Son Of Sam Laws: A Victim Of The FirstAmendment?

I. INTRODUCTIONThe public's schizophrenic demands regarding information about crimes have created a dilemma for legislatures, courts, and commentators, who attempt to balance the public interest, the constitutional rights of criminal authors, and the privacy rights of crime victims. The persistent growth in the national crime rate,(1) the corresponding increase in the number of crime victims, and the spectacle of notorious criminals profiting from selling their crime stories--often at the emotional and physical expense of their victims--throw this dilemma into stark relief.(2) Indeed, there is a clear incongruity between the public's repulsion at criminals profiting from the stories of their crimes and the public's unabated appetite for these stories.(3) On the one hand, because of significant public interest in the nonfiction crime genre,(4) criminals often profit from the notoriety surrounding their crimes by selling their crime stories to the media.(5) On the other hand, public dismay over notorious criminals commercially exploiting their criminal behavior by selling their crime stories has prompted Congress and many state legislatures to enact so-called "Son of Sam" laws.(6)Simply stated, Son of Sam laws represent a legislative attempt to codify the maxim "crime does not pay."(7) A diversity of opinions exists regarding these laws. Some commentators commend Son of Sam laws as a step in the right direction towards greater recognition and protection of victims' rights;(8) other commentators criticize these laws for unduly burdening First Amendment rights.(9)Recently, the United States Supreme Court in Simon & Schuster, Inc. v. Members of the New York State Crime Victims Boar(10) ruled that New York's Son of Sam law violated the First Amendment." Several observers broad defense opinion reveals that the current Supreme Court may not be as solicitous of First Amendment rights as many may think.(13)The Supreme Court decided the Simon & Schuster case on narrow and familiar First Amendment principles(14) without pausing to comment on the broader implications of Son of Sam laws. Simon & Schuster did little to clarify the troublesome constitutional issues surrounding Son of Sam laws. Most importantly, the Court did not conclusively determine whether New York's Son of Sam law, the prototype for similar laws in other jurisdictions,(15) imposed a content-based burden on protected speech--leaving unsettled the appropriate level of constitutional scrutiny for assaying Son of Sam laws.(16) However, the Simon & Schuster Court hinted that Son of Sam laws could be considered and seldom utilized First Amendment test.(17) Under the secondary effects test, the Court considers facially discriminatory restrictions on speech to be content-neutral (and thus subject to deferential scrutiny) if the government's purpose in effecting the restriction is to regulate the secondary effects of speech rather than the content of the speech itself.(18)Applying the secondary effects test to Sam laws would stamp constitutional imprimateur on governmental censorship(19) and drastically reduce the quantum of First Amendment protection traditionally accorded free speech rights.(20) This extension of the secondary effects that would impact heavily upon criminal speech. And as Henry Hill's recollections in Way llustrate, criminal speech may be replete with important political information, such a widespread corruption of public officials.(21) This speech pierces the core of First Amendment concerns.(22)Although the Son of Sam laws' purported goals are meritorious, the Supreme Court should not apply the secondary effects test to Son of Sam laws because these laws target speech with high political value.(23) Because Son of Sam laws target high-value speech on the basis of content,(24) they trigger strict First Amendment scrutiny.(25) And in order for a content-based law to pass constitutional muster under strict First Amendment scrutiny, it must be narrowly tailored to serve a compelling governmental interest. …