Another Concord Monitor Article

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The Concord Monitor published it's first article about "Murderabilia" and immediately after it published a reader response letter showing how the article swayed public opinion to believe Pamela and her family were profiting from the sale of items.  Mrs. Wojas called the editor, left her name and number, stated that she wished to comment on an article that appeared in his newspaper, and he did not return her call.  She then contacted the author of the article, AnnMarie Timmins, gave her the statement, she repeated it for verification and Mrs. Wojas requested the statement be given the same prominence as the original article.The very next day the Concord Monitor chose to publish the article below rather than allow the family to defend themselves. 

   Please be advised that unequivocally and without question neither my daughter, Pamela Smart, nor anyone from her family has profited from the sale of so-called murderabilia resulting from her tragic imprisonment.  We wholeheartedly support Representative DeJoie's proposed legislation calling for penalties for those who profit from the misdeeds of others.       

                                        Pamela Smart's Family
First Amendment protects convicts, too

May 14. 2007 8:00AM

ut Jeffrey Dahmer's grocery list up for auction and the bids would pour in. The same would be true if Lizzie Borden's ax or Unibomber Ted Kaczynski's postage scale were on the block.

Whether it's a morbid fascination with the macabre, a sick sense of humor, a desire to shock one's friends or proof of a troubled mind, many people are fascinated by murderers. Enough of them exist that, as Monitor reporter Annmarie Timmins reported, there are entire auction sites devoted to the sale of the class of collectibles known as "murderabilia."

Among the items listed on such sites recently was a letter signed by David Berkowitz, the "Son of Sam" killer, an eerie portrait of a clown by John Wayne Gacy, who raped and murdered 33 boys, and photographs of convicted New Hampshire murderer Pam Smart in her lingerie. That last item, put up for bid by an unknown seller or sellers, sold quickly.

Since Smart herself apparently neither sold the photographs nor profited from them, a bill sponsored by Concord state representative John DeJoie, if it were law, would not have prevented the sale. The bill requires anyone who "has been convicted, has pled guilty or has pled nolo contendere to any crime to forfeit to the superior court any proceeds or profits from any source, as a direct or indirect result of the crime or sentence."

No one wants to see criminals profit from their crimes or cause their victims further suffering. But lawmakers were wise to send DeJoie's bill back to committee for study. Loosely written murderabilia laws have a poor record when challenged in court.

In 1991, the U.S. Supreme Court, on First Amendment grounds, struck down a New York law that prevented a publisher from offering Berkowitz a large sum to tell the story of his serial slayings. Such a broadly-written law could, the court said, conceivably have discouraged the writing of the Autobiography of Malcolm X, the telling of the story of the Watergate burglary, Thoreau's Civil Disobedience and other works of public interest and social and literary value.

DeJoie's bill overreaches. It appears to apply not just to anyone who has been convicted of a crime but also to anyone who has pleaded guilty or no contest. While convictions are by far the norm with guilty and nolo pleas, not everyone who says those words is ultimately convicted. A no contest plea cannot be used as evidence when crime victims sue for damages in a civil proceeding. It should not be cause for abridging free speech rights.

Deciding whether a criminal is profiting directly or indirectly as a result of his or her crime will also prove problematic.

Some criminals write good or excellent books, create legitimate works of art or craft beautiful furniture and other objects. Does the cachet that can come with owning something produced by a notorious person add to its intrinsic value? Probably. But by how much, and who decides?

It's reasonable to prevent a convicted criminal from profiting from the notoriety that comes with committing a sensational crime, but that goal should not be met at the expense of the First Amendment. Lawmakers should proceed cautiously with this one.