Massachusetts joins California as one of the first states to reject the new Son of Sam legislation meant to replace the laws struck down by the U.S. Supreme Court in 1991. In a 19-page advisory opinion issued last month, the Massachusetts Supreme Judicial Court found that the proposed law, spurred by high-profile cases such as the "Nanny Murder"—the death of eight-month-old Matthew Eappen—violated free speech guarantees of both the state and U.S. constitutions.
First Amendment advocates were heartened by the justices' remarks on the potentially chilling effect on writers and publishers of the requirement that money owed to a criminal defendant be held in an escrow account. The court noted that the proposed legislation could even deter literary agents from representing defendant-authors.
According to attorney Zick Rubin at Boston's Hill & Barlow, which filed a brief on behalf of the Association of American Publishers, the Authors Guild, the Magazine Publishers of America, the Motion Picture Association of America and the Newspaper Association of America, "the ruling made clear that any new law would have to look very different." According to Rubin, the proposed bill would have "forced publishers, filmmakers and any party entering into a contract with a person convicted of a crime, or even admitting to a crime, to submit those contracts to the state attorney general's office to determine whether the proceeds are substantially related to a crime. It really smacks of censorship." He noted that without the law, there are still "numerous avenues for victims to seek recompense from those who would profit from their crimes."
Proponents of legislation intended to foil so-called "kill-and-tell" criminals are not giving up. Sean Kealy, a spokesperson for Massachusetts senator Cynthia Creem, who filed a brief on behalf of the proposed bill, told PW, "We'll be coming up with a new formula."
Last month, the California high court, relying on a precedent set in 1991 when the U.S. Supreme Court overruled a similar New York statute, also ruled that the California statute was "overinclusive" and violates the protection of speech in both the federal and state constitutions.
The California opinion notes that the California statute provides "financial disincentive to create or publish works with a particular content." The court called the AAP amicus brief a "sobering bibliography" that cited numerous and valuable works that would have been affected had the law existed when they were published. These include The Autobiography of Malcolm X, as well as works by Henry David Thoreau, Martin Luther King Jr., Emma Goldman and all those involved in Watergate.