Late mob informant leaves First Amendment legacy

Tuesday, June 19, 2012

Mobster-turned-informant Henry Hill’s recent death at age 69 was a reminder not only of “Goodfellas,” the hit movie about his exploits, but also of an important First Amendment case in which he was involved.

Hill was the subject of Nicholas Pileggi’s best-selling book Wiseguy — a nonfiction work on which “Goodfellas” was based. The movie, in which Ray Liotta portrayed Hill, inspired a legion of fans and countless other mobster movies.

Hill claimed that all he ever wanted to do was become a gangster. As Justice Sandra Day O’Connor later wrote, “Whatever one might think of Hill, at the very least it can be said that he realized his dreams.” He orchestrated a point-shaving scheme in college basketball, stole millions from an airline company and committed an assortment of other crimes.

Hill’s connection to freedom of speech and First Amendment jurisprudence stems from Simon & Schuster v. Crime Victims Board (1991). In that case, the U.S. Supreme Court ruled on the constitutionality of New York’s so-called “Son of Sam” law, which state officials used to claim money paid to Hill by publisher Simon & Schuster for the book Wiseguy. The Court unanimously held that New York’s law unconstitutionally burdened free speech because it placed a financial burden on certain books on the basis of their content.

The Crime Victims Board sought to apply the law to force the monies Simon & Schuster paid to Hill into an escrow fund that would be used to reimburse crime victims. Simon & Schuster objected, contending that the law violated the First Amendment. Writing for the Court, Justice O’Connor sided with Simon & Schuster, noting that “the statute plainly imposes a financial disincentive only on speech of a particular content.”

O’Connor acknowledged that the state of New York had a compelling interest in ensuring that crime victims received restitution and that criminals didn’t profit from their wrongdoing. But the law suffered from problems, including that it was drafted far too broadly. It applied to any expressive work in which the creator talks about past crimes. O’Connor pointed out that this law would have allowed the board to take proceeds from the publishers of The Autobiography of Malcolm X and Civil Disobedience by Henry David Thoreau.

“The State’s interest in compensating victims from the fruits of crime is a compelling one, but the Son of Sam law is not narrowly tailored to advance that objective,” O’Connor concluded. “As a result, the statute is inconsistent with the First Amendment.”

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