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Keenan v. Superior Court of Los Angeles County2/21/2002
ct. The California statute explicitly targets and confiscates a convicted felon's proceeds from books, films, articles, recordings, broadcasts, interviews, or performances that include the story of the felon's crime. While certain classes of speech - obscenity, fighting words, some defamation - may be subject to viewpoint-neutral regulation because of their directly injurious nature (see. e.g., R.A.V. v. St. Paul (1992) 505 U.S. 377, 382-390; Chaplinsky v. New Hampshire (1942) 315 U.S. 568, 571-572), discussions of crime have never been included in this limited category.
Sinatra, Jr., asserts that laws imposing financial penalties on speech do not necessarily violate the First Amendment. He cites cases for the principle that the government need not subsidize the exercise of free speech or other constitutional rights. (E.g., Lyng v. Automobile Workers (1988) 485 U.S. 360 [denial of food stamps to household with striking worker]; Regan v. Taxation With Representation of Wash. (1983) 461 U.S. 540 [denial of tax exemption to organizations engaged in lobbying]; Harris v. McRae (1980) 448 U.S. 297 [denial of federal funds to reimburse abortions].) But he fails to show how section 2225(b)(1), by confiscating income from speech based on its content, departs from the presumptively unconstitutional form of statute at issue in Simon & Schuster.
Nor does it matter that New York's law focused on media entities' contracts for crime stories, while section 2225(b)(1) targets crime story proceeds in the hands of the criminal himself. As Simon & Schuster noted with respect to the facts in that case: "Whether the First Amendment `speaker' is considered to be Henry Hill, whose income the statute places in escrow because of the story he has told, or Simon & Schuster, which can publish books about crime with the assistance of only those criminals willing to forgo remuneration for at least five years, the statute plainly imposes a financial disincentive only on speech of a particular content." (Simon & Schuster, supra, 502 U.S. 105, 116.) "The government's power to impose content-based financial disincentives on speech surely does not vary with the identity of the speaker" (Simon & Schuster, supra, at p. 117), and section 2225(b)(1), like the New York statute, "establishes a financial disincentive to create or publish works with a particular content" (Simon & Schuster, supra, at p. 118, italics added).
Section 2225(b)(1) is thus a suspect content-based regulation of speech. As such, the section is unconstitutional unless, at a minimum, it is narrowly tailored to serve compelling state interests. (Simon & Schuster, supra, 502 U.S. 105, 118; Sable Communications of Cal., Inc. v. FCC (1989) 492 U.S. 115, 126.) In applying this standard, we must first determine what, if any, such compelling interests section 2225(b)(1) seeks to serve.
By its terms, section 2225(b)(1) confiscates, for the benefit of uncompensated victims of crime, sums due or owing to a convicted felon from expressive materials that include the story of the felony. It thus appears the purpose of section 2225(b)(1) is to assure that the "fruits" of one's crimes - in this case, proceeds from exploiting the story of those crimes - will be used to compensate crime victims.
Statements of legislative intent confirm this inference. When the predecessor of section 2225(b)(1) was adopted in 1983, the Legislature declared, as justification for the law, that " ictims of felonies have a special relationship to proceeds from the sale of stories about those felonies which are written by persons convicted of committing them." (Stats. 1983, ch. 1016, ยง 1, p. 3581.) It further recited that the new law "am
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