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

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## Concurring Opinions

    Blackmun
    Kennedy
United States Supreme Court
502 U.S. 105
Simon Schuster Inc. v. Members of the New York State Crime Victims Board
No. 90-1059 Argued: October 15, 1991. --- Decided: December 10, 1991
Syllabus
Among other things, New York's "Son of Sam" law provides that an "entity" contracting with a person "accused or convicted of a crime" for the production of a book or other work describing the crime must pay to respondent Crime Victims Board any moneys owed to that person under the contract; requires the Board to deposit such funds in an escrow account for payment to any victim who, within five years, obtains a civil judgment against the accused or convicted person and to the criminal's other creditors; and defines "person convicted of a crime" to include "any person who has voluntarily and intelligently admitted the commission of a crime for which such person is not prosecuted." After it discovered that petitioner publisher had signed an agreement with an author who had contracted with admitted organized crime figure Henry Hill for the production of a book about Hill's life, the Board, inter alia, determined that petitioner had violated the Son of Sam law and ordered it to turn over all money payable to Hill. Petitioner then brought suit under 42 U.S.C. § 1983, seeking a declaration that the law violates the First Amendment and an injunction barring the law's enforcement. The District Court found the law to be consistent with the Amendment, and the Court of Appeals affirmed.
Held: The Son of Sam law is inconsistent with the First Amendment. Pp. 115-123.
(a) Whether the First Amendment "speaker" is considered to be Hill, whose income the New York law places in escrow because of the story he has told, or petitioner, which can publish books about crime with the assistance of only those criminals willing to forgo remuneration for at least five years, the law singles out speech on a particular subject for a financial burden that it places on no other speech and no other income and, thus, is presumptively inconsistent with the Amendment. Leathers v. Medlock, 499 U.S. 439, 447, 111 S.Ct. 1438, ----, 113 L.Ed.2d 494; Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 230, 107 S.Ct. 1722, 1728, 95 L.Ed.2d 209. The fact that the law escrows speech-derived income, rather than taxing a percentage of it outright as did the law invalidated in Arkansas Writers' Project, cannot serve as the basis for disparate treatment under the Amendment, since both forms of financial burden operate as disincentives to speak. Moreover, the Board's assertion that discriminatory financial treatment is suspect only when the legislature intends to suppress certain ideas is incorrect, since this Court has long recognized that even regulations aimed at proper governmental concerns can restrict unduly the exercise of rights under the Amendment. Furthermore, the Board's claim that the law is permissible under the Amendment because it focuses generally on an "entity" rather than specifically on the media falters, first, on semantic grounds, since any entity that enters into a contract with a convicted person to transmit that person's speech becomes by definition a medium of communication, and, second, on constitutional grounds, since the governmental power to impose content-based financial disincentives on speech does not vary with the identity of the speaker. Accordingly, in order to justify the differential treatment imposed by the law, the State must show that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. Id., at 231, 107 S.Ct., at 1728. Pp. 115-118.
(b) The State has a compelling interest in compensating victims from the fruits of crime. Cf. Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 629, 109 S.Ct. 2646, 2654, 105 L.Ed.2d 528. However, contrary to the Board's assertion, the State has little if any interest in limiting such compensation to the proceeds of the wrongdoer's speech about the crime. The Board cannot explain why the State should have any greater interest in compensating victims from the proceeds of criminals' "storytelling" than from any of their other assets, nor offer any justification for a distinction between this expressive activity and any other activity in connection with its interest in transferring the fruits of crime from criminals to their victims. Cf., e.g., Arkansas Writers' Project, supra, 481 U.S., at 231, 107 S.Ct., at 1728. Like the governmental entities in the latter and similar cases, the Board has taken the effect of the statute and posited that effect as the State's interest. Pp. 118-121.
(c) The New York law is not narrowly tailored to achieve the State's objective of compensating victims from the profits of crime. The law is significantly overinclusive, since it applies to works on any subject provided that they express the author's thoughts or recollections about his crime, however tangentially or incidentally, and since its broad definition of "person convicted of a crime" enables the Board to escrow the income of an author who admits in his work to having committed a crime, whether or not he was ever actually accused or convicted. These two provisions combine to encompass a wide range of existing and potential works that do not enable a criminal to profit from his crime while a victim remains uncompensated. Pp. 121-123.
916 F.2d 777 (CA2 1990), reversed.
O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, STEVENS, SCALIA, and SOUTER, JJ., joined. BLACKMUN, J., and KENNEDY, J., filed opinions concurring in the judgment. THOMAS, J., took no part in the consideration or decision of the case.
Ronald S. Rauchberg, New York City, for petitioner.
Howard L. Zwickel, New York City, for respondents.
Justice O'CONNOR delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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