Simon & Shuster v. Members of the New York State Crime Victims
Decided on Dec. 10, 1991; 502 US 105


A. Issues Discussed: 1st Amendment (press, speech, association)

B. Legal Question Presented:

Did New York's "Son of Sam" law violate the free speech clause of the First Amendment?


A. Background:

To keep criminals from profiting from crimes by selling their stories, New York State's "Son of Sam" law required that an accused or convicted criminal's income from books or articles describing his or her crimes be turned over to the New York State Crime Victims Board. The Board was to deposit the money into escrow accounts which victims could later claim through civil suits.

In 1987 the Board determined that Henry Hill, a former gangster who sold his story to the publishing company Simon & Schuster (petitioner), had violated the “Son of Sam” law, and ordered him  to turn over his payments from the book deal. Petitioner sued the New York State Crime Victims Board (respondents) seeking a declaration that the “Son of Sam” law violates the First Amendment and an injunction barring the law’s enforcement. The District Court found the law to be consistent with the Amendment, and the Court of Appeals affirmed.  The US Supreme Court granted certiorari to review the case.

B. Counsel of Record:
Opposing Side
Ronald S. Rauchberg argued the cause for petitioner. With him on the briefs were Charles S. Sims and Mark C. Morril. Howard L. Zwickel, Assistant Attorney General of New York, argued the cause for respondents. With him on the brief were Robert Abrams, Attorney General, O. Peter Sherwood, Solicitor General, and Susan L. Watson, Assistant Attorney General.
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by Leon Friedman, Steven R. Shapiro, John A. Powell, and Arthur N. Eisenberg; for the Association of American Publishers, Inc. by R. Bruce Rich; and for the Motion Picture Association of America, Inc. by Richard M. Cooper, David E. Kendall, and Walter J  Josiah, Jr. Briefs of amici curiae urging affirmance were filed for the State of Florida et al. by Robert A. Butterworth, Attorney General of Florida, and Louis F. Hubener and Charles A. Finkel, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Jimmy Evans of Alabama, Charles E. Cole of Alaska, Daniel E. Lungren of California, Gale E. Norton of Colorado, Richard Blumenthal of Connecticut, Charles M. Oberly III of Delaware, Michael J. Bowers of Georgia, Larry Echo-Hawk of Idaho, Roland W. Burris of Illinois, Linley E. Pearson of Indiana, Robert T. Stephan of Kansas, J. Joseph Curran, Jr. of Maryland, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, William L. Webster of Missouri, Marc Racicot of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, John P. Arnold of New Hampshire, Robert J. Del Tufo of New Jersey, Lacy H. Thornburg of North Carolina, Lee Fisher of Ohio, Robert H. Henry of Oklahoma, Ernest D. Preate, Jr. of Pennsylvania, T. Travis Medlock of South Carolina, Mark Barnett of South Dakota, Charles W. Burson of Tennessee, Paul Van Dam of Utah, Jeffrey L. Amestoy of Vermont, Mary Sue Terry of Virginia, and Joseph B. Meyer of Wyoming; and for the Council of State Governments et al. by Richard Ruda and Randal S. Milch.

Additional briefs of amici curiae were filed for the United States by Solicitor General Starr, Assistant Attorneys General Gerson and Mueller, Deputy Solicitor General Shapiro, and Ronald J. Mann; for the Crime Victims Legal Clinic by Judith Rowland; for the National Organization for Victim Assistance et al. by Charles G. Brown III; and for the Washington Legal Foundation et al. by Daniel J. Popeo, Richard A. Samp, and Jonathan K. Van Patten.

"[T]he State has a compelling interest in ensuring that victims of crime are compensated by those who harm them... The State’s interest in preventing wrongdoers from dissipating their assets before victims can recover explains the existence of the State’s statutory provisions for prejudgment remedies and orders of restitution... The State likewise has an undisputed compelling interest in ensuring that criminals do not profit from their crimes...

[T]he State has a compelling interest in compensating victims from the fruits of the crime, but little if any interest in limiting such compensation to the proceeds of the wrongdoer’s speech about the crime.

As a means of ensuring that victims are compensated from the proceeds of crime, the Son of Sam law is significantly overinclusive... [T]he statute applies to works on any subject, provided that they express the author’s thoughts or recollections about his crime, however tangentially or incidentally...  In addition, the statute’s broad definition of 'person convicted of a crime' enables the Board to escrow the income of any author who admits in his work to having committed a crime, whether or not the author was ever actually accused or convicted.

We conclude simply that in the Son of Sam law, New York has singled out speech on a particular subject for a financial burden that it places on no other speech and no other income. The State’s interest in compensating victims from the fruits of crime is a compelling one, but the Son of Sam law is not narrowly tailored to advance that objective. As a result, the statute is inconsistent with the First Amendment. The judgment of the Court of Appeals is accordingly reversed."

Justice Vote: 8 Pro vs. 0 Con

  • O'Connor, S.  Pro  (Wrote majority opinion)
  • Rehnquist, W.  Pro  (Joined majority opinion)
  • Stevens, J.  Pro  (Joined majority opinion)
  • Scalia, A.  Pro  (Joined majority opinion)
  • White, B.  Pro  (Joined majority opinion)
  • Souter, D.  Pro  (Joined majority opinion)
  • Blackmun, H.  Pro  (Wrote concurring opinion)
  • Kennedy, A.  Pro  (Joined concurring opinion)
  • Thomas, C.  Took no part in the consideration of the case

The ACLU filed a brief as amicus curiae urging reversal; the US Supreme Court reversed the ruling of the Court of Appeals for the Second Circuit in a 8-0 vote, giving the ACLU an apparent win.