Laws Denying Criminals Profits From Stories Voided : Supreme Court: The victims can no longer automatically get proceeds of a felon's book or movie deal. But they may still sue to obtain the funds.

TIMES STAFF WRITER

In a broad defense of the right to free speech, the Supreme Court on Tuesday unanimously struck down the so-called "Son of Sam" laws that allow crime victims to collect a criminal's profits from books or movies.

Even though these laws have the laudable purpose of aiding those who suffer at the hands of a criminal, the First Amendment does not "permit the government to discriminate on the basis of the content of the message," the high court said.

State officials and crime victims can go after the funds of criminals, the justices said, either through civil suits or through sentencing laws that seize all the assets of a convict. But the government cannot enforce a law aimed solely at obtaining money derived from publications, movies, plays or other "expressive activity," the court said.

The ruling appears to invalidate laws in New York, California and 38 other states that were designed to prevent a notorious criminal from making a profit from his crime.

Like the flag-burning ruling of 1989, Tuesday's decision shows again that the Supreme Court, while generally conservative, is still willing to give broad protection to the freedom of speech.

Under Chief Justice William H. Rehnquist, the court rarely strikes down state laws because they are said to violate the U.S. Constitution. But cases involving the First Amendment's protection of free speech have been the exception to that rule.

"On the core issues of the First Amendment, this court is very solid," said New York attorney Charles S. Sims, who represented Simon & Schuster, the publishing firm that challenged the New York law.

In the summer of 1977, a series of random shootings by a killer who dubbed himself the "Son of Sam" terrorized New York City. State lawmakers feared that the murderer, once captured, could earn millions of dollars by telling his story to magazines and book publishers.

The New York law required a publisher, movie maker or any other firm which contracted with "any person accused or convicted of crime" regarding "reenactment of such crime" to present the contract to a state crime victims' board. It was empowered to seize all proceeds from the contract and hold them for five years. Both the victims and the criminal's lawyers could seek the proceeds.

Though California and most other states adopted similar laws, the measures have rarely been used. Lawyers said that they knew of only five instances--none in California--where funds have actually been seized under such laws. Even David Berkowitz, the "Son of Sam" killer, was not affected because he voluntarily turned over to his victims' families the proceeds from a 1981 book on his crimes.

In 1986, the New York board sought $96,250 from Simon & Schuster, money that had been paid to Mafia member Henry Hill for recounting his life of crime. His story was turned into the book, "Wiseguy: Life in a Mafia Family," which in turn became the basis for the film, "Goodfellas."

Attorneys for the book publisher paid the money, but challenged the law as unconstitutional. They contended that it was too broad because it could be applied even to authors whose life stories included minor criminal violations in the distant past. For example, had the law been in effect, the state could have sought the proceeds from books by Dr. Martin Luther King Jr. or Malcolm X because both admitted to illegal activities early in their lives.

They also argued that while the state could seek all the assets of all convicted criminals, it could not "single out" the proceeds from books. This sort of discrimination violates the First Amendment, they said.

Movie makers joined the challenge, contending that such laws, if aggressively enforced, could deter the production of films based on actual incidents of crime.

A federal judge and a U.S. appeals court in New York upheld the state law, ruling that the First Amendment did not forbid the government from seizing money that grew out of criminal exploits.

But the Supreme Court wasted little time in overruling those decisions and striking down the law.

"A statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech," wrote Justice Sandra Day O'Connor in her opinion in the case (Simon & Schuster vs. New York Crime Victims Board, 90-1059).

But she stopped short of saying that all such laws are automatically unconstitutional. Lawyers who had studied the opinion Tuesday said that it seemed to invalidate most, but not necessarily all the state laws and a related federal measure.

Justices Harry A. Blackmun and Anthony M. Kennedy wrote concurring opinions saying that they would have struck down all the laws. New Justice Clarence Thomas did not take part in the decision.

Meanwhile, the court ruled 7 to 2 that aliens who fight off a deportation order before an administrative judge are not entitled to have their lawyer's fees paid by the government.

In the case (Ardestani vs. INS, 90-1141), the court said that the federal law on attorneys fees does not apply to such administrative hearings. Justices Blackmun and John Paul Stevens dissented, saying that the ruling will make it more difficult for aliens to contest unwarranted deportations.

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