Georgia bill would impose taxes on works containing factual accounts of crime

Wednesday, March 3, 1999

Anyone who “produces for profit a factual account of any serious violent felony” would have to pay a 10% tax on the work under a measure currently before the Georgia Senate.

Under the bill, 75% of the proceeds thus raised would go to the Georgia Crime Victims Emergency Fund and the remaining 25% would go the general fund of the county in which the felony was committed.

The Victims' Reimbursement Act of 1999 would impose a 100% tax on any “convicted perpetrator” for “all gross revenue” derived from such factual accounts.

Opponents of the measure contend it would violate free-speech rights and note that it would apply to such works as Midnight in the Garden of Good and Evil, a book and subsequent film based on a Savannah murder case, and to bound volumes of state court opinions sold to law firms and libraries.

The bill exempts “wholly fictional accounts of serious violent felonies in which no actual name of a victim or perpetrator” is used. It also exempts “factual accounts of serious violent felonies reported in any media as news reports or news items or to reprints or rebroadcasts of such accounts.”

The measure passed the Georgia House on Feb. 24 by a 164-6 vote. The measure was read for the first time in the state Senate on March 1. The Senate's Consumer Affairs Committee is scheduled to discuss this bill later today.

Rep. Chuck Sims, who sponsored the measure, insists the bill does not violate free-speech rights. “It's not a matter of the First Amendment and free speech. It's a matter of money.”

However, Rep. Tom Bordeaux says the measure is unconstitutional. “In effect, you're taxing people for the content of their thought,” he said.

Atlanta First Amendment attorney Alan Begner agrees, saying the bill contains numerous First Amendment flaws. “To begin with, this bill penalizes and imposes taxes not just on the perpetrators of serious violent felonies, or the seven deadly sins as I call them, but to any person who produces a story about one of these seven deadly sins,” he said.

“This measure is a prior restraint on speech and penalizes truthful speech based on its content — a clear First Amendment violation,” Begner said.

He also questioned the legality of a proposed law that would apply to nonresidents of the state. Begner concluded that the measure would be “dead on arrival” when and if it hit the courts.

The U.S. Supreme Court struck down a somewhat similar New York law in its 1991 decision Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board. The New York law was called the “Son of Sam” law, in reference to serial killer David Berkowitz, who claimed that his dog Sam had instructed him to kill his victims. After Berkowitz wrote a book about his crimes and collected money, the New York Legislature passed a law requiring accused and convicted criminals to deposit monies earned from such works into an escrow account from which crime victims and their families would be paid.

The U.S. Supreme Court ruled the “Son of Sam” law violated the First Amendment, writing that it “plainly imposes a financial disincentive only on speech of a particular content.”

Although the high court recognized that the state had compelling interests in depriving criminals of the profits of their crimes and in compensating victims, the court determined that the law was too overbroad and would apply to any work in which an author discussed a crime he or she had committed. The court noted the law could be read to apply to classic literary works, such as the Autobiography of Malcolm X and Henry David Thoreau's Civil Disobedience.

However, the court noted that it was striking down only the New York law and said it had “no occasion to determine the constitutionality” of other state laws.

— The Associated Press contributed to this report.