Notoriety for Profit/"Son of Sam" Legislation

Overview

In 1977, the New York State Legislature enacted a law prohibiting criminals from using their notoriety for profit, commonly called the "Son of Sam" law. This law provided that when a criminal offender entered a contract to receive profits from the recounting of his or her crime -- such as a book, movie, television show or other depiction of the crime -- the party (usually a corporation) contracting with him or her had to pay over to the state all profits that would otherwise be paid to the offender. These funds would be held for the benefit of the offender's victims, or in some cases, contributed to the state victim compensation fund.

This law was enacted to prohibit the notorious convicted murderer David Berkowitz, also known as "Son of Sam," and other criminals like him, from profiting by the sale of stories about the crimes they have committed. The principle behind "Son of Sam" laws holds that it is contrary to public policy to allow violent criminals to profit from the re-telling of their crimes while their victims suffer financially and are forced to endure the added emotional pain from the publicity. Following New York's lead, 42 additional states and the federal government enacted similar "Son of Sam" laws.

"Son of Sam" Laws

Although "Son of Sam" laws across the country are fairly similar, the wording of such laws varies from state to state. In most states, the victim must sue the offender in civil court and obtain a judgment for damages before being eligible to make a claim against the offender's profits. In others, claims are made through the established state victim compensation program. The laws generally apply to convicted offenders, including those who plead guilty, as well as those who are acquitted on the grounds of insanity. A few states include persons accused of a crime, provided there has been an indictment or some other preliminary determination that the defendant may have committed the crime.

Ordinarily, states require that the profits be paid to the state, and be held in escrow. Generally, the state agency that receives the funds then attempts to contact the offender's victims, either directly or by publishing notices regarding the availability of funds in local newspapers. Victims then have a limited number of years (usually three to five years) from the date the escrow account is established to file a civil suit against the offender. Any resulting judgment can be paid out of the escrow account.

Where no victims bring a civil suit, or when excess funds remain in the account, the law designates the disposition of the funds. Some states return the funds to the defendant. Others provide a list of payees and an order of priority of payment, including the payment of such things as victim restitution orders, court costs, defense attorney fees, costs of incarceration, and other expenses. Often any remaining funds are deposited into the state crime victims compensation fund.

Constitutional Challenges

In 1991, New York's "Son of Sam" law was challenged in Simon & Schuster, Inc. vs. New York Crime Victims Board, 112 S. Ct. 501 (1991). The United States Supreme Court held the law to be and unconstitutional violation of the First Amendment right to free speech.

The Court first determined that since the laws targeted only profits that resulted from activities related to speech (such as books, movies, interviews, etc.), in order to be constitutional the law must be narrowly written to achieve a compelling government interest. The Court acknowledged that providing financial recovery to crime victims was a compelling interest. It also found that it was not necessary that the particular victims compensated be the victims of that offender; payment to other victims, through the state compensation fund, was also acceptable. However, the Court found that the law was not narrowly written. The law was overbroad in that it applied not only to convicted offenders, but also to those accused of a crime. In addition, the law made no distinctions between materials that were substantially about the crime and those in which the mention of the crime was only tangential or insignificant. For example, books by persons such as St. Augustine, Thoreau, and Malcolm X would have fallen under the purview of the law since they all had mentioned in their works crimes they had committed.

While the Supreme Court's decision involved only the New York law, nearly all notoriety-for-profit statutes had similar language, so their constitutionality was also called into question. As a result, legislatures have begun to amend their laws in order to make them constitutional.

Legislative Response to Simon & Schuster

In response to the Supreme Court's decision in Simon & Schuster, new legislation has been enacted by the State of New York and several other states.

Nearly one-third of all states have not altered their notoriety-for-profit statutes following the Simon & Schuster ruling. Some states that have amended their laws, have not addressed the Supreme Court's concerns. However, a substantial number of states have attempted to revise their laws to make them constitutional.

The most common change made to such laws has been expanding them to cover any profit received, directly or indirectly, from crimes, not just profits from speech-related activities. For instance, Iowa targets "fruits of the crime," defined as "any profit which, were it not for the commission of the felony, would not have been realized." (1) Oklahoma's amended law applies to "any proceeds or profits from any source, as a direct or indirect result of the crime or sentence, or the notoriety which the crime or sentence has conferred upon the defendant." (2) In contrast, Tennessee targets "all income, from whatever source derived, which is owing to the defendant, or representative or assignee of the defendant, after the date of the crime."(3)

Many of the amended laws still focus on speech-related profits, but exclude materials in which the reference to the crime was incidental or tangential. The Kansas law applies to speech-related profits "provided, such book, magazine or other publication, movie, radio or television presentation or live entertainment of any kind deals principally with the crime for which the person is accused and convicted." (4) Another common change has been to restrict the notoriety-for-profit statutes to convicted offenders.

Innovations

"Son of Sam" laws were drafted to address the public outrage that resulted when offenders were seen to profit from the notoriety resulting from their crimes. Involvement by other persons in high-profile cases might also lead to notoriety that the general public finds offensive. Some legislatures have attempted to restrict the profiteering by those other persons. Georgia makes it illegal for a "judge, prosecutor, investigating officer, or law enforcement officer who is a witness in a case to receive or agree to receive remuneration during the period of time between indictment and the completion of direct appeal in any criminal case." (5) Illinois has enacted a law prohibiting witnesses from receiving "any payment or benefit in consideration for providing information obtained as a result of witnessing an event or occurrence or having personal knowledge of certain facts in relation to the criminal proceeding" until after a verdict or judgment in the case. (6)

To find out whether your state has a "Son of Sam" law, please contact your local prosecutor's office, your state Attorney General, state legislator, or the victim assistance agency in your area.

To learn more about "Son of Sam" laws generally, see The Rights of Crime Victims by James Stark and Howard W. Goldstein (New York: Bantam Books, 1985), or contact your local public library or law library. If your state does not have a notoriety-for-profit law, you may have other legal remedies available to you. Check with your local prosecuting attorney or a civil lawyer.

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Copyright © 1999 by the National Center for Victims of Crime.  This information may be freely distributed, provided that it is distributed free of charge, in its entirety and includes this copyright notice.