In 1991, the Supreme Court held unanimously (8-0, Justice Thomas did not participate) that New York's "Son of Sam" law was inconsistent with the First Amendment. Simon and Schuster, Inc. v. Members of New York State Crime Victims Board, 502 U.S. 105 (1991). The Court recognized "a compelling interest in compensating victims from the fruits of the crime, but little if any interest in limiting such compensation to the proceeds of the wrongdoer's speech about the crime," Id. 502 U.S. at 120-21. The Court ruled that New York's "Son of Sam" law was inconsistent with the First Amendment because it was "overinclusive" in that it "reaches a wide range of literature that does not enable a criminal to profit from his crime while a victim remains uncompensated." 502 U.S. at 121-22.
In a concurring opinion, Justice Blackmun pointed out, without analysis, that New York's "Son of Sam" law was also "underinclusive." 502 U.S. at 123-24. Its reach was limited to those assets of the criminal derived from the criminal's story about the crime. The statute did not extend to using any of a criminal's other assets for compensating crime victims.
On either rationale, the "Son of Sam" law was inconsistent with the First Amendment because it was not narrowly tailored to advance the State's interest in compensating victims. The Court's opinion concluded that the New York law was inconsistent with the First Amendment because it ". . . singled out speech on a particular subject for a financial burden that it places on no other speech and no other income. The State's interest in compensating victims from the fruits of crime is a compelling one, but the Son of Sam law is not narrowly tailored to accomplish that objective." 502 U.S. at 123.
Although the holding in Simon & Schuster was explicitly limited to New York's "Son of Sam" law, the decision appears to leave little doubt, if any, about the unconstitutionality of 18 U.S.C. §§ 3681 and 3682 and similar state "Son of Sam" laws that single out the proceeds of speech concerning a crime committed by the speaker for victim compensation without also targeting the other assets of the criminal for that purpose. In light of Simon & Schuster, some courts have relied on restitution orders and fines where convicted defendants appeared likely to receive proceeds from the sale of their stories about their crimes. See United States v. Jackson, 978 F.2d 903, 915 (5th Cir. 1992), cert. denied, 508 U.S. 945, 113 S.Ct. 2429 (1993), and cert. denied, 509 U.S. 930, 113 S.Ct. 3055 (1993) (under Simon & Schuster, district court cannot limit a restitution order solely to the income the defendants earn on speech associated with their criminal activities); United States v. Branch, 91 F.3d 699 (5th Cir. 1996) (same); United States v. Seale, 20 F.3d 1279, 1285 n.7 (3d Cir. 1994) (dicta that Simon and Schuster does not prohibit fine that includes proceeds of expressive activity relating to crime, but rather prohibits the singling out of those proceeds for special treatment while ignoring other assets.)