## Facts

- The Massachusetts Senate requested an advisory opinion on whether Senate No. 1939, “An Act relative to profits from crime,” would violate the First Amendment and Article 16 of the Massachusetts Declaration of Rights.
- The bill would add Mass. Gen. Laws ch. 258D and require certain “contracts with a defendant” to be submitted to the Attorney General’s victim-compensation division when the consideration to be paid would constitute “proceeds related to a crime.”
- “Defendant” was defined to include a person with pending criminal charges, a person convicted of a crime, or a person who had “voluntarily admitted” committing a crime.
- “Proceeds related to a crime” was defined broadly to include assets or money obtained through use of “unique knowledge or notoriety acquired” by committing a crime, from any source and whether paid before or after disposition of criminal charges.
- A contracting party that knew or reasonably should have known the consideration would be crime-related proceeds had to submit the contract to the division within a short period (the bill set specific submission deadlines).
- The division would decide whether the proceeds were “substantially related to a crime” rather than only tangentially related or containing passing references, and would notify the contracting party.
- If the division found the proceeds substantially crime-related, the contracting party had to pay the monies to the division for deposit into an escrow account (or post a bond). The payment duty was not stayed by reconsideration or judicial review.
- The division’s determination was treated as final unless the contracting party sought reconsideration or judicial review under the state administrative-review statute, with the challenger bearing the burden to show error; the bill did not set a time limit for completion of judicial review.
- The division had to notify known victims and publish notice periodically for a specified period. Victims could sue civilly within three years from the last publication, and any judgment could be paid from the escrowed funds.
- If no victim recovered (or after judgments were paid), remaining escrowed funds would be split: part returned to the contracting party and part transferred to the state victims’ compensation fund.

## Issues

1. Does the proposed “profits from crime” escrow scheme impose a content-based financial burden on speech in violation of the First Amendment and Article 16?
2. If strict scrutiny applies, is the bill narrowly tailored to the Commonwealth’s interests in compensating victims and preventing criminals from profiting from crime?
3. Do the bill’s definitions and triggers—such as “proceeds related to a crime,” “unique knowledge or notoriety,” and “substantially related”—sweep too broadly or operate too uncertainly in a way that chills protected expression?
4. Do the escrow, reconsideration, and judicial-review provisions (including immediate payment into escrow without a stay, burden shifting, and no review timetable) raise constitutional concerns tied to procedural fairness in a speech-sensitive setting?
5. If parts of the bill are unconstitutional, can any provisions be severed so that non-speech-focused portions could remain operative?

## Decision

- The Justices advised that, as drafted, the bill would be unconstitutional in significant respects under the First Amendment and Article 16 because it singled out income linked to crime-related expression and notoriety for special financial burdens.
- The proposed law was treated as a “Son of Sam”-type statute and analyzed in light of Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., which condemned content-based burdens targeted at speech about crime.
- Even assuming the Commonwealth’s interests in victim compensation and preventing profiting from crime were compelling, the bill was not drawn narrowly enough because it targeted speech-derived proceeds while leaving other assets available to defendants untouched.
- The escrow mechanism functioned as a serious deterrent to speech by requiring money to be diverted and held based on an administrative determination, without a stay during reconsideration or judicial review and without a guaranteed prompt final judicial decision.
- The breadth and uncertainty of the bill’s coverage, including application to those only charged or who had “voluntarily admitted” a crime, heightened the risk of chilling lawful speech.
- The Justices indicated that some provisions not tied to content-based regulation of speech might be severable, but the central speech-linked escrow scheme could not stand as written.

## Legal Principles

- Laws that impose financial burdens because of the content of speech are presumptively invalid and generally trigger strict scrutiny under the First Amendment and Article 16.
- A State may seek to compensate crime victims and prevent criminals from profiting from crime, but it may not do so by singling out speech or expressive income about crime when broader, content-neutral tools (such as ordinary civil remedies and collection methods) are available.
- A statute that diverts or freezes proceeds tied to expression based on an administrative content-related determination, especially without prompt and effective judicial safeguards, raises heightened First Amendment concerns.
- Overbroad or uncertain standards in speech-linked regulations increase the risk that speakers, publishers, and contracting parties will self-censor to avoid financial penalties or administrative entanglement.
- Severability turns on whether unconstitutional features can be removed without rewriting the statute or defeating the Legislature’s basic design; when the central mechanism is speech-targeted, severance may be limited.

## Conclusion

In this advisory opinion, the Massachusetts Justices told the Senate that Senate No. 1939’s proposed “profits from crime” escrow system, keyed to proceeds derived from crime-related “unique knowledge or notoriety,” imposed a content-based burden on expression that could not survive strict scrutiny and was aggravated by broad coverage, immediate escrow without a stay, and weak review protections; while discrete non-speech-related provisions might be severable, the core speech-linked escrow scheme was unconstitutional as drafted.


Opinion of the Justices to the Senate, 764 N.E.2d 343 (2002)