Oliver North and the Son of Sam

OLIVER NORTH'S autobiography was just being shipped to bookstores as the United States Supreme Court heard a constitutional challenge to a New York law that could have prevented North from being paid for writing the book, if he lived in New York. The coincidental timing dramatizes the unacceptable risk to informed public debate posed by so-called "Son of Sam" laws aimed at preventing criminals from making money by writing about their crimes.The laws reflect the public's understandable revulsion at the idea of criminals profiting from literary exploitations of their crimes. New York passed the first such law in 1977 to try to prevent the serial killer called the "Son of Sam" from being paid for possible book, TV, or movie deals. The statute requires that a criminal-author turn over any advance or royalties to the state's Crime Victim Compensation Board, which holds the money in escrow for five years to pay off adjudged victims of the writer' s crime. Forty-three states and the federal government have similar laws today, but New York's is the broadest and the only one successfully used to pay money to victims. The test case before the Supreme Court involves the best-selling book "Wiseguy," a former mobster's inside account of organized crime that was later adapted into the movie "GoodFellas." The New York board is trying to collect $96,250 that the publisher, Simon & Schuster, paid to the mobster for his collaboration. The lax enforcement of Son of Sam laws has served to obscure the dangers they pose to the First Amendment's purpose of promoting uninhibited debate about public issues. As North's case illustrates, criminal trials can often touch on the most momentous of political questions. Any law that discourages writing about such matters has a First Amendment cost that must be weighed against any supposed benefits. The supposed benefits to crime victims from Son of Sam laws have so far not materialized. And they cannot be realized except by increasing the costs to free speech and public debate. When North began writing, he was a "criminal" - having been convicted by a jury of three counts in his Iran-contra conspiracy trial. By the time the book was published his conviction had been overturned on appeal. New York law, however, would have required that North's publisher notify the state board of the book contract when it was executed - even though the publisher wanted to keep the very existence of the book secret until publication. In addition, North's legal victory would not block enforcement of the New York law because the statute applies to any person who "voluntarily and intelligently" admits a crime even if he is never prosecuted. Thus, under New York's law North could have been prevented from getting any of his advance or any other royalties until 1995 if a politically-appointed board created to help victims had determined North's book to constitute an admission of illegal acts. THAT issue troubled Justice John Paul Stevens during arguments in the "Wiseguy" case. What if a businessman wrote a book about transactions that arguably violated antitrust laws, he asked. Would it be up to the crime-victims board to determine whether the businessman-author had "admitted" a crime? The risk of selective or arbitrary enforcement adds to the First Amendment concerns about the Son of Sam law. Just as the New York board was increasing enforcement of the law in the mid-1980s, it nonetheless officially notified the popular subway gunman Bernhard Goetz that it would not seek to attach any money if he wrote about his case. The board justified the decision on the basis of the jury verdict acquitting Goetz of all but one of the charges against him. But the New York Civil Liberties Union, noting the law's broad reach, contended that the board simply bowed to public opinion. In arguments before the Supreme Court, Simon & Schuster's lawyer rattled off a list of well-known authors who had "admitted" criminal acts in their books: civil rights leaders like Malcolm X and Martin Luther King Jr., and the father of civil disobedience, Henry David Thoreau. These books, New York attorney Ronald Rauchberg argued, might never have appeared if publishers had been subject to Son of Sam laws at the time. The risk that any such book - like Oliver North's autobiography - might not be written is too great for these laws to pass muster under the First Amendment, even for the worthy purpose of compensating crime victims.

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