Florida Statute 944.512 is intended to keep convicted felons from profiting from their crimes through “expressive activity,” such as writing a book or screen play.
The idea is to compensate the victims, or their dependents, and recoup losses to public funds for the prosecution and incarceration of the criminals.
The state has a compelling interest to enact legislation ensuring criminals don’t prosper from the commission of their crimes while their victims suffer.
However, the language in the statute renders it unconstitutional on First Amendment grounds because it is overbroad in its restrictions and not narrowly tailored to advance the interest of the state.
In the case that established this precedent, Simon & Schuster v. N.Y. State Crime Victims Board, the Supreme Court struck down a similar New York Statute – for which these types of laws derive the name “Son of Sam” laws – because the statute only provided for the seizure of profits from expressive activities relating to the crime.
Seizing only the profits from expression relating to the commission of the crime while presumably allowing the realization of profits from other literary works, like a novel not entailing a “reenactment of the crime,” is a content-based regulation.
Furthermore, imposing the restrictions on profit rendered by the statute has a chilling effect on speech because only books by those willing to forfeit compensation for their work will be published.
Therefore, although the State of Florida has a compelling interest to regulate the speech, the legislature hasn’t properly tailored the statute to advance its goal.
The Supreme Court concluded in Simon & Schuster v. N.Y. Crime Victim’s Board, that speech about crimes can serve the public good. An example of this would be books about the Watergate scandal such as “All the President’s Men.” It was in the public’s interest for the details of the crime to emerge. Yet, had the law been in effect then, the confiscation of profits might have chilled that speech.
Therefore, speech about crimes can be necessary. Overbroad measures restricting all speech about crimes is neither constitutional, nor in the public’s interest. Measures so tailored to only restrict speech by murders and rapists, such as Danny Rolling, while allowing speech about other crimes, like Watergate, are forms of content-based regulation held unconstitutional upon subject to strict judicial scrutiny. The offensiveness of a message to society is not a valid reason for suppression of speech.
Yet, the fact remains: A state has a compelling interest to ensure victims of crimes are compensated by the perpetrator.
The way to ensure that victims are compensated is by using general asset-forfeiture laws found in tort code. These laws seize assets of criminals in order to pay awards to the victims of the crime.
They don’t infringe on speech because they don’t take the profits from the speech; those still go to the criminal. However, the laws force the criminal to make restitution to the victim.
This way, there is no chilling effect on speech, but the crime victims still get compensated – and probably from proceeds of the speech, though indirectly since the state is placing a lien on the criminals assets, not the proceeds from the expression.