502 U.S. 105 (1991)
In the summer of 1977, New York was terrorized by a serial killer popularly known as the Son of Sam.1 By the time David Berkowitz was identified as the killer and apprehended, the rights to his story were worth a substantial amount.2 The State quickly enacted the statute at issue, N. Y. Exec. Law § 632-a.3
The Son of Sam law requires any entity contracting with an accused or convicted person for a depiction of the crime to submit a copy of the contract to the New York State Crime Victims Board.4 It must turn over any income under that contract to the Board for deposit in an escrow account.5 The requirement applies to contracts in any medium of communication, including books.6 The Board holds the funds for the benefit of victims who bring civil actions within five years.7 After five years, it pays any remaining funds to the person or representatives.8 The statute broadly defines a person convicted of a crime to include anyone who has voluntarily and intelligently admitted the commission of a crime for which the person is not prosecuted.9
Since its enactment, the law has been invoked against Jean Harris, Mark David Chapman, and R. Foster Winans.10 In August 1981, Henry Hill entered into a contract with author Nicholas Pileggi for a book about his life.11 The following month, Hill and Pileggi signed a publishing agreement with Simon & Schuster.12 Wiseguy was published in January 1986.13 In January 1986, the Board notified Simon & Schuster of the contract and ordered it to furnish copies and suspend payments to Hill.14 By that time, Simon & Schuster had paid $96,250. It was holding $27,958 for Hill.15
Simon & Schuster brought suit in August 1987 under 42 U.S.C. § 1983 seeking a declaration that the Son of Sam law violates the First Amendment.16 After cross-motions for summary judgment, the District Court upheld the statute.17 A divided Court of Appeals affirmed.18 The Supreme Court granted certiorari.19
Whether New York’s Son of Sam law is consistent with the First Amendment?20
A statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech. To justify such differential treatment, the State must show that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.21
No. The Son of Sam law singles out income derived from expressive activity for a burden the State places on no other income.22 It is directed only at works with a specified content.23 The law requires entities contracting with accused or convicted persons for depictions of crimes to turn over income to the Board for escrow.24 This occurred when the Board ordered Simon & Schuster to suspend payments under its contract with Henry Hill for Wiseguy after $96,250 had already been paid and $27,958 remained held.25
The State has a compelling interest in compensating victims and preventing criminals from profiting from crimes.26 Yet the law is significantly overinclusive because it applies to works on any subject provided they express the author’s thoughts about a crime however tangentially.27 It reaches any author who admits in the work to having committed a crime whether or not accused or convicted.28 This encompasses numerous literary works such as The Autobiography of Malcolm X and Thoreau’s Civil Disobedience that bear no relation to uncompensated victims.29
The Son of Sam law is inconsistent with the First Amendment.30
Related opinions on this issue
Justice Blackmun stated that he was in general agreement with what the Court says in its opinion.31 He thought, however, that the New York statute is underinclusive as well as overinclusive and that we should say so.32 He noted that most other States have similar legislation and deserve from this Court all the guidance it can render in this very sensitive area.33
Blackmun thus urged the Court to address both overinclusiveness and underinclusiveness to give legislatures enacting comparable statutes the fullest possible direction in this sensitive area.34
Justice Kennedy concurred in the judgment.35 He contended that the New York statute imposes severe restrictions on authors and publishers using as its sole criterion the content of what is written.36 The regulated content has the full protection of the First Amendment.37
This is itself a full and sufficient reason for holding the statute unconstitutional.38 In his view it is both unnecessary and incorrect to ask whether the State can show that the statute is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.39 The statute amounts to raw censorship based on content, censorship forbidden by the text of the First Amendment and well-settled principles protecting speech and the press.40