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.
October 5, 2005 at 1:38 am
Posted in: Privacy
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Responses (18)
Mike - October 5, 2005 at 3:21 pm
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.
murky - October 5, 2005 at 4:29 pm
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.
Mike - October 5, 2005 at 5:59 pm
“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?
Christine Hurt - October 5, 2005 at 6:21 pm
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.
Daniel Solove - October 5, 2005 at 9:11 pm
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.
Beltway Blogroll - October 7, 2005 at 8:33 am
New Law Blog: Concurring Opinions
George Washington University law professor Daniel Solove, an expert on privacy issues, has recruited two of his colleagues for a new group law blog called Concurring Opinions. The other two contributors are Kaimipono Wenger of the Thomas Jefferson Scho…
Beltway Blogroll - October 7, 2005 at 8:40 am
New Law Blog: Concurring Opinions
George Washington University law professor Daniel Solove, an expert on privacy issues, has recruited two of his colleagues for a new group law blog called Concurring Opinions. The other two contributors are Kaimipono Wenger of the Thomas Jefferson Scho…
Concurring Opinions - December 7, 2005 at 2:10 pm
Jennifer Aniston Nude Photos and the Anti-Paparazzi Act
Jennifer Aniston is suing a paparazzi who took nude photos of her: The lawsuit filed in Los Angeles Superior Court alleges that photographer Peter Brandt must have observed Aniston “from a great distance through invasive, intrusive and unlawful measure…
Concurring Opinions - December 7, 2005 at 2:18 pm
Jennifer Aniston Nude Photos and the Anti-Paparazzi Act
Jennifer Aniston is suing a paparazzi who took nude photos of her. In a complaint filed in Los Angeles Superior Court, Aniston claims that Peter Brandt took topless photographs of her from a significant distance from her home. He used…
Luke - December 21, 2005 at 12:38 pm
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?
carol - March 23, 2006 at 11:47 am
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?
Sarah - March 20, 2007 at 6:23 pm
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?
Dan Ampersand - September 3, 2007 at 12:04 am
I say say hunt the paparazzi… Project Ambush: Paparazzi on Display. Show ‘em how it feels.
dominik - January 14, 2009 at 3:08 pm
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.
Karen Brown - October 14, 2009 at 10:09 pm
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.
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sasa - April 27, 2010 at 2:26 pm
I hate the paparazzi. Get A REAL JOB
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