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Keenan v. Superior Court
California Supreme Court, 21 February 2002

Available at:
http://caselaw.findlaw.com/data2/californiastatecases/S080284.DOC (WORD)
http://caselaw.findlaw.com/data2/californiastatecases/S080284.PDF (pdf)
and linked from my website.

This concerns an attempt to deprive a kidnapper of Frank Sinatra of profits made from the publication of his memoirs. The statute in question was narrowly drafted, in an attempt to avoid the effect of the Simon & Schuster case. It has however failed on 1st amendment grounds.

From the leading judgment:

'One prong of the California statute, in effect since the law's inception, imposes an involuntary trust, in favor of damaged and uncompensated crime victims as "beneficiar[ies]," on a convicted felon's "proceeds" from expressive "materials" (books, films, magazine and newspaper articles, video and sound recordings, radio and television appearances, and live presentations) that "include or are based on" the "story" of a felony for which the felon was convicted, except where the materials mention the felony only in "passing... as in a footnote or bibliography." ....

'In 1991, the United States Supreme Court held that a somewhat similar New York law violated the First Amendment. (Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd. (1991) 502 U.S. 105 (Simon & Schuster).) In provisions somewhat like [the California statute], the statute at issue confiscated, for the benefit of crime victims, all monies a criminal was due under contract with respect to a "reenactment" of the crime, or from the expression of his or her personal thoughts or feelings about the crime, in a film, broadcast, print, recording, or live performance format. Finding the New York law facially invalid, the Simon & Schuster majority reasoned that the statute, as a direct regulation of speech based on content, must fall unless it satisfied a strict level of constitutional scrutiny. The New York law failed this test, said the majority, because although the state had a compelling interest in compensating crime victims from the fruits of crime, the statute at issue was not narrowly tailored to that purpose ...

'[Although the California statute,] unlike the New York law, applies only to persons actually convicted of felonies, and states an exemption for mere "passing mention of the felony, as in a footnote or bibliography" (id., subd. (a)(7)), these differences do not cure the California statute's constitutional flaw. By any reasonable construction, the California statute is still calculated to confiscate all income from a wide range of protected expressive works by convicted felons, on a wide variety of subjects and themes, simply because those works include substantial accounts of the prior felonies.'

Steve Hedley

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FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE

ansaphone : (01223) 334900
www.stevehedley.com
fax : (01223) 334967

Christ's College Cambridge CB2 3BU
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