Friday, February 22, 2002
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State High Court Strikes Down ‘Son of Sam’ Law as Unconstitutional
By KENNETH OFGANG, Staff Writer/Appellate Courts
California’s “Son of Sam” law is facially invalid under the First Amendment and the state Constitution to the extent that it permits seizure of all monies due a convicted felon from expressive materials that include the story of the crime, the state Supreme Court unanimously ruled yesterday.
Civil Code Sec. 2225(b)(1) “imposes a content-based financial penalty on protected speech,” Justice Marvin Baxter wrote for the court. The law provides for the freezing of all proceeds due the subject from the sale of the story of his or her crime.
Victims would then have five years to sue for compensation, and any awards are paid out of the proceeds. Anything left over would go to the state crime victims fund.
Rejecting a contrary conclusion by Div. One of this district’s Court of Appeal, the high court held yesterday that the law suffers from the same defects in the original New York “Son of Sam” law, which was struck down in Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd. (1991) 502 U.S. 105.
The distinctions relied on by the Court of Appeal, including the requirement that the subject have been convicted of the crime or acquitted by reason of insanity, do not cure the problem identified by the nation’s highest court—the failure to narrowly tailor the remedy to suit the state’s compelling interest in compensating crime victims—Baxter said.
‘Protected Expressive Works’
“By any reasonable construction,” the justice wrote, “the California statute is still calculated to confiscate all income from a wide range of protected expressive works by convicted felons, on a wide variety of subjects and themes, simply because those works include substantial accounts of the prior felonies.”
Baxter’s opinion was joined by five other justices. Justice Janice Rogers Brown concurred separately.
Several other states, and the U.S. Congress, have enacted similar laws. Rhode Island’s was struck down by its state Supreme Court in 1997, while challenges to two other state’s laws were decided on non-constitutional grounds, Baxter said in a footnote.
The case ruled on yesterday was brought by Frank Sinatra Jr. against Barry Keenan, who was convicted of masterminding the 1963 kidnapping of Sinatra from a Lake Tahoe hotel, as well as two confederates and others involved in a proposal to create a motion picture entitled “Snatching Sinatra.” Keenan served more than four years in prison for the crime.
$1.5 Million Paid
The film would be based on an article by the same title, written by Peter Gilstrap and published by New Times Los Angeles in 1998. Columbia Pictures allegedly paid $1.5 million for the rights.
Sinatra asked that all monies due the kidnappers or their “representatives” be seized under the statute, and that he be compensated for the financial and emotional damage he suffered, resulting both from the kidnapping and from claims by Keenan—since admitted to be lies—that the kidnapping was a hoax perpetrated with Sinatra’s assistance in order to extort money from his father.
But Sinatra—who did not file a tort action against Keenan within the time allowed by the statute of limitations—appears to be foreclosed by yesterday’s ruling.
Baxter said the law was overinclusive and arbitrary in targeting all proceeds of a crime, rather than merely the amount necessary to compensate victims, and in targeting nearly all expressive materials related to a crime for which the subject has been convicted.
The law, he said, “sweeps within its ambit a wide range of protected speech, discourages the discussion of crime in nonexploitative contexts, and does so by means not narrowly focused on recouping profits from the fruits of crime.”
Brown, in her separate opinion, opined that a valid “Son of Sam” law could be enacted if it targeted projects like “Snatching Sinatra”, in which “it is the celebrity status of his victim that makes the story newsworthy,” as opposed to works by well-known authors discussing their criminal pasts.
Keenan’s attorney, Stephen Rohde of Century City’s Rohde & Victoroff, said the legal force of the ruling was heightened by the court’s decision to base it on both the state and federal constitutions.
By relying on the California Constitution, he told the MetNews, the court had insulated its decision from U.S. Supreme Court review. At the same time, Rohde said, the ruling may influence other states, “given its persuasive authority and given the stature of this court.”
Sinatra’s attorney, Richard B. Specter of Irvine’s Corbett & Steelman, did not return a phone call.
The case is Keenan v. Superior Court, 02 S.O.S. 925.
Copyright 2002, Metropolitan News Company