (1997), and Colo v. Treasurer & Receiver Gen., 378 Mass. 550, 558 (1979).
Besides contracts for books, articles, television programs, and films, the bill covers a defendant’s sale of tangible property where the value has been enhanced by the defendant’s notoriety. See Making a Killing: Bill Takes Aim at Sales by Criminals, Boston Globe, Dec. 11, 2001, at B4; Sold to Highest Bidder: Online “Murderabilia,” Boston Globe, Nov. 30, 2000, at Bl. The sale of such items does not involve expressive activity, and regulation of those sales does not implicate the First Amendment or art. 16.
The Supreme Court discussed this aspect of the New York statute in conjunction with the statute’s application to works on any subject, regardless of how tangentially or incidentally related to a crime. Simon & Schuster, Inc. v. New York Crime Victims Bd., 502 U.S. 105 (1992) (Simon & Schuster). The Court noted that “[t]hese two provisions combine to encompass a potentially very large number of works” (emphasis added). Id. at 121. The proposed law requires the division to review a work under a contract to determine whether it is “substantially related to a crime, rather than relating only tangentially to, or containing only passing references to, a crime.” § 3. The term “substantially related to a crime” is not defined, but it apparently covers any work that contains more than just “passing references to a crime.” § 3. We are not convinced that this requirement suffices to cure the overbreadth identified in Simon & Schuster. Works that contain more than “passing references” to a crime, authored by or concerning persons who were not charged with that
Because the proposed law requires the contracting party to pay over all funds owed to “the defendant or his representative,” see § 5, it may also deter literary agents from representing defendant-authors. Cf. Simon & Schuster, supra at 110 (provision in New York statute permitted payments to literary agents and other representatives “for the necessary expenses of the production of the moneys [sic] paid into the escrow account”).
AlthoUgh the term “prior restraint” has customarily been applied to censorship and licensing schemes aimed at preventing certain speech from ever reaching the “marketplace of ideas,” at least one court has applied the term in the context of a law comparable to Senate No. 1939. See Curran v. Price, 334 Md. 149, 167-170 (1994). The Curran court noted that, although Maryland’s statute did not restrain individuals from writing or publishing crime-related works, it did “bar them from receiving any earnings from such works, at least during the period of review by the Attorney General.” Id. at 167. While the statute did not explicitly censor expression, it could nonetheless constitute a prior restraint because of the financial restrictions it placed on crime-related expression. See id. at 168. In reaching this conclusion, the Cur-ran court relied on Riley v. National Fed’n of the Blind of N.C., Inc., 487 U.S,
We do not suggest that legislation on this subject is automatically violative of the First Amendment or art. 16. “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.” Keenan v. Superior Court, supra at 436 n.21. “A properly drafted statute can separate criminals from profits derived from their crimes while complying with the First Amendment.” Id. at 437 (Brown, J., concurring).