Page:United States Reports 502 OCT. TERM 1991.pdf/280

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SIMON & SCHUSTER, INC. v. MEMBERS OF N. Y. STATE CRIME VICTIMS BD. Opinion of the Court

cerated, including works by such authors as Emma Goldman and Martin Luther King, Jr. A list of prominent figures whose autobiographies would be subject to the statute if written is not difficult to construct: The list could include Sir Walter Raleigh, who was convicted of treason after a dubiously conducted 1603 trial; Jesse Jackson, who was arrested in 1963 for trespass and resisting arrest after attempting to be served at a lunch counter in North Carolina; and Bertrand Russell, who was jailed for seven days at the age of 89 for participating in a sit-down protest against nuclear weapons. The argument that a statute like the Son of Sam law would prevent publication of all of these works is hyperbole—some would have been written without compensation—but the Son of Sam law clearly reaches a wide range of literature that does not enable a criminal to profit from his crime while a victim remains uncompensated.* the Board’s contention that the statute is content neutral under our decisions in Ward v. Rock Against Racism, 491 U. S. 781 (1989), and Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986). In these cases, we determined that statutes were content neutral where they were intended to serve purposes unrelated to the content of the regulated speech, despite their incidental effects on some speakers but not others. Even under Ward and Renton, however, regulations must be “narrowly tailored” to advance the interest asserted by the State. Ward, supra, at 798; Renton, supra, at 52. A regulation is not “narrowly tailored”—even under the more lenient tailoring standards applied in Ward and Renton—where, as here, “a substantial portion of the burden on speech does not serve to advance [the State’s content-neutral] goals.” Ward, supra, at 799. Thus whether the Son of Sam law is analyzed as content neutral under Ward or content based under Leathers, it is too overinclusive to satisfy the requirements of the First Amendment. And, in light of our conclusion in this case, we need not decide whether, as Justice Blackmun suggests, the Son of Sam law is underinclusive as well as overinclusive. Nor does this case present a need to address Justice Kennedy’s discussion of what is a longstanding debate, see G. Gunther, Constitutional Law 1069–1070 (12th ed. 1991), on an issue which the parties before us have neither briefed nor argued.
 * Because the Son of Sam law is so overinclusive, we need not address