High Court Debates ‘Son of Sam’ Law

A state law that prohibits felons from getting paid for their crime stories raised strong constitutional concerns Thursday from the California Supreme Court.

At a hearing in Los Angeles, some justices suggested that California’s so-called “Son of Sam” law may violate freedom of speech guarantees.

The law prevents felons from profiting from lucrative book and movie deals about their crimes. Money earned from such contracts must be turned over to the felon’s victims or, if unclaimed by them, to the state, according to the law.

The state high court heard arguments in a lawsuit filed by Frank Sinatra Jr. against the man who masterminded Sinatra’s kidnapping in 1963. The story of the sensational crime was sold to Columbia Pictures in 1998 for more than $1 million.

Justice Joyce L. Kennard told an attorney for Sinatra that he faced the “hurdle” of showing that California’s law was crafted narrowly enough to avoid constitutional problems.

It’s the “over-breadth problem that the court is struggling with,” Kennard said.

She added that California’s law appears to have the same constitutional defects as a New York law that the U.S. Supreme Court overturned in 1991. That law was the first “Son of Sam” statute, which comes from the name used by serial killer David Berkowitz, who terrorized New York City in 1977.

Similar New York Law Rejected by Top Court

The U.S. Supreme Court ruled in Simon & Schuster Inc. vs. Members of the N.Y. State Crime Victims Board that the New York law was overly broad and violated free speech rights.

Laws that discourage expressive work with a particular content--such as a depiction of a crime--must serve a compelling state interest and be narrowly focused, the high court ruled.

The court noted that a broad law such as New York’s could have prevented the writing of the “Autobiography of Malcolm X” or “Civil Disobedience” by Henry David Thoreau.

In response to that ruling, the California Legislature tried to narrow the scope of its law, first passed in 1986. The New York law had applied to anyone who had committed or admitted to having committed a crime. The revised California law applies only to convicted felons.

Despite such limitations, the California law “at first blush certainly seems to have pretty strong similarities” to the New York law and might affect many memoirs, Kennard said.

Justice Marvin Baxter, one of the most conservative members of the court, noted that the state Legislature could deprive criminals of profits from crime stories by making it easier for victims to sue assailants in civil cases. Currently, legal deadlines bar many such lawsuits.

Baxter also complained that the state law gives crime victims money that criminals reap from selling their stories, but not from the perpetrators’ sources of money unrelated to the crime.

“Do you see a problem that the statute forces the victim to focus on expressive materials . . . and immunizes millions of dollars in stock and real property that the felon owns?” Baxter asked.

Richard Specter, a lawyer for Sinatra, said about 40 states and the federal government have “Son of Sam” laws. Only the New York law has gone to the U.S. Supreme Court, and California’s is the first to reach a state supreme court, lawyers said.

“If this statute is found unconstitutional, it will be a death knell for all victim rights statutes,” Specter warned the court.

An attorney for Sinatra’s kidnapper countered that crime victims still may receive financial compensation from their attackers by filing civil lawsuits and demanding compensation at the time of sentencing.

Share of Movie Deal to Be Given to Charity

Stephen Rohde, the lawyer for Barry Keenan, said the state law is “a complete disincentive to the writing of books and making of movies because 100% of the compensation is seized.”

Keenan, who attended the hearing, sold the screen rights to “Snatching Sinatra’ after a story about his recollections appeared in the Los Angeles weekly New Times in 1998.

Keenan showed The Times documents and canceled checks that he said show he is giving his $485,000 share of the movie deal, after legal costs, to charity.

The rest of the payments for the movie went to other participants in the project, including one of Keenan’s cohorts at the time of the kidnapping, Keenan said.

Keenan, 61, a real estate developer, said he wants the movie made because several books and articles about the kidnapping contain inaccuracies, and he wants the truth told.

“My case is in the court of public opinion,” said Keenan, dressed in a pinstriped suit with an American flag emblem on the lapel.

After Sinatra sued, a Santa Monica judge ruled that Columbia Pictures could not give Keenan any money for his participation in the movie pending the resolution of the lawsuit. A Court of Appeal also sided with Sinatra.

Keenan said work on the film continues, but publicity about the lawsuit has tarnished his name and forced him to drop out of multimillion-dollar real estate deals.

Keenan was a 23-year-old Malibu resident when he concocted the kidnapping scheme. He said he was broke and alcoholic at the time.

He was convicted of the kidnapping and served 4 1/2 years in prison. Sinatra was released unharmed shortly after he was snatched from a Lake Tahoe hotel, and most of a $240,000 ransom put up by the entertainer’s famous father was recovered.

The state Supreme Court will decide the case, Keenan vs. Superior Court, S080284, within 90 days.