Simon & Schuster v. Members of the New York State Crime Victims Board 1991

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Simon & Schuster v. Members of the New York State Crime Victims Board 1991

Petitioner: Simon & Schuster, Inc.

Respondents: Members of New York State Crime Victims Board, et al.

Petitioner's Claim: That New York's Son of Sam law, which required criminals to forfeit money made from stories about their crimes, violated the First Amendment freedom of speech.

Chief Lawyer for Petitioner: Ronald S. Rauchberg

Chief Lawyer for Respondents: Howard L. Zwickel, Assistant Attorney General of New York

Justices for the Court: Harry A. Blackmun, Anthony M. Kennedy, Sandra Day O'Connor, William H. Rehnquist, Antonin Scalia, David H. Souter, John Paul Stevens, Byron R. White

Justices Dissenting: None (Clarence Thomas did not participate)

Date of Decision: December 10, 1991

Decision: New York's Son of Sam law violated the First Amendment by limiting speech too much.

Significance: The Court emphasized that, except in rare cases, laws that limit speech based on its content violate the First Amendment.

Son of Sam

From 1976 through the summer of 1977, David Berkowitz committed a series of murders in New York City. In a letter to the police before he was caught, Berkowitz called himself the Son of Sam. After Berkowitz was caught, he planned to sell his story for publication. New York did not think Berkowitz should be allowed to profit from his story while his victims and their families went without payment for their injuries.

To stop Berkowitz, New York passed a statute called the Son of Sam law. The law required anyone who published a criminal's story to give payment for the story to the Crime Victims Board instead of to the criminal. The board would hold the money to pay any victims who sued the criminal and won. If no victim filed a lawsuit for five years, the board would return the money to the criminal.


Henry Hill was part of an organized crime family in New York. In a twenty-six-year career that ended with his arrest in 1980, Hill committed robberies, extortion, and drug deals. After his arrest, Hill entered the federal witness protection program. The program allowed Hill to avoid prosecution for his crimes by testifying against his former partners.

In August 1981, author Nicholas Pileggi agreed to write a book about Hill's life. Hill and Pileggi then signed a contract for Simon & Schuster to publish the book. The book, called Wiseguy, was published in January 1986. In it, Hill admitted to what the Supreme Court called "an astonishing variety of crimes."

The New York State Crime Victims Board learned about Wiseguy soon after it was published. By then Simon & Schuster had paid Hill $98,250 and planned to pay him another $27,958. The board decided that Simon & Schuster had violated the Son of Sam law by paying Hill instead of giving the money to the board. It ordered Hill to turn over all the money he had received, and ordered Simon & Schuster to give Hill's future payments directly to the board.

In August 1987, Simon & Schuster sued the board in federal district court. It argued that the Son of Sam law violated the First Amendment freedoms of speech and the press. The First Amendment says, "Congress shall make no law . . . abridging [limiting] the freedom of speech, or of the press." States, including New York, must obey these freedoms under the Due Process Clause of the Fourteenth Amendment. The district court ruled in favor of the board and the court of appeals affirmed, so Simon & Schuster took the case to the U.S. Supreme Court.

Wise Justices

With a unanimous decision, the Supreme Court reversed and ruled in favor of Simon & Schuster. The Court said New York's Son of Sam law violated the First Amendment.

Writing for the Court, Justice Sandra Day O'Connor said restrictions that limit based on its substance ("content based restrictions") are the most serious violations of the First Amendment. For instance, New York's Son of Sam law only forced criminals writing about their crimes to forfeit their money. Criminals or other people writing about other subjects could keep their money. Content based restrictions are serious because they give the government the power to eliminate ideas it does not like.

Justice O'Connor said content based restrictions violate the First Amendment unless they satisfy two conditions. First, they must be needed to serve a compelling, or highly important, state interest. The Son of Sam law satisfied this condition because it was needed to prevent criminals from profiting from their crimes while victims went without payment for their injuries.


F rank Sinatra was a popular singer of American songs who became wealthy with his talent. In December 1963, Barry Keenan and two other men kidnapped Sinatra's 19-year-old son. Keenan's crew held Frank Jr. until Sinatra paid a $240,000 ransom. They released Frank Jr. unharmed after collecting the cash, but were caught days later when a family member turned them in.

Keenan spent four years in prison for his crime. In 1997, writer Peter Gilstrap interviewed Keenan and published a story about the kidnapping. Columbia Pictures then agreed to pay Keenan and others $1.5 million for the right to make the story into a movie.

California has a Son of Sam law that prevents felons from making money on stories about their crimes. Frank Sinatra Jr. filed a lawsuit to prevent Columbia Pictures from paying Keenan any money. Frank Jr.'s lawyer described Keenan's deal with Columbia as a "second ransom." Keenan, however, said he paid his debt to society by spending four years in jail. Keenan said the freedom of speech protects his right to sell his story. Frank Jr.'s attorney disagreed, saying "You shouldn't be able to put a gun to someone's ear and kidnap them, then cash in."

Second, the law must be written to restrict speech as little as possible while serving the compelling state interest. The Son of Sam law failed to satisfy this condition. It was designed to allow victims to get paid for their injuries. The law, however, applied to any book about crime, even if the crime had no victims that needed to be paid for their injuries. Such a law would discourage people from publishing important books that happened to describe criminal activity.

For example, Justice O'Connor said the law could discourage the publication of books about important civil rights leaders such as Malcolm X, Martin Luther King, Jr., and Jesse Jackson, who committed harmless crimes while fighting for civil rights. The law also would apply to books about celebrities who happened to commit minor crimes when young. The law even would apply to The Confessions of Saint Augustine, an important religious book from centuries ago in which a Christian saint admitted that he stole a pear from a neighbor's vineyard.

In short, the Son of Sam law was too broad. It prevented the publication of books about crimes even if there were no victims who needed to be paid for their injuries. This made the law unconstitutional under the First Amendment. Simon & Schuster was allowed to publish Wiseguy and to pay Henry Hill for his story.

Son of son of Sam

After Simon & Schuster, New York and many other states passed new Son of Sam laws. The new laws were designed to satisfy the test described by Justice O'Connor in Simon & Schuster. The issue became hot again in 1995 when football star O.J. Simpson published a book explaining his side of the story about the murder of his ex-wife, Nicole Brown Simpson.

Today, victims continue to argue that criminals should not be allowed to profit from their crimes. Criminals argue just as strongly that they have a right to tell their stories, and that the public has a right to read them.

Suggestions for further reading

Evans, J. Edward. Freedom of Speech. Minneapolis: Lerner Publications, Inc., 1990.

King, David C. The Right to Speak Out. Brookfield, CT: Millbrook Press, 1997.

Klinker, Philip A. The First Amendment. Englewood Cliffs, NJ: Silver Burdett Press, 1991.

Pascoe, Elaine. Freedom of Expression: The Right to Speak Out in America. Brookfield, CT: Millbrook Press, 1992.

Sanchez, Rene. "Free Speech at Issue in Sinatra Abduction Film." Boston Globe, December 22, 1999.

Steele, Philip. Censorship. New York: Discovery Books, 1992.

Steele, Philip, Philip Skele, and Penny Clarke. Freedom of Speech? New York: Franklin Watts, 1997.

Taylor, C.L. Censorship. New York: Franklin Watts, 1986.

Zeinert, Karen. Free Speech: From Newspapers to Music Lyrics. Hillside, NJ: Enslow Publishers, Inc., 1995.

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Simon & Schuster v. Members of the New York State Crime Victims Board 1991

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