Summary
Alabama House Bill 180 would deem to be profit from a crime any income generated from a movie, book, or any other media that describes or depicts the crime and includes any thoughts, feelings, opinions, or emotions of “an individual” (presumably this is meant to be the person convicted of the crime). Any publisher, producer or other speaker who agrees to pay the person convicted of a crime any share of the profits from such speech must give the board of adjustment written notice of the payment or obligation to pay.
Failure to report is subject to a fine of $1,000 or 10 percent of the contract obligation, whichever is greater. There is no jurisdictional limitation on the reporting requirement.
Status
The bill was amended to remove the provision that applied to income generated from movies, books, or any other media. The amended bill was passed and signed by Governor Kay Ivey on May 31, 2019.
Action
On April 6, 2019, Media Coalition submitted a memo in opposition to the bill as introduced to the House Committee on Judiciary.
Analysis
The bill would burden speech by a particular category of speaker on a particular subject. The burden would be two-fold: a burden on the publisher or producer to report the contract to the state adjustment board, at the risk of a fine for failing to do so; and a burden on the convicted person, whose payments in connection with expressive activity are singled out from other sources of income for restitution.
In 1991, the Supreme Court struck down a New York that required all profits from the sale of a criminal story to be given to a crime victims board for the state and allowed victims of the criminal to file a suit to access the profits account. The Court held that the law violates the First Amendment because it imposes a financial burden on speakers because of the content of their speech. Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Board
Unlike the New York law at issue in Simon & Schuster, H.B. 180 would not require deposit of payments made under a media contract into an escrow fund, but the burdens on speech that the bill would impose raise the same First Amendment concerns that the Supreme Court identified in the 1991 case. Like the New York law, H.B. 180 is clearly content-based, as it applies to media that includes depictions or descriptions of the thoughts or views of the perpetrator. By requiring the reporting of contracts involving expressive works relating to specific criminal acts, the bill would establish a financial disincentive for that type of content.
Crime and criminal justice are among the most important subjects of public discourse. First Amendment values are served by more speech, not less, on topics of public concern, even when that speech may be widely regarded as ignorant or offensive. The perpetrators of crimes, no less than anyone else, have the right to participate in that dialogue; indeed, they may offer a particularly valuable perspective on the root causes of crime, its methods, and its consequences, as well as insight into more just and effective means of law enforcement.
By imposing a reporting and financial burden on the creation of expressive works that uses the thoughts or opinions of the person convicted of the crime, H.B. 180 would strike at the heart of the constitutional right of all persons to speak on all subjects.
History
On March 19, 2019, H.B. 180 was introduced and referred to the House Committee on Judiciary.
On April 6, 2019, Media Coalition submitted a memo in opposition to the bill as introduced.
On April 16, 2019, the House passed the bill. The bill was sent to the Senate and referred to the Senate Committee on Judiciary.
On May 31, 2019, the Senate amended the bill to remove the provision that applied to income generated from movies, books, or any other media. The Senate passed the amended bill and sent it to the governor. Governor Kay Ivey signed the bill.