Curran v. Price

MURPHY, Chief Judge. This case focuses upon Maryland’s so-called “Son of Sam” statute, Maryland Code (1957, 1992 Repl.Vol. and 1993 Cum. Supp.) Art. 27, § 764, which was enacted to prevent criminals from profiting from their own crimes through “notoriety of crimes contracts,” defined in § 764(a)(5) as a contract with respect to “(i) The reenactment of a crime by way of a movie, book, magazine article, tape recording, phonograph record, radio or television presentation, or live entertainment of any kind; ¹⁵⁵ “(ii) The expression of the defendant’s thoughts, feelings, opinions, or emotions regarding a crime involving or causing personal injury, death, or property loss as a direct result of the crime; or “(in) The payment or exchange of any money or other consideration or the proceeds or profits that directly or indirectly result from a crime, a sentence, or the notoriety of a crime or sentence.” Section 764(b) requires that a “person” who enters into a notoriety of crimes contract with a “defendant” must “submit a copy of the contract or summary of the terms of an oral agreement to the Attorney General ... and ... [p]ay over to the Attorney General any moneys or other consideration ... which would otherwise be owing to the defendant.” Section 764(a)(3) defines “person” as “a natural person, a firm, corporation, partnership, association, or other legal entity.” Section 764(a)(2) defines a “defendant” as “a person charged with or convicted of a crime in this State involving or causing personal injury, death, or property loss as a direct result of the crime.” Section 764(a)(4) defines the term “victim” to mean a person “who suffers personal injury, death, or property loss as a direct result of crime.” Section 764(c)(1) and (2) require that the Attorney General mail to a “victim” of the defendant’s crime a notice that the Attorney General has a copy of the contract and shall determine after the passage of 30 days, but before the expiration of 180 days from receipt of the contract, whether the contract is a “notoriety of crimes contract.” It further provides that the Attorney General may render a decision after 180 days “for cause.” Section 764(c)(3) creates a rebuttable presumption that the contract is a notoriety of crimes contract but permits the “defendant” to establish to the “satisfaction of the Attorney General” that the subject matter of the contract only tangentially or incidentally relates to the crime. ¹⁵⁶ Section 764(d) provides that a “person” may not conceal the existence of a notoriety of crimes contract or “make or receive payments” under such a contract. Section 764(n) provides that any person aggrieved by a determination of the Attorney General may seek judicial review.

Section 764(p) authorizes the Attorney General to institute injunctive proceedings against a “person” who violates or threatens to violate any provision of § 764. Section 764(o) provides that any person who willfully fails to submit a copy of the contract to the Attorney General, or to pay over to the Attorney General any moneys or other consideration as required by the statute, shall be subject to certain civil monetary penalties, as set forth in the statute. I Ronald W.- Price (Price), a former Anne Arundel County high school teacher, was indicted on March 5, 1998 for criminal violations, including sexual child abuse and unnatural and perverted practices committed upon former students. 1 After Price’s indictment and prior to his trial, the case received widespread attention, due in large part to the fact that Price appeared on national television talk shows acknowledging that he had engaged in sexual relationships with several of his female high school students. He also granted interviews to various local and national news media.

In at least one of these interviews he stated that he had entered into a contract to sell “his story.” 2 In response to that statement, and pursuant to § 764, an Assistant Attorney General wrote to Price’s counsel inquiring whether Price had, in fact, entered into a contract that might be covered by the statute, and, if so, ¹⁵⁷ with whom and for what consideration. Price responded through counsel that he had entered into a contract for his “life story,” but refused to produce a contract or summary of any oral agreement, maintaining that § 764 was unconstitutional and in any event that the contract was only tangentially related to the crimes. Believing that the only basis for commercial interest in Price’s life story was the criminal conduct with which he was charged, and therefore that it was most likely that any contract Price made would be covered by § 764, the Attorney General filed a “Complaint for Injunctive Relief’ against Price in the Circuit Court for Anne Arundel County. The complaint recited that Price’s “intentional concealment of and failure to submit to the Attorney General any contract for his life story, including his alleged criminal activity” violates Article 27, § 764.

The Attorney General sought an interlocutory injunction, pending final adjudication of the case, requiring Price to submit the contract to him, together with any payments received under the contract. The complaint also sought “a final binding declaration of rights of the parties,” followed by a permanent injunction. The court (Lerner, J.) denied the Attorney General’s prayer for injunctive relief and declared that § 764 was “unconstitutional and unenforceable.” In so acting, the court determined that § 764 was unconstitutionally overinclusive on its face and violated the principles of the First Amendment. It noted that under § 764(a)(5)(ii) a “notoriety of crimes contract” was one respecting “the expression of the defendant’s thoughts, feelings, opinions or emotions regarding a crime.” Consequently, the court held that § 764 is a content-based regulation of speech which must be justified by a compelling government interest and narrowly tailored to further that interest.

The court found that, while the State clearly has a compelling interest to prevent criminals from profiting from their crimes, and to compensate victims, § 764 swept so broadly as to reach forms of expression which the State had no compelling interest to regulate. The State appealed to the Court of Special Appeals. We granted certiorari prior to review by the intermediate appel ¹⁵⁸ late court to consider the question presented by the State in its certiorari petition, i.e., whether it was constitutional under § 764 to require Price “as a person charged with serious crimes to submit to the Attorney General for review any notoriety of crimes contract.” 331 Md. 719 , 629 A.2d 720 . In its petition for certiorari, the State urged that we “resolve definitively the constitutionality of § 764.” II Notwithstanding the question presented in its petition, the Attorney General argues that it is unnecessary for us to reach the issue bf whether the entire statute is unconstitutional.

Instead, he maintains that until the contract is produced and he is able to determine whether it is covered by the statute, any broad determination of the statute’s constitutionality is premature. The Attorney General contends that any analysis of constitutionality should await a full and complete factual record. He maintains that constitutional issues do not arise when the Attorney General seeks merely to obtain a contract to determine the statute’s applicability. He argues that the State is entitled to obtain information about a criminal defendant’s proposed activity even if it enjoys First Amendment protection.

He likens the requirement to produce the contract to a “time, place, and manner” restriction in which demonstrators must tell the State of a planned demonstration and apply for a permit to demonstrate. Moreover, it is maintained that there is little, if any, “speech” involved in producing the contract, and thus any incidental limitations on First Amendment freedoms are justified by the State’s interest in ensuring that criminals not profit from their crimes. The State asserts that Price’s obligation to produce the contract, the Attorney General’s determination of the statute’s applicability to any submitted contract, the right to judicial review of the Attorney General’s decision, and his authority to seek injunctive review, are all “procedural steps” which must be exhausted before any constitutional issues should be reached. Alternatively, the argument is advanced that, in the event a constitutional review is necessary, we should conclude that § 764 is constitutional ¹⁵⁹ because it is a content-neutral statute, narrowly tailored to further an important government interest.

Price contends that the statute is unconstitutional, but puts forth no legal arguments in support of his contention. The American Civil Liberties Union, appearing as amicus curiae (amicus), urges that the statute is a content-based restriction which sweeps too broadly, unconstitutionally burdening speech that is protected by the First Amendment. It posits that the production requirement and subsequent review by the Attorney General constitute a prior restraint on speech which lacks all the procedural safeguards necessary to make it constitutionally permissible. In addition, amicus suggests that the statute covers works by defendants whose crimes caused any property loss or injury, no matter how minimal, thereby resulting in the forfeiture of a defendant’s speech-related earnings.

Also, amicus observes, the statute deprives defendants of their earnings regardless of whether the victim of their crime makes a claim on the escrow fund as unclaimed funds may be given to victims of unrelated crimes. III Courts have the power and the duty to determine the constitutionality of legislation. Barnes v. Meleski, 211 Md. 182, 186 , 126 A.2d 599 (1956). In reviewing the constitutionality of Maryland’s statute, we are guided by the Supreme Court’s decision in Simon & Schuster v. New York Crime Victims Board, 502 U.S. 105 , 112 S.Ct. 501 , 116 L.Ed.2d 476 (1991).

Maryland’s statute was based originally upon the New York statute, N.Y.Exec.Law § 632-a (McKinney 1982 and Supp.1991), which the Supreme Court found unconstitutional in Simon & Schuster, 3 The original Maryland statute was ¹⁶⁰ subsequently amended to its current form in 1992 in response to that decision. To be determined on a proper record is whether the amendment was successful in removing the constitutional infirmity existing in the original New York and Maryland statutes. The Supreme Court invalidated the New York “Son of Sam” statute on the ground that it imposed a financial burden only on speech of a specified content, Simon & Schuster, supra, 502 U.S. at -, 112 S.Ct. at 508 , and because it was not narrowly drawn to serve a compelling state interest in ensuring that victims are compensated by those who harm them, and that criminals not profit from their crimes, id. at 510-11. The Court found that the statute was “significantly overinclusive” in that it applied to works on any subject, as long as they expressed the author’s thoughts or recollections of the crime, “however tangentially or incidentally.” Id. at-, 112 S.Ct. at 511 .

In addition, the New York statute applied to persons who admitted in a work that they had committed a crime, whether or not they were ever accused or convicted. Id. The Court noted that these provisions encompassed a wide range of works, many by prominent figures. 4 ¹⁶¹ It was the purpose of the Maryland legislature, in amending § 764, to make its provisions content-neutral and remedy the problem of overbreadth. To this end, the amendments to § 764(a)(2) narrowed the definition of defendant to a person charged with or convicted of a crime.

In addition, the amendments added language to the original subsection (b) which broadened the description of applicable contracts to include not only those with respect to reenactment of a crime or the expression of the defendant’s thoughts, feelings, opinions or emotions regarding the crime, but also those with respect to “the payment or exchange of any money or other consideration or the proceeds or profits that directly or indirectly result from a crime, a sentence, or the notoriety of a crime or sentence.” § 764(a)(5)(iii). As we see it, while the language of § 764(a)(5)(iii) does not expressly target speech, its addition does not appear to negate the content-based nature of the language in subsections (a)(5)(i) and (ii). These subsections still define a notoriety of crimes contract by the content of the work to which it relates, specifically “the reenactment of a crime” or “the expression of the defendant’s thoughts, feelings, opinions, or emotions regarding a crime.” Moreover, these subsections still require the Attorney General to consider the subject matter of the work in determining whether the contract falls under the statute. In evaluating a statute for content-neutrality, the primary question is whether the government seeks to regulate speech because it disagrees with the message conveyed.

Ward v. Rock Against Racism, 491 U.S. 781, 791 , 109 S.Ct. 2746, 2753 , 105 L.Ed.2d 661 (1989). A regulation of speech is content-neutral if it is “ justified without reference to the content of the regulated speech.’ ” Id. at 791 , 109 S.Ct. at 2753 (quoting, with emphasis, Clark v. Community for Crea ¹⁶² tive Non-Violence, 468 U.S. 288, 293 , 104 S.Ct. 3065, 3068 , 82 L.Ed.2d 221 (1984)). The Attorney General argues that § 764 is justified without reference to the content of speech because its true purpose is not to prevent criminals from communicating about their crimes, but to prevent them from making financial profit from their crimes while their victims go uncompensated. It is, however, beyond question that to deny compensation for certain speech will chill such speech.

In Riley v. National Federation of the Blind of N.C., 487 U.S. 781 , 108 S.Ct. 2667 , 101 L.Ed.2d 669 (1988), the Supreme Court found unconstitutional a statute which, inter alia, limited fees professional fundraisers could charge. The Court there noted that the statute’s effect was to chill speech and drive professional fundraisers out of the state. Id. at 794 , 108 S.Ct. at 2676 . The Attorney General also argues that § 764’s provisions are based not on the State’s disagreement with the message in the relevant works, but on the fact that financial gain may be derived therefrom.

But as the Supreme Court has stated, “ ‘[t]he First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic.’ ” Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 230, 107 S.Ct. 1722, 1728 , 95 L.Ed.2d 209 (1987) (quoting Consolidated Edison Co. v. Public Service Comm’n of New York, 447 U.S. 530, 537 , 100 S.Ct. 2326, 2332 , 65 L.Ed.2d 319 (1980)). Moreover, the Supreme Court has “ ‘long recognized that even regulations aimed at proper governmental concerns can restrict unduly the exercise of rights protected by the First Amendment.’ ” Simon & Schuster, supra, 502 U.S. at -, 112 S.Ct. at 509 (quoting Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575, 592 , 103 S.Ct. 1365, 1375 , 75 L.Ed.2d 295 (1983)). The principal justification for Maryland’s statute hinges on the State’s desire to ensure that criminals not profit from their crimes while their victims remain uncompensated. Yet, the statute’s language, specifically that in subsections (a)(5)(i) and (ii), appears to be content-based in that it requires the Attor ¹⁶³ ney General to analyze the content of the work in order to determine its applicability to the statute.

Content-based statutes are presumptively inconsistent with the First Amendment because they “raise[ ] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.” Simon & Schuster, supra, 502 U.S. at -, 112 S.Ct. at 508 . Such statutes therefore warrant strict judicial scrutiny. Consolidated Edison Co., supra, 447 U.S. at 536 , 100 S.Ct. at 2332 . We explained in State v. Sheldon, 332 Md. 45, 58 , 629 A.2d 753 (1993), that the presumption against constitutionality of content-based statutes is not absolute.

The Supreme Court has recognized exceptions to this presumption when, by way of example, a State proscribes a particular form of speech which falls under a class of speech that is entirely proscribable, such as obscenity or defamation. R.A.V. v. City of St. Paul, Minnesota, — U.S. -, -, 112 S.Ct. 2538, 2545 , 120 L.Ed.2d 305 (1992). If the “basis for the content discrimination consists of the very reason the entire class of speech at issue is proscribable,” there is “no significant danger of idea or viewpoint discrimination.” Id. at -, 112 S.Ct. at 2545. While the State could, for example, prohibit one mode of “fighting words” and not another, it could not single out certain fighting words for their message.

Id. at -, 112 S.Ct. at 2549. Another exception, more relevant to this case, arises when a seemingly content-based statute has content-neutral intent, aiming only at the “secondary effects” of the targeted speech; such a statute is “ ‘justified without reference to the content of the regulated speech.’ ” Ward, supra, 491 U.S. at 791 , 109 S.Ct. at 2753 (quoting, with emphasis, Clark, supra, 468 U.S. at 293 , 104 S.Ct. at 3069 ); see also City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 49 , 106 S.Ct. 925, 929 , 89 L.Ed.2d 29 (1986). And the appropriate inquiry when reviewing such statutes is whether the statute is designed to serve a “substantial government interest” and allows for “reasonable alternative avenues of communication.” Renton, supra, 475 U.S. at 50 , 106 S.Ct. at 930 . ¹⁶⁴ Renton involved a zoning ordinance requiring that theatres specializing in “adult” films be located a certain distance from residential areas, churches, parks and schools. While acknowledging that the statute treated these theatres differently from other theatres based on the content of the films shown, the Court concluded that the ordinance was not aimed at the content of the films but at their “secondary effects” on the community, such as reduced property values. 475 U.S. at 49 , 106 S.Ct. at 929 .

Ward involved a municipal noise regulation which limited sound volume at outdoor concerts by requiring that all performers use city-owned sound mixing equipment and that a technician hired by the city control the sound mixing equipment at every concert. The Court concluded that although the ordinance gave the technician control over the quality of the artistic expression, the purpose of the statute was not to control artistic expression but to control noise levels and maintain the character of the area in which the concerts took place. 491 U.S. at 792 , 109 S.Ct. at 2754 . Moreover, the Court observed that the city technician deferred to artists in any creative decisions concerning sound mix and that all performers who had used the city’s equipment had been completely satisfied. Id. at 792-93 , 109 S.Ct. at 2754-55 .

Therefore the statute was reviewed under the less stringent test applicable to governmental regulation of time, place and manner of protected speech. Id. at 798-99 , 106 S.Ct. at 2757-58 . The Court in Simon & Schuster expressly declined to address the State’s contention that the New York statute was content-neutral under the “secondary effects” exception it recognized in Renton and Ward, supra. It said: “Because the Son of Sam law is so overinclusive we need not address the Board’s contention that the statute is content neutral under ... [Renton and Ward ].

In these cases we determined that statutes were content neutral where they were intended to serve purposes unrelated to the content of the regulated speech, despite their incidental effects on some speakers but not others. Even under Ward and Renton, however, regulations must be narrowly tailored ¹⁶⁵ to advance the interest asserted by the State.... A regulation is not narrowly tailored — even under the more lenient tailoring standards applied in Ward and Renton — where, as here, a substantial portion of the burden on speech does not serve to advance the State’s content-neutral goals. Thus whether the Son of Sam law is analyzed as content neutral ... or content based ... it is too overinclusive to satisfy the requirements of the First Amendment.” 502 U.S. at - n. 1, 112 S.Ct. at 511 n. 1 (citations omitted).

The Court therefore evaluated the New York statute under a stricter standard because it created a “financial disincentive to create or publish works of a particular content. In order to justify such differential treatment, ‘the State must show that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.’” Simon & Schuster, supra, 502 U.S. at - , 112 S.Ct. at 509 (quoting Arkansas Writers’ Project Inc., supra, 481 U.S. at 231 , 107 S.Ct. at 1728 ). Therefore, under Simon & Schuster, if the Maryland statute is overbroad to the extent that a substantial portion of the burden it places on speech does not advance the State’s interests — preventing criminals from profiting from crimes and compensating victims of crimes — then it would not survive a First Amendment challenge. Amicus argues that the statute’s overbreadth results primarily from its broad definition of “notoriety of crimes contracts,” combined with the procedures it sets forth for review of contracts by the Attorney General.

The provisions regarding review by the Attorney General were added by the legislature when it amended § 764’s definition of applicable contracts in an effort to cure the unconstitutional overbreadth found by the Supreme Court in the original New York statute. See Floor Report on H.B. 1207, Senate Judicial Proceedings Committee (1992 Session). Subsection (c)(2) provides that the Attorney General shall render a decision as to whether a contract is a notoriety of crimes contract “after the passage of 30 days, but before the expiration of 180 ¹⁶⁶ days from receipt of the contract or moneys”; it also provides that the Attorney General may render a decision after 180 days “for cause.” Subsection (c)(3) sets forth the presumption that a contract is a notoriety of crimes contract, which can be rebutted if the defendant establishes “to the satisfaction of the Attorney General” that the contract’s subject matter relates “only tangentially or incidentally” to the crime. The Attorney General suggests that the limiting language of subsection (c)(3) cures the overbreadth problems in the definitional language of subsections (a)(5)(i) and (ii), because it removes from the statute’s reach any contracts whose subject matter relates only tangentially or incidentally to the crime.

Amicus disagrees, observing that the statute requires that contracts for works on any subject which contain a defendant’s thoughts, feelings, opinions or emotions about a crime, however remotely related to the subject of the work, must still be submitted to the Attorney General, thus burdening a substantial portion of speech without furthering the State’s interests. This burden, amicus contends, arises in the length of time in which the person submitting the work must forego earnings while awaiting a determination, and in the statutory presumption in favor of the State. The language defining notoriety of crimes contracts in subsections (a)(5)(i) and (ii) is virtually identical to the language invalidated by the Supreme Court in Simon & Schuster. See 502 U.S. at ---, 112 S.Ct. at 504-05.

Although, as the Attorney General asserts, the limiting language of subsection (c)(3) would provide a means of escape for the famous works of literature which the Court noted would be swept into the definition’s overbroad grasp, these works would nonetheless be burdened during the review process. The question becomes, then, whether the burden is acceptable — that is, whether the submission and review requirement is both necessary and narrowly tailored to serve the State’s interest without impermissibly burdening speech unrelated to the advancement of that interest. ¹⁶⁷ A statute is overbroad to the extent that, by its very existence, it inhibits constitutionally protected speech. Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 798-99 , 104 S.Ct. 2118, 2125-26 , 80 L.Ed.2d 772 (1984). But “the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible of an overbreadth challenge.” Id. at 800 , 104 S.Ct. at 2126.

The overbreadth must be substantial, i.e., there must be “realistic danger that the statute itself will significantly compromise” recognized First Amendment rights of parties not before the court for it to be facially challenged as over-broad. Id. The Supreme Court found the New York statute to be overinclusive in the sense that it “reache[d] a wide range of literature that does not enable a criminal to profit from his crime while a victim remains uncompensated.” Simon & Schuster, supra, 502 U.S. at -, 112 S.Ct. at 511. If §