Why We Love Serial Killers (34 page)

The trial court judge in the Lerner case relied on a US Supreme Court decision from 1991—that is,
Simon & Schuster Inc. v. New York State Crime Victims Board
—to support his decision. The Nevada Supreme Court subsequently reaffirmed the lower court decision and struck down the Son of Sam law, relying once again on the Simon & Schuster precedent.

The Simon & Schuster Decision

What exactly is the Simon & Schuster Supreme Court decision and why is it important? In 1987, the state of New York attempted to enforce its Son of Sam law after admitted organized crime figure Henry Hill, who was in the federal witness protection program at the time, entered into a contract with major publisher Simon & Schuster to tell his life story. This relationship led to Nicholas Pileggi’s acclaimed book
Wiseguy: Life in a Mafia Family
, which was later made into the blockbuster Hollywood film
GoodFellas
. The state of New York ordered Simon & Schuster to suspend all royalty payments to Hill as mandated by its Son of Sam law. The publisher sued the state claiming a violation of its First Amendment rights. The case eventually reached the US Supreme Court, which ruled in 1991 in
Simon & Schuster Inc. v. New York State Crime Victims Board
that the New York law indeed violated the First Amendment.

The US Supreme Court voted unanimously to strike down the New York State law, finding that it was an overzealous and excessive attempt to protect victims’ rights. The court noted that “a statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech.” The Supreme Court further noted that the law was “content-based” because it applied only to works with a particular content. In First Amendment jurisprudence, according to Hudson, content-based laws must be justified by a compelling state interest in a narrowly tailored way. The Supreme Court
found that state officials had a compelling interest, stating, “There can be little doubt, on the other hand, that the State has a compelling interest in ensuring that victims of crime are compensated by those who harm them.” The high court also found that the state had a compelling interest in preventing criminals from profiting from their crimes.

Nevertheless, as explained by Hudson, in striking down the New York Son of Sam law, the US Supreme Court determined that it was too broad or “over-inclusive.”
¹¹⁸
The law broadly defined a “person convicted of a crime” to include “any person [such as Henry Hill] who has voluntarily and intelligently admitted the commission of a crime for which such person is not prosecuted.” The New York law applied to creative works about crime even if the discussion about it was tangential or incidental to the work as a whole. The Supreme Court reasoned that the New York law, as it was written, could apply to
The Autobiography of Malcolm X
, Henry David Thoreau’s
Civil Disobedience
or even
Confessions of St. Augustine
. A list of prominent figures whose “autobiographies would be subject to the statute if written is not difficult to construct,” Justice Sandra Day O’Connor wrote for the Supreme Court. Justice O’Connor further wrote, “That the New York Son of Sam law can produce such an outcome indicates that the statute is, to say the least, not narrowly tailored to achieve the State’s objective of compensating crime victims from the profits of crime.”
¹¹⁹

O’Connor emphasized that the decision affected only New York’s law and did not affect similar laws passed by the federal government or other state governments. “Some of these statutes may be quite different from New York’s and we have no occasion to determine the constitutionality of these other laws,” Justice O’Connor concluded.

In summary, the constitutional hurdles imposed by the Simon & Schuster decision are quite high. Following the decision by the Supreme Court, many states, including New York and California, amended their Son of Sam statutes. The amended California law is a bit narrower than the New York law that was ruled unconstitutional. California’s statute applies only to persons actually convicted of felonies and exempted those works that had merely “passing mention of the felony, as in a footnote or bibliography.” Several other state supreme courts have invalidated Son of Sam laws entirely on First Amendment grounds. The clear message from these decisions is that legislation must be narrowly crafted to survive constitutional challenges. As concluded by David Hudson, it is evident that states must clear high First Amendment hurdles before
targeting the expressive works of criminals on the basis of the content of their speech.
¹²⁰
Forty states still have Son of Sam laws on the books but their enforcement is inconsistent.

The Son of Sam laws are not the only means available to victims seeking restitution from criminals who profit from their crimes. Legal analyst and commentator Julie Hilden has pointed out that there is another legal method for victims to recover financial damages from criminals—that is, civil tort suits. Hilden explained, “Crime victims and/or their families are always free to file a multimillion dollar tort suit, and go after a criminal’s profits by suing for financial damages.”
¹²¹
Hilden has said that these civil laws “might best be thought of as Son of Sam laws in disguise.” The key point is that unlike Son of Sam laws, civil suits are not intended to target free speech in particular and, thus, these laws do not pose First Amendment violations. Therefore, according to Hilden, it is likely that the push for restitution by crime victims and their advocates in the future will focus on general civil-forfeiture actions or traditional tort suits against the criminals. States will likely extend the statute of limitations period for such lawsuits in order to assist crime victims and their families.

Why Murderabilia Vendors Refuse to Back Down

The sellers of murder memorabilia have no intention of abandoning their lucrative trade, despite the controversy surrounding it and the ongoing attempts by others to shut them down. For example, when asked if he feels guilty for profiting from the horrible crimes of others, Eric Gein, the man who owns and operates
SerialKillersInk.net
, insisted he does not. “I don’t feel badly at all,” he told ABC News. Somewhat shockingly, Gein further said, “I am desensitized to the crimes. When I’m in contact with these guys [convicted felons], I’m not thinking, ‘Wow. This guy destroyed thirty families.’ I’m thinking, ‘This guy can make me money.’ It may sound brass and cold but that’s the reality for me.” While Gein would not say how much he makes from his business, he said that he makes “a comfortable living.” He claims to keep 100 percent of the profits and says that none of the money goes to the inmates. Gein speculates that financial gain is not even the primary motivation of criminals who offer their merchandise to him for sale. Instead of money, he contends that criminals crave the attention he
offers, and they view the sale of their merchandise as a way to gain or increase their public notoriety.

Tod Bohannon, who created the lucrative murderabilia website
MurderAuction.com
, defends the business as well as the convicted criminals who provide their artifacts for sale. “A lot of people think these prison inmates are sitting around eating donuts all day, drinking Coca-Cola and laughing about their crimes,” Bohannon told Christina Ng of ABC News in 2011.
¹²²
“A lot of these guys are remorseful and they’re doing the time for what they’ve done. Why should we continue to humiliate them?” However, Bohannon concedes that not all of the criminals are remorseful and some have written him letters in which they proudly gloated about their horrendous crimes. He claims that he never directly paid prison inmates for any of the items he received from them over the years, but he does not deny that he sent them money from time to time. It should be noted that Bohannon has sold his murderabilia website but it remains very much in operation under new ownership.

The reaction of some people to the vendors of murderabilia can be downright hostile. For example, serial killer art dealer Rick Staton was once attacked while trying to photograph the house of Dean Corll, the murderous sidekick of Elmer Wayne Henley, Jr. Staton claims that he was “yelled at, physically grabbed, and even punched” in the assault. Similarly, Eric Gein has become acutely aware that victims’ families of the killers he works with are deeply hurt and angered by what he does for a living. Nevertheless, he expresses little sympathy for them. “While they do have a right to speak out against me, they don’t have a right to try to shut me down,” Gein told ABC News. “I run a legal business and I’m catering to a market that is in demand. I’m not a monster. I can’t say I understand their pain because I’m not in their position,” he said coldly.

The War on Murderabilia Wages On

Victims advocate Andy Kahan disagrees vehemently with the rationalizations of Gein and others, and he continues to fight against the sale of murderabilia. He has another set of legal weapons at his disposal. Eight states, including Florida where Eric Gein lives, have “notoriety-for-profit” laws that prevent criminals from gaining financially from the sale of their personal items and memorabilia. The notoriety-for-profit laws are designed to follow the trail of money in murderabilia sales
while the aforementioned Son of Sam laws target the expressive works of criminals such as books or films. Therein lies the difference between the two sets of laws.

Kahan works hard to get states with the most incarcerated serial killers to pass notoriety-for-profit laws to ensure that no murderabilia profits go to the criminals. So far, Alabama, California, Michigan, Montana, New Jersey, Utah, and Texas have joined Florida in passing these laws. The notoriety-for-profit laws apply only within each state, which makes them difficult to enforce. Because buyers are frequently from different states, or even countries, than the sellers, the transactions turn into unenforceable matters of interstate commerce. Kahan, who Gein calls his “arch-nemesis,” acknowledges that the nature of interstate commerce and the challenge of proving that a convict is earning a profit from the sales make the statutes difficult to enforce.

Kahan has an unlikely ally in his war against the sale of murderabilia. It is none other than the former Son of Sam, David Berkowitz, who joined Kahan some years ago in his effort to clamp down on the sale of serial killer memorabilia. “It is absolutely the strangest alliance I have developed over my twenty-five-years-plus in criminal justice,” Kahan told the
New York Times
from his office in Houston.
¹²³
How they met is quite interesting. As part of Kahan’s campaign to stop people from profiting on the sale of items from notorious criminals, he wrote to Berkowitz in 2000 to alert him that he was being exploited on several Internet sites by the auctioning of letters and other writings that bear his signature. Kahan asked Berkowitz if he would provide a statement with his thoughts and perspective on the murderabilia industry. Berkowitz obliged with a three-page statement, parts of which were read by Kahan at hearings held by the Texas Legislature. Over the years, the former Son of Sam, who has received numerous solicitations from prospective sellers of his personal items, has shared his knowledge of the industry with Kahan. The victim advocate is grateful to his unlikely and infamous ally. “You can’t change the past, but you can alter the future,” Kahan said, “and by working with me on this issue, it certainly shows that he [Berkowitz] is trying to make amends.”
¹²⁴

In summary, despite the best efforts of Andy Kahan, David Berkowitz, and others, it does not appear that the murderabilia trade will disappear any time soon. The business is generally protected by the law and there is a large consumer market and demand for the items. Indeed, the appetite of fans for anything related to serial killers seems to be insatiable. Joe
Turner, a British collector, who owns a John Wayne Gacy painting and a lock of Charles Manson’s hair, explained the powerful draw of the items when he said, “Each piece [of murderabilia] tells a story. At some point these killers were normal people who were children and were loved by people, and then somewhere along the line they changed.” Offering similar insights in the documentary film
Collectors
, Joe Coleman, an aficionado of the macabre, said, “Some of us have a need to own a totem of death, to own something created by the hand of, say, a murderer . . . In some ways, as you see, like these objects in my own home, they protect you from the murderer. You own a piece of their soul and in a sense . . . it is transferred to you.” For the collectors of murderabilia, the appeal of the artifacts is strong, personal, and enduring.

Serial killer art dealers Staton and Allen are more pragmatic and cynical about the state of the murderabilia business. In
Collectors
, they shared the story of a man who lived in the town where serial killers Elmer Wayne Henley, Jr. and Dean Corll lured some of their youthful victims to their deaths. The man bought one of Henley’s prison paintings, a naked young man seen from behind, for $600 from Staton and Allen. The purchaser and a friend immediately burned the painting in front of the art dealers and then returned the ashes to them. Allen said that he was quite amused by their actions because the “suckers blew $600 to destroy something they see as a symbol of evil.”

Conclusion

In this chapter, we have explored the strange and fascinating world of ardent serial killer fans and collectors of macabre artifacts, paintings, and merchandise known as murderabilia. There are Son of Sam laws and notoriety-for-profit laws which prohibit criminals from profiting from expressive works such as books about their crimes or their personal items. Despite the best efforts of the families of serial killer victims and their vocal advocates such as Andy Kahan, however, the lucrative murderabilia business is alive and well. This business will not only endure as a way to create profit from crimes, but will continue to contribute to and reinforce the social construction of serial killers as celebrity monsters and popular culture icons.