California’s Tougher Anti-Paparazzi Law and the First Amendment
posted by Daniel Solove
Recently, Governor Arnold Schwarzenegger signed a law that toughened California’s Anti-Paparazzi Act, Cal. Civ. Code §1708.8. The original act was passed in 1998 in response to Princess Diana’s death, which was caused when her car was fleeing aggressive paparazzi.
Paparazzi photos can fetch a lot of money. A photo of Princess Diana and Dodi al-Fayed sold for over $3 million.
Arnold Schwarzenegger is not stranger to paparazzi. In one instance, they chased him and his wife, Maria Shriver, off the road to take photos of him.
The Anti-Paparazzi Act creates heightened penalties when a person commits a trespass “in order to physically invade the privacy of the plaintiff with the intent to capture any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity and the physical invasion occurs in a manner that is offensive to a reasonable person.” A person can also be liable even if there is no trespass if he “attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device.”
Violations of the Act carry damages up to “three times the amount of any general and special damages that are proximately caused by the violation of this section.” Punitive damages and disgorgement of any of the paparazzi’s proceeds from the sale of the photos are also available remedies. Further, the Act punishes a person who “directs, solicits, actually induces, or actually causes” a person to violate the law. §1708.8(d). The Act applies even if no image or recording is ever captured or sold. §1708.8(i).
The new amendment to the Anti-Paparazzi Act adds assaults to the mix. If a paparazzi assaults somebody when attempting to shoot a picture, then the victim can obtain three times the damages from the assault. According to a Reuters article:
The new law comes as Los Angeles authorities try to crack down on aggressive photographers following a series of altercations involving actresses Reese Witherspoon, Lindsay Lohan and Scarlett Johansson, among others. . . .
“Mean Girls” star Lohan and Johansson, best known for “Lost in Translation,” both were involved in car accidents this year that they say were caused by aggressive photographers.
A photographer trying to take a picture of Witherspoon’s young daughter at an amusement park was charged with assaulting two park workers after they tried to intervene.
Media groups contend that the law violates the First Amendment:
A spokesman for the California Newspaper Publishers Association, which opposed the bill, said the group was disappointed.
“We wish the governor would have vetoed it, but it’s not like we’re surprised,” CNPA general counsel Tom Newton said. “He and his family were victims of the behavior that it was attempting to end.”
Newton said any journalists sued under the new law would likely challenge it as unconstitutional because it treats them more harshly than other Californians.
“We think it exposes people engaged in First Amendment activities to penalties the rest of the public is not susceptible to,” he said. “If it’s used in a way that goes after one of my members, I suspect that constitutional issues will be raised in their defense.”
My colleague, First Amendment expert Thomas Dienes, believes that the California Anti-Paparazzi Act is a violation of the First Amendment because it “clearly target[s] the press.” C. Thomas Dienes, Protecting Investigative Journalism, 67 Geo. Wash. L. Rev. 1139 (1999). Dienes concedes that the taking of photographs or the making of sound recordings are not a form of speech – nor is the sale of such items. However, he argues:
Nevertheless the antipaparazzi legislation singles out press photography and sound recording for significant and discriminatory burdens. Even if such acts do not themselves constitute speech, they are protected means of newsgathering vital to press publication. If the photographs and sound recordings cannot be made, they cannot be published. As the Supreme Court said in Arcara v. Cloud Books, Inc., laws are subject to heightened scrutiny “although directed at activity with no expressive component, [if they] impose a disproportionate burden upon those engaged in protected First Amendment activities.” Because media speech related activity is significantly and disproportionately burdened, the antipaparazzi laws should be treated as presumptively unconstitutional, subject to strict scrutiny review.
Dienes’s argument is that because the Act punishes certain trespasses, privacy invasions, and assaults more severely when motivated by the desire to take photos or record sounds, then this means that the Act is unfairly targeting newsgathering activities. Indeed, trespass, privacy invasions, and assaults are all torts; the Anti-Paparazzi Act expands these torts and increases the damages when done for the purpose of capturing pictures and sound. Is this unfairly singling out newsgathering activities?
I don’t think so. First, although the law is clearly designed to target the paparazzi, it applies to everyone, not just the press. Many paparazzi are not even members of the press – they are independent actors who gather photos and hawk them to the press. It is true that taking photos and recording sound are activities involved in newsgathering, but people might undertake these activities for other reasons, such as snooping on others. Taking photos and recoding sound are not inherently and exclusively newsgathering activities.
Second, there is no special constitutional right to gather news by taking photographs. The media cannot commit torts or invade people’s privacy in order to gather news. As one court correctly stated: “The First Amendment has never been construed to accord newsmen immunity from torts or crimes committed during the course of newsgathering. The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another’s home or office.” Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971). The Supreme Court noted that “generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.” Cohen v. Cowles Media Co., 501 U.S. 663 (1991). The First Amendment primarily protects the right to speak, not the right to gather materials and photos to use in one’s speech.