Wednesday, Dec. 22, 2004 | 11:05 a.m.
CARSON CITY -- Nevada's "Son of Sam" law prohibiting criminals from profiting on their memoirs is unconstitutional, the Nevada Supreme Court ruled Tuesday.
The unanimous freedom of speech decision, written by Justice Bill Maupin, draws from a 1991 ruling by the U.S. Supreme Court that voided a similar law in New York.
The Nevada ruling stemmed from a Washoe County case in which Donna Seres, the sister of Mark Slavin, sued Jimmy Lerner, the man convicted of voluntary manslaughter and use of a deadly weapon in the death of her brother.
While in prison Lerner wrote a book, "You Got Nothing Coming, Notes From a Prison Fish" that detailed his life in prison and included a description of the events surrounding the killing of Slavin.
Seres filed suit in Reno to collect the proceeds from the book to set up a trust for her mother. District Judge Brent Adams ruled against Seres, so Seres appealed.
That took the case to the state's high court, which noted in its ruling that Nevada "has compelling interests in the compensation of crime victims and in the prevention of direct profiteering from criminal misconduct."
But, the decision added, the state's "Son of Sam" law was too broad.
The primary problem with the law is that all the profits would be confiscated and given to the victims even if the book was about religion, and not about the crime involved. Seres wanted all the proceeds from the Lerner book, even though part of it was about life in prison.
Justice Maupin wrote that "the primary impediment to its (the law's) validity stems from its potential application to works only partially or tangentially related to the crime committed." It penalizes a felon from engaging in whatever speech or expression he desires, said Maupin.
The court said the law "suffers from overinclusiveness because it regulates more speech than is necessary to serve the state's interest."
It said the law clearly "allows recovery of proceeds from works that include expression both related and unrelated to the crime, imposing a disincentive to engage in public discourse and nonexploitative discussion of it."
The court rejected the suggestion of Attorney General Brian Sandoval that it allow a survivor to collect at least a portion of the proceeds of the book that related to the crime. The court said that would be unworkable.
"Judges and juries sitting as fact-finders could not possibly apportion the publication proceeds with any real certainty, leaving the distinct possibility that such apportionment would of necessity encompass proceeds from portions of works not calculated to exploit criminal misconduct," the court's ruling noted.
The court also said the law is defective in that it refers to a "person who committed the felony." It does not say a person who has been "convicted" of a felony. Therefore the Nevada law could apply to a person who was never convicted of the offense.
Lerner was sentenced to consecutive six-year terms. A spokesman for the state Parole Board said Lerner was paroled and was then discharged from his parole. His book was published by Broadway Books and Random House in 1999.
New York enacted the first "Son of Sam law" in 1977 in response to the possibility that David Berkowitz, the serial killer nicknamed Son of Sam, might sell his memoirs to a publisher. The U.S. Supreme Court voided that law in 1991.
In 1981, Nevada had followed New York's example, creating its own Son of Sam law and then had revised it in 1993 to try to address the objections raised in the decision by the U.S. Supreme Court.
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