David Hicks should be able to keep the profits from his memoir.
The law which confiscates literary proceeds of crime is a bad law.
It’s a bad law because it tends towards arbitrariness. It’s a bad law on free speech grounds.
And it’s a bad law because it is based not on any philosophy of crime and punishment, but merely on a feeling that it would be a bad thing if bad people became rich off their infamy.
Those observations have nothing to do with the rights and wrongs of the David Hicks case.
After all, the law was not originally conceived with convicted terrorists in mind.
Between 1976 and 1977 David Berkowitz killed at least six people in New York, signing off on the murders as “Son of Sam”. By the time Berkowitz was arrested, the case had gathered so much public interest the daily sales of the New York Post doubled.
It’s not unusual for the public to be fascinated by serial killers, but Berkowitz took advantage and got a $US75,000 book deal.
The revulsion about the book deal led to New York’s Son of Sam law, which prevented criminals making a profit off the back of their crime before all victims had been compensated.
Variations of this law were quickly replicated across 40 American states and Australia. Over the decades, they’ve largely dropped their link to victim compensation. Now they just tend to ban profit. Our federal Proceeds of Crime Act doesn’t even require a person be convicted of a crime, only that on the balances of probabilities they have done so.
According to one New York State senator at the time, a “sense of justice and decency” compelled the introduction of the original Son of Sam law.
But it’s hard to pin down the rationale for confiscating literary proceeds any more concretely than that.
There’s absolutely no question if a court convicts a bank robber they shouldn’t be able to keep the loot as a nest egg for when they get out of jail. In that case, the stolen money is a direct result of the crime.
By contrast, literary proceeds of crime aren’t really “proceeds of crime” at all. Trading off the notoriety you gain from robbing a bank is not the same as living large on the bank’s money once you get out of jail.
In fact it’s quite the opposite: writing a book is an entirely legal endeavour. In fact, it’s an admirable one. Any profits gained are gained honestly – writing a book is a lot of work. And if the book sells, it implies consumers have gained something from it. A profitable book is a net benefit to society, regardless of the history of the author.
No surprise: people like reading about the crooked lives of others.
When the Attorney General’s Department looked at the proceeds of crime law in the late 1990s, it sensibly pointed out confiscating literary profits provides no deterrent against committing crime in the first place. It would be a very farsighted criminal who broke the law in order to write a successful book about it decades later.
Instead the department argued a more convincing basis for the measure was unjust enrichment.
Yes, it seems somewhat unfair a criminal might get a heftier book deal than the victim of their crime perhaps would.
But that sense of unfairness is not a stable enough foundation on which to limit free speech.
It’s been claimed that in David Hicks’s case confiscating his commercial gains has nothing to do with free speech – while there is a human right to free speech there is no similar right to speak profitably.
That this argument has come from many conservatives is disappointing. Because the literary proceeds of crime laws are a neat example of the inextricably intertwined relationship between human rights and economic rights.
Speech requires finance. To pretend the former is unharmed if you ban the latter is nonsensical.
If a government was to ban a newspaper from making a profit but otherwise leave its material uncensored we would not hesitate to condemn it as a violation of freedom of expression.
There is no right to profit from speech – not all books or newspapers find markets and audiences – but without a right to try to profit, the liberty to speak is severely crippled. Writing, publishing and distributing is an entrepreneurial enterprise. We cannot detach the economic motive from speech.
No matter how you slice it, confiscation of the proceeds of someone’s memoirs is a restraint on free expression.
On The Drum in February, one of David Hicks’s legal advisors Ben Saul argued literary proceeds of crime restrictions should be extended to crimes against international law – that way the profits from John Howard’s memoirs would be similarly up for confiscation.
Saul’s trite idea obviously will never happen. But such reasoning encapsulates one big problem with laws such as these. Rather than contesting the usefulness or justice of the law, partisans wield them like a weapon against their opponents. Indeed, the Howard government amended the Proceeds of Crime Act in 2004 specifically to stop Hicks and Mamdouh Habib profiting from their stories.
Because in Australia this law has been rarely used and is largely untested – and many, many Australian criminals have written books – it is hard to avoid the impression the pursuit of Hicks’s profits is more about the man than the just application of the law.
That’s pretty much the definition of arbitrariness.
Ultimately, the David Hicks case suggests that the pursuit of the literary profits of convicted criminals comes down more to taste than justice.