Salvatore ("Sammy the Bull") Gravano is not the sort of fellow you would want as a best pal or brother-in-law. He is the mobster-turned-government witness who helped put John Gotti in jail, and he has admitted a role in nineteen murders. But he is at the heart of a landmark lawsuit sparked by Underboss, author Peter Maas's bestseller on the mafia, starring Sammy.

The issue in the suit: What is more repugnant -- a law that requires a reporter to notify the government of his arrangements with a source, or a confessed murderer making nearly half a million dollars telling about his crimes?

The problem is Maas's financial relationship with his subject. It turns out that Maas and Gravano had a deal: Gravano gave Maas exclusive rights to his life story, cooperated in the preparation of the manuscript, and helped set up interviews with others in exchange for half of the book's $850,000 advance, plus royalties and other profits. For an additional $10,000, Gravano also did a voice-over for a commercial for the book.

Ethical questions abound. But should such an agreement be against the law? The New York attorney general thinks so and last April sued Maas and his publisher, HarperCollins, for violating the state's Son-of-Sam Law (SSL).

Actually, it is the "new, improved" SSL. The original SSL was enacted in 1977 in response to public outrage over a confessed New York City serial killer -- David Berkowitz, a.k.a. Son of Sam -- cashing in on his life story with a book deal. The law required that any income a criminal received for "expressions" regarding his crimes be turned over to the New York State Crime Victim's Board to be paid to the victims and their families. "Expressions" included the criminal writing his life story, selling such rights to another, consulting on reenactments of the crime in plays or movies, etc. Other states passed similar laws and then sat back to see what happened in New York.

The SSL caused an uproar among writers, editors, publishers, and the First Amendment bar. It was fought to the U.S. Supreme Court where, in 1991, the law was struck down -- in part because it targeted only "expressive" activity, and did not go after other ways a criminal might profit from his crimes. The Court said that singling out "expression" or "speech" for a special penalty in this way violated the First Amendment.

New York promptly responded by rewriting the law to include "all profits from a crime," not just those based on "expression." Now, for example, if Gravano cashed in a winning lottery ticket he took from a victim's pocket, those profits too would be subject to the Crime Victim's Board. Under the new SSL, anyone who agrees to pay "profits from a crime" to a criminal must notify the board. The board will then notify the victims (or their families) who have three years to sue the criminal for damages they suffered as a result of the crime. The board also has the power to freeze the criminal's assets in the meantime so there will be something left for the victims.

Under the new SSL, a writer who has contracted with a convicted or confessed criminal is obligated only to notify the board, and may keep all his or her profits from the work. It is the criminal's money that is in jeopardy. The Underboss case is the first test of this new law. A trial court decision is expected this spring. The case is also likely to follow its predecessor to the Supreme Court.

Maas's publisher's attorneys say that, despite the rewrite, the statute is still unconstitutional because it singles out for penalty speech on a certain topic -- in this case, criminal activity. They also argue that the law is much too broad and vague, throwing all sorts of criminal reporting into question. For example, if a writer wanted to compensate someone like Gravano for revealing shortcomings in the highly secretive Witness Protection Program, would the writer have to notify the board?

The New York attorney general maintains that the new SSL is constitutional because in targeting all profits from a crime, the law only incidentally affects speech. The state emphasizes that the statute does not prevent a criminal from telling his story, or otherwise collaborating with a writer; it only requires the writer to notify the board.

The publisher's attorneys counter that, as a practical matter, the SSL acts to censor works like Underboss. Without hope of financial gain, they say, Sammy Gravano and others would have little reason to tell what they know.

The final decision on Maas's book and the new SSL will not be reached for some time. Certainly the decision to pay a confessed killer for his story raises all sorts of ethical issues for crime reporters. But the question now is whether the law will also have a hand in the matter.

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