The Court-Ordered Internet Auction of the Unabomber's "Murderabilia": Why, Though It May Be Tasteless, It's Perfectly Legal

You soon may be able to log on to the Internet and bid on items formerly owned by the "Unabomber," Theodore Kaczynski. Currently imprisoned, Kaczynski killed three people, and wounded many others, with his letter-bombs. Though his first bomb was sent in 1978, he was not arrested until 1996. He avoided the death penalty by pleading guilty to his crimes.

On August 11, a federal district court judge ordered that Kaczynski's personal belongings, including his journal and other papers relating to his murderous plots, should be sold via a public Internet auction. The proceeds of the sale are to be used to compensate his victims and their heirs, who have procured a $15 million restitution order against Kaczyinski.

Some have expressed dismay at this auction. And surely, it is a bit creepy to sell a criminal's possessions. While some buyers may be interested solely in the items' historic significance, many may use their purchases to glorify Kaczynski's murders - viewing them as macabre souvenirs.

"Murderabilia" is nothing new: Criminals, including killers, have sold off their belongings before. But the specter of the belongings put online for all to see is, of course, an Internet-era innovation.

In this column, I will explain the nature of the auction, and explain why - despite a few state laws banning "notoriety for profit," in the form of sales of criminals' stories and crime-related possessions, the court-sponsored auction remains perfectly legal.

The Details of the Court-ordered Auction

Earlier, the U.S. Court of Appeals for the Ninth Circuit had told the federal government that it could not hold on to Kaczynski's personal belongings indefinitely. Instead, the property either had to be sold, and the proceeds applied toward fulfilling the restitution order, or had to be returned to Kaczynski. (Kaczyksnki wanted to donate his writings to the University of Michigan, of which he is an alumnus, and which houses an extensive collection of protest and anarchist literature.)

On August 10 of this year, U.S. District Judge Garland Burrell Jr. ruled that Kaczynski's belongings should be sold at a "reasonably advertised Internet auction." There are approximately one hundred items the government considers to be bomb-making materials, such as writings that contain diagrams and "recipes" for bombs. These items will be excluded from the auction. (Separately, and somewhat oddly, Burrell ordered that five guns taken from the cabin be sold directly to victims for $300, which will be deducted from the restitution.)

The U.S. Marshals' Service will enter into a contract for the sale with a private Internet auctioneer, who will bear the cost of the sale. The auctioneer is to receive no more than 10 percent of the proceeds. The revenues from the sale, less the auctioneer's commission, will be applied to the restitution order, which will benefit Kaczynski's victims and/or their families.

Among the personal items to be auctioned are tools, among them files, saws, hatchets, knives, axes and scissors; clothing; three typewriters; Kaczynski's University of Michigan diploma (housed in a suitcase); two checkbooks; and a library of titles ranging including from "Finnish Grammar" to "Zapata and the Mexican Revolution." Among the clothing up for auction are the Unabomber's hooded jackets, which he may have worn when posting his mail bombs.

Kaczynski's writings--which include several versions of his Unabomber "Manifesto"--are also for sale. They are estimated to cover 40,000 handwritten pages. They detail his urges to kill and reportedly include a detailed recitation of the events of his 17-year bombing campaign. However, the names of all the victims and their families, and all recognizable descriptions of the victims and their injuries, and the names of intended victims, will be redacted, per the court's order.

Is it Legal for the Court to Sell Murderabilia?

Is this court-sponsored Internet auction legal? The answer is definitely "Yes."

Indeed, Kaczynski might have been able to sell his own belongings, had the court not seized them first. In most states, "murderabilia" sales remain legal. And web sites such as supernaught.com are in the business of auctioning or selling such "murderabilia" - and selling artwork by criminals, as well.

There are, however, a number of states in which "murderabilia" sales are illegal, on the ground that they allow criminals to profit from their crimes. These laws also prohibit criminals from profiting on books, movies and interviews about their crimes - but to that extent, depending on the way they are framed, these laws may be contrary to the First Amendment.

New York was the first state to enact a notoriety-for-profit law, in 1977, after reports that "Son of Sam" serial killer David Berkowitz was hoping to make a great deal of money by selling his story to a publisher.

Although "Son of Sam" laws across the country are fairly similar, the specific wording of such laws varies from state to state. In most states, the victim must sue the offender in civil court and obtain a judgment for damages before being allowed to make a claim against a criminal's profits. In other states, claims are made through a state victims' compensation program. The laws generally apply to convicted offenders, including those who plead guilty, as well as to those who are acquitted on the grounds of insanity.

In 1991, in Simon & Schuster v. New York Crime Victims' Board, the U.S. Supreme Court struck down New York's "Son of Sam" law as unconstitutional, on the ground that it violated the First Amendment. In 2002, California's Son of Sam law suffered a similar fate, before the California Supreme Court in Keenan v. Superior Court.

In Simon and Schuster, the U.S. Supreme Court ruled, among other points, that the New York law was overbroad because it applied not only to convicted offenders, but also to those simply accused of crimes. It also noted the social value of some memoirs recounting the author's crimes - such as the classic Autobiography of Malcolm X. In addition, the Court noted that the Son of Sam law was suspect in that it specially targeted First-Amendment-protected speech, as opposed to the many other ways criminals might profit from their crimes.

Some states have amended their laws to respond to the constitutional challenges - addressing the Court's concern about speech-targeting by expanding their statutes to cover any profit received, directly or indirectly, from crimes. For instance, Iowa targets "fruits of the crime." These are defined as "any profit which, were it not for the commission of the felony, would not have been realized." Oklahoma's amended law covers "any proceeds or profits from any source, as a direct or indirect result of the crime or sentence, or the notoriety which the crime or sentence has conferred upon the defendant." Tennessee's law is broader and targets "all income, from whatever source derived, which is owing to the defendant, or representative or assignee of the defendant, after the date of the crime."

Other states, such as California, have taken a different approach: They've passed legislation that allows the families of murder victims to bring civil tort lawsuits (for wrongful death and for civil assault and battery, for instance) against convicted killers, for longer periods of time (in California, ten years). While such suits are not brought under laws that specifically target crime proceeds, or notoriety proceeds, such proceeds are among the sources of money that could be used to satisfy the judgments.

Some states have also amended their laws, or enacted new legislation, to specifically address "murderabilia." For example, California expanded the state's "notoriety for profit" law to also impose an involuntary trust upon the profits from any felony-crime-related memorabilia. Also in 2001, Texas added to its "forfeiture of profits" statute a new category, profits from the sale of tangible property, the value of which is increased by a convicted person's notoriety. Victims are entitled under Texas law to bring lawsuits to claim such property.

None of these state laws, however, targets a court-ordered auction for the benefit of victims - which was just ordered in the Kaczynski case. In other words, there is no state law that says that murderabilia cannot be sold even if a court so orders, and even if the money goes to the victims, not the culprit. Moreover, even if some state laws did say this, that wouldn't stop the auction - it would only stop a sale at the auction to residents of that state, or perhaps a sale by a company situated there.

Who will Auction the Memorabilia and Who Will Buy it?

Even if the sales are legal, which auctioneer will be willing to sell the Unabomber's belongings? EBay, the world's largest Internet auction site has changed its policy - in response to public pressure - to ban the sale of murderabilia on its Website. Perhaps a site like supernaught.com will step in - though it may be somewhat unseemly for the government to be paying commission to such a site!

As for who will bid on the items, we will have to see. Kaczynski's journals seem best suited in a government archive - where researchers can pore over his writings, or government agents can spend time trying to predict the behavior of a serial killer. A purchase by such an archive might be the best solution.