NCJ Number
116393
Journal
Cornell Law Review Volume: 72 Issue: 6 Dated: (September 1987) Pages: 1331-1355
Date Published
1987
Length
25 pages
Annotation
Federal and State laws that compensate victims with profit gained when the offender sells the story of the crime are not achieving their policy goals and violate the first amendment.
Abstract
These 'Son of Sam' laws are named for a New York murderer who stood to profit by selling the story of his crimes. Such laws serve three main goals. They seek to compensate crime victims before the criminal receives any profits from the sale of the story, to promote victim compensation without further burdening State and Federal treasuries, and to prevent criminals from profiting from their crimes. However, these laws are content-based regulations that are not narrowly tailored to achieve compelling State interests. In most cases, criminals lack profit incentives and will not contract to tell the story of the crime. Thus, the laws eliminate speech, abridging the criminal's right to speak and the public's right to hear. In addition, no profits result for victim compensation. States could amend these laws to allow victims to waive their right to damages and to allow criminals to retain some proceeds from their stories. Such amendments would better achieve the underlying policy goals and lessen the First Amendment chilling effect. Problems of subjective value, high transaction costs, and holdouts would undercut the effectiveness of these amendments, however. Thus, States should amend their laws to implement a mandatory division of the profits between the criminal and the victims. This approach would avoid First Amendment problems while reducing profits to the author and publisher to the point that they would neither write nor publish books requiring them to contract with the criminal. 84 footnotes.