California’s Tougher Anti-Paparazzi Law and the First Amendment

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18 Responses

  1. Mike says:

    That’s a well-crafted law. At first, I thought it would be unconstitutional as a content-based speech restriction. But since the law doesn’t punish the paparazzi because they seek to profit from celebrities’ photographs, but rather, prevents them from invading one’s privacy, I think the law is constitutional. Indeed, the law specifically notes that “Sale … or use of any

    image or recording of the type, or under the circumstances, described in this section shall not itself constitute a violation of this section ….” And the only mention of commercial purposes concerns disgorgement of profits rather than underlying liability.

    Thus, I would be liable for taking your private image even if I didn’t intend to sell them. The law is facially neutral. What a great way to avoid what I thought would be a major free speech problem.

  2. murky says:

    If you’re wielding a video camera or microphone with uplink so you’re broadcasting live, expression is integral to what you’re doing (and inseparable if you do it w/o data storage), so I think it’s no stretch to say freedom of expression pertains to reporters. I also worry about political candidate surrounding themselves with a huddle of burly linemen everywhere they go, so that only a would-be Geraldo willing to blitz could report a dirty secret that speaks to worthiness for office. I don’t want to discourage intrepid reporters of real news while the species already verges on extinction.

  3. Mike says:

    “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.

    Aren’t those two separate propositions, each deserving of their own paragraphs and arguments? You proved the second proposition (viz., that the media cannot commit torts to gather news), but I didn’t see much support for the first proposition (viz., no constitutional right to gather news by taking photographs). I’m not being nitpicky.

    I’m genuinely curious whether your first proposition is true. If there is a constitutional right to publish photographs, doesn’t this imply a constitutional right to take photographs? Saying, “You may publish your photographs, but not take them,” sounds an awful lot like, “Let them eat cake.” Anyhow, I honestly don’t know, which is why I’m asking.

    Let’s say the government taxed printing ink at an extraordinary rate. Would your argument that “the First Amendment primarily protects the right to speak, not the right to gather materials” prevail? Would the intent of the tax matter?

  4. Christine Hurt says:

    I’m not sure how this statute would come into play in the car situation. Driving on a public road is not a trespass, so attempting to get a picture while driving would have to be “offensive” and driving would have to be “personal or familial” and the driver would have to have a “reasonable expectation of privacy.” I’m not sure that I buy that for a movie star in a convertible.

  5. Mike,

    There are many things that would help people gather information for speech, such as snooping on others, trespass, installing secret cameras into people’s homes, etc. But there is no right to do such things, and the government can create laws that restrict such activities.

    It might be useful for my blog if I were allowed to take photos inside various congressional offices or to do many things that I’m not allowed to do. But while the First Amendment permits me the right to speak, it doesn’t permit me the right to do whatever I want to gather materials for speaking. Here, California has passed a law that certain activities to gather information are tortious. I don’t see a constitutional impediment for it doing so.

    On your ink tax hypo, I believe intent would matter, as a law specifically designed to inhibit speech would possibly run afoul of the First Amendment. But I doubt that a law of general applicability — perhaps passed because ink was becoming a scarce resource or having negative environmental effects — would run into problems. The paparazzi law is not really aimed at stopping paparazzi in order to stop speech; it is aimed to stop the intrusive and abrasive conduct of paparazzi.

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  10. Luke says:

    I find it kind of odd that the initial 1708.8 statute, which was supposedly passed in response to Princess Diana’s death, did not address the conduct that was theorized to have caused her death.

    The perception was that being chased by the paparazzi is what killed Princess Diana. But the statute California passed, allegedly in response, only prohibited physical and constructive invasions of privacy. Not until this year, 7 years later, did California amend the statute to address assault issues.

    All of the federal statutes proposed at the time specifically included chasing or persistently following as the basis for a federal harrassment violation. Why not California’s? Was Princess Diana’s death just pretext to push through a privacy law?

  11. carol says:

    A few questions.

    First, has any law tried to delineate persons of public interest because they are involved in the dealings of government, publicly-held corporations or nonprofits (created in the public interest) vs. indivudals in the entertainment industry representing only themselves? seems it’s time we did that.

    Second, could there be a legal distinction made between news journalist and ‘entertainment’ paparazzi, that the two are not equal in the eyes of the first admendment? (yes, I know this one’s a stretch but I doubt the framers of the Constitution ever invisioned anything like the current day situation.)

    Third, I’ve seen I don’t know how many articles that describe the paparazzi as ‘hunters’ of celebrities; in fact one paparazzi outfit even calls itself the Hunt Club. (If they themselves make the distinction, doesn’t that count for something?)

    Anyway, has anyone, or could anyone, enact a paparazzi law that parallels hunting laws? Have to have a license (cost of which goes to enforcement), only able to ‘bag’ a certain number of celebrities per month, restrictions on ‘shooting’ equipment, distances, etc? I would think that since photography is treated differently from speech that such a law might be passable.

    Thoughts?

  12. Sarah says:

    YAY for California finally doing something about this issue!

    First of all, paparazzi are completely different from the press. Press are required to have press credentials to get any information they are seeking. Someone without these credentials can be kicked out of a press conference. Paparazzi are not required to have these. Essentially anyone can pick up a camera and take pictures.

    My question becomes, since there are no requirements for the paparazzi to get any credentials, there are no background checks done…where do we draw the line? Is it ok that there are convicted pedophiles (and there are) taking pictures of celebrities and their homes who have children? I would be scared to death if I were a celebrity.

    I’m glad some sort of effort has been made toward this issue. I think some sort of standard for these people should be required. Or do we have to wait for another incident like Princess Diana’s death to wake us up?

  13. I say say hunt the paparazzi… Project Ambush: Paparazzi on Display. Show ‘em how it feels.

  14. dominik says:

    that’s the whole point… the “press” shouldn’t need credentials, any citizen should be able to pick up a camera and contribute to “news”…so no paparazzi are no different from the press unless you define press as the sanitized, corporatized version of the press that has regurgitated corporate trash for the last 30 yrs.

    i don’t care about a few stupid celebs getting annoyed, i care more about our 1st amendment rights and how lack of them reduces speech in our democracy.

  15. Karen Brown says:

    So, anyone should be able to pick up a camera and contribute to the news, does this mean that anyone can become news by being the target of that same person with the camera? By the way, they aren’t talking about ‘annoyed’.

    Imagine, for a moment, not being able to walk outside your own door, into your own yard, without being swarmed. People with cameras trying to shoot pictures of you inside your fenced yard, in your house, with your children.. shouting (and these are actual incidents) obscenities at and about your wife to try to get you to react, so they can snap a picture of your reaction, without the context of course, to show that you have a problem with anger.

    This doesn’t even count stunts /like/ surrounding your car with their cars so you can’t move, or chasing you in their vehicle, impersonating hospital personnel so they can take pictures of your newborn baby..

    So, pictures of a person driving down the street, pumping gas, giving birth, or eating donuts because their clothes aren’t fashionable or their hair isn’t perfect is the same as covering a press conference about passing legislation?

    Personally, I think that the paparazzi are part of the corporate culture, whose goal is to distract the public with pictures of celebrities walkin their dogs so they don’t pay attention to things that actually matter.

  16. sasa says:

    I hate the paparazzi. Get A REAL JOB