18 UDayton LRev 593

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Citation: 18 U. Dayton L. Rev. 593 1992-1993
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CONSTITUTIONAL LAW: CONTENT-BASED REGULATIONS ON

SPEECH: A COMPARISON OF THE CATEGORIZATION AND BALANCING APPROACHES TO JUDICIAL SCRUTINY Simon & Schuster,
Inc. v. New York State Crime Victims Board, 112 S. Ct. 501
(interim ed. 1991).
I.
INTRODUCTION
In its recent decision in Simon & Schuster, Inc. v. New York

State Crime Victims Board,1 the United States Supreme Court considered the constitutionality of New York's criminal anti-profit, or "Son
of Sam" law. 2 The Court unanimously held 3 that New York Executive
Law section 632-a was an unconstitutional burden on the First Amendment's guarantee of freedom from content-based restrictions on
speech.4 - In so holding, the Court reversed, a decision of the United
States Court of Appeals for the Second Circuit which held that section
632-a burdened free speech, but that New York's interest in regulating
this type of speech was sufficient to uphold the statute's constitutionality.' Although both courts applied a strict scrutiny analysis,' the Supreme Court concluded that section 632-a had failed to meet this standard.7 Justices Kennedy and Blackmun separately concurred with the
majority opinion." Justice Kennedy's concurrence took issue with the
1.
112 S. Ct. 501 (interim ed. 1991).
2. New York Executive Law section 632-a was passed in the aftermath of the capture of
serial killer David Berkowitz, also known as the "Son of Sam." See Id. at 504; see also Gregory
G. Sarno, Annotation, Validity, Construction, and Application of "Son of Sam" Laws Regulating
or Prohibiting Distribution of Crime-Related Book, Film, or Comparable Revenues to Criminals,
60 A.L.R. 4TH 1210, 1211-13 (1991).
3. Justice Clarence Thomas did not participate in the decision. Simon & Schuster, 112 S.
Ct. at 504.
4. Id. at 512. A content-based restriction is a statute or regulation which singles out speech
of a particular substantive content or message. Regan v. Time, Inc., 468 U.S. 641, 648-49 (1984).
5. Simon & Schuster, Inc. v. Fischetti, 916 F.2d 777, 778 (2d Cir. 1990), rev'd, Simon &
Schuster, 112 S. Ct. 501.
6. Strict scrutiny refers to the high level of inquiry which the Court requires when it considers the constitutionality of a speech-based statute or regulation. When strict scrutiny applies, the
state must show that it has a compelling interest in promulgating the statute or regulation and
that the restriction is narrowly tailored to achieve that interest. See Boos v. Barry, 485 U.S. 312,
321 (1988); Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987); Minneapolis
Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 582-83 (1983).
7.
Simon & Schuster, 112 S. Ct. at 512.
8.
Id. at 512.
UNIVERSITY OF DAYTON LAW REVIEW
[VOL. 18:2
applicability of strict scrutiny to content-based regulations and suggested a more categorical approach.9
This Casenote examines the two approaches used to analyze the
constitutionality of content-based restrictions on freedom of speech suggested by the Court in Simon & Schuster. Part II of this Casenote
reviews the facts, procedural context, holding, and rationale of the Supreme Court's decision in Simon & Schuster. Part III of this Casenote
presents background material which illustrates how courts have traditionally analyzed regulations which burden speech. Part III also sets
forth the scope of the various approaches to analyzing the constitutionality of content-based restrictions on speech. Part IV of this Casenote
then analyzes the Court's reasoning in Simon & Schuster and endorses
Justice Kennedy's categorical approach to analyzing the constitutionality of content-based restrictions on speech. Finally, Part V summarizes
the issues raised by the Supreme Court's decision in Simon & Schuster
and discusses possible implications for the future development of free
speech jurisprudence.
II.
FACTS AND HOLDING
New York Executive Law section 632-a was enacted in 1977 at

the height of New York's outrage over the Son of Sam serial
murders.10 It was rumored that the serial killer, Son of Sam, 1 who had
ravaged New York City by randomly shooting young persons sitting in
parked cars, 2 would become wealthy by telling the story of his crimes
to reporters, publishers, and literary agents.13 As a result of this situa-
9. Id. (Kennedy, J.,concurring). Justice Kennedy suggested that "[tihe regulated content
has the full protection of the First Amendment and this ... is itself a full and sufficient reason for
holding the statute unconstitutional." Id. (Kennedy, J., concurring). Further, he urged that the
use of strict scrutiny to review a speech-based regulation that is "not obscene, not defamatory, not
words tantamount to an act otherwise criminal, not an impairment of some other constitutional
right, not an incitement to lawless action, and not calculated or likely to bring about imminent
harm the state has the substantive power to prevent" allows for the possibility of states impermissibly burdening free speech "whenever they believe there is a compelling justification for doing
so." Id. at 512-13 (Kennedy, J., concurring). For a more detailed explanation of Justice Kennedy's concurring opinion, see infra notes 161-73 and accompanying text.
10. The Wrong Way To Help Crime Victims, Cm. TRIB., Dec. 12, 1991, at 26.
11. David Berkowitz was finally determined to be the killer. In Brief: Torch of Sam, NEwsWEEK, May 22, 1978, at 28. Berkowitz left notes at the scenes of his crimes signed "Son of Sam".
See Police Get a 2d Note Signed by "Son of Sam" in .44-Caliber Killings, N.Y. TIMES, June 3,
1977, 2, at 2; see also Sarno, supra note 2, at 1211.
12. List of Killer's Victims, N.Y. TIMES, Aug. 1, 1977, at 34.
13. See Case Holds Potentialfor Books and Films, N.Y. TIMES, Aug. 14, 1977, at 44; see
also The Wrong Way To Help Crime Victims, supra note 10. Ironically, although Berkowitz did
indeed negotiate lucrative deals to chronicle his story, New York lost in its efforts to have all
proceeds surrendered to its Crime Victims Board. Berkowitz Wins a Court Ruling on Book Profits, N.Y. TiMEs, Oct. 10, 1980, at B5.
1993]
REGULATIONS ON SPEECH
tion, New York State Senator Emanuel R. Gold proposed,"' and the
New York State Legislature enacted, section 632-a. 5 The statute was
originally entitled "Distribution of Moneys Received as a Result of the
Commission of Crime."'
14. Patricia Nicole Gillard, Comment, The Expansion of Victim Compensation Programs:
Today's "Son of Sam" Legislation and Its Susceptibility to Constitutional Challenge, 18 ToLEDO L. REV. 155, 162 (1986); Note, Compensating the Victim from the Proceeds of the Criminal's Story-The Constitutionality of the New York Approach, 14 COLUM. J.L. & Soc. PROBs. 93
(1978). Senator Gold, a Democrat from Queens, was inspired to author the bill by accounts that
the Son of Sam, whoever he turned out to be, would be bombarded with opportunities for wealth
by selling his story. Criminals' Revenues from Stories Curbed: Carey'Signs Bill to Require Use
of Profits to Compensate Victims, N.Y. TIMES, Aug. 13, 1977, at 20.
15. Criminals' Revenues from Stories Curbed: Carey Signs Bill to Require Use of Profits
to Compensate Victims, N.Y. TIMEs, Aug. 13, 1977, at 20.
16. N.Y. EXEC. LAW 632-a (McKinney 1982 & Supp. 1992). Relevant portions of New
York's Son of Sam law are as follows:
632-a. Distribution of moneys received as a result of the commission of crime
1. Every person, firm, corporation, partnership, association or other legal entity contracting with any person or the representative or assignee of any person, accused or
convicted of a crime in this state, with respect to the reenactment of such crime, by
way of a movie, book, magazine article, tape recording, phonograph record, radio or
television presentation, live entertainment of any kind, or from the expression of
such accused or convicted person's thoughts, feelings, opinions or emotions regarding such crime, shall submit a copy of such contract to the board and pay over to
the board any moneys which would otherwise, by terms of such contract, be owing
to the person so accused or convicted or his representatives. The board shall deposit
such moneys in an escrow account for the benefit of and payable to any victim or
the legal representative of any victim of crimes committed by: (i) such convicted
person; or (ii) by such accused person, but only if such accused person is eventually
convicted of the crime and provided that such victim, within five years of the date of
the establishment of such escrow account, brings a civil action in a court of competent jurisdiction and recovers a money judgment for damages against such person or
his representatives.
8. Notwithstanding the foregoing provisions of this section the board shall make
payments from an escrow account to any person accused or convicted of a crime
upon the order of a court of competent jurisdiction after a showing by such person
that such moneys shall be used for the exclusive purpose of retaining legal representation at any stage of the criminal proceedings against such person, including the
appeals process. The board may in its discretion and after notice to the victims of
the crime make payments from the escrow account to a representative of any person
accused or convicted of a crime for the necessary expenses of the production of the
moneys paid into the escrow account, provided the board finds that such payments
would be in the best interest of the victims of the crime and would not be contrary
to public policy ....
10. For purposes of this section:
(a) Victim shall mean a person who suffers personal, physical, mental, or emotional
injury, or pecuniary loss as a direct result of the crime. "
(b) A person convicted of a crime shall include any person convicted of a crime in
this state either by entry of a plea of guilty or by conviction after trial and any
person who has voluntarily and intelligently admitted the commission of a crime for
which such person is not prosecuted.
[VOL. 18:2
Section 632-a provided that any person or entity who contracts

with an individual accused or convicted of a crime in New York to
reenact the crime or to convey the person's thoughts, feelings, opinions,
or emotions regarding the crime must submit a copy of the contract to
the state Crime Victims Board. 7 The statute applied to books, movies,
magazine articles, tape recordings, phonographs, radio or television
presentations, and all forms of live entertainment." Under section 632a, the contracting party was required to pay to the Board all proceeds
which, under the contract, would be owing to the person accused or
convicted of the criminal act in question.9'
Section 632-a further provided that the monies collected must be
placed in escrow for a period of five years, and that these funds were to
be paid to the victims of the accused or convicted person's crimes.2 0
The statute, however, allowed withdrawals from the escrow fund for
several purposes.2 With regard to this provision, the statute prioritized
withdrawals according to their type. First, criminals were permitted
to withdraw money in order to obtain effective counsel.2 3 Second, withdrawals were permitted to meet the necessary expenses incurred in generating the escrowed funds.2 In addition, the statute also permitted the
withdrawal of escrowed moneys in order to reimburse the state for the
expenditures necessary to compensate victims of the accused or convicted person's crimes." Finally, escrowed funds could also be with-
11. Notwithstanding any other provision of law, claims on moneys in the escrow
account shall have the following priorities:
(a) Payments ordered by the board or a court pursuant to subdivision eight of this
section;
(b) Subrogation claims of the state pursuant to section six hundred thirty-four of
this article in an amount not exceeding one-half of the net amount of the civil judgment obtained by a victim which is payable directly to the victim from the escrow
account;
(c) Civil judgments of the victims of the crime;
(d) Other judgments creditors or persons claiming moneys through the person accused, or convicted of a crime who present lawful claims, including state or local
government tax authorities;
(e) The person accused or convicted of the crime.
Moneys in the escrow account shall not be subject to execution, levy, attachment or
lien except in accordance with the priority of claims established in this subdivision.
17. N.Y. EXEC. LAW 632-a-1.
18. Id.
19. Id.
20. Id.
21. N.Y. EXEC. LAW 632-a-l1.
22. Id.
23. Id.
24. Id.
25. Id.
19931
drawn to pay civil judgments obtained by victims of the crime, as well

as other creditors." After the five year period mandated by the statute
had lapsed, the accused or convicted person became eligible to receive
the remainder of the funds held in escrow. 7 Significantly, the statute
defined a "person convicted of a crime" as "any person convicted of a
crime in this state either by entry of a plea of guilty or by conviction
after trial and any person who has voluntarily and intelligently admitted the commission of a crime for which such person is not prosecuted."28 Thus, on its face, the statute applied to persons who were
never actually convicted of any criminal conduct. In addition, the statute applied, at least in theory, to persons who were never tried or even
accused of any criminal conduct.
The challenge to section 632-a, which ultimately led to its invalidation, began with the 1980 arrest for narcotics trafficking of New
York mobster Henry Hill.2 9 Hill was linked to the 1978 armed robbery
of the Lufthansa Airlines cargo terminal located in New York's Kennedy Airport. 0 During the robbery, Hill and several accomplices made
off with $5.8 million dollars.3 ' The robbery involved ten murders and is
considered to be the largest single cash robbery in American history.3 2
In addition, Hill had also masterminded a point-shaving scheme to
bribe Boston College basketball players during the 1978-79 college basketball season. 33 Finally, Hill was also involved in the theft of automatic weapons and claymore mines from an armory in Connecticut. 4
Rather than stand trial and face the likelihood of imprisonment for his
offenses, Hill struck a deal.3 5 In exchange for immunity, a new alias,
and relocation in the Federal Witness Protection Program, Hill agreed
to testify against his former colleagues in crime.3 6
In 1981, Simon and Schuster, Inc., began a project which was to
culminate in the publication of a book on organized crime in New York
City.37 Simon & Schuster retained author Nicholas Pileggi to write the
26.
27.
28.
29.
30.
31.
Id.
Id.
N.Y. EXEc. LAW 632-a-10 (emphasis added).
George F. Will, A Man from the Mob, WASH. POST, Mar. 23, 1986, at F7.
Id.
Id.
32.
NICHOLAS PILEGGI, WISEGuY: LIFE IN A MAFIA FAMILY 1 (1985).
33. Simon & Schuster, Inc. v. New York State Crime Victims Bd., 112 S. Ct. 501, 506
(interim ed. 1991).
34. See Will, supra note 29.
35.
36. See Will, supra note 29.

37. Simon & Schuster, Inc. v. New York State Crime Victims Bd., 724 F. Supp. 170, 172
(S.D.N.Y. 1989), affid sub nom. Simon & Schuster v. Fischetti, 916 F.2d 777 (2d Cir. 1990),
rev'd, 112 S. Ct. 501.
[VOL. 18:2
book in cooperation with Henry Hill, who had agreed to reveal the details of his life in the Mafia. 8 On September 1, 1981, Simon &
Schuster, Hill, and Pileggi signed the publishing agreement." The
book, Wiseguy: Life in a Mafia Family," was published in January of
1986.41 Eventually, the book was made into the movie Goodfellas.'2
Pursuant to the contract, Simon & Schuster paid a total of
$96,250 in advances and royalties on Henry Hill's behalf to the Sterling Lord Agency, Hill's literary agent."3 The publisher also held an
additional $27,958 which was earmarked for eventual payment to
Hill." In early 1986, however, the New York State Crime Victims
Board learned of the deal.' The Board. immediately demanded that
Simon & Schuster provide it with copies of all contracts made with
Henry Hill and all information regarding any payments it had made to
Hill.46 The Board also requested that Simon & Schuster suspend all
future payments to Hill.' 7 As its authority, the Board cited New York
Executive Law section 632-a."' Simon & Schuster complied with the
Board's initial order.' 9 Subsequently, in June of 1987, the Board made
its official determination that Wiseguy fell under the provisions of section 632-a 50 which made the works of persons who have admitted engaging in criminal conduct, but who were never accused or convicted of
any crime, subject to attachment. 51
38.
39.
New York State Crime Victims Bd., 724 F. Supp. at 172.

The publishing agreement will hereinafter be referred .to as "the contract."
40.
NICHOLAS PILEGGI, WISEGUY: LIFE IN A MAFIA FAMILY 1 (1985).
41.
id.
(1991).
43. Simon & Schuster, Inc. v. Fischetti, 916 F.2d 777, 780 (2d Cir. 1990), rev'd, 112 S. Ct.
501.
44. Simon & Schuster, 112 S. Ct. at 507.
45. Fischetti, 916 F.2d at 780.
.46. Id.
47. Id.
48. Id.
49. Id.
50. Id. The Board depicted Wiseguy as:
Henry Hill's life story from 1955 when he first became involved with organized crime until
May 1980 when he joined the Federal Witness Protection Program. It is a veritable catalog
of crimes in which Henry Hill admits to the commission of various crimes and expresses his
feelings, opinions or emotions regarding such crimes.
Simon & Schuster, Inc. v. New York State Crime Victims Bd., 724 F. Supp. 170, 172-73
(S.D.N.Y. 1989), affd sub nom. Simon & Schuster v. Fischetti, 916 F.2d 777 (2d Cir. 1990),
rev'd, 112 S. Ct. 501.
51. See N.Y. EXEC. LAW 632-a-10 (McKinney Supp. 1992).
19931
A.
The District Court Decision
The Board's initial order provided that, if Hill failed to turn over
his profits, Simon & Schuster would be required pay an equal amount
to the Board. 52 Rather than subject itself to this condition of the
Board's order, Simon & Schuster filed suit in the United States District Court for the Southern District of New York.5" Simon & Schuster
alleged that section 632-a violated both the First 54 and Fourteenth"5
Amendments to the United States Constitution.5 6 Both sides subsequently moved for. summary judgment.5 7 The District Court granted
the defendant's cross-motion, holding that section 632-a did not violate
the Constitution.5"
Specifically, the District Court held that the proper standard of
review had been set forth by the Supreme Court in United States v.
O'Brien.59 Under the O'Brien standard, the government may regulate a
nonspeech activity where it has a "sufficiently important governmental
interest," so long as the restriction places only incidental limitations on
First Amendment freedoms."0 In applying this approach, the O'Brien
Court held that a restriction on freedom of speech is permissible provided that: (1) the regulation was enacted "within the constitutional
power of the government"; (2) the regulation furthers an important or
substantial governmental interest unrelated to the suppression of free
expression; and (3) the incidental restriction on First Amendment freedoms is no greater than is essential to further that governmental
interest."1
Simon & Schuster argued that section 632-a should be subjected
to the strict scrutiny approach which governs content-based restrictions
on speech.6 2 The District Court disagreed, 63 and instead held that section 632-a was not a prohibition on expression, but merely an incidental
52. New York State Crime Victims Bd., 724 F. Supp. at 172-73.
53. Id. at 172.
54. Id. at 174. Simon & Schuster asserted that section 632-a was a content-based restriction that violated the First Amendment. Id.
55. Id. at 179. Simon & Schuster also averred that section 632-a was both overbroad and
vague. Id.
56. Id. at 172.
57. Id.
58. Id. at 180.
59. 391 U.S. 367 (1968).
60. Id. at 376.
61. Id. at 377.
62. New York State Crime Victims Bd., 724 F. Supp. at 174. Strict scrutiny would have
required New York to show that section 632-a was a narrowly tailored means of achieving a
compelling state interest. Id.
63. Id. at 177.
[VOL. 18:2
burden on expression.64 The District Court reasoned that the statute

5
targeted the proceeds of the expression, not the expression itself." The
court concluded that section 632-a satisfied the O'Brien standard."'
In its analysis of the Fourteenth Amendment issue, the District
Court rejected Simon & Schuster's argument that section 632-a was
6
both overbroad 7 and impermissibly vague. " Simon & Schuster's principal authority for its overbreadth argument was Board of Airport
a
Commissioners of Los Angeles v. Jews for Jesus, Inc." In Jews for
Jesus, the Supreme Court struck down a "sweeping ban" on expressive
activities at an airport because the ban would prohibit virtually all free
speech activities.7 The District Court found that Grayned v. City of
Rockford"t provided the most appropriate Fourteenth Amendment
guidelines for determining whether section 632-a was overbroad or impermissibly vague. 7 The court explained that "[t]he Fourteenth
Amendment requires that due process be afforded in that laws provide
fair warning to those within its scope, that clear standards for enforcement of the law exist, and that no law should inhibit the exercise of
basic constitutional freedoms."' 73 The District Court concluded that
64. Id.
65. id.
66. Id. at 179.
67. The Supreme Court has explained the overbreadth doctrine as follows:
Under the . ..overbreadth doctrine, an individual whose own speech or conduct may be
prohibited is permitted to challenge a statute on its face "because it also threatens others
not before the court-those who desire to engage in legally protected expression but who
may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid." A statute may be invalid on its face, however, only if the overbreadth is "substantial."
Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987)
(quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985)); Houston v. Hill, 482 U.S.
451, 458-59 (1987) (only a law that is substantially overbroad may be invalidated on its face);
New York v. Ferber, 458 U.S. 747, 769 (1982) (scope of the overbreadth doctrine is an exception
to established First Amendment principles which must be applied carefully); Broadrick v.
Oklahoma, 413 U.S. 601, 615 (1973) (courts must weigh the extent of deterrence of protected
speech against the state's legitimate police powers in an overbreadth analysis).
68. New York State Crime Victims Bd., 724 F. Supp. at 179. Vagueness is a statutory
deformity which renders a law violative of the Fourteenth Amendment due process requirements.
In order to survive a void-for-vagueness challenge, a statute must "provide fair warning to those
within its scope," give "clear standards for enforcement," and not "inhibit the exercise of basic
constitutional freedoms." Id. (citing Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972)).
69. 482 U.S. 569 (1987).
70. Id. at 575.
71. 408 U.S. 104 (1972).
72. New York State Crime Victims Bd., 724 F. Supp. at 179.
73. Id.; see also Grayned, 408 U.S. at 108-09 (vague law is void for violation of due process
because it "may trap the innocent by not providing fair warning" or lead to "arbitrary and discriminatory enforcement"). For examples of fair warning cases, see Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972); Cramp v. Board of Public Instruction, 368 U.S. 278, 287
(1961); United States v. Harris, 347 U.S. 612, 617 (1954); Jordan v. De George, 341 U.S. 223,
1993]
New York Executive Law section 632-a was consistent with the
Constitution.
B.
The Court of Appeals Decision
Simon & Schuster appealed to the Second Circuit Court of Appeals. 7" On appeal, Simon & Schuster confined its argument to the
First Amendment issue. 78 A divided court of appeals affirmed, but on
grounds different from those cited by the District Court.7 The court of
appeals held that "[i]t is now settled that the denial of payment for
expressive activity constitutes a direct burden on that activity. '7 8 Further, since section 632-a "has the effect of excluding from circulation
the expression of criminals who would write about their crimes," strict
scrutiny would apply, were it not for the escrow provision of the statute. 79 Strict scrutiny required the Board to show that New York had a
compelling state interest in escrowing proceeds derived from reenacting
or expressing thoughts about the crime, and that section 632-a was a
necessary means of achieving this interest.8 0
The Second Circuit held that New York had met its burden under
the strict scrutiny analysis. 81 Specifically, the court held that section
632-a was "narrowly tailored to the State's interest in denying
criminals any gain from the stories of their crimes until the victims of
those crimes are fully compensated for all losses arising out of their
victimization." 8 2 The majority concluded that, as a practical matter, a
230-32 (1951); Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939); Connally v. General Constr.
Co., 255 U.S. 81, 89 (1921); International Harvester Co. v. Kentucky, 234 U.S. 216, 223-24
(1914). For examples of problematic enforcement cases, see Papachristou,supra, at 162; Coates
v. Cincinnati, 402 U.S. 611, 614 (1971); Gregory v. Chicago, 394 U.S. 111,120 (1969) (Black,
J., concurring); Interstate Circuit v. Dallas, 390 U.S. 676, 684-85 (1968); Ashton v. Kentucky,
384 U.S. 195, 200 (1966); Giaccio v. Pennsylvania, 382 U.S. 399 (1966); Shuttlesworth v. Birmingham, 382 U.S. 87, 90-91 (1965); Kunz v. New York, 340 U.S. 290 (1951); Saia v. New
York, 334 U.S. 558, 559-60 (1948); Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940); Herndon v.
Lowry, 301 U.S. 242, 261-64 (1937).
74. New York State Victims Crime Bd., 724 F. Supp. at 180.
75. Simon & Schuster, Inc. v. Fischetti, 916 F.2d 777 (2d Cir. 1990), rev'd sub nom. Simon
& Schuster, Inc. v. New York State Victims Crime Bd., 112 S. Ct. 501 (interim ed. 1991).
76. Id.
77. Id. at 778.
78. Id. at 781 (citing Meyer v. Grant, 486 U.S. 414, 422-24 (1988)) (Colorado provision
making it a felony to pay persons to circulate petitions to include certain issues on the state ballot
held unconstitutional under the First and Fourteenth Amendments).
79. Id. at 782.
80. Id. at 782 (citing Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45
(1983)) (in "quintessential public fora," the government must establish that its regulation of expression is necessary and narrowly drawn to serve a compelling state interest).
81. Id. at 784.
82. Id. at 783.
[VOL. 18:2
83
criminal's sole asset is often the right to tell his or her own story.
Thus, the form of attachment selected by the New York State Legisla84
ture was sufficiently specialized to survive First Amendment scrutiny.
Moreover, New York's attachment provisions were too limited, at that
'8 5
time, "to assure satisfaction of potential judgments by victims." Thus,
section 632-a was the only method available for victims to seek justice
against criminals.8 6
Simon & Schuster argued that section 632-a was not sufficiently
narrowly tailored because it was both underinclusive and overinclusive.817 According to Simon & Schuster, the statute was underinclusive
because it applied to only one kind of literary work written by the
criminal - a work which included the criminal's thoughts, feelings, or
emotions toward the crime.8 8 Similarly, section 632-a was overinclusive
for several reasons.8 9 First, the statute applied to entire works in which
90
the crime was only mentioned incidentally. Second, section 632-a at91
tached the entire proceeds earned from the works covered. Third, section 632-a attached the criminal author's earnings derived from the
"labors of authorship," tather than attaching property which was more
directly related to the crime and could more aptly be described as the
fruits of the crime. 92 The Second Circuit answered the underinclusiveness argument by defining New York's interest narrowly: "to compensate victims of crimes out of the proceeds of the sale of stories of their
victimization before anyone else benefits . . . . -13 The court concluded
that section 632-a was sufficiently narrowly tailored because the statute
specifically escrowed profits derived from the sale of expressive works
9"
in order to give victims first priority in laying claim to them. The
court reasoned that section 632-a reached only those funds that are
"readily identifiable, locatable .. . [and] most commonly available to
95
those who victimize others.
The court answered Simon & Schuster's overinclusiveness objections as well.9" Although section 632-a would, in theory, apply to the
83. Id.
84. Id.
85. Id.
86. Id.
87. Id.
88. Id. at 784.
89. Id.
90. Id.
91. Id.
92. Id. Stolen property is a traditional example of the fruits of crime.
93. Id.
94. Id.
95. Id.
96. Id.
19931
entire proceeds derived from literary works in which a person's crime

was only incidentally mentioned, the court felt that this effect was necessary in order to achieve the state's interest.9 7 In addition, merely escrowing the funds generated by affected works "does not eliminate a
criminal's right to speak about a crime, nor does it prevent all payment
for the story of the crime."9 8 Instead, the court held that section 632-a
did no more than was necessary to further the state's narrowly defined
interest. 99
Judge Newman dissented from the majority's opinion. 100 Although
Judge Newman agreed with the majority's assessment that strict scrutiny was the appropriate standard of review, he argued that section
632-a was unconstitutional. 1 Specifically, Judge Newman contended
that, by defining section 632-a's purpose in terms of the scope of its
actual application," 2 the majority had subscribed to a circular argument with ominous implications for the status of free speech. 0 3 Judge
Newman believed that the proper method of ensuring victim compensation was to modify New York's attachment laws. 0 4
C.
The United States Supreme Court
Simon & Schuster appealed from the judgment of the Second Circuit to the United States Supreme Court. On February 19, 1991, the
Supreme Court granted certiorari. 0 5 The Supreme Court agreed to
hear the case "[b]ecause the Federal government and most of the
States have enacted statutes with similar objectives . . . [and thus] the
issue is significant and likely to recur." 10 6 The Supreme Court unanimously 0 7 held that section 632-a was an impermissible burden on free-
97. Id.
9.8. Id.
99. Id.
100. Id. (Newman J., dissenting).
101. Id. at 784-85 (Newman, J., dissenting).
102. During the years in which section 632-a was in effect, New York applied the statute to
highly notorious criminals who committed visible crimes. For example, it was invoked in the cases,
of Jean Harris, convicted killer of the "Scarsdale Diet" Doctor Herman Tarnower; Mark David
Chapman, John Lennon's assassin; and R. Foster Winans, a former columnist for The Wall Street
Journal who was convicted of insider trading. See Simon & Schuster, Inc. v. New York State
Crime Victims Bd., 112 S. Ct. 501, 506 (interim ed. 1991).
103. Fischetti, 916 F.2d at 785 (Newman, J., dissenting).
104. Id. at 785-86 (Newman, J., dissenting).
105. Simon & Schuster, Inc. v. New York State Crime Victims Bd., 112 S. Ct. 501 (interim ed. 1991). Certiorari denotes the type of writ issued by an appellate court in its discretion to
hear a case on appeal.
106. Id. at 508.
107. The Court voted 8-0 that section 632-a violated the First Amendment. Id. at 504.
[VOL. 18:2
dom of speech. 108 Justices Kennedy and Blackmun filed separate concurring opinions." 9
1. Justice O'Connor's Majority Opinion
Writing for the majority, Justice O'Connor began her analysis
with the general premise that "[a]. statute is presumptively inconsistent
with the First Amendment if it imposes a financial burden on speakers
because of the content of their speech."' 110 This rule is "but one manifestation of a far broader principle: 'Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment.' "I" The Court thus
preceded its discussion of section 632-a's constitutionality by reiterating
its traditional skepticism of content-based regulations." 2
The Court concluded that New York's Son of Sam law was a content-based regulation." 3 The Court reasoned that the statute "singles
out income derived from expressive activity for a burden the State
places on no other income, and it is directed only at works with a specified content."' " 4 Indeed, section 632-a applied exclusively to the expression of "thoughts, feelings, opinions, or emotions" regarding a person's
crime or its reenactment."15 Thus, if a criminal derived financial gain
from the sale of his or her own expressive work which was devoid of
any reference to the crime, these funds would not fall within the scope
of the statute. The Court deemed inconsequential the issue of whether
the "speaker" was Henry Hill or Simon & Schuster." 6 Moreover, the
a financial disincentive
Court held that section 632-a "plainly imposes
'' 1 7
content.
particular
only on speech of a
The Board had argued that section 632-a did not prevent any
criminal from speaking about his or her crime." 8 Rather, the statute
108. Id. at 512.

109. Id.
110. Id. at 508. Justice O'Connor had articulated this idea earlier in the term in her majority opinion in Leathers v. Medlock, 111 S. Ct. 1438, 1443 (interim ed. 1991). In Leathers, Justice
O'Connor stated: "[D]ifferential taxation of First Amendment speakers is constitutionally suspect
when it threatens to suppress the expression of particular ideas or viewpoints. Absent a compelling
justification, the government may not exercise its taxing power to single out the press." Id.
111. Simon & Schuster, 112 S. Ct. at 508 (quoting Regan v. Time, Inc., 468 U.S. 641,
648-49 (1984)); see also Police Dep't of Chicago v. Mosley, 408 U.S. 92, 95 (1972).
113. Id.
114. Id.
115. N.Y. EXEC. LAW 632-a-I (McKinney 1982 & Supp. 1992).
117. Id.
118. See id.
1993]
applied solely to proceeds derived from the sale of those works.1 19 This
argument, however, was unsuccessful because the statute imposed a financial disincentive on speech with a particular content. 120 The Court
held that placing a financial burden on specified speech was tantamount to preventing speech.12 1
In ruling that section 632-a was content-based, the Court rejected
the Board's argument that the case was distinguishable from its prior
decision in Arkansas Writer's Project v. Ragland.121 In Arkansas
Writers' Project, Arkansas exempted religious, professional, trade, and
sports journals from a sales tax scheme that taxed general interest publications. 23 In ruling on the statute's constitutionality, the Supreme
Court held that the "selective taxation" scheme discriminated on the
basis of the magazine's content.124 The Court further concluded that
the selective application of the tax was unconstitutional and that its
ruling would eliminate the differential treatment of publications of es12 5
sentially the same type.
In responding to the Board's argument that Arkansas Writers'
Project did not apply, the Court recognized that both the taxation and
the escrow provisions provided for in section 632-a operate as "disincentives to speak.' 26 The Board also argued that a statute imposing
discriminatory financial treatment is only judicially suspect when it reflects actual discriminatory intent on the part of the enacting legislature toward the specific content of the speech in question. 12 7 In rejecting this argument, the Court quoted its prior decision in
Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue128 in support of its conclusion that, " '[i]llicit legislative intent is
not the sine qua non of a violation of the First Amendment.' ",129
Finally, the Board also argued that, since the statute at issue in
the case applied to any "entity" and not specifically to the media, the
restriction was not prohibited by the First Amendment.'"0 The Court,
119. Id.
120. Id.
121. Id.
122. 481 U.S. 221 (1987) overruled by Rust v. Sullivan, III S. Ct. 1759 (interim ed.
1991).
123. Id. at 223.
124. Id. at 228-29.
125. Id. at 233.
(interim ed. 1991).
127. Id. at 509.
128. 460 U.S. 575 (1983).
129. Simon & Schuster, 112 S. Ct. at 509 (quoting Minneapolis Star, 460 U.S. at 592).
130. Id.
[VOL. 18:2
The Court
however, dismissed this distinction as "irrelevant."''
the expresfor
pointed out that entities which contract with criminals
sion of the their thoughts and emotions become a medium of communication per se. 132
The Court's conclusion that "[t]he Son of Sam law establishes a
financial disincentive to create or publish works with a particular content" indicated that strict scrutiny was the proper standard of constitutional review. 1 33 The application of this standard required New York to
show that " 'its regulation [was] necessary to serve a compelling state
interest and [was] narrowly drawn to achieve that end.' "13'
The Court found that New York did indeed have compelling state
13 5
These interinterests which supported the operation of the statute.
by
compensated
fully
are
victims
crime
that
ensuring
ests included
a
as
profit
not
do
criminals
that
those who harm them and ensuring
6 The Court rejected the Board's argument that
result of their crimes.'
the statute was enacted solely to further New York's compelling state
interest in "ensuring that criminals do not profit from storytelling
have a meaningful opportunity
about their crimes before their victims
1 37
injuries.
their
for
to 'be compensated
The Court reasoned that the Board's interest in reaching profits
derived from storytelling was no greater than its interest in reaching
3 8 Moreover, the Court also reaother assets owned by the criminal.'
soned that the Board was unable to demonstrate how restricting such
storytelling furthered New York's interest in transferring "the fruits of
13 9 The Court adopted Judge
crime" from criminals to their victims.
Newman's dissenting view that "the Board has taken the effect of the
1 40
Taken to its
statute and posited that effect as the State's interest.
judicial residestep
can
logical extreme, "this sort of circular defense
narrowly
look
view of almost any statute, because it makes all statutes
4
tailored.' ' The Court concluded that, although New York did have a
compelling state interest in "compensating victims from the fruits of
131. Id.
132. Id.
133. Id.
134. Id. (quoting Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987)
overruled by Rust v. Sullivan, 111 S. Ct. 1759 (interim ed. 1991)).
135. Id. at 509-10.
136. Id. The Court stated that the former interest is a valid one served in every state by its
body of tort law, and that the latter is a basic equitable principle that has long been formally
recognized by the law. See Riggs v. Palmer, 22 N.E. 188, 190 (N.Y. 1889).
137. Simon & Schuster, 112 S. Ct. at 510 (quoting Brief for Respondents at 46).
138. Id. at 510.
139. Id.
140. Id.; see also supra notes 100-04 and accompanying text.
19931
607
the crime," it had no such interest in "limiting such compensation to

the proceeds of the wrongdoer's speech about the crime. '
The next step in the Court's analysis was to inquire whether New
York had employed a sufficiently narrowly tailored means of furthering
its interest in fully compensating victims of crime.1"" This inquiry, however, applied only to the interests which the Court found to be compelling. The Court questioned whether the means employed by section
632-a were sufficiently narrowly tailored to ensure that victims of crime
are compensated by those who harm them and that criminals do not
profit from their crimes.1 4'
The Court held that the means provided for by section 632-a were
overinclusive and that the statute was thus not sufficiently narrowly tailored to withstand strict scrutiny. 45 First, the Court reasoned that the
statute applied to all works that express a criminal's thoughts, emotions, or recollections, even if mentioned only tangentially. 46 Thus, the
theoretical scope of the statute rendered it overbroad. 47 Second, section 632-a's broad definition of "person convicted of a crime" allowed
the Board to place in escrow proceeds derived from any author's work
who admits that he or she has committed a crime, regardless of
whether the author was ever in fact convicted or even accused of a
1 8
crime. 4
Finally, the Court also pointed to the impact of section 632-a on
statutes of limitation as further evidence that the law was not sufficiently narrowly tailored to effectively further New York's interest in
compensating victims through the use of the fruits of crime. 49 Specifically, the Court noted that even a retrospective account of youthful
pranks written by a prominent person at the end of his or her life would
fall under the statute. 5 ' In that event, "the Board would control his
[sic] entire income from the book for five years, and would make that
income available to all of the author's creditors, despite the fact that
the statute of limitations for this minor incident had long since run.' 51
142. Id.at 511.

143. Id.
144. Id.at 509-11.
145. Id.at 511 n.**.
146. Id. at 511.
147. Id.
148. Id. Historically, if section 632-a had been applied, proceeds from the works of Malcom
X, Thoreau, St. Augustine, Martin Luther King, Jr., Emma Goldman, Sir Walter Raleigh, Jesse
Jackson, and Bertrand Russell could have been escrowed under its provisions. Id. For a more
detailed account, see infra notes 320-28 and accompanying text.
149. Simon & Schuster, 112 S. Ct. at.512.
150. Id.
151. Id.
[VOL. 18:2
The Supreme Court therefore reasoned that section 632-a was not sufficiently narrowly tailored to achieve the state's compelling interests and
that the statute accordingly failed the second part of the strict scrutiny
15 2
test.
Recognizing the significance of its holding, the Simon & Schuster
15
Court acknowledged that state criminal anti-profit statutes abound.
Although Justice Blackmun urged states with criminal, anti-profit stat-*
utes similar to section 632-a to exercise caution, the Court made no
attempt to adjudicate the validity of other statutes. Instead, the Court
stated that:
We conclude simply that in the Son of Sam law, New York has 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
As a result,
Sam law is not narrowly tailored to advance that objective.
15 4
Amendment.
First
the
with
inconsistent
is
statute
the
Thus, the Court concluded that section 632-a was an unconstitutional
burden on freedom of speech. 155
152.
Id.
153. Id. at 508, 512. Analogous statutes to New York's Son of Sam law are as follows: ALA.
41-9-80 (1982 & Supp. 1990); ALASKA STAT. 12.61.020 (1990); ARIz. REV. STAT. ANN.
13-4202 (1989); ARK. CODE ANN. 16-90-308 (Michie 1987); CAL. CiV. CODE 2225 (West
Supp. 1993); COLO. REV. STAT. 24-4.1-201" (1990); CONN. GEN. STAT.' ANN. 54-218 (West
1985); DEL. CODE ANN. tit. 11, 9101-06 (1987 & Supp. 1992); FLA. STAT. ANN. 944.512
(West Supp. 1993); GA. CODE ANN. 17-14-31 (Michie 1990); HAW. REV. STAT. 351-81 to -88
(1991); IDAHO CODE 19-5301 (1987); ILL. ANN. STAT. ch. 70, para. 403 (Smith-Hurd 1989 &
Supp. 1992); IND. CODE ANN. 16-7-3.7-2 to -6 (West 1988); IOWA CODE ANN. 910.15 (West
Supp. 1992); KAN. STAT. ANN. 74-7319 (Supp. 1991); Ky. REV. STAT. ANN. 346.165 (Baldwin
1986); LA. REV. STAT. ANN. 46:1831 to :1839 (West 1982 & Supp. 1992); MD. ANN. CODE art.
27, 764 (1988 & Supp. 1991); MASS. GEN. LAWS ANN. ch. 258A, 8 (West 1988 & Supp.
1992); MICH. COMp. LAWS ANN. 780.768 (West Supp. 1992); MINN. STAT. ANN. 611A.68
(West 1987 & Supp. 1993); Mo. ANN. STAT. 595.045 (Vernon Supp. 1992); MONT. CODE ANN.
53-9-104(l)(d) (1991); NEB. REV. STAT. 81-1836 to -1840 (1987); NEV. REV. STAT. ANN.
217.265 (Michie 1992); N.J. STAT. ANN. 52:4B-28 (West 1986); N.M. STAT. ANN. 31-22-22
(1992); OHIO REV. CODE ANN. 2969.01 - .06 (Anderson 1987); OKLA. STAT. ANN. tit. 22, 17
(West 1992); OR. REV. STAT. 147.275 (1990); PA. STAT. ANN. tit. 71, 180-7.18 (1990); R.I.
GEN. LAWS 12-25.1-3 (Supp. 1992); S.C. C6DE ANN. 15-59-40 (Law. Co-op. Supp. 1992);
S.D. CODIFIED LAWS ANN. 23A-28A-1 (1988); TENN. CODE ANN. 29-13-202 (1980); TEX.
REV. CIV. STAT. ANN. art. 8309-1, 16 (West Supp. 1993); UTAH CODE ANN. 78-11-12.5
(1992); WASH. REV. CODE ANN. 7.682.00 (West 1992); WIs. STAT. ANN. 949.165 (West
Supp. 1992); WYo. STAT. 1-40-112(d) (1988).
CODE
154.
155.
See id.
1993]
2.
Justice Blackmun's Concurring Opinion
Justice Blackmun filed a short concurring opinion.1 58 Justice

Blackmun argued that section 632-a was both underinclusive and overinclusive.15 7 Justice Blackmun recognized that many states have Son of
Sam statutes which are similar to section 632-a, and that these states
will look to the Court for guidance in determining the constitutionality
of their statutes. 158 Justice Blackmun also argued that the Court's ruling should reflect the fact that section 632-a, which served as a model
for many similar criminal anti-profit statutes, is underinclusive. 159 Justice O'Connor responded to Justice Blackmun's concurrence by arguing
that, since the Court had already determined that section 632-a was
unconstitutional, there was no need to address the underinclusiveness
issue. 160
3. Justice Kennedy's Concurring Opinion
Justice Kennedy also filed a concurring opinion. 6" Although he
agreed that section 632-a was invalid, Justice Kennedy differed as to
the proper standard the Court ought to use in reaching this conclusion. 1 62 In Justice Kennedy's opinion, the dual requirements of strict
scrutiny were unnecessary.11 3 Instead, Justice Kennedy argued that
"'above all else, the First Amendment means that government
has no
power to restrict expression because of its message, its ideas, its subject
matter, or its content.' "164 Thus, Justice Kennedy's approach would
156. Id. (Blackmun, J., concurring). Justice Blackmun's concurring opinion reads in full:
I am in general agreement with what the Court says in its opinion. I think, however, that
the New York statute is underinclusive as well as overinclusive and that we should say so.
Most other States have similar legislation and deserve from this Court all the guidance it
can render in this very sensitive area.
Id. (Blackmun, J., concurring).
157. Id. (Blackmun, J., concurring).
159. Id. For the text of Justice Blackmun's concurring opinion, see supra note 156.
160. Id. at 511 n.**.
161. Id. at 512 (Kennedy, J., concurring).
162. Id. (Kennedy, J., concurring).
163. Id. (Kennedy, J., concurring). For an explanation of the requirements of strict scrutiny, see supra note 6 and accompanying text.
164. Simon & Schuster, 112 S. Ct. at 514 (Kennedy, J., concurring) (quoting Police Dept.
of Chicago v. Mosley, 408 U.S. 92, 95 (1972)) (Chicago ordinance which prohibited all picketing
next to a school except labor picketing held unconstitutional); see also Arkansas Writers' Project
v. Ragland, 481 U.S. 221, 229-30 (1987) (citing Mosley, 408 U.S. 92 (1972)) (Arkansas selective
tax scheme on publications held violative'of the First Amendment); Regan v. Time, Inc., 468 U.S.
641, 648-49 (1984) (ban on the use of photographic reproductions of currency for all purposes
except educational, historical, newsworthy, philatelic, or numismatic was a content-based
restriction).
[VOL. 18:2
presume that section 632-a was invalid simply because it regulated protected speech.' 6 5
Rather than use the compelling state interest test, Justice Kennedy
argued that the Court ought to ascertain whether the challenged content-based legislation falls into a category where some intrusion into
the class-of speech protected by the First Amendment has been recognized. 166 These categories would include obscenity, defamation, incitement, and "situations presenting some grave and imminent danger
which the government has the power to prevent ... ,,"I If the challenged restriction regulates speech which falls into one of these categories, Justice Kennedy urged the Court to inquire into whether the statute: (1) impairs any other constitutional rights; (2) aims at restricting
expressive or nonexpressive activity; (3) restricts speech per se or
merely its time, place, or manner; and (4) is content-specific or content-neutral. 68 Justice Kennedy concluded that section 632-a "amounts
to raw censorship based on content, censorship forbidden by the text of
the First Amendment and well-settled principles protecting speech and
the press."' 1 9 Therefore, Justice Kennedy concurred in the Court's invalidation of section 632-a.' 70
Justice O'Connor's opinion contained only a brief reference to JusIn a footnote, the majority retice Kennedy's suggested approach.'
sponded that the case simply did not require the Court to consider
whether strict scrutiny is the best vehicle for determining the constitutionality of statutes which restrict First Amendment freedoms.' 2 Instead, Justice O'Connor noted that the propriety of the strict scrutiny
analysis is an issue "which the parties before us have neither briefed
nor argued." '
III.
BACKGROUND
The Court's decision in Simon & Schuster rests upon a traditional

First Amendment strict scrutiny analysis. The various opinions, however, reflect the legacies of both the categorization and balancing approaches to First Amendment jurisprudence. This background section
first gives an overview of the significance of the free speech clause of
the First Amendment. It then explains the differing tests or standards
165.
166.
167.
168.
169.
170.
171.
172.
173.
Simon & Schuster, 112 S. Ct. at 512 (Kennedy, J., concurring).

Id. at 514 (Kennedy, J., concurring).
Id. (Kennedy, J., concurring).
Id. at 514-15 (Kennedy,- J., concurring).
Id. at 515 (Kennedy, J., concurring).
Id. (Kennedy, J., concurring).
Id. at 511 n.**.
Id.
Id.
1993]
of review which the Court may apply in ruling on the constitutionality

of statutes or regulations which burden free speech. Third, this section
also relates traditional categories of speech to the proper standards of
review the Court has historically used in ruling on the constitutionality
of statutes or regulations restricting these types of speech. Fourth, this
section explains the use of the overbreadth and vagueness doctrines as
alternative ways of challenging speech regulations. Finally, this section
briefly reviews the history of section 632-a and the constitutional challenges brought against it prior to Simon & Schuster.
A.
The Free Speech Clause: Its Significance
The First Amendment to the United States Constitution provides

that "Congress -shall make no law . . . abridging the freedom of
speech. ' 174 The First Amendment thus guarantees protection of the
freedoms of speech and expression. 1' 5 Further, this guarantee applies to
both the federal government and the states through the operation of the
Due Process Clause of the Fourteenth Amendment.1 7 6 As broad and
important as First Amendment freedoms are,17 7 the Supreme Court has
1 78
noted that they are not absolute.
States may regulate speech and expression within "certain welldefined and narrowly limited classes" which have been recognized as
unworthy of increased constitutional protection.1 79 These areas include
lewdness, obscenity, profanity, libel, slander, insults or "fighting
words,"' 80 misrepresentation, perjury, false advertising, solicitation of
crime, and conspiracy. 8 ' Notwithstanding these exceptions, however,
the Constitution protects the expression of ideas, regardless of their
174. U.S. CONST. amend. I.

175. Gillard, supra note 14, at 180 n.144; see also Palko v. Connecticut, 302 U.S. 319, 324
(1937); Whitney v. California, 274 U.S. 357, 373-78 (1927) (Brandeis, J., concurring) (giving the
history and rationales for preserving the freedoms of speech and expression), overruled by Brandenburg v. Ohio, 395 U.S. 444 (1969).
176. See Gillard, supra note 14, at 180 n.144; see also Lovell v. City of Griffin, 303 U.S.
444, 450 (1938) ("Freedom of speech and freedom of the press, which are protected by the First
Amendment from infringement by Congress, are among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action.").
177. Justice Cardozo pointed out in Palko, 302 U.S. at 327, that freedom of speech is a
fundamental liberty that is recognized as an "indispensable condition, of nearly every other form
of freedom." See generally GERALD GUNTHER, CONSTITUTIONAL LAW 997 (12th ed. 1991).
178. Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942) ("[T]he right of free speech
is not absolute at all times and under all circumstances.") (citations omitted).
179. Id. at 571-72.
180. Fighting words are "those [words] which by their very utterance inflict injury or tend
to incite an immediate breach of the peace." Id.
181. See id.; see also Konigsberg v. State Bar of Calif., 366 U.S. 36, 49 n.10 (1961).
[VOL. 18:2
truth, popularity, or social utility, in order to promote debate and encourage free and open communication." 2
B.
Differing Judicial Standards of Review
In analyzing a regulation which infringes upon freedom of speech

or expression, courts first classify the restriction as content-based or
content-neutral."i 3 A court's conclusion in this portion of its analysis is
dispositive of the level of scrutiny it will apply in ruling on the constitutionality of the regulation.
1. Content-Based Regulations
Statutes which are content-based are subjected to more rigorous
judicial inquiry than are content-neutral statutes. 184 This is because
"[r]egulations which permit the Government to discriminate on the basis of the content of the .message cannot be tolerated under the First
Amendment. 1 85 Speech has long been touted as a fundamental liberty
entitled to a high level of judicial protection.18 6 In order to ensure free
debate and the discovery of truth, the Framers of the Constitution explicitly included speech as a freedom "valued ...both as an end and as
a means."1 87 As one commentator has noted, even narrow restrictions
on the content of speech can weigh on the symbolic importance of our
constitutional values.1 s8
The purest form of protected speech is political speech which occurs in a traditional public forum. 89 Generally, courts consider streets
and parks to be held in the public trust as rightful places of assembly,
debate, expression, and discussion. 190 Government may enact reasonable, narrowly drawn regulations governing expression in these public
182. See Columbia Broadcasting Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 117
(1973); see also New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
183. Susan H. Williams, Content Discrimination and the First Amendment, 139 U. PA. L.
REV. 615, 616 (1991).
184. See Boos v. Barry, 485 U.S. 312, 321 (1987); Arkansas Writers' Project, Inc. v.
Ragland, 481 U.S. 221, 231 (1987) overruled by Rust v. Sullivan, 111 S. Ct. 1759 (interim ed.
1991); Minneapolis Star & Tribune Co. v. Minnesota Comm'r. of Revenue, 460 U.S. 575, 582-83
(1982).
185. Regan v. Time, Inc., 468 U.S. 641, 648-49 (1984); see also Police Dept. of Chicago v.
Mosley, 408 U.S. 92, 95 (1972).
186. See Palko v. Connecticut, 302 U.S. 319, 324 (1937); Whitney v. California, 274 U.S.
357, 375-78 (1927) (Brandeis, J., concurring) overruled by Brandenburg v. Ohio 395 U.S. 444
(1969). See generally GUNTHER, supra note 177, at 994-1008.
187. Whitney, 274 U.S. at 375 (Brandeis, J.,concurring).
188. Nadine Strossen, Regulating Racist Speech on Campus: A Modest Proposal? 1990
DUKE L.J. 484, 520-523 (1990).
189. See Hague v. Committee for Indus. Org., 307 U.S. 496, 515 (1939).
190. Id. at 515-16.
1993]
fora in order to ensure public safety or meet other neutral goals.19 1

Courts, however, continue to afford speech which occurs in traditional
public fora a high level of First Amendment protection. 9 2
A statute which burdens the exercise of protected speech or expression based upon the content or ideas contained within the expres-
sion itself will pass constitutional muster only if it meets the test of
strict or exacting scrutiny. 193 Under the strict scrutiny test, three elements must be satisfied by the proponent of the statute or regulation at
issue. First, the state must show a compelling interest in the regulation.194 Second, the manner in which the statute or regulation restricts
free speech must be narrowly tailored to accomplish its compelling interest. 9 5 Third, there must be no less restrictive, alternative means of
furthering the interest advanced by the statute or regulation in question.1 96 A statute which fails the strict scrutiny test will be held invalid
as violative of the First Amendment right to freedom of speech.19 7 The
strict scrutiny test, which embodies a balancing approach, was the
standard of review applied by both the Supreme Court and the Second
Circuit in ruling on the constitutionality of section 632-a. 198
An alternative method of reviewing content-based regulations is
the "categorization approach". 1 99 This approach rests upon the premise
that "some varieties of expression are wholly outside 'the freedom of
speech' safeguarded by the First Amendment." ' Under this approach,
a content-based statute or regulation which restricts one of these types
191. See Frisby v. Schultz, 487 U.S. 474 (1988) (flat ban on "focused picketing" of a particular residence sustained).
192. See R.A.V. v. City of St. Paul, Minnesota, 112 S. Ct. 2538 (interim
ed. 1992) (city
ordinance prohibited placing a burning cross, swastika, or other object known to arouse racial,
religious, or gender-based resentment on public or private property; found facially invalid).
193. See Boos v. Barry, 485 U.S. 312, 321 (1988). See generally Gillard, supra note 14, at
186.
194. The phrase most often used to describe the requisite state interest is "compelling."
NAACP v. Button, 371 U.S. 360, 372 (1963). The Supreme Court has synonymously used the
words "substantial," Button, 371 U.S. at 372, "subordinating," Bates v. Little Rock, 361 U.S.
516, 524 (1960), "cogent," Id. at 524, and "strong," Sherbert v. Verner, 374 U.S. 398, 408
(1963).
195. See Shelton v. Tucker, 364 U.S. 479, 488 (1960); Cantwell v. Connecticut, 310 U.S.
296, 307 (1940); Schneider v. State, 308 U.S. 147, 164 (1939); Lovell v. Griffin, 303 U.S. 444,
451 (1938).
196. See Sherbert, 374 U.S. at 407; Shelton, 364 U.S. at 488 ("even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that
broadly stifle fundamental personal liberties when the end can be more narrowly achieved").
197. See, e.g., Schneider, 308 U.S. at 165; Lovell, 303 U.S. at 451-52.
198. See Simon & Schuster, Inc. v. New York State Crime Victims Bd., 112 S.Ct. 501, 509
(interim ed. 1991); Simon & Schuster, Inc. v. Fischetti, 916 F.2d 777, 778 (2d Cir. 1990).
199. See generally GUNTHER, supra note 177; at 1007.
200. See Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942). "There are certain
well-defined and narrowly limited classes of speech, the prevention and punishment of which have
[VOL. 18:2
of speech ordinarily poses no constitutional difficulty because these

types of expression are normally not deemed worthy of First Amendment protection. 2 0
Thus, a statute or regulation may single out defa-
mation, obscenity, fighting words, and commercial speech, among

others, and survive a constitutional challenge more easily than it otherwise would have if it had applied to protected speech of a specified
content. 2
Finally, a related debate concerns whether the freedoms protected
by the First Amendment are absolute, or whether some judicial balancing of competing interests is necessary.2 03 Historically, the balancing
approach has prevailed 20 because courts have recognized the need to
consider valid governmental interests in regulating certain types of
speech.2 05 One problem with the absolutist approach is that it protects
libel and the other types of speech which have traditionally received a
lesser degree of constitutional protection.2 0 6 Thus, First Amendment7
20
absolutism may lead to an "extreme and obviously untenable" result.
2.
Content-Neutral Regulations
In contrast to content-based regulations, content-neutral restrictions lack the connection between the government interest to be served
andthe content of the affected speech.20 8 Thus, a governmental purpose
which singles out certain types of content for regulation is the defining
characteristic of content-based restrictions. 9 If such a purpose is lacking, the statute is content-neutral.2 1 0 Content-neutral restrictions are
never been thought to raise any Constitutional problem." Id. See generally GUNTHER, supra note
177, at 1069.
201. Chaplinsky, 315 U.S. at 571-72; see also GUNTHER, supra note 177, at 1007.
202. GUNTHER, supra note 177, at 1070; see also supra notes 179-81 and accompanying
text.
203. The ad hoc balancing approach would have the "court ... in each case, balance the
individual and social interest in freedom of expression against the social interest sought by the
regulation." Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 YALE
L.J. 877, 912 (1963). But see Gertz v. Robert Welch, Inc., 418 U.S. 323,. 343 (1974) (Justice
Powell argues that the ad hoc balancing approach "would lead to unpredictable results and uncertain expectations, and . . . could render our duty to supervise the lower courts unmanageable.").
204. Emerson, supra note 203, at 912.
205. GUNTHER. supra note 177, at 1004.
206. Konigsberg v. State Bar of Calif., 366 U.S. 36, 49 n.10 (1961) (absolutism in First
Amendment jurisprudence "cannot be reconciled with the law relating to libel, slander, misrepresentation, obscenity, perjury, false advertising, solicitation of crime, complicity by encourage).
ments, conspiracy, and the like ....
207. Emerson, supra note 203, at 914.
208. Williams, supra note 183, at 622-23.
209. Williams, supra note 183, at 622-23.
210. Williams, supra note 183, at 623.
1993]
judged by a lesser standard of judicial scrutiny than are content-based

statutes or regulations."'
A typical content-neutral restriction is a "time, place, or manner
restriction". 2 The defining characteristic of this type of restriction is
that it does not focus upon the content of the particular message, either
Instead, time, place, or manner restrictions
facially or in practice."
concern themselves with the circumstances of the speech in question.""
This category of restrictions derives its name from early licensing cases,
such as Lovell v. City of Griffin.1 5 In Lovell, a city ordinance authorized a city manager to deny an application for a license to distribute
literature "at any time, at any place, and in any manner. '216 Contentneutral restrictions may encompass many types of regulations. For example, courts have classified parade permit laws 17 and prohibitions on
whole formats of speech as time, place, and manner restrictions. 18
Other Supreme Court decisions have addressed the issue of the
propriety of content-neutral restrictions on symbolic speech. In United
21 9
for example, the Supreme Court reinstated a DisStates v. O'Brien,
trict Court judgment affirming the defendant's conviction for knowingly destroying his selective service registration certificate. 2 The defendant in O'Brien had burned his draft card on the steps of the South
Boston Courthouse as part of an anti-war demonstration. 2 The defendant claimed that his act was protected symbolic speech.22 2 In affirming the defendant's conviction, however, the Court rejected the ar-
211. See infra notes 241-42 and accompanying text.

212. See Police Dep't of Chicago v. Mosley, 408 U.S. 92, 98 (1972) ("[R]easonable 'time
place and manner' regulations . . . may be necessary to further significant governmental interests"); Adderley v. Florida, 385 U.S. 39, 46-48 (1966); Poulos v. New Hampshire, 345 U.S. 395,
398 (1953); Cox v. New Hampshire, 312 U.S. 569, 575-76 (1941). See generally Williams, supra
note 183, at 619.
213. Williams, supra note 183, at 637.
214. Daniel A. Farber & John E. Nowak, The Misleading Nature of Public Forum Analysis: Content and Context in First Amendment Adjudication, 70 VA. L. REv. 1219, 1219 (1984)
(traditionally, time, place, and manner restrictions relate only to the physical context of speech).
215. 303 U.S. 444 (1938).
216. Id. at 451; see also Martin v. Struthers,.319 U.S. 141, 143 (1943); Schneider v. State,
308 U.S. 147, 161-62 (1939).
217. See Cox v. New Hampshire, 312 U.S. 569, 569 (1941).
218. See Schneider, 308 U.S. at 154-55 (ban on handbills classified as a TPM restriction);
Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984) (prohibition of
signs on utility poles deemed content-neutral); cf. Lovell, 303 U.S. at 451 (ban on handbills so
broad that "there is . . . no restriction in its application with respect to time or place.").
219. 391 U.S. 367 (1968).
220. Id. at 386.
221. Id. at 369-70.
222. Id. at 376.
[VOL. 18:2
gument that all modes of conduct used to communicate ideas are

entitled to First Amendment protection. 2
The O'Brien Court reaffirmed the principle that government may
regulate conduct that has both speech and nonspeech components
where there is a sufficiently important governmental interest at stake
and the statute or regulation at issue burdens First Amendment freedoms only incidentally.2 " In upholding the statute's constitutionality,2 25
the Court reasoned that the state had a broad interest in obtaining personnel for military service 22 1 and that no alternative means were available to adequately serve this interest.22 7 Finally, in addition to the categories of time, place, and manner restrictions and symbolic speech
restrictions, content-neutral statutes or regulations also include those
restrictions which otherwise have an incidental impact upon speech or
speakers.2 2
In two recent cases, the Supreme Court addressed the issue of
what makes a regulation content-neutral. In Renton v. Playtime Theatres,2 2 9 the Court considered the constitutionality of a city zoning ordinance which prohibited adult movie theaters from operating within a
certain disiance of any residential zone, family dwelling, park, or
school. 23 0 The court noted that, under traditional case law, the ordinance seemed neither clearly content-based nor content-neutral.2 3 1
However, by recognizing that the law regulated not the content of the
theaters' message, but, rather, the secondary effects which would likely
result from their unregulated location, the Court concluded that the
restriction was content-neutral.2 2
Similarly, in Ward v. Rock Against Racism, 233 the Court affirmed
a New York City noise control ordinance which required all performers
at the city's Naumberg Acoustic Bandshell to use city amplification
equipment.2 ' The Court held that because the statute's purpose was
223. Id.
224. Id.
225. Id. at 382.
226. Id. at 377.
227. Id. at 381.
228. Williams, supra-note 183, at 619; see, e.g., Arcara v. Cloud Books, Inc., 478 U.S. 697
(1986) (an adult bookstore which involved prostitution on the premises was closed under a public
health nuisance law); Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460
U.S. 575 (1983) (a state tax on ink and paper applied to certain publications and not others).
229. 475 U.S. 41 (1986).
230. Id. at 44.
231. Id. at 47.
232. Id. at 47-48.
233. 491 U.S. 781 (1989).
234. Id. at 784.
19931
not to curb a particular message, the restriction was content-neutral. 3 5

Further, the Court also held that the means chosen to effectuate the
content-neutral interests at issue need not be the least intrusive or restrictive available.2" 6 Instead, the means chosen need only promote "'a
substantial government interest that would be achieved less effectively
absent the regulation.'
"237
Moreover, content-neutral statutes are subjected to a more lenient

form of constitutional scrutiny than are content-based statutes. The rationale behind the more relaxed standard of review applicable in these
situations is that "incidental burdens on speech may be upheld when
justified by an important governmental interest in regulating nonexpressive activity."2 8 Under the O'Brien standard, the state may regulate nonspeech activity in which it has a "sufficiently important governmental interest" through any means which place only incidental
limitations on First Amendment freedoms. 23 9 In these situations, government may regulate First Amendment activity so long as: (1) the
restriction at issue was enacted within the constitutional power of the
government; (2) the restriction furthers an important or substantial
governmental interest unrelated to the suppression of free expression;
and (3) the incidental restriction on First Amendment freedom is no
greater than is essential to further the governmental interest in
24 0
question.
Unlike the strict "least restrictive means" analysis applied to content-based restrictions on speech, the means analysis applied to content-neutral statutes or regulations is significantly more deferential. 24 1
This reflects the relative leniency afforded regulations which do not
base their restrictions on the content of speech.2 42 In New York State
Crime Victims Board, the District Court invoked the O'Brien standard.2 48 The Second Circuit, however, held that the District Court's use
235. Id. at 791-93.

236. Id. at 798.
237. Id. at 799 (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)).
238. Jeanne E. Dugan, Note, Crime Doesn't Pay-Or Does It?: Simon & Schuster, Inc. v.
Fischetti, 65 ST. JOHN's L. REV. 981, 987 (1991); see also United States v. O'Brien, 391 U.S.
367, 376 (1968).
239. 391 U.S. 367, 377 (1968).
240. Id. at 376.
241.
See Ward, 491 U.S. at 798-99; Clark v. Community for Creative Non-Violence, 468
U.S. 288 (1984).
242. See Ward, 491 U.S. at 798-99 (no strict "least restrictive means" test in analysis of
content-neutral regulations).
(S.D.N.Y. 1989), aff'd sub nom. Simon & Schuster v. Fischetti, 916 F.2d 777 (2d Cir. 1990),
rev'd, 112 S. Ct. 501 (interim ed. 1991).
[VOL. 18:2
of this standard was erroneous and instead applied a strict scrutiny

analysis. " '
C.
The Overbreadth and Vagueness Doctrines
The overbreadth and vagueness doctrines are based upon the First
and Fourteenth Amendments.2 45 Overbreadth is used to invalidate statutes or regulations which limit protected speech or expression.2 " The
overbreadth doctrine prohibits statutory provisions from sweeping so
broadly that they are tantamount to prohibiting protected speech altogether.2"47 A statute is overbroad in the constitutional sense when it penalizes both protected and unprotected speech. 4 8 Moreover, the Supreme Court has also required that, where a restriction's purported
"chilling effect" applies to conduct and not merely speech, the overbreadth must be real and substantial in relation to the law's plainly
legitimate sweep in order to render the statute or regulation unconstitutionally overbroad.24 9
Although the language of a statute might be quite specific, the
statute itself may nevertheless be deemed unconstitutionally vague if it
has the effect of penalizing both protected and unprotected speech.2 5 A
statute is unconstitutionally vague if " 'men of common intelligence
must necessarily guess at its meaning and differ as to its application.' "251 Generally, a statute being challenged on vagueness or overbreadth grounds must "provide fair warning to those within its scope,"
have "clear standards for enforcement," and not "inhibit the exercise
of basic constitutional freedoms."2 2 At the District Court level, Simon

245. David M. Prentiss, Comment, The First Amendment Overbreadth Doctrine and the
Nature of the Judicial Review Power, 25 NEW ENG. L. REV. 989, 990 (1991); see also Erznoznik
v. City of Jacksonville, 422 U.S. 205, 215 (1975) (Equal Protection clause mandates that restrictions be enacted for clear reasons); Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)
(Equal Protection requires that classifications in'the law be reasonable and not arbitrary, with a
substantial relation to the law's purpose, so that all persons similarly situated will be treated
alike).
246. Prentiss, supra note 245, at 990.
247. See Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569,
573 (1987) (ban on all "First Amendment activities" at the Los Angeles International Airport
was facially unconstitutional under the overbreadth doctrine).
248. GUNTHER, supra note 177, at 1192.
249. Broadrick v. Oklahoma, 413 U.S. 601 (1973).
250. See GUNTHER, supra note 177, at 1202.
251. Zwickler v. Koota, 389 U.S. 241, 249 (1967) (citing Connally v. General Constr. Co.,
269 U.S. 385, 391 (1926)).
(S.D.N.Y. 1989) affd sub nom. Simon & Schuster, Inc. v. Fischetti, 916 F.2d 777, 781 (2d Cir.
1990), rev'd, sub nom. Simon & Schuster, Inc. v. New York State Crime Victims Bd., 112 S. Ct.
501 (interim ed. 1991); see Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972).
1993]
& Schuster raised both overbreadth and vagueness challenges to sec54

tion 632-a.1 3 The District Court, however, rejected these arguments.
Because Simon & Schuster did not appeal this portion of the District
Court's ruling,2 55 the issues of overbreadth and vagueness were not discussed by either the Second Circuit or the Supreme Court.
D. New York Executive Law Section 632-a
1. Legislative Background
New York Executive Law section 632-a was originally enacted in
1977 in response to public anger over the Son of Sam murders.216 News
stories had reported that the serial killer involved in the Son of Sam
slayings had received various lucrative offers to sell the exclusive rights
to his story.2"' As a result of this situation, the New York State Legislature enacted section 632-a in order to ensure that the killer's victims,
2 58
and not his bank account, would benefit from any such transaction.
2.
Constitutional Challenges
Simon & Schuster was not the first constitutional challenge

against section 632-a. In Children of Bedford, Inc. v. Petromebrought
lis,2 5 9 Jean Harris, the convicted killer of Dr. Herman Tarnower, 260 assigned the royalties from her book, Stranger in Two Worlds, to a nonprofit organization. 261 In response to this move, the New York State
Crime Victims Board invoked section 632-a. 2 Harris challenged the
statute's constitutionality alleging that it violated her First Amendment
right to freedom of speech. 2 3 After applying strict scrutiny, the New
York Court of Appeals 264 rejected her challenge and upheld the statute's constitutionality. 66
253. New York State Crime Victims Bd., 724 F. Supp. at 179; see supra notes 53-55 and
accompanying text.
254. New York State Crime Victims Bd., 724 F. Supp. at 180.
255. Fischetti, 916 F.2d at 781 (2d Cir. 1990), rev'd sub noa. Simon & Schuster, 112 S.
Ct. 501.
256. Children of Bedford, Inc. v. Petromelis, 573 N.E.2d 541, 544 (N.Y. 1991) vacated,
112 S. Ct. 859 (1992) and different results reached on reh'g, 592 N.E.2d 796 (N.Y. 1992); see
also The Wrong Way to Help Crime Victims, CHI. TRIB., Dec. 12, 1991, at 26.
257. Children of Bedford, 573 N.E. 2d at 544; The Wrong Way to Help Crime Victims,
CHI. TRIB., Dec. 12, 1991, at 26.
258. For the relevant portions of section 632-a, see supra note 16.
259. 573 N.E.2d 541 (N.Y. 1991).
260. Dr. Tarnower was also known as the Scarsdale Diet doctor.
261. Children of Bedford, 573 N.E.2d at 544-45.
262. Id. at 545.
263. Id.
264. The New York Court of Appeals is the court of last resort in that state.
265. Children of Bedford, 573 N.E.2d at 550.
[VOL. 18:2
In Children of Bedford, the court held that, although section 632a did not explicitly forbid the criminal's speech, it did place an economic disincentive on speech by attaching all profits derived from the
exercise of First Amendment liberties.2 6' The court concluded that a
strict scrutiny analysis was the appropriate standard of review. 6 7
Moreover, the court also focused on the equitable maxim that
"criminals should not be permitted to profit from their wrongs"'268 and
the penological concept that victims are entitled to receive " 'retributive
satisfaction'" from the criminal justice system.26 9 The court thus concluded that these were compelling state interests and that section 632a's specialized attachment provisions were sufficiently narrowly tailored
2 70
to effectuate these interests.
IV.
ANALYSIS
The different approaches taken by members of the Court in Simon

& Schuster illustrate an ongoing debate in free speech jurisprudence.
The central issue in this debate concerns whether the constitutionality
of content-based restrictions on freedom speech should be analyzed using an absolutist approach, a balancing approach,, or a categorization
approach. The categorization approach has traditionally been applied
to statutes or regulations which affect those areas of speech usually
considered to be outside the scope of First Amendment protection. 7 1
The categorization approach set forth by Justice Kennedy in his concurrence in Simon & Schuster, however, signified a more holistic approach. Although the different standards of review urged by members
266. Id. at 547.

267. Id.
268. Id. at 548; see Caplin & Drysdale v. United States, 491 U.S. 617, 626 (1989) (drug
money that had been ordered forfeited could not be used to pay legal fees because "a defendant
has no Sixth Amendment right to spend another person's money for services rendered by an attorney, even if those funds are the only way that defendant will be able to retain the attorney of his
choice."); Petrie v. Chase Manhattan Bank, 307 N.E.2d 253, 253-54 (N.Y. 1973) ("where ... a
wrongdoer has procured a gift to others not shown to have been privy to his wrong, but nominees
nonetheless, their rights likewise are to be divested in favor of those who would benefit had the
wrong not been inflicted"); In Riggs v. Palmer, 22 N.E. 188, 190 (N.Y. 1889), the Court stated:
No one shall be permitted to profit by his own fraud, or to take advantage of his own
wrong, or to found any claim upon his own iniquity, or to acquire property by his own
crime. These maxims are dictated by public policy, have their foundation in universal law
administered in all civilized countries, and have nowhere been superseded by statutes.
Id.
269. Children of Bedford, 573 N.E.2d at 548; see Stephen Schafer, Restitution to Victims
of Crime-An Old Correctional Aim Modernized, 50 MINN. L. REV. 243, 244 (1966); see also
Landau v. Vallen, 895 F.2d 888, 891 (2d Cir. 1990) later proceeding sub nom. Epstein v. Haas
Secur. Corp., 731 F.Supp 1166 (S.D.N.Y. 1990).
270. Children of Bedford, 573 N.E.2d at 549-50.
271. See GUNTHER, supra note 177, at 1069; see also Emerson, supra note 203, at 912.
1993]
of the Simon & Schuster Court yielded a uniform result, Justice Kenned,'s categorization approach represents the most viable means of analyzing the constitutionality of future content-based restrictions on
freedom of speech.
A.
The Decision in Simon & Schuster
In Simon & Schuster, Justice O'Connor wrote the opinion of the

Court2 72 in which section 632-a was held constitutionally invalid."'
Two Justices filed concurring opinions.17 Taken as a whole, the Court's
decision in Simon & Schuster reflects a dualism between Justice Kennedy and the rest of the court with respect to the constitutional review
of content-based restrictions on speech.
1. The Opinion of the Court
Justice O'Connor analyzed section 632-a using a strict scrutiny
standard of review.27 5 In her opinion, Justice O'Connor clarified the
principle that restrictions which place a financial burden on speech are
presumptively unconstitutional because they deter individuals from exercising their First Amendment right to freedom of speech.2 76 The
Court rejected the Board's argument that section 632-a was not a disincentive to speak, but rather merely an incidental limitation on
speech.2 ' 7 The Court pointed to other instances where state statutes
had purported to achieve important or substantial governmental objectives, but had unjustifiably burdened freedom of speech in the
process.278
For example, the Court cited both Minneapolis Star & Tribune
Co. v. Minnesota Comm'r of Revenue2 79 and Arkansas Writers' Project, Inc. v. Raglana2 8 0 In Minneapolis Star, Minnesota levied a "use
tax" on the cost of paper and ink products.2 81 Because of an exemption
on the first $100,000 of ink and paper consumed, 282 small publications
(interim ed. 1991). Justices Rehnquist, Blackmun, Stevens, Scalia, and Souter joined in
O'Connor's majority opinion. Id. Justice Blackmun was also in agreement, but advocated an additional finding of underinclusiveness. Id. (Blackmun, J., concurring).
273. Id. at 504.
274. See generally id. at 512 (Kennedy, J., concurring) (Blackmun, J., concurring).
275. Id. at 509.
276. Id. at 507-09.
277. Id.
278. Id. at 508-09.
279. 460 U.S. 575 (1983).
280. 481 U.S. 221 (1987) overruled by Rust v. Sullivan, III S. Ct. 1759 (interim ed.
1991).
281. 460 U.S. at 577.
282. Id. at 578.
[VOL.. 18:2
paid no tax while the petitioner, the Minneapolis Star & Tribune, paid
two-thirds of the state's total ink and paper tax revenues. 8 3 In order to
recover these funds, the Minneapolis Star sued for a refund alleging
that the tax violated freedom of the press and the equal protection
clauses of the Constitution.2 84 The Supreme Court concluded that the
tax was facially discriminatory."" The Court held that "[a] tax that
burdens rights protected by the First Amendment cannot stand unless
the burden is necessary to achieve an overriding governmental interest."" Applying this principle, the Court reasoned that, although Minnesota did have a "critical" interest in raising revenues,28 this interest
was not sufficient to justify targeting one small segment of the press
for discriminatory treatment.2 88 The tax was therefore held
unconstitutional. 8 9
Similarly, in Arkansas Writers' Project, the petitioner challenged
a state tax which burdened general interest magazines, while at the
same time exempting newspapers, religious journals, and other specialized publications.2 90 In analyzing the constitutionality of the taxation
scheme, the Supreme Court reaffirmed the principle that "a discriminatory tax on the press burdens rights protected by the First Amendment." 9 The Court reasoned that Arkansas' tax scheme determined a
magazine's tax status solely by looking to its content, and that strict
scrutiny was, therefore, the appropriate standard of review. 292 The
Court concluded that the tax was unconstitutional because the interest
it furthered, encouraging "fledgling" publishers, was served by means
which were too overinclusive and underinclusive to be sufficiently narrowly tailored. 9 3
Likewise, in Carey v. Brown,294 an Illinois statute attempted to
preserve privacy by prohibiting all picketing except labor picketing 293
283. Id. at 578-79.

284. Id. at 579.
285. Id. at 581.
286. Id. at 582; see United States v. Lee, 455 U.S. 252, 257-61 (1982) (social security tax
not unconstitutional as applied to a member of the Old Order Amish whose religious beliefs were
at odds with the tax).
287. Minneapolis Star, 460 U.S. at 586.
288. Id. at 591-93.
289. Id. at 593.
290. Arkansas Writers' Project, -Inc. -v. Ragland, 481 U.S. 221, 223 (1987) overruled by
Rust v. Sullivan, 111 S. Ct. 1759 (interim ed. 1991).
291. Id. at 227; see Grosjean v. American Press Co., 297 U.S. 233, 244-45 (1936) (Louisiana license tax which burdened newspaper owners' right to sell advertising space held
unconstitutional).
292. Arkansas Writers' Project, 481 U.S. at 231.
293. Id. at 232-33.
294. 447 U.S. 455 (1980).
295. Id.
1993]
in residential area's.2 96 In analyzing the statute's constitutionality, the

Supreme Court recognized Illinois' interest in protecting residential,
privacy29 7 as well as its interest in protecting the integrity of organized
labor.2 9 8 The Court, however, reminded the parties that "even the most
legitimate goal may not be advanced in a constitutionally impermissible
manner." 29' 9 The Court further held that statutes such as the Illinois
picketing regulation must apply uniformly or risk violating the Equal
Protection Clause of the Fourteenth Amendment.30 0 Applying these
principles, the Supreme Court concluded that the anti-picketing statute
was discriminatory and, hence, constitutionally invalid.3 0 Following
these precedents, the Simon & Schuster Court held that section 632-a
impermissibly burdened freedom of speech in its attempt to advance its
otherwise legitimate interests. 0 2
In applying a strict scrutiny analysis to section 632-a, the Supreme
Court paralleled the New York Court of Appeals' consideration of the
statute's constitutionality, in that it recognized that such a restriction

on First Amendment freedoms cannot be justified by a state interest in
protecting the sensibilities of victims of crime or of the public in general.30 3 Instead, the statute must be justified by some other compelling
state interest. The Court rejected the Board's argument that New York
had a compelling state interest in "'ensuring that criminals do not
profit from storytelling about their crimes before their victims have a
296. Id. at 457.

297. Id. at 464.
298. Id. at 466.
299. Id. at 464-65.
300. Id. at 470-71; see Erznoznik v. City of Jacksonville, 422 U.S. 205, 206, 209, 212
(1975) (city ordinance prohibiting the exhibition of nudity at drive-in movie theaters where the
screen was visible from the street held broader than constitutionally permissible to meet the city's
interest in protecting the youth); Reed v. Reed, 404 U.S. 71, 76 (1971) (Idalho probate code
section giving mandatory preference to men over women in appointing an administrator to a decedent's estate held violative of the Fourteenth Amendment Equal Protection clause).
301. Carey, 447 U.S. at 471.
(interim ed. 1991).
303. See id. at 509 (where an opinion contains a particular message which is offensive to
the public, that message and that opinion are per se worthy of constitutional protection); Children
of Bedford, Inc. v. Petromelis, 573 N.E.2d 541, 548 n.2 (N.Y. 1991) (the purpose of 632-a was
not to protect the public's or victims' sensibilities by restricting speech); see also Texas v. Johnson,
491 U.S. 397, 408-09 (1989) (free speech precedents do not allow expression to be prohibited on
the grounds that an audience may take serious offense to it); Hustler Magazine, Inc. v. Falwell,
485 U.S. 46, 55 (1988) (an outrageousness of expression standard of liability for libel runs afoul
of the Court's longstanding skepticism of curtailing speech because of its potential adverse emotional impact on an audience); FCC v. Pacifica Foundation, 438 U.S. 726, 745 (1978) ("[T]he
fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it
is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection.").
[VOL.. 18:2
meaningful opportunity to be compensated for their injuries.' "304 The

Court reasoned that the Board had offered no explanation why the
state's interest was better served by compensating victims through the
use of revenues obtained under section 632-a than through the use of
30 5
revenues obtained by seizing the criminal's other assets.
The Court's conclusion that the compelling state interest offered
by the Board was unsupported is consistent with Judge Newman's observation in his dissent from the decision. of the New York Court of
Appeals.""6 In his dissent, Judge Newman urged that the Board's definition of the interest furthered by the statute was not sufficient to justify the burden imposed upon the exercise of First Amendment freedoms.3 0 7 As the Court observed, the Board's argument was a circular
defense which could "sidestep judicial review of almost any statute, because it makes all statutes look narrowly tailored."3 08
Although the Court rejected the Board's version of the state's
compelling interest in regulating revenue-generating expressions of
crime, it did identify several other valid and compelling state interests
which were furthered by the statute.3 09 First, the Court held that New
York had a compelling state interest in "ensuring that victims of crime
are compensated by those who harm them. ' 310 This interest was evidenced by the existence of a highly developed body of tort law as well
as by explicit judicial recognition. " ' Second, the Court also held that
the state's interest in "ensuring that criminals do not profit from their
crimes" was compelling.31 2 The Court affirmed that this second interest
stemmed from a "'fundamental equitable principle.' "313 The Court
further reasoned that the fact that New York's statutory scheme provided for the forfeiture of profits derived from criminal activity indi-
304. Simon & Schuster, 112 S. Ct. at 510 (quoting Brief for Respondents at 46).
305. Id.
306. See id. at 510-11; see also Simon & Schuster, Inc. v. Fischetti, 916 F.2d 777, 784 (2d
Cir. 1990) (Newman, J., dissenting), rev'd sub nom. Simon & Schuster, Inc. v. New York State
Crime Victims Bd., 112 S. Ct. 501 (interim ed. 1991).
307. Fischetti, 916 F.2d at 784-87 (Newman, J., dissenting).
309. Id. at 509-10.
310. Id. at 509.
311. For a discussion of New York's tort remedies and orders of restitution, see N.Y. Civ.
PRAC. LAW 6201-6226 (McKinney 1980 & Supp. 1991); N.Y. PENAL LAW 60.27 (McKinney 1987). For recognition of the importance of having criminals compensate their victims in a
Sixth Amendment context, see Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 629
(1989).
313. Id. (quoting Children of Bedford v. Petromelis, 573 N.E.2d 541, 548 (1991)); see also
Riggs v. Palmer, 22 N.E. 188, 190 (1889).
1993]
cated that such an interest was compelling.3 14 In short, the Court accepted the validity of New York's compelling state interest in
"compensating victims from the fruits of crime," but rejected any interest in "limiting such compensation to the proceeds of the wrongdoer's speech about the crime."3'15
The Court also held that section 632-a failed strict scrutiny because its means were not sufficiently narrowly tailored to advance the
identified compelling state interest.3 16 The Court concluded that the
statute was overinclusive in that it applied to a literary work written by
a criminal, no matter what its subject matter or genre, provided that
the work mentioned or recognized a crime committed by the author.3 1
Further, the Court also reasoned that section 632-a was overinclusive
because it permitted the income of any person who merely admits,
within the work, that he or she has committed a crime to be placed in
escrow, even if the individual was never convicted or even accused of
any criminal activity.3 18 Thus, one of the primary problems with section 632-a was the statutory definition of "person convicted of a
crime."3 1 9
The Court's characterization of section 632-a as overbroad is accurate. A long list of noted figures could have been prosecuted under section 632-a, had it been applied to their works.3 20 Such authors would
include Emma Goldman and Martin Luther King, Jr.32 Similarly,
other public figures would include Sir Walter Raleigh, 322 Jesse Jackson, 323 and Bertrand Russell.3 2 " The Court also listed specific literary
works which could have fallen within the scope of section 632-a. These
314. Simon & Schuster, 112 S. Ct. at 511-12; see N.Y. CIv. PRAC. LAW 1310-1352
(McKinney Supp. 1991).
316. Id.
317. Id. at 511-12.
318. Id.
319. See N.Y. ExEc. LAW 632-a-10(b) (McKinney 1982).
320 The Amicus Association of American Publishers, Inc. submitted a brief listing "a sobering bibliography" of works authored by American prisoners and ex-prisoners which would have
fallen under the statute had it been in place when the works were published. Simon &. Schuster,
112 S. Ct. at 511.
321. Id.
322. Sir Walter Raleigh was convicted of treason in 1603 after a "dubiously conducted ...
trial." Id.
323. Jesse Jackson tried to be served at a lunch counter in North Carolina during the civil
rights era. He was arrested after he resisted. Id.
324. At the age of eighty-nine, Bertrand Russell took part in a "sit-down protest" against
nuclear arms and was jailed for seven days. Id.
[VOL. 18:2
works include The Autobiography of Malcolm X, 26 Civil Disobedi2 7 In illustrating

ence, 2 6 and The Confessions of Saint Augustine."
this
point, Justice O'Connor stated that:
Should a prominent figure write his autobiography at the end of his career, and include in an early chapter a brief recollection of having stolen
(in New York) a nearly worthless item as a youthful prank, the Board
would control his entire income from the book for five years, and would
make that income available to all of the author's creditors, despite the
fact that the statute of limitations for this minor incident had long since
run. That the Son of Sam law can produce such an outcome indicates
that the statute is, to say the least, not narrowly tailored to achieve the
State's objective of compensating crime victims from the profits of
crime.328
Thus, the provisions of section 632-a swept unnecessarily broadly in
attempting to achieve valid governmental interests.
The Court concluded its treatment of section 632-a by acknowledging that many other states have statutes which attempt to serve the
same state interests. 29 The court expressly stated, however, that its
holding was confined to section 632-a.3 30
In addition, the Court declined to consider other issues as well.
First, the court refused to consider the question of whether book royalties were profits of crime. 3 1 By assuming, arguendo, that such royalties
were properly considered profits for purposes of the statute, the Court
3 Secwas able to reach its conclusion that section 632-a was invalid. a3
ond, the Court declined to consider whether section 632-a was contentneutral under Ward v. Rock Against Racism'33 or Renton v. Playtime
Theatres.3" 4 The Court reasoned that, even if section 632-a were con-
325. ALEX HALEY & MALCOLM X, THE AUTOBIOGRAPHY OF MALCOLM X 108-125 (1964).
Malcolm X was a civil rights leader who committed crimes before entering the public eye. See
326.
HENRY DAVID THOREAU, CIVIL DISOBEDIENCE 18-22 (1849, reprinted 1969). Thoreau
was jailed for his refusal to pay taxes. See Simon & Schuster, 112 S. Ct. at 511.
327.
THE CONFESSIONS OF SAINT AUGUSTINE 31, 36-37 (Franklin Library ed. 1980). Saint
Augustine admitted to a youth of "past foulness and the carnal corruptions of my soul." See
328. Id. at 512.
329. Id.
330. Id.
331. Id. at 510.
332. Id. at 512.
333. 491 U.S. 781 (1989) (threshold question in content-neutral analysis is whether there is
a governmental purpose to curb a particular message).
334. 475 U.S. 41 (1986) (where a regulation seeks to curtail the "secondary effects" of a
particular type of message and not the content of that message, the regulation is content-neutral);
see Simon & Schuster, 112 S. Ct. at 511 n.**.
1993]
tent-neutral, the statute was nevertheless impermissibly overbroad. 3 5

Third, the Court failed to consider the issue of whether section 632-a
was underinclusive.3 3 6 Since the statute had failed strict scrutiny, the
Court held that it was unnecessary give an exhaustive list of the
grounds upon which the statute might be struck down.3 37 Fourth, the
Court also deemed inconsequential the issue of whether the First
Amendment speaker was Henry. Hill or the publisher, Simon &
Schuster.3 38 Finally, the Court refused to address any of the issues Justice Kennedy raised in his concurring opinion.33 9
2.
Justice Blackmun's Concurring Opinion
In a short concurring opinion, Justice Blackmun urged the court to

broaden its holding and rule that section 632-a was both underinclusive
and overinclusive.34 Justice Blackmun simply wanted to give those
states whose criminal anti-profit statutes resembled section 632-a more
guidance on how to bring these restrictions into line with accepted First
341
Amendment standards.
One commentator has argued that section 632-a was underinclusive because it did not reach all of the profits which a criminal may
have derived from his or her illegal activity.3 42 Thus, not all income
received as a result of a criminal's notoriety or criminal activity was
covered by the statute.3 43 Some examples of income-generating activities which may be termed "proceeds of crime," but which would not be
reached by the escrow provisions of section 632-a, are fees from
speeches where the criminal does not discuss his or her crimes and income earned by using knowledge gained as a result of the crime in
other professions or activities.3 44 These activities clearly could not occur, but for the criminal's illegal activities which resulted in harm to
the victim. Income derived from these activities, however, did not fall
within the scope of section 632-a's escrow provisions. The goal of compensating victims from the proceeds of crime was, thus grossly underachieved by section 632-a.
335. Simon & Schuster, 112 S. Ct. at 511 n.**.

336. Id.
337. Id.
338. Id. at 508.
339. Id. at 511 n.**.
340. Id. at 512 (Blackmun, J., concurring).
342. See Paul J. Sleven, "Son of Sam" Laws Following High Court's "Simon & Schuster"
Ruling, 206 N.Y.L.J., Dec. 27, 1991, at 1.
343. Id. at 10, col. 5.
344. Id. Examples include espionage, security consulting, and expert witness services. Id.
[VOL. 18:2
Justice Blackmun accurately pointed out that "most other states

have similar legislation and deserve from this Court all the guidance it
can render in this very sensitive area." 4 5 Not only do other states have
Son of Sam laws, but many of these states have based their legislation
on New York's statute. 4 6 Indiana Senator William Dunbar, for example, who sponsored that state's criminal anti-profit law, admitted that
he used section 632-a as a paradigm in drafting Indiana's criminal
anti-profit statute. 4
It would not have required a great departure from the goal of judicial self-restraint for the Simon & Schuster Court to have addressed
the problem of section 632-a's underinclusiveness. The court of appeals
had already acknowledged that New York's other attachment provisions were inadequate to ensure that victims of crime were adequately
compensated by their attackers. s This deficiency is illustrative of the
problem at large. Although New York wanted to transfer the fruits of
crime from criminals to their victims, its chosen means, section 632-a,
omitted many sources of income which could have served this purpose
equally well. " 9 The ultimate effect of such a drafting error was to impermissibly burden First Amendment liberties.3 "'
The court of appeals answered Simon & Schuster's underinclusiveness argument by stating that, in focusing on "readily identifiable, locatable funds that are most commonly available to those who victimize
others,"3 5 1 section 632-a was narrowly tailored to accomplish the state's
interest.3 52 This argument, however, would fail in the Supreme Court if
the Court were forced to decide this issue. Although the court of appeals accepted the Board's conceptualization of New York's compelling
state interest, the Supreme Court rejected this formulation.3 5 Thus,
any argument that section 632-a was sufficiently narrowly tailored rests
on the circular proposition that the statute's purpose may not be
framed in terms of its actual application. 3 5" Currently, other similar
state criminal anti-profit statutes are in serious constitutional jeopardy.
345. Simon & Schuster, 112 S. Ct. at 512 (Blackmun, J., concurring); see supra note 153
and accompanying text.
346. Ed Stattmann,
(A.M. cycle).
PROPRIETARY TO THE UNITED PRESS INTERNATIONAL, Jan.
7, 1981
347. Id.
348. Simon & Schuster, Inc. v. Fischetti, 916 F.2d 777, 783 (2d Cir. 1990), rev'd sub nom.
Simon & Schuster, Inc. v. New York State Crime Victims Bd., 112 S. Ct. 501 (interim ed. 1991).
349. For example, 632-a excluded income from salaries, wages, interest, gifts, and
inheritances.
352. Id.
354. See supra notes 97-103 and 139-41 and accompanying text.
1993]
Even if these statutes survive strict scrutiny, they may nevertheless still
be invalidated if they are determined to be sufficiently underinclusive.
3. Justice Kennedy's Concurring Opinion
In his concurring opinion, Justice Kennedy cited substantially different.grounds in support of his conclusion that section 632-a was an
unconstitutional restriction on freedom of speech.3 55 Justice Kennedy
took issue with the majority's application of the strict scrutiny analysis
to section 632-a. 5 6 Justice Kennedy argued that the case presented a
"straightforward question [of] whether the State may enact a burdensome restriction of speech based on content only, apart from any con'3 7
siderations of time, place, and manner or the use of public forums. 5
Such an application, Justice Kennedy argued, was a misplaced use of a
test appropriate in an equal protection context. 358 Instead, Justice Kenthe content of
nedy urged that the fact that section 632-a regulates
3 59
speech itself was sufficient to invalidate the statute.
Under Justice Kennedy's categorical approach, once it is determined that a statute is content-based, the next step in the Court's analysis is to determine the extent of protection offered by the First
Amendment. For example, restrictions on speech that is obscene, 3 0 defamatory,3 6 1 "tantamount to an act otherwise criminal," an "impairment of some other constitutional right," or "likely to bring about im36 2
minent harm which the State has the substantive power to prevent,1
are more likely to be upheld because these types of speech are not afforded full constitutional protection. 33 If the statute or regulation at
issue does not regulate speech which falls into one of these categories,
"[n]o further inquiry is necessary."3 6 ' The statute is per se invalid. 365
This categorical approach rests on two assumptions. The first of
these assumptions is that certain types of speech deserve a greater degree of constitutional protection than other types of speech.3 61 The second assumption is that, in the absence of any justification for limiting
the amount of protection given to a certain kind of speech, all speech is
355. Simon & Schuster, 112 S. Ct. at 512 (Kennedy, J., concurring).
360. See, e.g.. Miller v. California, 413 U.S. 15 (1973).
361. See, e.g., Dun & Bradstreet,. Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985).
362. See Near v. Minnesota, 283 U.S. 697, 713 (1931).
363. Simon & Schuster, 112 S. Ct. at 512-13 (Kennedy, J., concurring).
366. See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758 (1985)
("not all speech is of equal First Amendment importance").
[VOL. 18:2
worthy of the absolute protection of the First Amendment.3 6 7 Hence, if

a statute or regulation does not regulate an "unprotected" category, it
is per se invalid. "
Justice Kennedy's categorical approach would prove both more
traditional and reliable than "the sort of ad hoc balancing that the
Court henceforth must perform in every case if the analysis here used
becomes our standard test."3 6 9 Justice Kennedy's categorical approach,
however, would only apply to direct content-based restrictions on
speech."' The categorical approach would leave untouched the bodies
.of law applicable to each of the well-defined categories of unprotected
speech. The categorical approach would require a determination of
whether the statute or regulation at issue is content-based or contentneutral, as well as a determination of whether the prohibited speech
falls into an unprotected category.3a7 This approach would not alter the
analysis which has traditionally been applied to time, place or manner
restrictions.
It would, however, offer little or no guidance with respect to the issue of how a court ought to proceed where some other
constitutional right is negatively affected.3 73 Finally, Justice Kennedy's
approach would offer little or no guidance with respect to the question
of how a court ought to break down a regulation where the activity it
37
restricts combines expressive and nonexpressive elements. 1
B.
Justice Kennedy's Alternative to Strict Scrutiny
Justice Kennedy's categorical approach is a viable alternative to

the balancing analysis embodied by the strict scrutiny standard. The
categorical approach would combine the assets of the absolutist and
categorization theories of free speech jurisprudence. 375 Moreover, the
high position which the First Amendment enjoys in the hierarchy of
liberty would be preserved. 376 Meanwhile, the categories of speech
which receive less judicial protection would be preserved but not expanded. 377 Thus, the adoption of Justice Kennedy's categorization ap-
367. This assumption rests on the plain language of the First Amendment. See U.S. CONST.
amend. I.
370. See id. at 512 (Kennedy, J., concurring).
375. See supra notes 174-82, 199-207 and accompanying text.
376. See Palko v. Connecticut, 302 U.S. 319, 324 (1937); Whitney v. California, 274 U.S.
357, 375-78 (1927) (Brandeis, J., concurring).
377. See supra notes 179-81 and accompanying text.
1993]
proach would both protect and enhance the protections afforded by the
First Amendment.
First, Justice Kennedy's approach rests upon the fundamental notion that "'above all else, the First Amendment means that government has no power to restrict expression because of its message, its
ideas, its subject matter, or its content.' "37 Bearing in mind that
neither the Court nor Justice Kennedy would extend First Amendment
protection to all types of speech,3 9 the categorization approach seems
more solidly grounded in the Constitution.8 ' Under Justice Kennedy's
categorization approach, all expression which has traditionally received
First Amendment protection would remain free from content-based
government infringement. 8 ' In contrast to this, the strict scrutiny approach presupposes that there are some instances382 when governmental
infringement upon freedom of speech is permissible.3 83 This assumption
undermines the very purpose for which the First Amendment was created. Further, since a statute undergoing strict scrutiny is unlikely to
survive intact, the adoption of Justice Kennedy's categorical approach
would remedy a philosophical inconsistency in the law without seriously
denigrating prior Supreme Court decisions.
Second, Justice Kennedy's categorical approach is also preferable
because it encourages judicial self-restraint and consistency. Private individuals generally rely on the Supreme Court to safeguard their fundamental First Amendment right to freedom of speech. This proposition is evidence by the operation of the "chilling effect" doctrine. 84
Thus, an approach that removes the danger of deterring speech is preferable to one relies on an ad hoc balancing of competing interests.
In his concurring opinion, Justice Kennedy enumerated the categories of speech which have not traditionally been afforded full First
378. Simon & Schuster, 112 S. Ct. at 513 (Kennedy, J., concurring) (quoting Police Dept.
of Chicago v. Mosley, 408 U.S. 92, 95 (1972)); see also Arkansas Writers' Project v. Ragland,
481 U.S. 221, 229-30 (1987) overruled by Rust v. Sullivan, 111 S. Ct. 1759 (interim ed. 1991)
(citing Mosley, 408 U.S. at 92); Regan v. Time, Inc., 468 U.S. 641, 648-49 (1984)
("[rlegulations which permit the Government to discriminate on the basis of the content of the
message cannot be tolerated under the First Amendment").
.379. See supra notes 177-82,. 199-202 and accompanying text.
380. "Congress shall make no law ... abridging the freedom of speech .... " U.S. CoNsT.
amend. 1.
381. Simon & Schuster, 112 S. Ct. at 513 (Kennedy, J., concurring); see Mosley, 408 U.S.
at 95.
382. For example, a state may regulate speech if it does so by a narrow means designed to
advance a compelling end.
383. See Regan v. Time, Inc., 468 U.S. 641, 648-49 (1984).
384. See generally Note, The Chilling Effect in Constitutional Law, 69 COLUM. L. REV.
808 (1969).
[VOL. 18:2
Amendment protection.38 5 These categories include defamation, incitement, obscenity, and preventing some imminent danger the government
has the power to prevent.3 86 These categories have long been recog3 87 Using these categories
nized, and, thus, represent historical stability.
in the context of Justice Kennedy's approach affords the Court the reliability necessary for it to remain a viable institution in our system of
separation of powers. In addition, affected parties, including state governments, other federal branches, and individuals, are able to order
their behavior over significant periods of time, without fear that some
spontaneous judicial decision will upset their expectations. Thus, legislative bodies may refrain from passing content-based regulations which
curtail protected speech. Executive bodies will likewise act to ensure
that statutes are not enforced so as to selectively burden the content of
speech. Private individuals may, therefore, rest assured that they may
speak without fear that some rare "compelling" interest will supersede
their First Amendment right to freedom of speech. Because state courts
are likely to find their own legislatures' interests "compelling" and the
means chosen "narrowly tailored," 8 8 strict scrutiny cannot provide a
sufficient level of definitive stability.
In addition to promoting consistency, Justice Kennedy's categorical approach also allows for the adaptation of the Constitution. Unlike
the strict scrutiny approach, however, the categorical approach orients
the evolution of constitutional jurisprudence toward the expansion of
individual First Amendment liberties. Similarly, the application of Justice Kennedy's categorical approach leaves intact the substantive bodies
of law which receive lesser degrees of constitutional protection. For example, should sexually explicit material receive constitutional protection at some future date, this type of material would then receive absolute protection from all forms of content-based restriction. Conversely,
new forms of puiblicly or politically offensive speech might also arise.
However, since these new forms of speech have not traditionally been
386. Id.
387. See id; see also New York Times Co. v. United States, 403 U.S. 713 (1971). For a
summary of the historical approach to defamation, see Gertz v. Robert Welch, Inc., 418 U.S. 323,
348 (1974) (the state's interest in compensating private individuals for injuries to their reputation
is "strong and legitimate."); Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (Stewart, J., concurring)
(the idea of personal human dignity is "at the root of any decent system of ordered liberty."). For
a summary of the types of imminent danger the government has the power to prevent, see Near v.
Minnesota, 283 U.S. 697, 708 (1931) (the state has inherent power to punish abuses of free
speech). For a discussion of incitement, see Miller v. California, 413 U.S. 15, 23 (1973) (obscene
material is not protected by the First Amendment); accord Kois v. Wisconsin, 408 U.S. 229, 23032 (1972); United States v. Reidel, 402 U.S. 351, 354 (1971); Roth v. United States, 354 U.S.
476, 485 (1957).
388. See Hunt v. Chemical Waste Mgmt., Inc., 584 So. 2d 1367 (Ala. 1991).
1993]
stripped of all First Amendment protection, Justice Kennedy's approach would not allow them to be suppressed by a transient faction.
Under strict scrutiny, such a danger exists. Local judges of a particular
political persuasion might easily find a "radical" idea to be worthy of
suppression via the state's "compelling" interest. Thus, Justice Kennedy's approach to content-based statutes is a better safeguard to individual liberty than is a strict scrutiny balancing approach.
Finally, both the majority in Simon & Schuster and Justice Kennedy recognized that the First Amendment right to freedom of speech
is not absolute. Such a recognition is not a prohibition on the absolute
protection of speech. Instead, it is merely a qualifier to the broad language of the First Amendment. Justice Kennedy's categorical approach
represents an incremental movement closer to the language of the Constitution, language which was carefully chosen by the Framers. Therefore, this approach represents a commitment to textual integrity, while
at the same time recognizing the place of the judicial branch in our
constitutional system as the guardian of individual liberty.
V.
CONCLUSION
In Simon & Schuster, Inc. v. Members of the New York State

Crime Victims Board, the United States Supreme Court unanimously
overturned New York's content-based Son of Sam law. The majority
held that New York's interest in compensating victims from the fruits
of crime was compelling, but that New York had not chosen a sufficiently narrowly tailored means of effectuating this interest. Justice
Kennedy, after wrestling with the majority's strict scrutiny analysis,
suggested an alternative approach to reviewing content-based restrictions on speech. Justice Kennedy's categorical approach focused on the
high degree of constitutional protection normally afforded First
Amendment liberties and recognized that this protection is properly
suspended where the speech in question does not enjoy absolute protection. This combination of the absolutist and categorical approaches to
First Amendment jurisprudence is preferable to the balancing approach
embodied by the strict scrutiny standard. Justice Kennedy's categorical
approach thus furthers the expansion of individual liberty, the goal of
judicial self-restraint, and the need for stability and consistency in First
Amendment jurisprudence.
Elizabeth Buroker Coffin

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CONSTITUTIONAL LAW: CONTENT-BASED REGULATIONS ON

In its recent decision in Simon & Schuster, Inc. v. New York

112 S. Ct. 501 (interim ed. 1991).

Simon & Schuster, 112 S. Ct. at 512.

UNIVERSITY OF DAYTON LAW REVIEW

FACTS AND HOLDING

New York Executive Law section 632-a was enacted in 1977 at

UNIVERSITY OF DAYTON LAW REVIEW

Section 632-a provided that any person or entity who contracts

drawn to pay civil judgments obtained by victims of the crime, as well

NICHOLAS PILEGGI, WISEGuY: LIFE IN A MAFIA FAMILY 1 (1985).

Simon & Schuster, 112 S. Ct. at 506.

36. See Will, supra note 29.

UNIVERSITY OF DAYTON LAW REVIEW

New York State Crime Victims Bd., 724 F. Supp. at 172.

NICHOLAS PILEGGI, WISEGUY: LIFE IN A MAFIA FAMILY 1 (1985).

The District Court Decision

UNIVERSITY OF DAYTON LAW REVIEW

burden on expression.64 The District Court reasoned that the statute

The Court of Appeals Decision

UNIVERSITY OF DAYTON LAW REVIEW

entire proceeds derived from literary works in which a person's crime

The United States Supreme Court

UNIVERSITY OF DAYTON LAW REVIEW

108. Id. at 512.

UNIVERSITY OF DAYTON LAW REVIEW

the crime," it had no such interest in "limiting such compensation to

142. Id.at 511.

UNIVERSITY OF DAYTON LAW REVIEW

Simon & Schuster, 112 S. Ct. at 512.

Justice Blackmun's Concurring Opinion

Justice Blackmun filed a short concurring opinion.1 58 Justice

UNIVERSITY OF DAYTON LAW REVIEW

The Court's decision in Simon & Schuster rests upon a traditional

Simon & Schuster, 112 S. Ct. at 512 (Kennedy, J., concurring).

of review which the Court may apply in ruling on the constitutionality

The Free Speech Clause: Its Significance

The First Amendment to the United States Constitution provides

174. U.S. CONST. amend. I.

UNIVERSITY OF DAYTON LAW REVIEW

Differing Judicial Standards of Review

In analyzing a regulation which infringes upon freedom of speech

fora in order to ensure public safety or meet other neutral goals.19 1

UNIVERSITY OF DAYTON LAW REVIEW

of speech ordinarily poses no constitutional difficulty because these

Thus, a statute or regulation may single out defa-

mation, obscenity, fighting words, and commercial speech, among

judged by a lesser standard of judicial scrutiny than are content-based

211. See infra notes 241-42 and accompanying text.

UNIVERSITY OF DAYTON LAW REVIEW

gument that all modes of conduct used to communicate ideas are

not to curb a particular message, the restriction was content-neutral. 3 5

absent the regulation.'

Moreover, content-neutral statutes are subjected to a more lenient

235. Id. at 791-93.

UNIVERSITY OF DAYTON LAW REVIEW

of this standard was erroneous and instead applied a strict scrutiny

The Overbreadth and Vagueness Doctrines

244. Fischetti, 916 F.2d at 781.

& Schuster raised both overbreadth and vagueness challenges to sec54