"The mood and temper of the public with regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country."
--Winston Churchill (1)
"Obviously crime pays, or there'd be no crime."
--G. Gordon Liddy (2)
Crime sells. (3) One can literally "make a killing" from killings. (4) The very fact that crime does pay has prompted a rebirth of antiprofit legislation that purports to prohibit any person accused or convicted of a crime from economically profiting from that crime. (5) These laws are rooted in the moral belief that criminal defendants should not be allowed to spin sin into gold. (6) In theory, such laws seem practical, even laudable. (7) In practice, however, the progeny of the original, ill-fated "Son of Sam" law (8) has become legal and practical quagmires. (9)
It has been more then a decade since the seminal case of Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Board, (10) in which the United States Supreme Court struck down New York's "Son of Sam" law as an impermissible violation of First Amendment free speech rights. (11) The profit in question there stemmed from a book deal struck between mobster Henry Hill and the Simon & Schuster publishing company. (12) Since its 1991 decision, the Supreme Court has declined to revisit "Son of Sam," (13) but in that same time, a marked change has taken place in the very landscape of the so-called "criminal marketplace."
Now, an individual can sell far more than a story. (14)
The omnipresence of the Internet has not only led conventional retailers to set up virtual shops, (15) but has also lured sellers (and buyers) of less-conventional goods online. (16) Potential purchasers of crime-related memorabilia have expanded beyond publishers and movie studios to a vast pool of individual consumers worldwide. Evidence of this expansive new customer base came in the guise of a boom in crime-related memorabilia, otherwise known as "murderabilia." (17)
From a business perspective at least, this virtual murderabilia marketplace serves as a striking display of both entrepreneurial spirit and mass consumerism in cyberspace. The Internet has proven to be exceedingly fertile ground for murderabilia (18)--but along with mushrooming sales came a new, vigorous outcry against such profiting from murder and mayhem. (19) The selling and buying of "gore" merchandise ignited a wave of protest, not only from the families of victims of such infamous killers as Jeffrey Dahmer, (20) but also the American public at large. The outbreak of moral outrage sparked a re-evaluation of "Son of Sam" anti-profit legislation. This set the stage for a new attack against the making of "bloody" money, in particular, the profits derived from the sales of merchandise hawked via online "gore stores."
This battle, however, has been severely misguided. The various "Son of Sam" laws enacted in the majority of states are still plagued by the same questions of constitutionality raised more than a decade ago in Simon & Schuster. Yet these laws not only seek to prohibit the profiteering from the sale of a criminal's story, but many purport to prevent not only a convicted criminal but anyone from profiting from the sale of any asset made more valuable due to its "notorious" nature--down to the criminal's very toenail clippings. (21)
Some have asserted that this new generation of "Son of Sam" laws, as yet largely untested, has overcome the constitutional shortcomings of New York's original, ill-fated statute. (22) This Note argues that current anti-profit laws fail to squarely address the reality of the online murderabilia market. Part II examines the creation of the online murderabilia market and its players. Part III surveys the legislative history of American anti-profit legislation and the subsequent permutations of current "Son of Sam" laws. Part IV examines why current "Son of Sam" legislation are not only ineffective but unnecessary vehicles in shutting down the trafficking of murderabilia on the Internet. This Note will demonstrate that the price of notoriety is difficult to determine. Indeed, the line between the tasteless and the tasteful is hard to draw: to paraphrase the adage "what is one man's trash may be another's treasure," in the world of murderabilia, what is one's tasteless collection of gore is another's prized trove of historical artifacts. Additionally, laws preventing a convicted criminal from profiting from the sale of items fail to address the reality that many online sellers are NOT the criminal in question, but a third party. This Note will demonstrate that those states that have enacted or are considering such revamped versions of their anti-profit laws face an almost impossible task in accounting for any and all items that may profit any purported seller--in essence, a Herculean task of policing the Internet for potential violations. (23) This Note concludes that the broadening of current "Son of Sam" not only fails to cure such laws of any potential constitutional shortcomings but also exposes just how toothless these laws are.
Murderabilia. The term encompasses the myriad of items as diverse as human "trimmings," (24) serial-killer trading cards, (25) weapons, (26) and so-called "killer art" (27)--all of which can be linked to some notorious or infamous criminal or crime, (28) and all of which can be bought by anyone with access to cash and a computer. Indeed, in today's world, with just a click, one can shop and buy for a staggeringly diverse range of items. Certainly the person who wishes to buy the autopsy report of a murder victim is able to achieve the same kind of instant gratification as another desiring a pair of shoes. (29) Simply put, the murderabilia marketplace is the marketing of the macabre--and thanks to the Internet, it is always open for business.
The ease in which such objects can be bought was clearly evident in the brisk business dealings that were once de rigeur on the online auction site, eBay. (30) In 2001, eBay implemented an anti-murderabilia policy (31) to combat mounting outrage over such sales. (32) Currently, there are more than fifty different categories of items that an eBay seller is prohibited from selling on the site besides murderabilia, such as alcohol, human body parts, postage meters, real estate, and used clothing. (33) However, the express anti-murderabilia policy has not been totally successfully in eliminating sellers' attempts to peddle their wares on the site. For example, in June of 2001, a Texas woman named Andrea Yates drowned all five of her children, ranging in age from seven months to seven years old, in the family bathtub. (34) The crime shocked the nation and in 2002, Yates was convicted on charges of capital murder. (35) Just barely a month after eBay implemented its anti-murderabilia ban, a seller was hawking the domain name of "AndreaPiaYates.com" and received more than six bids topping $750,000 before the company pulled the plug on the sale. (36) EBay has had to continually police its site for potential violations. (37) In November 2003, a full two years after the ban was first set into place, eBay pulled an array of merchandise ranging from mugs to t-shirts to business cards all allegedly linked to serial killer Gary L. Ridgway. (38)
Indeed, the very public backlash against the sales of murderabilia may have downsized the market somewhat. (39) A recent search of the web auctions held by yahoo.com resulted in a piddling of items that were in any way linked to an in/famous criminal. (40) Like eBay, this site also has implemented a strict policy against murderabilia, though it does not explicitly ban those as it does for the sale of weapons, body parts or animals. (41) However, as like every other market, online murderabilia has its own ebb and flow, and this market is peculiarly character and event driven. (42)
The marketplace, however, is not dependent on such established auction sites. Websites either of established memorabilia businesses or those created from a more entrepreneurial, independent spirit can be easily created, (43) and can be easily found with a simple search via any popular search engine. For a party simply interested in the perusal and purchasing of murderabilia, the task is hardly a difficult one in a technical sense.
THE LEGISLATIVE RESPONSE
The Historical Backdrop: A Look Back at the Birth of Modern "Son of Sam" Legislation
The year was 1977, and the city of New York was being terrorized by one man. (44) David Berkowitz, first known as the ".44 Caliber Killer" for his penchant for that particular weapon, embarked on a killing spree that rendered him the target not only of the largest single investigative unit ever assembled by the New York police department, (45) but intense media attention. (46) This attention brought the distressing specter of ill-gained dollar signs: the serial killer stood to collect a very substantial royalty for his story. (47) Reacting to mounting public outrage, (48) the New York legislature acted swiftly and enacted N.Y. Exec. Law [sections] 632-a (soon to become better known as the "Son of Sam" law) and was intended to "ensure that monies received by the criminal under such circumstances shall first be made available to recompense the victims for that crime for their loss and suffering." (49) In effect, any profits that a criminal would make would instead be turned over to the New York Crime Board, which would in turn hold the money in escrow for the victims of the crime. (50)
"Berkowitz's story inspired the law, and Hill's story killed it." (51)
The law remained on the books, and was sporadically used, usually when a "celebrity" criminal seemed poised to profit from crime. (52) In 1986, however, a mobster named Henry Hill came onto the radar-screen of the New York Crime Board. (53) Indeed, his presence would have been difficult to ignore. A lifelong mafia "wiseguy" and eventual government...