 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Seres v. Lerner12/21/2004
In this appeal, we consider the constitutionality of NRS 217.007, Nevada's "Son of Sam" law. In general terms, NRS 217.007 allows a felony victim to recover from the felon any monetary proceeds the felon might generate from published materials based upon or substantially related to the offense. Damage awards derived from actions brought after expiration of applicable statutes of limitation for tort damages are limited to publication proceeds. We hold that NRS 217.007 violates the First Amendment of the United States Constitution.
FACTS AND PROCEDURAL HISTORY
In 1998, a district court in Washoe County, Nevada, convicted respondent Jimmy Lerner of manslaughter in connection with the death of Mark Slavin. While incarcerated in the Nevada State Prison, Lerner wrote a book entitled, You Got Nothing Coming, Notes from a Prison Fish, which was published by Broadway Books and Random House in 1999. This book detailed Lerner's imprisonment and contained descriptions of the events surrounding the killing of Mr. Slavin.
Appellant Donna Seres, Mr. Slavin's sister, sued Lerner pursuant to NRS 217.007 on behalf of her mother, Gertrude Slavin, after expiration of the statute of limitations for bringing a wrongful death action. Seres sought recovery of Lerner's book proceeds, imposition of a constructive trust and an accounting.
The district court granted Lerner's motion to dismiss Seres's NRS 217.007 action under Simon & Schuster, Inc. v. Members of New York State Crime Victims Board, a 1991 United States Supreme Court decision, which voided a similar Son of Sam statute based upon First Amendment considerations. Seres filed her timely notice of appeal. We affirm.
DISCUSSION
This appeal concerns Lerner's successful challenge to the validity of NRS 217.007 under the First Amendment to the United States Constitution.
Standard of Review
We presume that a statute is constitutional and review a statute's constitutionality de novo. The party challenging the statute bears the burden of proving that the statute is unconstitutional.
First Amendment jurisprudence dictates that legislatively created content-based restrictions on speech satisfy strict scrutiny review under which any such measure must address a compelling state interest and be narrowly tailored to achieve that interest. Overinclusive content-based measures fail this level of scrutiny.
Historical Perspectives
New York enacted the first Son of Sam law in 1977, in response to the possibility that David Berkowitz, a serial killer popularly known as the Son of Sam, might sell the publication rights to his memoirs. The measure was calculated to ensure that monies received by criminals in connection with published storytelling about their criminal activities be made available to compensate victims. The statute required that entities contracting with an "accused or convicted" person for the production of a work depicting his or her crime submit the contract to a crime victim's board and turn over any income owed to the perpetrator to the board for deposit in an escrow account administered by the state. The measure defined "persons convicted of a crime" in such a way as to include individuals who had never been accused or convicted. A victim of the crime could then commence a civil suit to recover a money judgment against the perpetrator and obtain funds from the escrow account. The statute also provided a right of recovery, based upon a hierarchy of priorities, by state victims' compensation funds and/or the offender's other creditors. Following New York's lead, the federal government and a majority of states have enacted s
Page 1 2 3 4 5 6 7 8 Nevada Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|