- The Washington Times - Friday, August 31, 2001

Chances are, you remember David Berkowitz, the "Son of Sam," arrested on Aug. 10, 1977 for killing six and injuring seven New Yorkers.
You probably also recall the tremendous publicity surrounding the hunt for Berkowitz. By the time he was unmasked, his story was worth millions of dollars.
The unpleasant thought of Mr. Berkowitz raking in those millions simply by getting his lurid story published, while his victims and their families remained uncompensated, prompted New York's legislature to enact New York Executive Law section 632 also known as the "Son of Sam"law. The law required publishers to pay royalties from books written by persons accused or convicted of a crime - if the subject of the book is the crime itself - to the state's Crime Victims Board. The royalties were to be held in escrow for five years and paid to any victim who successfully brought a civil suit against the author within that time.
In its definition of "person convicted of a crime," the law included "any person who has voluntarily and intelligently admitted the commission of a crime for which such person is not prosecuted."
Fortunately for the American reading public, one noble champion of constitutional freedoms (whose profits, coincidentally, largely depend on its ability to lure famous authors by paying them large advances) challenged the legality of the Son of Sam law. Simon &Schuster;, Inc. argued that the law violated the First Amendment, and the U.S. Supreme Court agreed. It struck down the law in 1991, even while acknowledging New York's compelling interest in compensating crime victims with the "fruits" of crime. According to the Supreme Court, the law reached too far to satisfy that interest, as it entitled the Crime Victims Board to income from works describing the author's commission of a crime, whether or not the author had actually been formally accused or convicted.
A lucky break for Simon & Schuster, indeed! Those best-selling memoirs by shady characters would be significantly harder to generate, were all royalties to be held in escrow rather than in the author's outstretched hands.
Certainly Justice O'Connor recognized as much in the opinion she wrote in Simon & Schuster, Inc. vs. Members of the New York State Crime Victims Board. She described how, had the Son of Sam law existed at the time, it would have "escrowed payment" for such masterpieces as "The Autobiography of Malcolm X," which describes crimes committed by the civil rights leader before he became a public figure, "Civil Disobedience," wherein Thoreau describes his refusal to pay taxes, and even "Confessions of St. Augustine," where he "laments 'my past foulness and the carnal corruptions of my soul,' one instance of which involved the theft of pears from a neighboring vineyard." Knowing that their future royalties might be distributed to persons other than themselves, Malcolm X, Thoreau and St. Augustine might never have bothered to even put pen (or quill) to paper (or parchment).
I can think of at least two other memoirs for which the Son of Sam law would have likely "escrowed payment," were the law still around in its original form (it is in the process of being amended) and that, tragically, may have never seen the light of day, had Simon & Schuster not triumphed: the autobiographies of Mr. and Mrs. Bill Clinton, coming soon to a bookstore (and movie theater?) near you.
It's old news by now Hillary's $8 million advance from Simon & Schuster and Bill's $10-plus millions from Alfred A. Knopf. Why not resurrect the Son of Sam law just twice more, for old time's sake? Surely Justice O'Connor wouldn't have a problem with that.
These upcoming memoirs fall, to paraphrase Al Gore, well within the letter of the Son of Sam law. They will undoubtedly describe what looks a lot like criminal activity (or should, anyway, if the publishers have any hopes of recouping those hefty advances), and are to be written by those who were "voluntarily" and, as always, "intelligently" involved in such activity. Who else but Bill and Hillary could entitle chapters of their life story "Once Upon A Mattress: The Rose Law Firm Billing Records," or "Barbarians at the Filegate," and "The Devil With the Blue Dress" ?
Imagine the wrongs that could be righted were the royalties escrowed for future allocation to the Clintons' victims. Those ex-employees of the travel office come to mind. Chelsea. Socks. Al Gore, robbed of a surefire campaign platform, thanks to the Clintons' questionable conduct. And, since the law is a New York one, after all, how about some restitution to all of us forced to sit in traffic every time the Clintons came to midtown?
Of course there's no way that the millions paid already and the millions more to be earned from Volumes I and II of the Clinton Confessionals will end up anywhere else than in the coffers of the authors and of their myriad creditors. Oh well.

Ina R. Bort is an attorney in Manhattan at Kornstein Veisz & Wexler, LLP.


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