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The Balloon Boy's Parents and the First Amendment

Yes!!! There is a First Amendment angle to the Balloon Boy story!

Yikes. Yes, the Balloon Boy family screwed up, but 30 days in jail for the dad and 20 days in jail for the mom, in addition to having to pay back all the money that the authorities spent chasing down the balloon… it seems a little bit over the top.

The judge, noting that the hoax was “all done for making money,” also barred Richard and Mayumi Heene from receiving any financial benefit –such as a book deal — in connection with the incident. (source)

I would like to see the exact text of that order before giving a firm opinion on it, but that seems like a First Amendment problem to me. In Simon & Schuster v. Crime Victims Board 502 U.S. 105 (1991), the Supreme Court unanimously knocked out a New York law that prohibited criminals from making money by selling their stories.

In Keenan v. Superior Court of Los Angeles County, 27 Cal. 4th 413; 40 P.3d 718; 117 Cal. Rptr. 2d 1 (2002), the California Supreme Court knocked out the California Son of Sam law,

“[The law suffered from] the same fundamental defect identified in Simon & Schuster; it reaches beyond a criminal’s profits from the crime or its exploitation to reach all income from the criminal’s speech or expression on any theme or subject, if the story of the crime is included.”

Before you Fox News types start flipping out about “what about the victim?” or “the criminals don’t deserve money” consider the First Amendment issue. The California Supreme Court recognized that laws like this “[discourage] the creation and dissemination of a wide range of ideas and expressive works which have little or no relationship to the exploitation of one’s criminal misdeeds.” In other words, the First Amendment problem stems from the fact that we all lose out on the literature that might be created, if the law prohibits the incentive to create it. In the end, the the marketplace of ideas suffers — therefore we all suffer.

The Colorado Son of Sam Law, Colo. Rev. Stat. 24-4.1-201 (2009) seems (on a quick read) to be constitutional. It doesn’t altogether prohibit criminals from profiting from selling their stories. However, if they do sell their story, any money they would have earned goes into an escrow account for five years. During that time, any victims of the crime can get judgments against the funds in the escrow account. After the victims get paid, the state can tax the escrow account to cover the cost of the criminal’s incarceration. After that is paid, the criminal can have what is left over.

The LA Times article does not make it clear if the judge rendered his order under C.R.S. 24-4.1-201, or if he just made the order up at the bench. However, if the LA Times has the coverage right, I don’t think that this portion of the order would stand. Of course, who knows if the LA Times got the coverage right. I will update this post if I get confirmation of the exact language of the judge’s order and the basis for his “Son of Sam” language.

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