New book by Al-Arian prompts fresh look at Son of Sam law
Which criminals get to profit from their work depends on where they are. In Florida, Sami Al-Arian is okay to cash in on his book of poems.
By GRAHAM BRINK
Published October 25, 2004
TAMPA - In the summer of 1977, a serial killer terrorized New York, murdering six people with a .44 caliber handgun.
Authorities eventually arrested David Berkowitz, who left a note at a crime scene signed "Son of Sam."
News spread that Berkowitz stood to grow rich from book and movie deals. New York lawmakers quickly countered with a law preventing criminals from profiting from telling their stories.
Dozens of states, including Florida, quickly allowed suit.
With mixed results, the "Son of Sam" laws and their progeny have been used to go after the earnings of a variety of notorious figures, from John Wayne Gacy and his creepy clown paintings to Gainesville serial killer Danny Rolling's tell-all book.
Recently, Railroad Killer Angel Maturino Resendiz boasted about selling shavings from his foot calluses on eBay for $9.99. And news has spread that home diva Martha Stewart might write a book chronicling her journey through the federal court system and into prison.
Just last week, a publisher released a book of poems written by former University of South Florida professor Sami Al-Arian, who is accused of aiding terrorists.
So, who gets to profit and who doesn't?
It depends on where they are and what they have to say. In Florida, Al-Arian is okay to profit from poems. He is awaiting trial, and hasn't been convicted. If he was in California, where the law applies to defendants merely accused of a felony, he might not be.
"These laws remain controversial," said Fort Lauderdale lawyer Richard L. Rosenbaum. "In the next few years, I'd imagine the courts will have a chance to settle some of those controversies."
Son of Sam laws remain popular. It has long been a tenet of American jurisprudence that crime shouldn't pay. But since the initial Son of Sam laws, the courts have grappled with the delicate balance between First Amendment rights and the distasteful notion of criminals cashing in on their notoriety.
An oft-heard argument in favor of the laws goes: Nothing is stopping criminals from publishing their stories. They just shouldn't be allowed to make any money from them.
The argument sounds good, Rosenbaum said, but it does not hold up constitutionally. The financial disincentive chills freedom of speech, he said.
"That's exactly what the Supreme Court addressed in the (Henry Hill) case," he said.
For 25 years, Henry Hill ran in organized crime circles. He turned snitch after his arrest on drug charges in 1980, ratting on his wise guy buddies. While in the witness protection program, Hill co-wrote a book titled Wiseguy: Life in a Mafia Family , which chronicled his criminal exploits, including ripping off Lufthansa Airlines to the tune of $6-million. The book later became the blueprint for the movie Goodfellas.
Using the Son of Sam law, New York authorities went after the $100,000 that publisher Simon & Schuster had agreed to pay Hill. Hill's lawyers said the law violated his right to free expression. The U.S. Supreme Court unanimously ruled the law unconstitutional.
The original law was worded too broadly, the court said. The way it was written, people never even charged with a crime were subject to forfeiting earnings. In theory, the court reasoned, someone who recounted a childhood prank in an autobiography could be targeted. And the financial burden created a disincentive to speak, in violation of the First Amendment, the court ruled.
The court, though, agreed that states had a compelling interest in preventing criminals from profiting from their crimes, and in compensating victims.
"That kept the door open to further tweak the laws," said Tallahassee lawyer George Waas, who has handled Son of Sam cases for the state.
Florida's current Son of Sam law allows the state to place a lien against the earnings convicted felons receive for recounting their crimes. The federal statute is similar.
Al-Arian, for instance, hasn't been convicted of anything. And many of the poems in Conspiring Against Joseph: Reflections of a Prisoner of Conscience in a Federal Penitentiary detail Al-Arian's time at Coleman Correctional facility while he awaits trial. The book deals mostly with his experience in prison.
"Under those circumstances, we wouldn't have a case," Waas said. "If he was convicted, we might take a closer look at what those poems say."
Florida officials have had mixed results applying the law.
Felon Walter T. Shaw successfully fought the state's attempts to place a lien against revenues from a videotape titled It Took a Thief to Stop a Thief ."
Shaw, who formed a security consulting firm after his breaking-and-entering conviction, argued that the tape was not a recounting of his crime. Florida's courts agreed and allowed Shaw to keep the profits.
In 1999, Florida won a case to seize the earnings from a series about Danny Rolling, the serial killer responsible for the 1990 Gainesville student murders.
While in prison, Rolling told his story to journalist Sondra London. Eventually, they published a book, The Making of a Serial Killer . The court ruled that London, Rollings' fiancee, was acting as Rolling's agent and placed a lien against all of the earnings.
The state distributes a quarter of the money collected to the felon's dependents, another quarter to the victims or their surviving family member and the rest goes to paying court costs and into a fund to compensate victims of other crimes.
"It's a strong law, narrowly tailored for a good purpose," Waas said.
Rosenbaum disagreed, saying the law sounds good on the surface, but will not hold up if the state or federal Supreme Court ever hear a challenge.
"It singles out one form of speech and places a financial burden on it," he said. "That's exactly what the Supreme Court said was the problem in the Simon & Schuster case."
In recent years, some states have gone even further to prevent criminals from cashing in. Texas, for instance, enacted a law to combat criminals from selling "murderabilia" like photographs or hair samples.
The Texas law prohibits felons from profiting from the attention they gained from committing their crimes. Call it a notoriety tax.
The criminals can still sell books, movie rights and murderabilia, but they only get to keep the amount of money the products would have been worth before committing their crimes. For most criminals, that would be close to nothing.
Such a law becomes problematic, though, in cases involving criminals who were already famous before being convicted. Martha Stewart, for instance, oversaw a high profile business empire before heading to prison on an insider trading charge.
Stewart is reportedly working on a how-to book about coping with the federal court system and prison life. Even if Stewart doesn't describe her crimes, she would not have been able to write such a book and earn the royalties without having committed the crimes.
And then there is the question of whether society can benefit from criminals' stories. Can getting into the mind of a serial killer help track down other serial killers? What if a pedophile writes a book about how to stay clear of pedophiles, using some of his own crimes as examples?
Convicted Taliban member John Walker Lindh could write a book about the inner workings of a terrorist organization.
Does the benefit derived from such books outweigh the need to punish the writer financially?
"These laws raise all sorts of questions," said Tampa lawyer Luke Lirot, a First Amendment specialist. "The courts will eventually have to sort them all out."
Rosenbaum thought some important works might not be published without a financial incentive.
"If we are going to try to understand it, cure it or treat it, we need to know more about it," Rosenbaum said. "If we stifle it, we don't learn anything."
