Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105 (1991)

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certiorari to the united states court of appeals for the second circuit

No. 90-1059. Argued October 15, 1991—Decided December 10, 1991

Among other things, New York's "Son of Sam" law provides that an "entity" contracting with a person "accused or convicted of a crime" for the production of a book or other work describing the crime must pay to respondent Crime Victims Board any moneys owed to that person under the contract; requires the Board to deposit such funds in an escrow account for payment to any victim who, within five years, obtains a civil judgment against the accused or convicted person and to the criminal's other creditors; and defines "person convicted of a crime" to include "any person who has voluntarily and intelligently admitted the commission of a crime for which such person is not prosecuted." After it discovered that petitioner publisher had signed an agreement with an author who had contracted with admitted organized crime figure Henry Hill for the production of a book about Hill's life, the Board, inter alia, determined that petitioner had violated the Son of Sam law and ordered it to turn over all money payable to Hill. Petitioner then brought suit under 42 U. S. C. 1983, seeking a declaration that the 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.

Held: The Son of Sam law is inconsistent with the First Amendment. Pp. 115-123.

(a) Whether the First Amendment "speaker" is considered to be Hill, whose income the New York law places in escrow because of the story he has told, or petitioner, which can publish books about crime with the assistance of only those criminals willing to forgo remuneration for at least five years, the law singles out speech on a particular subject for a financial burden that it places on no other speech and no other income and, thus, is presumptively inconsistent with the Amendment. Leathers v. Medlock, 499 U. S. 439, 447; Arkansas Writers' Project, Inc. v. Ragland, 481 U. S. 221, 230. The fact that the law escrows speech-derived income, rather than taxing a percentage of it outright as did the law invalidated in Arkansas Writers' Project, cannot serve as the basis for disparate treatment under the Amendment, since both forms of financial burden operate as disincentives to speak. Moreover, the


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