Academic journal article Rutgers Computer & Technology Law Journal

The Prodigal "Son" Returns: An Assessment of Current "Son of Sam" Laws and the Reality of the Online Murderabilia Marketplace

Academic journal article Rutgers Computer & Technology Law Journal

The Prodigal "Son" Returns: An Assessment of Current "Son of Sam" Laws and the Reality of the Online Murderabilia Marketplace

Article excerpt

"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)

I. INTRODUCTION

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. …

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