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Justices Gut State’s ‘Son of Sam’ Law

TIMES STAFF WRITER

The California Supreme Court on Thursday struck down a state law that prohibits felons from cashing in on their crime stories in a case that pitted freedom of speech against victims’ rights.

The unanimous decision, a victory for book publishers and the movie industry, found that the state’s 16-year-old ban on profiteering from crime was overly broad and violated free-speech rights guaranteed by the U.S. and state constitutions.

The ruling was the first of its kind since the U.S. Supreme Court in 1991 overturned the original “Son of Sam” law in New York state, saying it was too broad and violated the right to free speech.

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The New York law was named after the moniker used by serial killer David Berkowitz, who terrorized New York City in the late 1970s. It had applied to anyone who had committed, or admitted to having committed, a crime.

After the 1991 ruling, the state Legislature limited California’s law, making it apply only to convicted felons, in hopes of making it constitutional. The California high court, however, said Thursday that the state law still was too sweeping.

California’s prohibition was one of more than 40 laws across the nation that required felons to turn over proceeds from such projects to the victims of their crimes or the state. The latest ruling makes such laws more vulnerable to legal challenges.

The ruling stemmed from a lawsuit filed by Frank Sinatra Jr. over a movie about his infamous kidnapping in 1963. Sinatra wanted to stop Barry Keenan, the mastermind of the crime, from earning money from the sale of “Snatching Sinatra” to Columbia Pictures. Keenan said he would turn over all proceeds to charity. The movie project is now stalled.

A lawyer for Sinatra complained that the ruling makes it “open season” on criminal memoirs for the movie industry and will be a “death knell” for similar laws in other states.

“This is the movie capital,” said Richard B. Specter, Sinatra’s lawyer, “and because more movies are made here than anywhere else, this is extremely significant.”

Victims'-rights advocates said they will lobby the Legislature to pass a new law that is constitutional.

“This sends a message that there is profit in crime,” complained Marc Klaas, father of Polly Klaas, who was 12 when she was kidnapped and murdered in 1993.

Ban Described as Too Broad

The court’s decision, written by Justice Marvin Baxter, said the ban on profits from books, movies and magazine articles was overly broad because it could be applied to any book or movie that dealt with a felon’s recollection of crimes.

The law gives crime victims the proceeds from a wide range of works by convicted felons “simply because those works include substantial accounts of the prior felonies,” Baxter wrote.

“A statute that confiscates all profits from works which make more than a passing, nondescriptive reference to the creator’s past crimes . . .” Baxter said, “sweeps within its ambit a wide range of protected speech.”

The court said such a law also discourages the discussion of crimes in even “nonexploitative” contexts. The ruling noted that works by such authors as the political activist Emma Goldman and Martin Luther King Jr. could have been subject to the California law if it had been in effect at the time of their writings.

Book publishers and writers’ groups had urged the court to rule against Sinatra in the case. They had argued that without the incentive of money, many convicted felons would not tell their stories. Volumes of importance to historians, psychologists, criminologists and law enforcement would be lost, they said.

“It is not a stretch to say that these laws probably have had the effect of shaping the way book projects have been done and may well have kept certain books from being published,” said Jonathan Bloom, a lawyer for the Assn. for American Publishers, who argued in the case.

Many states, including New York, have revised “Son of Sam” laws to avoid constitutional problems, Bloom said. But he said he believes they still are vulnerable to constitutional challenges, particularly following Thursday’s ruling.

In a concurring opinion in Keenan vs. Los Angeles Superior Court, Justice Janice Rogers Brown said California may still pass a law that calls for the seizure of the assets of a convicted criminal for the benefit of his or her victims.

“The 1st Amendment protects schlock journalism as well as great literature,” Brown said. “Thus, Mr. Keenan has every right to tell his story. That does not mean the 1st Amendment guarantees he can keep his money.”

Criminals Can Be Sued Over Suffering

She noted that victims can sue criminals and obtain damages for their suffering. “A state may thus seize a defendant’s assets in a content-neutral manner to ensure compensation,” Brown wrote.

But Specter, Sinatra’s lawyer, said such lawsuits take time and the felon may hide his or her money before the victims’ litigation is concluded.

“Convicted felons tend not to keep bank accounts at Wells Fargo with the money sitting in there,” Specter said.

State Sen. Bruce McPherson (R-Santa Cruz) said he will introduce legislation to cure the constitutional defects in the stricken law.

“I do not think the people of California should allow criminals to profit from their misdeeds,” he said.

But Peter Eliasberg, managing attorney for the American Civil Liberties Union of Southern California, said “It will be difficult if not impossible” for the Legislature to write a constitutional law that taps the profits of felons’ writings.

The Legislature in 2000 added a section to the “Son of Sam” law to bar any profiteering from criminals’ memorabilia sold for prices enhanced by the notoriety of the crime.

At the time, notorious criminals in prison were selling everything from their fingernail clippings to their autographs over the Internet. That section of the law was not at issue in the Keenan case, and Thursday’s ruling leaves it on the books.

“We have often said the 1st Amendment does not protect fingernail clippings,” said Stephen F. Rohde, an attorney for Keenan. “But unfortunately, the memorabilia section could sweep within it diaries, poems, drawings, paintings and other material of an expressive nature.

“So it remains to be seen whether aspects of the law that the court didn’t reach today would also be vulnerable to a constitutional challenge.”

Precedent for Other States Seen

Rohde and other lawyers in the case said the ruling imperils similar laws in other states because it establishes a precedent that may guide other state high courts.

Keenan, 61, who said he works as a criminal justice reform advocate, said Thursday he was glad he won the case but bitter that Sinatra had pursued it even after he had pledged to donate all proceeds to charity or to Sinatra himself.

Keenan, who until recently worked as a developer, said he sought a movie deal because he wanted the story to be told correctly for the sake of Sinatra and two of Keenan’s friends who played roles in the kidnapping.

“There were three scripts we knew of floating around Hollywood,” Keenan said, “and we were concerned that if we didn’t participate in the process, it would perpetuate a misrepresentation of the facts surrounding the case.”

Served 4 Years for Kidnapping

By his account, Keenan was in financial trouble and high on drugs when he concocted the plot to kidnap Sinatra, who was 19 at the time. He had known Sinatra’s sister, Nancy, in high school, and says he hoped to invest the ransom, make millions of dollars and eventually repay the Sinatra family.

He and an accomplice snatched the young entertainer at gunpoint from a hotel in Lake Tahoe in 1963 and held him a couple days before he was freed unharmed. Keenan served four years in prison for the crime.

He was paid $485,000 for the movie rights to the story.

Harriet Salarno, chairwoman and president of Crime Victims United of California, said she was stunned by Thursday’s ruling. Salarno, whose daughter was murdered in 1979, said:

“So now they can make money on their crimes and our grief?”

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Times staff writer Carl Ingram contributed to this report from Sacramento.


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