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Crime Doesn't Pay; Or Does It?: Simon and Schuster, Inc. v. Fischetti

NCJ Number
St. John's Law Review Volume: 65 Issue: 3 Dated: (Summer 1991) Pages: 981-996
J E Dugan
Date Published
This article analyzes the first amendment challenges to New York State's "Son of Sam" law with particular attention to the Second Circuit Court's decision in Simon and Schuster, Inc. v. Fischetti (1990).
New York Executive Law section 632-a provides that a criminal must deposit into escrow for the benefit of his victims any proceeds from the sale of descriptions of his crime or stories containing "thoughts, feelings, opinions or emotions regarding such crime." In Simon and Schuster, Inc. v. Fischetti, the Second Circuit Court held that section 632-a does not violate the first amendment, even though the statute imposes a content-based restriction on speech. The court also determined that the statute imposed a direct burden on speech, and it thus applied a "strict scrutiny" standard. The court held that the State interest in preventing a criminal from capitalizing on the sale of his crime story while his victims lacked necessary compensation for their injuries was sufficiently compelling to satisfy the "strict scrutiny" standard. Although the court was correct in finding the statute constitutional, it applied an unnecessarily stringent standard. Amendments aimed at broadening the scope of section 632-a may be inhibited or, if enacted, struck down because of this overly exacting standard. The U.S. Supreme Court will hear the case on appeal. The Court should apply the standard enunciated in United States v. O'Brien (1968) to determine the constitutionality of section 632-a, since the statute targets nonexpressive activity and only incidentally burdens expressive activity. 72 footnotes