Son of Sam Laws: Do Criminals Have a Right to Profit From Their Crimes?

Freedom of speech protects expression like books and movies. And true crime stories have always been popular material for books, movies and TV shows.

But some states have laws that prevent people convicted of crimes from earning money from telling the stories of their crimes, such as through book and movie deals. These are sometimes called "Son of Sam" laws.

So does the First Amendment protect expression about crime? Or is this an exception to free speech protections?

What are Son of Sam laws?

Son of Sam laws are based on the idea that people who have committed crimes should not profit from those crimes. Just like stolen money must be returned, advocates argue, people convicted of crimes shouldn't profit from stories about their crimes.

Many such laws now limit any income for people convicted of crimes, not just income from selling or writing their stories. For example, they flag money that a convicted person inherits in addition to income from book rights. This change is largely because the Supreme Court said these laws sometimes violate the First Amendment.

How did Son of Sam laws begin?

David Berkowitz pled guilty to the Son of Sam killings of six people in New York City in 1976-1977. The killing spree terrified New Yorkers and made news around the country. The murders got their name from the letters Berkowitz left for police at his crime scenes, signed "Son of Sam."

After Berkowitz's arrest, a book publisher offered to buy the rights to his story for $75,000 plus a $250,000 advance.

But New York lawmakers did not want Berkowitz cashing in on his crimes. So they crafted a Son of Sam law that would lead to a yearslong First Amendment debate.

The Son of Sam — a.k.a David Berkowitz — is one of the most infamous serial killers in New York City’s history and the subject of our just-released documentary series The Sons of Sam: A Descent Into Darkness. pic.twitter.com/l5D9pGK1r0

— Netflix (@netflix) May 5, 2021

Do Son of Sam laws violate the First Amendment?

In 1991, Simon & Schuster sued when New York tried to enforce its Son of Sam law against a book written by former organized crime figure Henry Hill, who had sold his story rights to the publisher. The book became the basis for the popular film "Goodfellas."

Lawyer Stephen Rohde, who challenged the law, said that the case was more about protecting the public's right to get information about crimes than about protecting the rights of convicted people.

The Supreme Court struck down New York's Son of Sam law in Simon & Schuster Inc. v. Members of New York State Crime Victims Board (1991). The First Amendment prohibits laws that limit speech based on the content of that speech. New York's Son of Sam law limited speech based on its content.

In this case, the court said New York did have a good reason (in legal terms, a "compelling interest") to give money to crime victims and their families. But the court said the way it tried to do this was too broad.

The court said New York's law would punish anyone who admitted to a crime, even if they were not prosecuted. It noted that the law applied to even passing mentions of crime. It applied to minor crimes from years before. It could also have applied to civil rights activists who had been arrested, even if it was for peaceful protests. For example, the Rev. Dr. Martin Luther King Jr. was arrested several times for protests that should have been allowed under the First Amendment but were declared illegal at the time. New York's Son of Sam law could have limited his income from his writings. Because the law limited too much speech of too many people, it violated the First Amendment.

After the ruling, New York changed its law. Instead of automatically taking the money people who were convicted of crimes were paid and giving it to victims, the new law required that victims or their families be notified anytime a convicted person earned more than $10,000 from any source. Then the victims or families could sue to get some of the money. The new law also only applied to a limited number of crimes. It applied to certain felonies (like violent crimes, grand larceny and criminal possession of valuable stolen property). The law also was limited to money received while in prison or on probation. And it applied for only a few years after the crime.

Did Berkowitz keep the book and movie deal money?

No. Berkowitz said in an interview that he wanted the money to go to the victims. But he was not legally allowed to decide. His lawyers wanted some of the money too. In the end, some money from various deals went to authors and agents. The portion going to Berkowitz was ordered to go to victims.

How have courts ruled on Son of Sam laws and free speech?

Several states' Son of Sam laws have been overturned by courts as violating free speech. But in some cases, the laws have been used to strip convicted people of profits from selling their stories.

Son of Sam laws that were struck down

In several cases, Son of Sam laws have been struck down.

• Courts have ruled that several states' laws violate the First Amendment.
• Rulings have followed the Supreme Court's decision.
• Courts often say the laws are too broad.

In 2000, an appeals court in Arizona ruled that former organized crime boss Salvatore "Sammy the Bull" Gravano could keep the profits of his autobiography. The court said that Arizona's law, which was revised after the Supreme Court's 1991 decision, still violated First Amendment rights. The Supreme Court declined to hear a challenge to the ruling.

According to the Reporters Committee for Freedom of the Press:

Attorney Michael Dowd … told the Associated Press that the ruling was "a wonderful decision for anyone who'll ever put pen to paper." A HarperCollins press release stated that the ruling "makes clear that authors and publishers can publish accounts of criminal activity without fear of interference from the Crime Victims Board."

In 2002, California's Supreme Court struck down that state's revised Son of Sam law. Barry Keenan, who was convicted of kidnapping Frank Sinatra Jr., wanted to sell his story rights for $1.5 million dollars. The state wanted to take the money for victims. The court said the law was still too broad and violated Keenan's rights.

The same year, the Massachusetts Supreme Court struck down a proposed Son of Sam law there before it even passed the legislature.

In 2004, Nevada's Supreme Court struck down that state's Son of Sam law too. It said the law was too broad in limiting speech based on its content – speech that people have a First Amendment right to write and to consume.

Son of Sam laws that were enforced

Using Son of Sam laws is not always ruled a violation of free speech rights. In some cases, the laws have been upheld.

In 2007, a Florida appeals court said a convicted serial murderer's property and proceeds from writing about his crime could be seized.

In a wrongful death lawsuit, a court ordered the profits of O.J. Simpson's book deal – the ghostwritten "If I Did It" – to be turned over to the estate of Ronald Goldman, who was killed alongside Simpson's ex-wife Nicole Brown Simpson.

In 2019, New York claimed about $320,000 that Netflix paid the fake heiress known as Anna Delvey for her story. The state used its reworked 2001 Son of Sam law. Between 2001 and 2020 the law was used about 25 times to give money to victims.

This story is completely true...except for all of the parts that aren't. Julia Garner is Anna Delvey in Inventing Anna, from Shondaland. pic.twitter.com/q6zsfqiDaw

— Netflix (@netflix) October 25, 2021

What's the bottom line for Son of Sam laws and the First Amendment?

In several cases, Son of Sam laws have been struck down as unconstitutional, including by the Supreme Court.

Some have been rewritten to not violate the First Amendment.

Some have yet to be challenged in court.

This report is based on scholarship by Freedom Forum fellows and experts including David L. Hudson Jr. and First Amendment Specialist Kevin Goldberg.