Does 1st Amendment Give Felons a Right to Cash In?

Frank Sinatra Jr. was only 19 when he was kidnapped, held hostage and released after his famous father paid a $240,000 ransom. Now the entertainer is trying to prevent his kidnappers from making a much greater windfall from the story of the crime.

Sinatra’s success will depend on how the California Supreme Court, and possibly the U.S. Supreme Court, decides a constitutional challenge to the state’s so-called “Son of Sam” law, named after the serial killer who terrorized New York in 1977. The law prevents felons from cashing in on their crime stories.

The man who masterminded the Sinatra kidnapping has sold the movie rights to the crime story for a reported $1.5 million, sparking the most critical court test in almost a decade of a Son of Sam law. There are at least 40 such state laws nationwide.

Sinatra won the case in the lower courts, but the California Supreme Court agreed to review the matter after the kidnapper appealed. A ruling could take several months.

The court’s review comes at a time when victims-rights activists are pressing for more laws to prevent felons from profiting from their criminal notoriety. It also is a time when true crime remains wildly popular with readers and moviegoers.

Fearing that the law on profiteering will be overturned, some relatives of the victims of last year’s Yosemite murders have filed wrongful-death lawsuits against accused killer Cary Stayner.

If the suspected four-time killer ever sells movie rights to his story, the suits could require him to turn over any payments to the victims’ families. A civil court would assess damages for the loss of the victims, and the accused killer’s assets would be tapped.

Relatives of the murdered women were “concerned from Day 1” that Stayner would profit from the highly publicized crimes, said Zach Zwerdline, an attorney who is representing the family of Carole and Juli Sund.

“It just made it worse when [Stayner] told . . . various media” that he wanted a movie made of his story, Zwerdline said.

A bill also is pending in Sacramento that would extend the Son of Sam concept to the Internet and broaden it to prevent inmates’ relatives or middlemen from profiting from the sale of killers’ crafts, autographs or other items.

Everything from drawings by Richard Ramirez, who became known as the Night Stalker, and Dorothea Puente, a Sacramento landlady and serial killer, to fingernail clippings of Roy Norris, who raped and murdered teenage girls in Los Angeles, are now sold on the popular EBay auction site.

“California leads the league as far as killers selling stuff,” said Andy Kahan, a former probation and parole officer who now runs the city of Houston’s crime victims office and regularly monitors Internet auctions.

Although some constitutional experts believe that the bill would violate guarantees of freedom of speech--and that the law now on the books does too--victims-rights activists strongly support both.

Marc Klaas, father of 12-year-old Polly Klaas, recalled his horror when he learned that items of Richard Allen Davis, his daughter’s killer, were being sold on the Internet.

“I just went nuts,” Klaas said. “My daughter did not live on Earth for Richard Allen Davis or anyone else to make money off her death.”

A color photograph of a grinning Davis, his naked chest covered with tattoos, recently went out to auction as “Child Killer Richard Allen Davis Signed Photo,” minimum bid $24.95.

The killer penned a note and smiley faces on the back of the photograph and signed it “Rick.”

Publishers, Writers Cite Value of Stories

Even as victims-rights advocates promote the bill to end the Internet trade, they are in danger of losing the narrower law already on the books.

First Amendment defenders have urged the California Supreme Court to reject the current law’s ban on profits from books and films, arguing that without the incentive of money, many convicted felons would not tell their stories.

Volumes of importance to historians, psychologists, criminologists and law enforcement would be lost, publishers and writers groups argued in a friend-of-the-court brief.

The American Civil Liberties Union Foundation of Southern California, another opponent of the law, listed before the court several books that might not have been written under a Son of Sam ban, including those by Watergate felons and civil rights activists and the memoirs of Patricia Hearst.

The U.S. Supreme Court struck down the original state Son of Sam law, in New York, in 1991, ruling that it was overly broad and violated free-speech rights. The name of the law is the name used by New York City serial killer David Berkowitz.

California’s Legislature responded by narrowing the scope of its own state law to remove the kinds of objections cited by the U.S. Supreme Court. The New York law had applied to anyone who had committed, or admitted to having committed, a crime. The California law applies only to convicted felons.

But some constitutional scholars say the revisions still will not save the law because the prohibition on making money is dependent on the content of the felon’s communication. A felon is free to make money on any story as long as it is not about the crime.

“That is why the Supreme Court found the New York law unconstitutional,” said USC law professor Erwin Chemerinsky.

UCLA constitutional law professor Eugene Volokh, a conservative, said the question of the current law’s constitutionality is “a close call,” although he personally thinks the law is unconstitutional.

The law requires that profits from felons’ stories be given to victims or used to reimburse the state for the criminals’ legal costs.

Courts have recognized that the government has a “compelling interest” in compensating crime victims and preventing criminals from profiting from their crimes, he said.

But he faulted the law for taking away income earned only from speech, not from other sources, such as inheritance. A law that tapped a convicted felon’s earnings from all sources for victim compensation would be legal, he contended.

“Why compensate victims in this way that discriminates against free speech?” Volokh asked.

Sinatra Kidnapper Sold Story to Studio

Barry Keenan, who planned and executed the kidnapping of Sinatra 37 year ago, sold the movie rights to “Snatching Sinatra” to Columbia Pictures after a story about his recollections of the crime appeared in the Los Angeles weekly New Times in 1998.

By his account, Keenan was down on his luck and high on drugs when he concocted the kidnapping scheme. He had known the victim’s sister, Nancy, in high school, and hoped to invest the ransom, make millions and eventually repay the victim’s father.

He and an accomplice snatched the young entertainer at gunpoint from a hotel in Lake Tahoe in December 1963, and held him in Canoga Park. Sinatra Jr. was freed unharmed after four days.

A tip to the FBI led to the capture of Keenan and two cohorts. Keenan, now a 56-year-old developer, served four years.

In his appeal to the state high court, Keenan is arguing not only that the Son of Sam law is unconstitutional, but also that it can’t be applied to him anyway because it was signed into law more than two decades after the kidnapping. The case is Keenan vs. Superior Court, S080284.

Both a Santa Monica judge and a state Court of Appeal sided with Sinatra against Keenan. The appeal court said the California law was significantly narrower than the one struck down by the U.S. Supreme Court.

“The first time the kidnappers took the ransom, they were apprehended and put in jail,” said Richard Specter, Sinatra’s attorney. “Now this is a second ransom, which, if the law is invalidated, they are going to get to keep.”

Specter contends that there is no 1st Amendment violation because Sinatra is not trying to stop Keenan’s telling of his story, only his profiting from it.

California Deputy Atty. Gen. Kelvin C. Gong, in written arguments before the court, said motives besides money lure felons to write. Those include a desire to “purge sins” or promote religious beliefs, political ideas and penal reform, Gong wrote.

Only when felons try to make money from their crimes will the state step in, he said.

In one such case, California’s attorney general is trying to ensure that a convicted killer will not profit from a recording he made while in state prison.

The inmate, a rapper, who like other prisoners is allowed to make collect phone calls, recited his lyrics to “The Unforgiven” over a prison telephone, state officials said.

They contend that the inmate is using the killing to promote the album and that some of the lyrics are about the murder. The case is pending.

The state also intervened when “Billionaire Boys’ Club” killer Joe Hunt established a 900 telephone number where callers, for $2.99 a minute, could find out about his life in prison and his romance with his wife. The state eventually dropped the case because it could not prove that Hunt made any money.

The state also couldn’t show that Rodney Acala, a death row inmate, profited from a book he wrote, called “You the Jury.”

The book, which was about Acala’s trial for the 1979 murder of a 12-year-old girl, sold for $19.95 a copy.

The state determined that only eight copies were purchased, including one by the attorney general’s office and another by the Department of Corrections in the course of their Son of Sam investigations. A third was bought by a journalist.

Bill Would Extend Prohibitions

Despite the challenges of implementing the current law, the California Legislature is considering going even further in the bill to allow the state to seize earnings from the sale of memorabilia by a convicted felon’s representative or a third party.

The Internet has become a thriving marketplace for such items. Earlier this month, strands of Charles Manson’s hair (“100% AUTHENTIC!”) went out to bid on EBay. When the rock band Guns N’ Roses used a version of a song written by Manson on a 1993 album, the royalties went to the son of a Manson cult murder victim as a result of a 1971 court order.

In another recent Internet promotion--for a Richard Ramirez item--the seller wrote of the man who butchered or raped more than a dozen people: “Richard is the ‘rock star’ among serial killers. His dark good looks and satanic charm have earned him legions of fans and groupies worldwide!”

Critics of the auctions say the middlemen who conduct the online sales usually return some of the money to the inmates for their canteen funds--prison concessions where inmates can buy everything from television sets to soft drinks to toiletries--or to the inmates’ families or in the form of magazine subscriptions to the prisoners.

In some cases, however, the items may be sold by friends of the inmates or bought at prison craft stores and then resold over the Internet at higher prices, without the inmate’s knowledge.

State Sen. Adam B. Schiff (D-Pasadena), a candidate for Congress, is carrying the legislation to stop profiteering. Selling killers’ mementos represents “the exploitation of the human misery that has been caused by these crimes,” Schiff said.

Although blocking profits from the sale of artwork may be dicey constitutionally, Schiff said he should have no legal trouble tapping profits from the sale of hair, fingernails and autographs.

Margot Bach, a spokeswoman for the state Department of Corrections, said prisoners are free to send out hair, nail samples and other items through the mail and to sell artwork and crafts at the prison.

But the department discovered in mail searches that Night Stalker Ramirez was selling his drawings for $50 to $300 each. The prison is attempting to crack down on his business, but he continues to send out drawings he signs and now marks “Free,” state corrections officials said.

Texas’ Kahan, who lectures about the serial killer Internet auctions, said collectors of criminal memorabilia are “people who want a piece of infamy, something notorious to show family and friends.”

“People want to feel self-important or connected to a gruesome crime,” said the Houston victims-rights officer.

Not surprisingly, some of the critics of the Son of Sam law also believe the state bill on Internet sales is unconstitutional.

“Society can’t measure its own policies or standards by the grief and pain of victims,” said Stephen Rohde, a lawyer for Keenan and president of the ACLU of Southern California. “There is a lot that is painful. But the rest of society is entitled to an array of voices.”