Keenan

We confront a claim that California’s “Son of Sam law” facially violates constitutional protections of speech by appropriating, as compensation for crime victims, all monies due to a convicted felon from expressive materials that include the story of the crime. We conclude that *416 these provisions of the California statute are facially invalid under both the free speech clause of the First Amendment to the federal Constitution 1 as applied to the states through the Fourteenth Amendment, and the liberty of speech clause of the California Constitution (art. I, § 2, subd. (a)).

The California law was first enacted in 1983 as Civil Code section 2224.1. 3 (Stats. 1983, ch. 1016, § 2, pp. 3581-3584.) In 1986, the law was renumbered as section 2225 (Stats. 1986, ch. 820, §§ 7, 8, pp. 2730-2733), and it has since been amended on several occasions (see Stats. 1992, ch. 178, § 2, p. 882; Stats. 1994, ch. 556, § 1, p. 2823; Stats. 1995, ch. 262, § 1; Stats. 2000, ch. 261, § 2). As currently in effect, the law seeks to prevent a convicted felon, or a profiteer, from exploiting the felon’s crimes for financial gain while victims of crime go uncompensated.

One prong of the…

The majority correctly observes Civil Code section 2225, subdivision (b)(1), 1 shares the essential constitutional flaws condemned in Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd. (1991) 502 U.S. 105 [ 112 S.Ct. 501 , 116 L.Ed.2d 476 ] (Simon & Schuster). Lest it seem the moral of the story is crime does pay, I write separately to dispel the understandable misconception that every “Son of Sam” law is unconstitutional. A properly drafted statute can separate criminals from profits derived from their crimes while complying with the First Amendment.

The Simon & Schuster court recognized the fundamental difference between works like The Confessions of Saint Augustine or Letter from Birmingham Jail and a ghost-written work entitled Snatching Sinatra. In the former examples, it is the public prominence, fame, wit, passion and eloquence of the authors that make these stories valuable. The “crimes” caused negligible harm to any actual victim and added nothing to the marketability of the stories. In contrast, Mr. Keenan’s crime involved both a serious harm and is the source of his work’s profitability; judging by the title of his literary effort, it is the celebrity…

Corbett & Steelman, Richard B. Specter and Mark M. Monachino, Irvine, of Real Party in Interest.

Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, Carole Ritts Kornblum, Assistant Attorney General, Peter K. Shack and Kelvin C. Gong, Deputy Attorneys General, as Amici Curiae on behalf of Real Party in Interest.

BAXTER, J.

We confront a claim that California's "Son of Sam law" facially violates constitutional protections of speech by appropriating, as compensation for crime victims, all monies due to a convicted felon from expressive materials that include the story of the crime. We conclude that these provisions of the California statute are facially invalid under both the free speech clause of the First Amendment to the federal Constitution [1] as applied to the states through the Fourteenth Amendment, and the liberty of speech clause of the California Constitution (art. I, § 2, subd. (a)). [2]

The California law was first enacted in 1983 as Civil Code section 2224.1. [3] (Stats. 1983, ch. 1016, § 2, pp. 3581-3584.) In 1986, the law was renumbered as section 2225 (Stats.1986, ch. 820, §§ 7, 8, pp. 2730-2733), and it has since been amended on…