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.

13 Responses to The Balloon Boy’s Parents and the First Amendment

  1. Speaking as a Fox News type (somewhat) I have to say I agree with you. If people are stupid enough to want to pay to see what this crumb has to say, maybe it just proves he was right about most of us after all.

  2. Alan says:

    > 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.

    If it were part of a plea agreement, I don’t see how it would abridge the defendants’ First Amendment Rights.

  3. Sean F. says:

    I only ever watch Fox News if I want to laugh at the BS they’re spouting. Typically, the guests they have on are smarter than they are, so it’s pretty funny to watch the FN people try to stammer their way out of a losing argument.

    On-topic:

    I, too, would like to see a full-text copy of the order.

  4. yoshi says:

    What will happen to the press which spent hours breathlessly “reporting” on this story without a shred of credible evidence? Oh yea – higher ratings.

  5. Julius Ray Hoffman says:

    Dude, what’s with the gratuitous use of Pedobear? I mean… really… what’s this world coming to? Is it just OK to toss Pedobear in any post about anything, like putting whip cream and a cherry atop chocolate cake? No, I tell you. It is not OK.

    What’s next… EFG as the pilot of that there aircraft?

  6. Clint says:

    But it’s okay for Fox News to make money from the endeavor, of course! :)

  7. […] OVERLY-HARSH PUNISHMENTS? Balloon Boy’s Parents Get Jail Time – and possibly unconstitutiona… The Legay Satyricon explores the first amendment issues behind the judge's order that Balloon Boy's parents cannot profit from their endeavors as a result of his ruling. Personally, I think it's a first amendment issue too. (tags: politics OverlyHarshPunishments Constitutionalright rights 1stAmendment FirstAmendment FreedomOfSpeech FreedomOfPress speech press TheLegalSatyricon legal rulings RichardHeene MayumiHeene BalloonBoy hoaxes SonOfSam blog news articles) […]

  8. […] OVERLY-HARSH PUNISHMENTS? Balloon Boy’s Parents Get Jail Time – and possibly unconstitutiona… The Legay Satyricon explores the first amendment issues behind the judge's order that Balloon Boy's parents cannot profit from their endeavors as a result of his ruling. Personally, I think it's a first amendment issue too. (tags: politics OverlyHarshPunishments Constitutionalright rights 1stAmendment FirstAmendment FreedomOfSpeech FreedomOfPress speech press TheLegalSatyricon legal rulings RichardHeene MayumiHeene BalloonBoy hoaxes SonOfSam blog news articles) […]

  9. Melvin H. says:

    Um, Clint, Fox News (and all the other news organizations who follow this story) did NOT break any laws. FOr the judge to order the family to NOT profit from this is not too much different than, say, the judge writing an order that prevents a mass murderer from writing his/her life story and making $$$$ from his/her crime(s).

  10. Well, call me crazy, but this sentence/agreement/whatever doesn’t seem to say they can’t write books, produce movies and otherwise exercise their First Amendment right. It just says they can’t receive payment from them.

    In fact, wouldn’t this be an Affirmation of their rights to _Free_ Speech? (rimshot)

    • Take a look at the cases I cited. That will answer your question.

      As far as your AWFUL joke goes… one more outburst like that and I’m going to force you to listen to Rip Taylor tapes until your ears bleed.

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