Simon & Schuster, Inc. v. Members of New York State Crime Victims Board – Oral Argument – October 15, 1991

Media for Simon & Schuster, Inc. v. Members of New York State Crime Victims Board

Audio Transcription for Opinion Announcement – December 10, 1991 in Simon & Schuster, Inc. v. Members of New York State Crime Victims Board

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William H. Rehnquist:

We’ll hear argument first this morning in No. 90-1059, Simon & Schuster, Inc. v. the Members of the New York State Crime Victims Board.

Mr. Rauchberg.

Ronald S. Rauchberg:

Mr. Chief Justice, and may it please the Court:

The Petitioner, Simon & Schuster, is here today challenging the constitutionality of section 632(a) of New York’s Executive Law, commonly known as “the Son of Sam” law.

The challenge is both to the facial validity of the statute and to its application to Simon & Schuster on the facts of this case.

Section 632(a) was enacted in 1977 and applies to works of expression and only to works of expression.

It applies to books, movies, magazine articles, and the other expressive works that are specified in the statute.

Whenever a publisher–

Sandra Day O’Connor:

Mr. Rauchberg, are there other laws in New York that apply to other assets of someone who has committed a crime; not this statute, but other statutes that would make other assets subject to reach under a scheme like this?

Ronald S. Rauchberg:

–There are two sets of statutes that might be responsive to your question.

First, there is the statutes that provide tort remedies for all victims of tort, which of course apply to crime victims as well, and second, it bears mentioning that New York has a law, as I would guess, most jurisdictions do that have laws like this, New York has a law providing for the forfeiture of the proceeds of crime.

Of course, there has never been any contention that the forfeiture provision would pertain to the proceeds of a book or other expressive work or to royalties for the authorship of a book.

But other than that, no.

Other than that there is only this statute selecting speech-related assets for special treatment.

Antonin Scalia:

Of course, the forfeiture statute does not turn over the forfeited proceeds to any particular victim.

Ronald S. Rauchberg:

That’s correct.

The forfeiture statute provides for forfeiture to the State, but the point I wanted to make is that it never occurred to the legislators in New York that the forfeiture statute would pertain to the proceeds of a book contract, and therefore, any suggestion that these are somehow crime proceeds I think is simply not correct.

William H. Rehnquist:

Mr. Rauchberg, does the forfeiture statute, is its reach limited to items that were used in the commission of the crime?

Ronald S. Rauchberg:

It applies to both instrumentalities of the crime and the proceeds of the crime.

William H. Rehnquist:

And proceeds too?

Ronald S. Rauchberg:

Yes, absolutely.

David H. Souter:

So that in the example given in one of the briefs, under the forfeiture statute New York could have proceeded against any profits derived by Mr. Milken from his illegal trading?

Ronald S. Rauchberg:

No, I don’t think it could because… oh, I am sorry, I misunderstood the question.

Profits from illegal trading, assuming that they violated State laws as well as Federal laws, would be presumably within the forfeiture provisions of the New York statute, yes.

The statute has an extremely broad definition of the phrase criminal.

In fact, it uses the term person accused or convicted of a crime, and in addition to applying to persons who are accused of crime, it applies to persons convicted, whether of State crimes or of Federal crimes, but it goes beyond that to include in its application persons who are acquitted of crimes by reason of insanity, and it also applies to persons who are never charged with crime at all, but who are deemed by the Crime Victims Board to have admitted crimes.

All of these various types of authors are treated as persons–

Sandra Day O’Connor:

Is it your understanding that under this particular statute that an author who admitted in the course of a book that 20 years before he had stolen a pack of cigarettes, that that would bring him under this statute?

Ronald S. Rauchberg:

–Absolutely.

It absolutely would.

Ronald S. Rauchberg:

The law has been interpreted by the State courts in New York to contain a special statute of limitations provision that starts the limitations period running anew for any crime victim who wishes to begin a proceeding, collect a judgment, and obtain access to the proceeds of the book, first of all, so the 20-year period would not be a barrier.

And second of all, the statute does apply not only to those who are convicted, but to those who are found to have admitted crimes in their book.

And in this case, in this case, Henry Hill, the criminal whose activities triggered the application by the Crime Board of the statute to Simon & Schuster is somebody who was cooperating with Federal and State prosecutors, was in the witness protection program, and had been immunized rather than being charged with the various activities described in his book.

And he was found to be within the description of a convicted person because his book was deemed to contain admissions of crime.

Anthony M. Kennedy:

If there had been an earlier judgment in favor of the victim that had been satisfied, a judgment for damages caused by the crime, I take it, no new cause of action would arise by reason of the publication?

Ronald S. Rauchberg:

The State courts haven’t treated that question, and so I suppose there is possibly some room for argument.

But I think that is a likely interpretation of the statute.

The New York Court of Appeals has interpreted the statute as not being applicable to victimless crimes.

And so it would seem not a great step for the statute to be interpreted as not applying to those crimes with victims where the victims have been fully compensated as well, but I really don’t know.

Anthony M. Kennedy:

In your view, could a State court, through the exercise of their common law jurisdiction, make it an independent tort for a perpetrator of a crime to recount the crime for profit?

Ronald S. Rauchberg:

I think not.

I think that such a statute, making a tort out of speech, would be so inconsistent with the concepts of the First Amendment that it would absolutely have to be–

Anthony M. Kennedy:

Well, suppose in a rape case where the victim is suing for damages there has been a book recounting the lurid details of the crime.

Could the jury be instructed, ladies and gentlemen of the jury, not only has the victim suffered anguish, but there was a book about this and you are entitled to take that into account in giving your damages?

Ronald S. Rauchberg:

–I think not.

I think not.

I think this Court has held that truthful speech, nondefamatory speech may be outrageous, may be offensive, and is nonetheless protected by the First Amendment.

For example, in the Hustler case.

Anthony M. Kennedy:

But in the Hustler case there was no antecedent criminal act.

Ronald S. Rauchberg:

I don’t think the antecedent criminal act is relevant to the question of whether the speech ought to be protected or not.

Anthony M. Kennedy:

So in your view, a rapist could break into the victim’s apartment, rape the victim, and then write a lurid account of it.

In the act of writing or the collection of proceeds from the writing, that could not be independently actionable?

Ronald S. Rauchberg:

I say that is right.

I say that is correct.

Anthony M. Kennedy:

Because that is a far cry from Falwell, because here there is an antecedent crime.

Ronald S. Rauchberg:

There is an antecedent crime, but the crime is a separate act from the authorship of a book.

The authorship of a book is an act to be encouraged, not an act to be suppressed.

Anthony M. Kennedy:

Your position is that we should encourage books of the kind I just described?

Ronald S. Rauchberg:

My position is that the First Amendment encourages the writing of all books, and it is not for this Court to distinguish between which books should be encouraged and which books should not.

And more to the point, it is not for the State of New York to decide that books on a specified subject, namely crime, by a specified class of authors, namely criminals as defined, are books to be discouraged as opposed to encouraged.

Antonin Scalia:

Well, the First Amendment doesn’t encourage the writing of libelous books, certainly, does it?

Ronald S. Rauchberg:

It does not.

Antonin Scalia:

Well, why isn’t this maybe another category of books that the First Amendment doesn’t encourage?

Ronald S. Rauchberg:

There isn’t any issue of false statements raised here.

The concern that I have about the content-based discriminations that this law creates is that it brings about exactly the kind of distortion in the marketplace of ideas that content-based laws are capable of doing, and for that reason are abhorrent.

There are abortion protesters in Wichita, Kansas who are committing crimes based on their view of human life.

There are animal rights activists in Connecticut who disrupt medical experimentation at U.S. Surgical through sabotage and other criminal acts.

There are terminally ill patients whose doctors and whose family members assist them in suicide or sometimes even take action themselves and face criminal charges.

There are battered women who respond to violence with violence in return who find themselves indicted, and this law says to Simon & Schuster that if it wants to publish books on the issues of abortion or euthanasia or animal rights or women’s issues, it can’t commission books by these authors.

Antonin Scalia:

By these authors.

Ronald S. Rauchberg:

It can’t commission these authors to tell their stories, which can be an important part of the public debate on those four issues, and that is four examples.

New York State says no to Simon & Schuster.

Commission books from the victims, from the prosecutors, from the police officers, but not from the victims, who have–

William H. Rehnquist:

It can commission books from the victims, Simon & Schuster just has to put the money in escrow, doesn’t it, and pay it ultimately not to the criminal defendant, but to the victim.

Ronald S. Rauchberg:

–What we have in this case is a garden-variety publishing contract.

We have the activities of the press carried on in the way the press has carried on its activities for decades, in which a contract is made to provide for payment in order to get the work.

Now it is the rare author who is able to work without the assurance of timely compensation.

This author, the record shows, expected timely compensation and got it because the statute was not complied with.

The record shows that most authors require timely compensation.

If you can’t compensate an author, you will get less authorship.

Sandra Day O’Connor:

Well, Mr. Rauchberg, could a State pass a law making all income of a convicted criminal subject to escrow to pay victims of his crimes?

Ronald S. Rauchberg:

I think the answer to that is yes, because then we wouldn’t have a content-based selection of speech for special treatment that results in a distortion of the flow of ideas.

Sandra Day O’Connor:

This is kind of a curious case because all the payment restriction cases that we have had, I think, stand for the proposition that the State can’t limit payments by the speaker to a messenger.

And yet in this case, we have payments to the speaker by the publisher.

So we have not had that situation, have we?

Ronald S. Rauchberg:

I think it is correct to think of Henry Hill as a speaker.

But it is also correct to think of Simon & Schuster as a speaker.

Simon & Schuster resolved to put out a book that would have a particular kind of anti-crime message that would be an antidote to romanticized versions of crime like The Godfather.

Simon & Schuster resolved to utter that speech.

Simon & Schuster is a member of the press.

Ronald S. Rauchberg:

Simon & Schuster is a speaker.

And in order for Simon & Schuster to have engaged in the speech of publishing this book, which it wished to do, it had to make the payment.

You can’t say to a publisher, you are free to publish, but you’re not free to pay for manuscripts.

There won’t be any manuscripts, or there will be precious few, if they cannot pay for them.

So we have two speakers here, Hill and Simon & Schuster.

Anthony M. Kennedy:

Suppose in Justice O’Connor’s situation where there is a statute that affects oral income, it is shown that 90 percent of the recovery is from people who author books after committing crimes, or produce movies?

Ronald S. Rauchberg:

I suppose it is possible that at some point an apparently general statute could be shown to be, in fact, aimed at speech.

But I don’t think that is what would happen here.

The instances of criminals profiting from crimes through the authorship of books are nil.

It is not the kind of thing that happens.

This law has been in effect since 1977.

And in its 14 years, the State of New York has established exactly six escrow accounts, one of which was returned to the criminal because no victims came forward, four of which are still there waiting to see, and only one of which has produced any payments to a victim.

So there has been the victims of precisely one criminal who have been advantaged by the statute.

So a general statute, if there were a general statute enacted that would help victims obtain compensation through enhancing their ability to get at all the assets of the criminals, we see there would be precious few examples of books, but all of the assets that criminals have, the millions of a Michael Milken or an Ivan Boesky, and whatever assets criminals have, would all be better reached by victims under such a statute.

So I don’t think we would find that 90 percent figure suggested by Your Honor’s hypothetical.

William H. Rehnquist:

But would not such a law also discourage the writing of books, although it would do lots of other things, too?

Ronald S. Rauchberg:

Well, it wouldn’t specifically discourage the authorship of books, just as tax laws generally applied don’t discourage the authorship of books.

The general tax laws don’t encourage people to engage in renumerative activities other than authorship.

They make the playing field equal.

And a statute like this… let me say it this way.

The New York statute says to any criminal in need of funds, don’t try to support yourself by writing a book, support yourself by getting a job.

If you had… if you had a statute of general applicability, you would not have that impact.

I gave before examples of criminals whose voices should be heard in the debate on public issues concerning abortion and other subjects.

Not all of those people have independent means that permit them to write books without compensation.

Most of them, presumably, need to earn a living.

And a statute of general applicability wouldn’t encourage them one way or another.

The New York statute says to those people, you have to go to work and you can’t spend your efforts writing a book.

The New York statute says to Simon & Schuster that you cannot compensate those people for books that you want to publish that you deem valuable and results in our not having those books.

John Paul Stevens:

Counsel, can I ask you a question that maybe is covered in the briefs, but I forget it if it is.

It is generated by Justice O’Connor’s earlier question.

John Paul Stevens:

Has section 10(b) of the act been construed, the part that refers to any person who has voluntarily and intelligently admitted the commission of a crime, for such… which such person is not prosecuted?

Has that been construed by the State court?

Ronald S. Rauchberg:

It was applied in this case.

It was that definition that was invoked by the Crime Board to apply the statute to this book, but without any particular discussion elaborating on the meaning.

So we don’t have any learning beyond what is on the face of the–

John Paul Stevens:

Do you understand that provision to require that the author admit that what he did was in fact against the law or merely must admit facts which this commission may determine violated the law?

Ronald S. Rauchberg:

–I would understand it to be the latter.

John Paul Stevens:

So if a businessman described a lot of business activities that were arguably violations of the antitrust laws, the commission would decide whether in fact that was a violation of law or not, even though he thought he was innocent?

Ronald S. Rauchberg:

That is right.

I would understand the… I would understand the definition to mean that one who admits to having committed acts that–

John Paul Stevens:

Which the Board determines to be criminal.

Ronald S. Rauchberg:

–That is right.

Because Henry Hill in his book does not say that I engaged in acts A, B, C, and D, and thereby violated section so-and-so of the New York penal law.

He says what he did.

It may not have presented very difficult questions about whether or not it was a crime; but nonetheless, he says what he did, he describes his behavior.

And his behavior as described in his words was held to be the trigger that led to the application of the statute.

Now, the interests that New York advances in an effort to justify this content-based law that, in fact, inhibits speech are, first, the interest in victim’s compensation.

But I think it is clear that that interest can’t save this statute.

If the existing remedies available to plaintiffs in civil actions in New York are inadequate to meet the needs of crime victims, it is incumbent upon New York to enhance them generally so that crime victims generally can do better in reaching the assets of criminals.

And not just enhance them for this one asset that is speech-related.

I think the State recognizes that.

And so it goes on into what is a more sophisticated effort to justify the statute.

It says it is wrong for a criminal to be able to profit from a description of his crime in a book while the victim of the same crime remains uncompensated.

Now I think that that is an interest that at bottom rests on the same concerns about victim’s compensation.

Yes, it is wrong for the victim to go uncompensated while the criminal has the assets from a book.

But it is also wrong for the victim to go uncompensated while the criminal has his wages not subject to a wage garnishment or while the criminal enjoys any other assets that he may own.

The victim’s claim for damages is a claim that enables him to seize any and all assets of a criminal except to whatever extent a State passes exemptions for homestead or the like.

But with those exceptions, the victim’s claim on the criminal’s assets extends to all of his assets.

And it is offensive when the victim fails to have that claim satisfied in all of its instances.

It is not offensive only when criminals get to keep the proceeds of speech and no other proceeds.

John Paul Stevens:

What if the State… I mean, maybe their problem is making the law too narrow.

What if they just took out the requirement, until the victim is totally compensated?

What if they just said, we don’t think people should profit from crimes, and nobody should make money from the commission of a crime by getting a big royalty for describing it, describing his emotions, the emotion of the victim, and all of that.

Would that law be better in your estimation?

It wouldn’t have the problem you just described.

Ronald S. Rauchberg:

It wouldn’t have the problem I just described, but it would have different problems.

That would be a law that would declare all of these payments, these royalties, to be crime proceeds.

Right.

Ronald S. Rauchberg:

And I don’t think the legislature can turn them into crime proceeds just by declaration.

There has to be an independent consideration because of the First Amendment interests of whether they really are crime proceeds.

Antonin Scalia:

Well, they’re certainly proceeds in the but for sense.

But for his commission of the crime, he wouldn’t have this knowledge that he’s making money on it.

Ronald S. Rauchberg:

That’s correct, but they’re not proceeds of crime in the sense of any proximate cause sense.

The… the… let me give you an example.

The one book that this law would have applied to had it been enacted earlier is the autobiography of Malcolm X.

Now, that is a book that recounts Malcolm X’s early life of crime as a… as a stick-up artist, as a dope peddler, as a burglar, and then proceeds to describe how he overcame that to become an important leader of the black community, and it is a book that earned royalties because Malcolm X put in the effort to create a compelling account of his life because of his position and fame as a political leader and because of the ideas that he stood for that were of great interest to people at the time.

Now, I… I would suggest that the royalties paid by the publisher to Malcolm X are not crime proceeds.

They are instead the earnings of an author in the typical way that authors earn money, through being who they are and through the sweat of their brow.

This law says that those are all crime proceeds, and I suggest that that’s… that that’s not correct.

They’re not crime proceeds, and the law that Your Honor is hypothesizing would also treat them as crime proceeds when in fact they’re not crime proceeds.

If New York seriously thought they were crime proceeds, it might have tried to proceed against them under a forfeiture statute.

I might add that the New York Court–

Antonin Scalia:

Would it be possible, in your mind, to narrow the law somehow to cover only those cases that are crime… I mean, can you envision no case in which… in which those royalties are crime proceeds?

Ronald S. Rauchberg:

–Well–

Antonin Scalia:

Somebody recounting a gory rape just for the sensationalism of it?

Ronald S. Rauchberg:

–I have difficulty ever considering the proceeds to be proceeds of crime because of the intervening act of authorship, but even if… even if such… even if such a… such a work could be imagined, there is the question of whether, in order to protect all of the works, we need… we need to tolerate that work as well in the service of the First Amendment.

I… I don’t know how a statute could be written without vagueness problems that would single out that kind of a book, assuming it were right to do so.

In any event, that’s not before us, because this law in its breadth takes in every mention of crime.

Violent crime, nonviolent crime, State, Federal… they’re all in there… felonies and misdemeanors, and so it is so far beyond what we’re talking about.

Antonin Scalia:

There… there used to be a hypothetical in law school, as I recall, about the person who steals… indeed, it’s in the… the… the autobiography of Benvenuto Cellini.

Antonin Scalia:

He steals gold or bronze or something and then crafts a beautiful statue out of it, and does the statue belong to the person from whom the bronze was stolen?

I forget what the answer was.

[Laughter]

Do you know what the answer was?

Ronald S. Rauchberg:

I brought some books with me today.

[Laughter]

I have Malcolm X’s autobiography, but not Benvenuto Cellini’s.

Antonin Scalia:

But I think that’s the same problem we’re talking about here, as far as, you know, someone who embellishes by his artistry the account of the crime.

Ronald S. Rauchberg:

Well, the… one does more than embellish by artistry the account of a crime in a book like the autobiography of Malcolm X.

Or another example would be Jean Harris’ book about prison conditions in Bedford Hills, where the point of the book is to discuss the effect of prison on the relationships between women and their… and their… prisoner women and their children, and they’re… because… because in 2 chapters of the 14 chapters in the book there’s mention of the crime for which she was convicted, the whole book gets treated as though it’s crime proceeds.

What… what… what I also wanted to say about the subject of crime proceeds is that the State of New York… excuse me, the New York Court of Appeals dealt with the other ways in which persons who are criminals arguably can capitalize on their expertise.

There are criminals who gain notoriety and as a result of their notoriety are able to appear on talk shows to sell books, to sell magazine articles, and if they don’t mention their crime New York permits them to have earnings as a result of the notoriety that they gain through crime, and doesn’t make any effort to get at those earnings.

There are also criminals who develop expertise through their criminal activities, like the bank robber Willie Sutton who was in fact retained as a consultant to banks on bank security.

New York has no interest in that, either.

If New York were interested in a very broad novel expansive definition of crime proceeds it should do it comprehensively and not single out speech.

What the New York Court of Appeals said in dealing with that issue is that it recognized that criminals in fact can profit in that way, but it… it… it said that that’s not the point of the law.

The point of the law is to seize the proceeds of speech, and it doesn’t really explain why, and in effect what the New York Court of Appeals is saying is that the law is narrowly tailored to seize precisely the proceeds of this speech.

I don’t think that’s a defense of the law, I think that’s an admission that the law is targeted at speech, and since laws targeted at speech inevitably will deter some of the speech at which they’re targeted, it’s what condemns the law under the First Amendment.

Byron R. White:

Did Hill, in this book, write about anything except his crimes?

Ronald S. Rauchberg:

Well, yes, he did.

He wrote about many things.

He wrote about how the mob… and when I say the mob, I mean to talk about activities of organized crime figures other than himself, crime figures that he observed or heard about in his years of leading a life of crime.

But he… he wrote about how crime figures… figures corrupt politicians.

He wrote about a specific judge in the New York State court system who handed out ludicrously low sentences to organized crime figures.

He wrote about how crime figures in prison are able to continue to conduct their prison activities… excuse me, their criminal activities, and lead a quality of life that–

Byron R. White:

So I… I suppose that if the… who helped him write the book?

Ronald S. Rauchberg:

–Nicholas Pileggi.

Byron R. White:

I suppose if… if that writer had just been the sole author, that Hill had been perfectly willing to sit down for him, with him for 100 hours just to be interviewed, there wouldn’t… the author could have said the same thing in these books… in this book without any problem with the law?

Ronald S. Rauchberg:

That’s right.

This book… this book depended on hundreds of hours of interviews by Pileggi of Hill, and had Hill been willing to spend those hundreds of hours without any compensation whatever, this law wouldn’t have applied.

Ronald S. Rauchberg:

There wouldn’t have been any payment to Hill that triggered the application of the law.

But Hill was not… Hill was not willing to do that.

The record shows that Hill wanted to be paid.

Hill wanted a publishing contract, and so in this case, this book, which is a valuable book, which is being called the best crime… book about crime written in America could only have been written as a result of making payments to the person whose information was essential to its creation.

The book doesn’t exist without payments to Hill, and the book is a valuable book.

I’d like to save the few minutes I have remaining for rebuttal.

William H. Rehnquist:

Very well, Mr. Rauchberg.

Mr. Zwickel, we’ll hear now from you.

Howard L. Zwickel:

Mr. Chief Justice, and may it please the Court:

This case and this statute is about criminals profiting directly from their crime.

Mr. Hill, who is a convicted criminal as well as an admitted criminal, his book is not simply a book about discussion of admissions of crime, but it is a book about his convictions as well.

And the statute applies in his case for both reasons.

Mr. Hill and the other people to whom this statute has been applied have committed crimes and have created, by that crime directly, an asset.

An asset which for some of these people is profitable in the retelling.

This statute is directed against that asset because that asset is directly attributable to their wrongful conduct.

The statute has a compelling purpose because the story here is a story which flows from the wrongful conduct.

Byron R. White:

What… this book told about crimes other than crimes committed by Hill, I suppose?

Howard L. Zwickel:

Yes, it did, Your Honor.

Byron R. White:

And what is the justification for, what if he had not written about any crimes by himself, just about crimes of his colleagues?

He says, I was a member of the Mafia but I never committed a single crime and I know about all these others?

Howard L. Zwickel:

The purpose of this statute is–

Byron R. White:

This statute would not have covered it?

Howard L. Zwickel:

–No, it would not.

The purpose of this statute is New York’s conclusion that when the criminal discusses his crime and is paid money for that discussion–

Byron R. White:

You mean a crime that he committed?

Howard L. Zwickel:

–That he committed, that’s correct, that the criminal is then profiting directly from his victimization.

What the statute does at that point is it doesn’t look at the criminal’s speech.

It turns its attention to the victims of that crime, the people who have been harmed and the people who have been injured.

And it says–

Anthony M. Kennedy:

The underlying premise is that this speech ought to be discouraged.

Howard L. Zwickel:

–The underlying premise of this statute, Your Honor, no, is that… in fact, if that were the case–

Anthony M. Kennedy:

Well, isn’t the underlying premise that the speech is wrong?

Howard L. Zwickel:

–No, it is not.

In fact, the only premise is that–

Anthony M. Kennedy:

The underlying premise is that this speech is right?

Howard L. Zwickel:

–The statute… The statute is neutral with respect to the speech.

What the statute says is that if the criminal wants to discuss his story and say anything he wants, but doesn’t make a dollar on that discussion, this statute does not apply.

But the second–

Byron R. White:

I thought the whole justification for this statute is that the public is outraged by the spectacle of someone profiting by recounting a crime.

It is simply unjust.

It is outrageous.

Isn’t that the whole premise of the act?

Howard L. Zwickel:

–Part of what you said is true, I think.

Byron R. White:

But if that’s true, then you are discouraging the speech, are you not?

Howard L. Zwickel:

No, you are not, because there certainly may be outrage.

That may exist.

But that was not the purpose of the statute.

The text of the statute and the legislative history shows that the only thing that the legislature focused upon was the unfairness, the inequity.

In fact, the statute contains provisions which one might say could encourage criminals to speak.

There are incentives in this statute.

Sandra Day O’Connor:

Well, Mr. Zwickel, the State has certainly singled out speech for a financial burden in this statute.

Is that not true?

Howard L. Zwickel:

It has singled out the story of the speech.

Sandra Day O’Connor:

And it has imposed the burden only on speech of a particular content.

Howard L. Zwickel:

That is true, Your Honor.

Sandra Day O’Connor:

And so how do you distinguish this case, then, from taxes, such as in Minneapolis Star or Arkansas Writers Project?

Howard L. Zwickel:

In those cases, Your Honor, first of all, there was a tax directed against the press’ means of publication, which because of the history of taxation in this country is presumptively a burden.

But here, what–

Sandra Day O’Connor:

You’re saying this isn’t a financial burden?

Howard L. Zwickel:

–Well, it is an incidental burden.

Howard L. Zwickel:

It is a burden because some people will chose not to speak because they are not getting the profits.

But that is not the same sort of burden on the means of communicating your message.

This statute, you have to understand, is directed at a financial incentive.

It is directed at one of the reasons why people chose to speak.

We all know–

Sandra Day O’Connor:

Why does it not… why should it not have to extend to other ways of profiting from criminal behavior, then?

Why just publishing a book?

Howard L. Zwickel:

–I think the reason it extends there is because the legislature felt that the story of a crime with victims is a direct victimization.

And that other profits which may be dealt with in other ways did not create the same sort of inequity.

When the criminal… when Berkowitz sits down for an interview and talks about why he killed these five people, and then is paid $ 100, 000 for that, it seems to me that New York and the other States can say, well, we can’t stop his speech.

In fact, he has a right to speak.

But he does not have a right to profit before his victims.

William H. Rehnquist:

Mr. Zwickel, you speak as though the law very nicely cuts out the profits that he is making because of his recount of the crime.

But in fact, it does not.

It says whatever amount he gets from the whole book.

So, you know, there is Confessions of St. Augustine, he recounts how he stole an apple.

I assume that, you know, whatever St. Augustine got for that book, the whole–

[Laughter]

–the whole amount, right, the whole thing would be considered proceeds of the apple-stealing?

Howard L. Zwickel:

Your Honor, that’s absolutely correct.

This statute–

Antonin Scalia:

But that’s ridiculous.

Howard L. Zwickel:

–What this statute does, of course, is it doesn’t ask the Board to sit down and look at the work and evaluate how much speech is in the work attributable to the crime or what the reasons were.

Antonin Scalia:

The whole thing is presumed to be the product of the crime.

Howard L. Zwickel:

For purposes of attachment, that is correct.

What the statute does is it applies neutral and objective criteria.

It simply says that if you are profiting from this asset, your victims have a right to do what we would like victims in this country to do more often, to go to court and bring a civil action.

And if they recover a judgment, you now have this asset placed in escrow, you have an identifiable asset.

The victim now has a reason to sue the criminal because he knows that the State is holding the money.

All the victim is doing under this statute, Your Honor, is that he is filing a civil action for his damages and injury.

Howard L. Zwickel:

If he recovers for that action based on his harm that the criminal has caused him, it shouldn’t matter what part of the book is based on the actual crime.

The critical component here is that we are not dealing with speech.

This is not a statute which is aimed at publishers to try and stop the publishers from publishing the book.

The record in this case shows that many criminals will speak and will continue to speak with these statutes.

The publishers keep their profit.

The publishers are not compelled to edit material out of the book.

But yes, there is a financial aspect to this.

We don’t deny that.

And we don’t deny the fact that some criminals will say, if you can’t guarantee me my profits, I’m not going to tell my story.

But the critical issue for this case and for this Court is whether or not New York has appropriately balanced the competing interests and arrived at a statute which is narrowly tailored and targeted to this compelling purpose.

William H. Rehnquist:

The purpose is, again, Mr. Zwickel?

Howard L. Zwickel:

The purpose, Your Honor, is to ensure that people who commit wrongful acts do not profit directly from their victimization.

William H. Rehnquist:

And I take it, in New York, supposing Billy the Kid had lived in New York when this statute was in effect.

If he had written about the 21 men that he killed, he would be subject to this statute.

If he wrote about travels in the Southwest and said nothing about these 21 men, he would not be subject to this statute.

Yet, ordinarily a victim should be able to get of hold of either of those proceeds.

Howard L. Zwickel:

Your Honor, you are absolutely right.

And we certainly are not saying that victims should not have opportunities to get at notoriety.

But this statute focuses… notoriety is–

William H. Rehnquist:

Why does New York distinguish between those two kinds of books written by a criminal?

Howard L. Zwickel:

–I believe that the essential reason is because New York saw the story, the asset from the story as a direct relationship to the victimization.

William H. Rehnquist:

Kind of inflicting injury on the victims all over again, so to speak?

Howard L. Zwickel:

Well, we talk about injury on the victims, but the injury this statute addresses… and there is obviously a temptation to say, the statute is based upon the offensiveness of what the criminal is saying.

But that’s not what this statute was talking about.

The statute was targeted at–

Byron R. White:

If Billy the Kid wasn’t writing about his crimes, but about travels in the West, and he made a lot of money out of it, I suppose if he had hurt some victims, the victims could sue him, but they very likely would have to prove their case before they could attach the money.

Howard L. Zwickel:

–That’s correct.

Byron R. White:

Well, the State of New York here takes it in advance.

Howard L. Zwickel:

Well, it certainly does, but the key factor here, you also have to recognize, is the plight of victims, Your Honor.

We have a situation where there are two critical components of this statute.

Howard L. Zwickel:

First of all, it preserves the asset at the time that the money is paid.

In many of these cases, the money is paid to the criminal years before the story is produced.

That money might very likely be dissipated.

This statute ensures that it is held in escrow.

The second thing that is critical about this statute is that this statute extends the statute of limitations.

So that we all know about the story that comes years after the criminal is released and after the statute of limitations has expired.

The victims in that situation have no remedy.

Under this statute, they do have a remedy, but the remedy is limited to the in rem proceeding against the proceeds.

The third critical component as to why this statute serves New York’s purpose so well is that it gives victims’ judgments a priority over the judgments of other creditors.

David H. Souter:

Do you agree that it is fair to say that the object is not to preclude the criminal from directly profiting, the object is simply to preclude him from profiting before the victims get paid?

It is a victim compensation justification, not a nonprofit justification.

Howard L. Zwickel:

That is absolutely right.

David H. Souter:

So everything you said really about directly profiting is essentially beside your point?

Howard L. Zwickel:

Well, it is a combined interest.

It is directly profiting before your victims, Your Honor.

If the victim’s judgments are less than the money in the account, the criminal gets what remains in the account, which is another reason–

John Paul Stevens:

May I interrupt you with a slightly different question.

I would like to focus a little more precisely on the State’s interest involved here.

One, of course, is to compensate victims and you have talked about that mostly today.

But in your brief you start out with the principal argument that a wrongdoer should not profit from his or her wrong.

If that were a sufficient justification, the statute should be applied to victimless crimes as well as those that have victims, should it not?

Howard L. Zwickel:

–That is correct, Your Honor, and it does not.

John Paul Stevens:

Do you think it could?

Do you think it could constitutionally be applied to victimless crimes?

Howard L. Zwickel:

Yes, I do.

I think that–

John Paul Stevens:

Why didn’t the State do it, do you suppose?

Howard L. Zwickel:

–Because I think the interest that the State focused upon which is the critical interest here is the unfairness of the criminal profiting before his victims.

This is not a statute designed simply to tell criminals, you can’t profit at all.

In fact–

John Paul Stevens:

If you think the interest in preventing the criminal from profiting from his wrong would be sufficient, which would mean, as I understand it, that no matter how trivial the wrong, no matter how great the reward from writing the book, you could still appropriate the entire reward?

Howard L. Zwickel:

–I do.

I think States and the Federal Government have valid interests in stopping criminals from profiting from crime, but this statute is a more narrowly tailored statute in that respect.

This statute allows the criminal to obtain any money that is left in the account.

What this statute does, as Justice Souter pointed out–

Byron R. White:

It just isn’t victims, though, that have access to the escrow.

It is judgment creditors, any judgment creditor.

Howard L. Zwickel:

–That’s true, but there is a critical reason for that.

What the statute does–

Byron R. White:

But also the State can get unpaid taxes out of the escrow.

Howard L. Zwickel:

–Your Honor, that’s true.

But what this statute does… first of all, with respect to other judgment creditors, it doesn’t extend the statute of limitations.

But more importantly, the unsatisfied judgment creditor who normally stands in line before the victim, under this statute stands in line after the victim.

The reason why the statute discusses judgment creditors is to make sure that the judgment creditor comes after the victims’ judgment.

That is the only reason why the statute discusses it.

It establishes a priority.

Byron R. White:

Well, it certainly reduces the chance that the writer is going to have anything left over.

Howard L. Zwickel:

That is possible, but there are two aspects of that–

Byron R. White:

It is possible, if there is a judgment creditor, he is going to get paid.

Howard L. Zwickel:

–He might not, but we are talking in some of these cases about substantial sums of money.

We hear reports of criminals making $ 500, 000 or $ 1, 000, 000 million or more, but what this statute addresses is that the money is held in escrow and the criminal brings his civil tort action for his injury and suffering.

It is very hard for us to see that the victims who have been injured by the crime, who have suffered from this crime, should not have the right to pursue a tort remedy and know that there is an asset which flows directly from their victimization, which the Board is holding.

That is why this statute is such a meaningful statute, and frankly–

Antonin Scalia:

Excuse me, you keep saying an accent… an asset that flows directly from their victimization.

Howard L. Zwickel:

–That’s correct.

Antonin Scalia:

But you acknowledged before that the entire amount of that asset doesn’t flow directly from their victimization.

The entire advance is covered, even though there is only one minor incident addressed in the book, isn’t that right?

Howard L. Zwickel:

Your Honor, that’s right.

Antonin Scalia:

Indeed, even if some of the advance covers expenditures for paper, pencils, for expenditures for production of the book, that would still be swept up into the escrow, right?

Howard L. Zwickel:

Well, yes–

Antonin Scalia:

So it is not just the direct product of the crime that is covered at all.

Howard L. Zwickel:

–Well, Your Honor, it is because the crime is in the story.

But you are right, the statute does apply an objective neutral criterion.

It does not seek to look at the work and say how much of this work is related to the crime.

The reason again for that, let me try to emphasize, is that the statute simply attaches the asset.

If the victim sues and recovers a very limited judgment, then there will be a substantial sum of money available for this person.

Antonin Scalia:

But it seems to me that a better way to describe it, instead of constantly referring to it as the product of the crime, is to say that it is an asset tainted by the crime.

Isn’t that quite a bit more accurate?

Howard L. Zwickel:

Well, I don’t think New York looks at this asset in terms of what taint might suggest.

I think it really does look at it in a very neutral way, and I do want to emphasize again that this statute is not simply limited to one type of book or one type of speech.

It is a broad-based statute which applies in any context where a criminal is profiting from the story of his crime.

It applies to magazine publishers.

It applies to interviews.

It applies to any situation, and all the statute says is that if you have victimized someone and if someone is paying you for that victimization, whether or not it is a small part or a large part, then your victims come first.

They have a right to go against this asset.

We will preserve this asset for your victims and we will take steps so that the victims can go ahead and sue the criminal.

That is why this statute, we believe, meets Strick scrutiny as well as O’Brien scrutiny.

The statute is targeted precisely to its purpose and its purpose is both a legitimate purpose and a compelling one.

For these reasons, Your Honors, we ask that the judgment of the 2nd Circuit Court of Appeals be affirmed for the reasons set forth in our brief.

There will be no further questions.

Thank you very much.

William H. Rehnquist:

Very well, Mr. Zwickel.

Mr. Rauchberg, do you have rebuttal?

You have 2 minutes remaining.

Ronald S. Rauchberg:

Thank you.

I wanted to say a word about the statement that Hill had been convicted of crimes.

The book makes a reference to conviction for attempted larceny, and since it’s an attempt by definition I suppose it was unsuccessful and there was no victim.

It makes a reference to a gambling conviction which the Board also might hold to be victimless crimes.

The Board placed its judgment below only on the admission of crimes.

There wasn’t a word about any convictions, and if it addressed convictions it might well hold them irrelevant.

Byron R. White:

I take it that your argument would be… would be the same or almost the same even if in this book only crimes that Hill committed were described?

Ronald S. Rauchberg:

Yes, it would be about the same, and if Hill… if Hill had in fact been convicted of crimes and that were the basis for the law being applied here, then one of the interests that the Court of Appeals of New York has identified, namely punishment, might be triggered.

I did want to emphasize the fact that the New York State Court of Appeals says that this statute is designed to punish.

I don’t think it’s well-tailored to do that, as our brief states, but in any event New York cannot determine to punish the mentally ill, those who are never charged, like Hill, who were not convicted.

He–

Byron R. White:

You… I take… earlier I think you said that if… if a person has committed a very brutal crime, perfectly sane, and he just makes some money out of… out of writing about it while he’s in prison, you say the First Amendment forbids the application of this law to him?

Ronald S. Rauchberg:

–Yes.

Yes, I do say that, and I say we have to tolerate whatever offense we take in that circumstance in order… in order to have the valuable speech that we have when other criminals like Henry David Thoreau, Malcolm X, Martin Luther King, and many others named in our briefs, have written books that make reference to their crimes.

William H. Rehnquist:

Thank you, Mr. Rauchberg.

The case is submitted.