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Nevadas Son of Sam Statute of Violates First Amendment

Nevadas Son of Sam Statute of Violates First Amendment

by Mark Wilson

The Nevada Supreme Court held that the States Son of Sam law violates the First Amendment.

In 1977, New York enacted the nations first Son of Sam law, in response to the possibility that David Berkowitz, a serial killer popularly known as the Son of Sam, might sell the publication rights to his memoirs. The measure was calculated to ensure that moneys received by criminals in connection with published storytelling about their criminal activities be made available to compensate victims and to prevent criminals from profiting from their criminal wrongdoing.

Following New Yorks lead, the federal government and approximately 40 states enacted similar Son of Sam statutes. Nevada first enacted a statute in 1981. NRS 217.265 (repealed 1993).

In 1991, the United States Supreme Court issued its decision in Simon & Schuster, Inc. v. Members of New York State Crime Victims Board, 502 U.S. 105, 112 S.Ct. 501 (1991), voiding New Yorks Son of Sam law as violating the First Amendment. In 1993, the Nevada Legislature revised its Son of Sam statute, recodified as NRS 217.007, in an attempt to address the constitutional issues raised in [Simon & Schuster].

In 1998, Jimmy Lerner was convicted of manslaughter and sentenced to a term of 2 to 12 years in the Nevada State Prison for killing Mark Slavin. While in prison, Lerner wrote a book entitled, You Got Nothing Coming: Notes from a Prison Fish, which was published by Broadway Books and Random House in 1999. This book detailed Lerners imprisonment and contains descriptions of the events surrounding the killing of Mr. Slavin. Lerner received a $100,000.00 advance for the book.

Slavins sister, Donna Seres, then sued Lerner pursuant to NRS 217.007, seeking recovery of his book proceeds. The District Court granted Lerners motion to dismiss under Simon & Schuster, holding that NRS 217.007... cannot survive the strict scrutiny analysis and, therefore, violates the First Amendment.

Although NRS 217.007 was a comprehensive piece of legislation enacted with the most salutary purpose, the Nevada Supreme Court agreed with Lerner and the district court in overturning it.

The Court first determined that NRS 217.007 is a statute of general applicability, implicating state action, because judicial enforcement of state legislation is both state action restricting speech implicating the First Amendment. Thus, in line with Simon & Schuster, the court concluded that NRS 217.007 is a content-based statute because it explicitly and exclusively applied to income received from speech concerning the crime committed.

Because NRS 217.007 is a content-based restriction on speech, the Court held that it must pass a strict scrutiny level of review. While the measure addresses compelling state interests in compensating victims and prevention of criminal profiteering, it suffers from over inclusiveness because it regulates more speech than is necessary to serve the states interest. Clearly, NRS 217.007 allows recovery of proceeds from works that include expression both related and unrelated to the crime, imposing a disincentive to engage in public discourse and non-exploitive discussion of it. This violates the First Amendment. See: Seres v. Lerner, 120 Nev. Adv. Rep. 95, 102 P.3d 91 (Nev. 2004).

Notes from a Prison Fish is a fictionalized memoir, which intentionally devoted only a few pages to his crime, portraying it as self-defense. Broadway Books agreed to publish the book on the condition that Lerner recast his mostly true story as genuine nonfiction. Lerner subsequently claimed, that he had disguised some identities in places but otherwise removed the fiction.

Broadway inserted a short description of Lerners reluctant manslaughter plea near the front of a book, but only after 300 pages does the narrative shift to Lerners crime. He portrayed his victim as 6-foot-3 and rippling with muscle and unstable hot-tempered drug addicted Monster. While he was actually just 5-foot-4 and 133 pounds, 8 inches shorter and 40 pounds lighter than Lerner. He also described the circumstances of the crime much differently than he described to police the day after the killing. At first, Lerner denied there was any major discrepancy... it jibes, he said, slowly listing the details that matched up. He later backed off that claim, stating: I saw what I was doing not as a journalistic piece. What I was doing was a literary genre known as a memoir. It is 90 percent accurate. Prosecutors and Slavins family disagree, as many of Lerners fellow prisoners portrayed in the book probably due too.

Additional Sources: The Talented Mr. Lerner, by David D. Kirkpatrick; The New York Times, (Section 6, column 1) (March 31, 2002).

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