I’ve often been asked the following question: Could the State of Virginia file a motion to seize Jens Söring’s book advance and royalties and the fees for his story rights from Netflix, assuming they exist?
That’s a very interesting question. What follows is a detailed presentation of my opinions about the legal situation, subject to important disclaimers which you must read (see below).
To make a long story short, my opinion is: Yes, probably. Let’s look at the issue in depth. This will get technical, there’s no way around it. If you have questions, please post them in the comments.
“Son of Sam” Laws
In America, laws to seize the profits from criminals book or movie profits are called “Son of Sam” laws. That very odd name came from the case of the notorious American serial killer David Berkowitz, who claimed insanity and dubbed himself “Son of Sam” in writings to the police:
“The term “Son of Sam” is derived from the first law of this type, targeted at serial killer David Berkowitz, who used the name “Son of Sam” during his notorious murder spree in mid-1970s New York. After his arrest in August 1977, Berkowitz’s intense presence in the media led to widespread speculation that he might sell his story to a writer or filmmaker. Although Berkowitz denied wanting any kind of deal, the New York State Legislature swiftly passed preemptive legal statutes anyway, the first legal restriction of its kind in the U.S. The original New York law was invoked in New York eleven times between 1977 and 1990, including once against Mark David Chapman, the murderer of musician John Lennon.”
The popular appeal of such laws is obvious: Someone who is famous only because they committed a crime should not be allowed to profit from selling his or her life story. For that matter, the laws also serve a deterrent/preventive purpose: Someone who is contemplating committing a violent crime to become famous will now know in advance that they will not financially benefit from it (though they may still become famous). These laws were popular. Following New York’s lead, dozens of U.S. states passed so-called “Son of Sam” laws preventing convicted criminals from profiting from their crimes.
Each of these laws was different, and each raised its own set of legal questions. The most important one, of course, is whether these laws violate the First Amendment to the United States Constitution. It may be distasteful to see criminals profiting from telling their stories, but convicted criminals also have free-speech rights, and many works of literature are based in whole or in part on the stories criminals have told about their offenses. As a result, many state “Son of Sam” laws have been struck down by courts because they punished speech which was protected by the First Amendment.
The leading case on “Son of Sam” laws is without a doubt the landmark 1991 Supreme Court decision Simon and Schuster, Inc. v. Members of the New York Crime Victims Board, et al., 502 U.S. 105 (1991). The Supreme Court struck down the original version of New York’s “Son of Sam” laws in a unanimous decision:
As a means of ensuring that victims are compensated from the proceeds of crime, the Son of Sam law is significantly overinclusive. [T]he statute applies to works on any subject, provided that they express the author’s thoughts or recollections about his crime, however tangentially or incidentally…. In addition, the statute’s broad definition of “person convicted of a crime” enables the Board to escrow (in etwa “beschlagnahmen”) the income of any author who admits in his work to having committed a crime, whether or not the author was ever actually accused or convicted….
Should a prominent figure write his autobiography at the end of his career, and include in an early chapter a brief recollection of having stolen (in New York) a nearly worthless item as a youthful prank, the Board would control his entire income from the book for five years, and would make that income available to all of the author’s creditors, despite the fact that the statute of limitations for this minor incident had long since run. That the Son of Sam law can produce such an outcome indicates that the statute is, to say the least, not narrowly tailored to achieve the State’s objective of compensating crime victims from the profits of crime.
The Federal Government and many of the States have enacted statutes designed to serve purposes similar to that served by the Son of Sam law. Some of these statutes may be quite different from New York’s, and we have no occasion to determine the constitutionality of these other laws. We conclude simply that in the Son of Sam law, New York has singled out speech on a particular subject for a financial burden that it places on no other speech and no other income. 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. As a result, the statute is inconsistent with the First Amendment.
As the Supreme Court noted, the New York law plainly went too far — it applied even to works which only “tangentially or incidentally” related to a person’s crime, and it did not even require someone to be convicted of a crime. However, the Court noted that a more narrowly-drawn law — i.e., one that more precisely targeted only convicted criminals, and only the proceeds they got from detailed descriptions of their crimes (and not, say, their artworks or unrelated fictional works) — might be constitutional.
After the Simon and Schuster decision, almost every state changed amended their “Son of Sam” laws to make them more narrow and specific. The legal literature on “Son of Sam” laws in the United States is huge. There are hundreds of articles on the subject.
Yet one caste is mentioned particularly often. The state of Arizona developed one approach to this issue which did survive constitutional review in the 2002 case of Arizona v. Gravano. The case involved the notorious Mafia figure Salvatore “Sonny the Bull” Gravano. The author Peter Maas had written a non-fiction book about Gravano called “Underboss: Sammy the Bull Gravano’s Story of Life in the Mafia”. Gravano himself was entitled to royalties from this book. He had also been convicted of racketeering (i.e. playing a key role in a criminal organization) charges in federal court.
The state of Arizona filed a motion to seize Gravano’s royalties from Maas’ book. Importantly, Arizona did not use its own version of a “Son of Sam” law — instead, the court simply ordered Gravano to turn over all the proceeds from his crimes — including the royalties from the book. Gravano challenged the forfeiture order, claiming it “would violate the First Amendment to the United States Constitution, [and] that the book royalties were not proceeds traceable to racketeering.”
The Arizona Court of Appeals disagreed. It noted that the law Arizona was using was its general forfeiture law — i.e., a law the state can used to seize any assets resulting from crime, from a Rolex to a Jaguar. Nor was Arizona discriminating on the basis of content: “Arizona’s forfeiture statutes contain no reference to the content of speech or expressive materials.” That is, it wasn’t saying “You can profit from a book in which you do express remorse for your crime, but you can’t profit from a book in which you don’t express remorse.” That is called “content discrimination”, and is unconstitutional under American law. The law simply states you can’t profit from any book which people only want to read because it was written by a famous criminal:
“The forfeiture laws come into play based on the existence of a causal connection between racketeering and property. As the State asserts, when forfeiture of book proceeds is sought, the causal connection between racketeering conduct and the proceeds is present if the commercial value of the book contract is substantially the result of racketeering. In other words, a causal connection exists if the storyteller’s notoriety from racketeering is what makes the story marketable….
To put it a bit more simply, if the value of your book contract is based mainly on the fact that you are a famous criminal, then the book contract and royalties are “proceeds” of your crime and can be seized just like any other proceeds, such as a Rolex or a Jaguar. What you say in the book doesn’t matter — the only thing that matters is that the book has value primarily or exclusively because you’re a famous criminal.
The court also held that the forfeiture laws served important purposes: deterring fame-seeking criminals, compensating victims, and preventing criminals from profiting from wrongdoing. Further, the court held that it didn’t matter that the state of Arizona was seizing profits from a book based on crimes committed in New York:
We therefore conclude that Arizona has a compelling interest in ensuring that victims of crime are compensated and in ensuring that criminals do not profit from their crimes when the criminal has relocated to Arizona, even if the victims do not reside in Arizona and the crimes were committed elsewhere.
Obviously, “Son of Sam” or forfeiture laws would become meaningless if a criminal could escape them merely by crossing state lines.
Gravano appealed this decision to the Arizona Supreme Court and the United States Supreme Court, but both courts refused the appeal. Of course Gravano only applies in Arizona, since a U.S. state court can only determine what the U.S. Constitution means within that state. Only the U.S. Supreme Court can determine what the Constitution means across the entire USA. However, Gravano is a convincing and well-reasoned decision, and has thus become influential — not least because it shows all American state and federal legislators how to draft a “Son of Sam” law which is constitutional.
The Virginia “Son of Sam” law
Virginia’s “Son of Sam” law can be read here. It was passed in 1990, and revised in 1992 and 2006. It is clear that the Virginia legislature has paid attention to cases like Gravano. The crucial portion of the law reads:
Any proceeds or profits received or to be received directly or indirectly, … by a defendant or a transferee of that defendant from any source, as a direct or indirect result of his crime or sentence, or the notoriety which such crime or sentence has conferred upon him, shall be subject to a special order of escrow.”
Is it constitutional? Let’s look at it under the Simon & Schuster/Gravano framework.
First, does it apply only to convicted criminals? Yes. Of course, “defendant” refers to a person who is charged with a crime. It doesn’t include the term “suspect” (Beschuldigter). A defendant (Angeklagter) only becomes a defendant after he or she is formally charged with a crime. And he or she only stays a “defendant” during the trial. Upon conviction, the defendant becomes a convicted (verurteilte) criminal. Technically, you could say that the Virginia law only applies to defendants:
Hypothetical: “I shot the sheriff, but I did not shoot his deputy. The state charged me with murder on 1 January and put me on trial. I was convicted on 1 May. During that 5-month process I was the “defendant” and the state could seize my book profits if I wrote a book. But after I was convicted, I became a “prisoner”. I was no longer a “defendant” because my “defense” had failed. It ws over. I was therefore now a convict, and the State could no longer seize my book profits.”
I would call this a case of bad law-writing. It’s clear what the Virginia “House of Delegates” (Landtag) had in mind. By the way, “House of Delegates” is an amusingly antique phrase dating back centuries. Virginia, after all, is a very old state. That’s also why it calls itself a “commonwealth”, not a normal “state”.
Second, does the Virginia law apply only to books or movies or “expressive works”? No. It applies to “any proceeds or profits” — a Rolex, a Jaguar, or a contract for a book about your famous crime.
Third, is it content-neutral? Yes. Not only is there no mention of books or movies, there is no mention of what the contents of the book or movie might be. The only thing that matters is whether the book contract had value “as a direct or indirect result of [the defendant’s] crime or sentence, or the notoriety which such crime or sentence has conferred on him”. This also addresses the problem the Supreme Court described in Simon & Schuster: You can’t seize the profits from a book which merely contains some short description of you committing a crime once upon a time. You can only seize the profits if the main or exclusive reason your story has value is because you committed a crime.
I am not aware of any court judgments on whether the Virginia law is constitutional. However, at least one prominent American constitutional law commentary thinks it is:
For example, Virginia’s law, which seizes “[a]ny proceeds or profits received or to be received directly or indirectly by a defendant or a transferee of that defendant from any source, as a direct or indirect result of his crime or sentence, or the notoriety which such crime or sentence has conferred upon him,” may well be constitutional. Such a law would seize proceeds from the sale of autographs, personal belongings, or the account of the crime without targeting speech or discriminating on the basis of viewpoint or content.” § 15.01[E].
Now let’s look at Söring’s situation. Before I do this, however, I need to issue several disclaimers. After all, we lawyers love disclaimers.
Disclaimers!
Disclaimer #1: This post is not legal advice. It is merely the private opinion of one person. My law license is on “inactive” status, which means I cannot practice as a lawyer unless I decide to re-instate it (which I could do at any time). I cannot and do not represent any person in any legal capacity.
Disclaimer #2: I am not familiar with the contents of Söring’s book/Netflix contracts. I have never seen them. Perhaps Söring agreed to write his book for free, or give the rights to his story to Netflix for free. If so, nothing in this post applies to him. The comments below rely on the assumption that Jens Söring received payment in some form for his book and his story rights. It is possible that he did not.
Disclaimer #3: Although I am an expert on American constitutional law and comparative constitutional law, I am not an expert on the law of the Commonwealth of Virginia. I cannot find any Virginia court cases which discuss Virginia’s Son of Sam law. I am also unaware of whether the law has ever been used. A court may later find it unconstitutional. But no court has apparently yet done so.
Again, I repeat that this entire post is a private individual’s opinion on an interesting legal subject. That being said, Art 5 of the German Basic Law protects the right of private individuals to give their opinion on legal issues, including specific cases. There’s nothing magical about opinions on legal issues any more than opinions on moral or social issues; any German can say “I think that Facebook comment is an illegal insult” or “I think Uli Hoeneß is innocent” or “Vodafone isn’t paying enough in taxes” or “Germany is a Corona-dictatorship” or “racial discrimination is rife in the German legal system”. If the German constitution didn’t protect opinions which contain an implicit — or even explicit — legal judgment, it would be worthless.
So, enough disclaimers for you? Great, let’s get down to it.
The Virginia Law Applies to Söring’s Media Contracts
First, it doesn’t seem to matter where Söring signed his contracts. The Virginia law isn’t limited by geography. After all, if a bank robber could escape the law and keep his loot by simply moving to Mexico, what use would the law be? As a practical matter, though, the fact that Söring now lives in Germany and the contracts were paid there would raise many complications. The first one is that the defendant is entitled to a hearing before his assets are seized, and if Söring ever sets foot in the United States, he will be returned to prison to serve out his life sentence. However, there may be ways of handling this issue by affidavits or even teleconferencing.
If the Virginia prosecutor did get an escrow order from the court, actually enforcing that order in Germany — i.e., forcing Söring to actually surrender his proceeds — would be complicated. There may be German laws on the subject, for instance. But that’s not the subject of this post. The subject is whether, in my opinion, it would be possible to get such an order.
Second, assuming Söring was paid for his book and story rights, these would seem, in my opinion, to clearly be subject to the law. The only reason large numbers of people care about Jens Söring’s story — which makes his story valuable — is because he murdered Derek and Nancy Haysom. Of course, there are many other parts of his life and his story — his experiences in prison, his religious and political views, his non-case-related books, etc.
But his notoriety is all based on the crime. People may care what Söring has to say on many issues, but the only reason they know about him in the first place is because he killed the Haysoms and was convicted of that crime.
Third, the books and Netflix series discuss his case extensively. This is important, because the Virginia law says:
Any proceeds from a contract relating to a depiction or discussion of the defendant’s crime in a movie, book, newspaper, magazine, radio or television production, or live entertainment or publication of any kind shall not be subject to a special order of escrow unless an integral part of the work is a depiction or discussion of the defendant’s crime or an impression of the defendant’s thoughts, opinions, or emotions regarding such crime.
In my opinion, having read Söring’s 2021 book, this “integral part” standard is easily satisfied. Söring mentions Elizabeth Haysom 80 times (!) in the book, and the book is full of “thoughts, opinions, or emotions” about the crime — namely, that he didn’t commit it. This will also surely be true of the Netflix series.
A final issue is how any payments to Söring — assuming they exist — were structured. Söring has talented lawyers helping him, and they were surely aware of the existence of Virginia’s Son of Sam laws. They may have taken steps to try to avoid the impact of these laws. For instance, the royalty payments might go to an independent private-law foundation — the “Jens Söring Trust”, which officially received the money from Netflix and Random House. Perhaps the money was paid to a company. Perhaps the funds were paid to an offshore account. Perhaps the funds were paid directly to Söring’s lawyer, or to a friend, or to someone else.
Let me repeat that I do not know whether any of this happened. But it makes sense to assume that steps were taken to try to protect the funds from any forfeiture. Does that frustrate the law? Of course not! Anybody in their right mind would assume that a convict who’s cashing in on his story would know about this law, and that his lawyer would try to avoid it. If it were that easy to defeat the law, the law would be meaningless — a dead letter.
That is why the law speaks of “by a defendant or a transferee (Empfänger) of that defendant”. There are two issues here.
The first is that is appears to refers to people or entities receiving money from Jens Söring. So if Söring structured the transaction as (1) Söring gets the money; then (2) transfers it to a friend, Söring is out of luck. Or rather, his friend is: The friend can be forced to forfeit the money.
However, let’s say Söring signed a contract which said that the money goes straight from Netflix/Random House to “Söring Stories GmbH” or “The Söring Foundation” or Söring’s friend or lawyer. The “transferee” part of the law wouldn’t apply, because the GmbH or foundation or friend did not get the money from Söring — they got the money from Random House/Netflix.
An ingenious legal trick, that would be! So Söring can enjoy his cash, right?
Not so fast! The problem here is that the GmbH or Foundation or friend cannot ever transfer the money to Söring. Look carefully at the language: “[a]ny proceeds or profits received … indirectly, … by a defendant … from any source, as a direct or indirect result of his crime or sentence…”
Let’s clarify the issue with another hypothetical. Don’t you love them?
Hypothetical: The “Jens Söring Foundation” (JSF) (director, one of Söring’s friends) signs a contract with Random House/Bertelsmann (RHB). RHB transfers €100,000 to the bank account not of Jens Söring, but to the JSF. If the JSF uses the money to build wells in Rwanda, that’s fine. Case closed. But the JSF eventually transfers some or all of the money to Jens Söring.
If this happens, Söring has “indirectly” received “profits or proceeds” from “any source…as direct or indirect result of his crime or sentence” or notoriety.
So, according to my opinion as a private person, based on my informal analysis of the legal situation, any money Söring has ever received “from any source”, even “indirectly”, as a result of his book and Netflix deals could be subject to escrow under Virginia law. It would then be paid to the victims or survivors of Sörings crimes or to a general victim-compensation fund.
Will it ever happen? Who knows? The only person who is entitled to file a lawsuit to place Söring’s crime proceeds in escrow is the “Attorney for the Commonwealth” in the “circuit court of the jurisdiction where the defendant was convicted” — i.e., Bedford County, Virginia. That post is currently held by Wes Nance.
I hope you have enjoyed this legal opinion — and I stress it is merely an opinion.
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