In Seres v. Lerner, 102 P.2d 91 (Nev. 2004), the Supreme Court of Nevada struck down the state’s “Son of Sam” law on First Amendment grounds for being overly broad.

After serving time in state prison for manslaughter in the death of Mark Slavin, Jimmy Lerner wrote the popular prison memoir You Got Nothing Coming: Notes from a Prison Fish.

Son of Sam law designed to compensate crime victims, prevent profit from crime

Slavin’s sister Donna Seres filed an action seeking recovery of Lerner’s book’s proceeds under the state’s so-called Son of Sam law, which was designed to compensate crime victims and prevent criminals from profiting from their misdeeds. Lerner contended that the measure violated the First Amendment based on the Supreme Court’s decision in Simon and Schuster v. Members of the New York State Crime Victims Board (1991), in which the high court invalidated a similar New York law.

A district court sided with Lerner, finding that the law violated the First Amendment.

Nevada struck down Son of Sam law on First Amendment grounds

On appeal, the state high court agreed. The state's supreme court first determined that the law was content-based because it singled out for financial burden speakers who spoke about a past crime.

Though the court found that the state had compelling interests in compensating crime victims and preventing criminal profiteering, it determined that the law was not sufficiently narrowly tailored.

Court said law had applied to 'virtually all works' by felons

The court noted that “the primary impediment to its validity stems from its potential application to works only partially or tangentially related to the crime committed.” To the court, the law was overinclusive because it applied to virtually all works by defendants and felons even if the expressive works only mentioned the past crime briefly. Such a law would discourage “public discourse and nonexploitative discussion” of past crimes.

State courts in California, Massachusetts, and Rhode Island have also invalidated Son of Sam laws, including in Keenan v. Superior Court (Cal. 2002), In Re Opinion of the Justices to the Senate (Mass. 2002), and Bouchard v. Price (R.I. 1997).

David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018).  He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2009.‚Äč

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