Wising Up: 'Son of Sam' Laws and the Speech and Press Clauses

Abstract

Son of Sam laws aim to compensate victims of crime by awarding them income earned when criminals who injured them sell stories of their illegal exploits to media. prevalence of these statutes, which forty-three states and federal government have enacted, reflects overwhelming popular approval of their underlying policy: the victim must be more important than criminal. The broad reach of Son of Sam provisions, however, raises question whether this well-meant social legislation impermissibly burdens constitutionally protected rights of free expression.In this Article, Garrett Epps relates tale of New York mobster Henry Hill, writing of his autobiographical book Wiseguy, and litigation it spawned. Hill saga illustrates conflict between preventing criminals from profiting at expense of their victims and protecting First Amendment rights of criminal authors. Mr. Epps first surveys breadth of Son of Sam statutes, identifying complex issues of free speech and press they create. He then recounts history of Wiseguy case, pointing out confused approaches that state and lower federal courts have taken when analyzing constitutionality of Son of Sam statutes. Mr. Epps resolves this confusion by noting that Son of Sam laws are targeted at content of expressive activity, and therefore are subject to strict-scrutiny analysis required by Supreme Court precedent. He asserts that although sweeping Son of Sam statutes further a legitimate governmental interest in compensating victims of crime, they are not narrowly tailored to achieve that goal because they do not attach to a criminal's assets generally, but only to proceeds from his literary ventures. Mr. Epps argues further that, even if Son of Sam laws are not unconstitutional per se, overbreadth of many such statutes violates Speech and Press Clauses. In particular, he contends that sequestering proceeds of publishers and others who contract with criminal authors constitutes both a prior restraint and a licensing of publishers in violation of First Amendment. Mr. Epps concludes that rights of even criminal authors are firmly rooted in Constitution. He thus calls for a wising up with regard to constitutional issues raised by Wiseguy case and for striking down of Son of Sam laws as unjustifiable restrictions on free speech and a free press.