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California's New Anti-Paparazzi Law and the First Amendment

2009-11-13T00:43:43Z

There exists a fundamental misunderstanding made by opponents of the new California anti-paparazzi law: that the bill violates the First Amendment to the United States Constitution. The charge that the law violates the First Amendment rests on a basic misconception about the scope of protection offered by the First Amendment. The First Amendment, in part, governs a citizen’s right to speak or not to speak. However, its scope is largely circumscribed when, as here, a law regulates conduct, rather than the content of speech. As such, First Amendment jurisprudence explicitly repeats that the press does not have any special privileges to gather information; the press is subject to the same generally applicable laws governing conduct to which all Americans are subject.

No Supreme Court of the United States case pronouncing on the issue interprets the First Amendment to allow the press to violate generally applicable laws to gather information. And, engaging in conduct that violates the law to gather information is precisely what the new California anti-paparazzi law is about. The law does not target the content of speech; rather, it targets the conduct used to gather information. These are two radically different concepts under First Amendment jurisprudence. The law aims to punish the invasion of privacy, a generally applicable tort, not the content of what someone has to say. Indeed, under the new law, the press is unobstructed in its ability to use the written word to convey various observations.

If the methods used to gather information are tortious, then paying someone money to violate the law can be recognized as a tort in-and-of-itself. Just as someone cannot pay someone else to batter a third-party, someone cannot pay someone to invade another’s privacy. The First Amendment does not, and should not, shield publishers from aiding and abetting violations of the law. The liability imposed by the new law on publishers for knowingly purchasing tortiously obtained photographs reflects this age-old concept of aiding and abetting, and properly imposes punishment to deter publishers from inducing others to violate the law. Indeed, it’s the very prospect of large payouts that induce the paparazzi to spend large amounts of time and money to stake-out others, or to otherwise violate the law.

Finally, the new bill wisely recognizes that there are competing interests in the First Amendment v. privacy rights calculus, and they should be balanced against each other. On one side, there is the interest of the photographer to make a large sum of money for photographing a famous person engaged in private affairs. On the other, there is the interest of the famous person to maintain a sphere of privacy and to develop personal relationships without being under an omniscient public gaze. Thus, there exists on the one hand the economic interest of the photographer, and on the other, an interest that has both emotional and personal primacy with an individual in maintaining some privacy in his or her life. To argue that one’s interest in making money by invading another’s privacy weighs more heavily on the scales of justice, rather than recognizing that one’s emotional and personal sanctity outweigh someone else’s right to exploit your privacy, would turn a very basic concept of personal rights on its head – one cannot subjugate or oppress another for his or her profit. The law does not, and should not, endorse the exploitation of fundamental personal rights by an unrelated person’s seeking to benefit financially from privacy invasions.

As explained above, the new law does not violate the First Amendment. The law was a resounding and overwhelmingly supported measure by the body politic to warn those who habitually invade, or induce others to invade, privacy rights that the public does not support their conduct. Ultimately, the people have the last word. And, the people have spoken.

California Legislature Calls For Change in Paparazzi Behavior

2009-10-13T20:15:21Z

The legislation California Governor Schwarzenegger signed into law recently is widely known to restrict the actions of paparazzi and penalize the organizations that purchase photos taken illegally.

But what is less understood is the strong language the California Legislature used in the wording of the bill. The following are quotes from the text of the new law:

"The Legislature finds and declares all of the following:

Individuals and their families have been harassed and endangered by being persistently followed or chased in a manner that puts them in reasonable fear of bodily injury, and in danger of serious bodily injury or even death, by photographers, videographers, and audio recorders attempting to capture images or other reproductions of their private lives for commercial purposes.

The legitimate privacy interests of individuals and their families have been violated by photographers, videographers, and audio recorders who physically trespass in order to capture images or other reproductions of their private lives for commercial purposes...

Such harassment and trespass threaten not only professional public persons and their families, but also private persons and families for whom personal tragedies or circumstances beyond their control create media interest.

There is no right, under the United States Constitution or the California Constitution, to persistently follow or chase another in a manner that creates a reasonable fear of bodily injury, to trespass, or to constructively trespass through the use of intrusive visual or auditory enhancement devices.

The right to privacy and respect for private lives of individuals and their families must be balanced against the right of the media to gather and report the news. The right of a free press to report details of an individual’s private life must be weighed against the rights of the individual to enjoy liberty and privacy.

The words carefully chosen by the California Legislature send a strong message that all people have the right to enjoy some personal privacy.

In our digital age, as our privacy is being assaulted on all sides through the mistaken release of medical records, identity theft, personal information and photographs being displayed on social networking sites without permission and the explosion of celebrity websites and blogs, California's elected officials have made it clear that it is vital to protect the personal privacy and safety of everyone.

Paparazzi Privacy Invasions Towards Celebrities Impacts Everyone

2009-10-12T17:01:22Z

Tabloids are replete with instances of celebrities being hounded by paparazzi. Even the most benign encounters (those that do not deal with verbal harassment, physical confrontations, car crashes or dangerous high-speed chases) between celebrities and paparazzi serve to draw into stark contrast a question that affects every person in every nation: when does a person’s right to privacy prevent disclosure of private details to the world at large?

In answering this question, the struggle of celebrities to protect what remaining private lives they have not only highlights the devastating effects of intrusions into private matters, but the result of that struggle greatly impacts what constitutes private activity for everyone. For instance, Governor Schwarzenegger of California just signed into law a bill that further protects privacy interests by imposing liability on publishers of illegally obtained photographs. Even though much of the impetus for this bill arose from paparazzi intrusions into celebrities’ lives, its scope protects all persons in California. Thus, the plight of celebrities to protect their own privacy interests is ultimately a plight to protect everyone’s privacy interests.

It is no surprise that with the increasing abundance of digital cameras, the ease at which images and videos are uploaded and distributed via the Internet, and the mass audiences such images and video uploads can reach, personal privacy is under assault as never before in the history of humanity. The problem of intrusive photography once was a problem relatively unique to famous persons. Now, in the Internet Age, it can affect anyone who is unfortunate enough to be the subject of a photograph that is posted on a hobbyist’s blog. It is then time for all of us not to dismiss the struggles of celebrities with paparazzi as a cost of being famous, but rather understand that they are on the front lines of a battle to protect the human right to privacy -- the outcome of which affects all of us.

American Liberty and Princess Diana's Death

2009-08-31T20:00:00Z

It happened twelve years ago today. A pretty normal day in the world actually. Bill Clinton had just started his second term and Ms. Lewinski was still an unknown. Saddam Hussein was very much alive and telling the U.N. weapons inspectors to get lost. Twelve years ago we could still climb to the top of the World Trade Center and take in the breathtaking view of NYC.

Princess Diana had a new boyfriend and for her it was likely just another evening out filled with security and photographers as she tried to enjoy her life after Buckingham Palace.

Her death that day changed the world in many ways. An innocence was lost. It caused us all to stop and watch together a princess being laid to rest while her young princes looked on in numb disbelief. Many of us mourned for the death of someone we felt was so alive. And after the mourning came anger - anger over the circumstances of her death. The attention focused on how she died; why she died. And when the dust settled it became clear that there was a culprit who had a principle role in the mayhem that killed her: the paparazzi.

Emotions ran high, voices rang loud and for the next year or two great effort and determination was put forth in legislative bodies in various parts of the world to “fix” the paparazzi problem. In California, a little over a year after Diana’s death, Governor Wilson signed into law the Anti-Paparazzi Act making photographers liable for invasion of privacy when an individual trespasses on private property with the intent to capture any type of visual image or sound recording. Ultimately, however, this law did virtually nothing to prevent the paparazzi’ pursuit of celebrities.

Six years later, in 2005, Governor Schwarzenegger strengthened this same law by stiffening the fines for any photographer assaulting someone in the act of getting a photo (Arnold was once run off the road by a group of photographs trying to get a photo), but even this new, stronger version of the law has had little affect.

Continually, the main obstacle to creating any real reform is the argument that anything that curtails the paparazzi restricts the press and violates our constitution. But we can’t forget our country was founded on the principles of freedom and personal liberty. Intrusion into the private affairs of citizens by surveillance limits a person's freedom and personal liberty, in that it makes the person self-conscious to the point where they limit their liberty of action due to constant public gaze. This effect is further compounded by the advent of mass media and new technologies. Not only are people exposed to the gaze of those around them, but every action can be exposed to hundreds of millions, if not billions, of people worldwide in an instant. This concept was simply unfathomable to those who wrote the Constitution. Being harassed and invaded by packs of photographers does not comport with the notions of freedom that were espoused by the writers of the Constitution, or the concepts of liberty that precipitated a violent Revolutionary War. Thus, unrestrained surveillance upon individuals engaged in private activities is contrary to the very concepts of personal liberty and freedom that Americans fought for more than two centuries ago.

For a nation such as ours that tries to be the beacon of human rights and that denounces violations in this arena by other nations, to lag behind other countries in protecting the privacy of its citizens is a discouraging irony. We could take a lesson from the European Union who balances individual rights equally with the freedom of the press. In May a London court issued a restraining order against the paparazzi for Amy Winehouse. Lily Allen was issued the same by a London court in March and Sienna Miller received one in November of last year. Each of these ladies is now able to leave their homes without a pack of paparazzi surrounding them. .

Maybe Princess Diana, if she were alive today, could get her own restraining order against the paparazzi in England. But not here. We still allow the paparazzi to swarm, harass and endanger citizens. We haven’t stopped the dangerous car chases that frequently take place with paparazzi in cars ignoring all driving laws running red lights and stop signs in pursuit of the “best” shot. It is just a matter of time before someone else is killed. Paparazzi only chase people we care about and so the next death will likely be someone we admire. But it will be even worse if we’re watching the burial a young mother and her infant who were crossing the street at the wrong time.

History is an excellent teacher. Legislation could have prevented Princess Diana’s death in 1997. The UK took action and fixed their laws. Here in the U.S. its time we did the same before some other bright shining light is taken from us before their time.

Lindsay Lohan's neighbor gets a lesson in the paparazzi

2009-08-20T22:08:23Z

Lindsay Lohan's neighbor wrote a blog regarding his experiences with all the paparazzi in his neighborhood. He learned what only those of us who have had to deal with them know: they are generally rude, can't be reasoned with, block roads, sidewalks and in general create a very unwelcoming and sometimes hazardous environment. Have a read about what he experienced:

Debbie Reynolds gives her thoughts on the paparazzi

2009-08-14T09:55:28Z

We were fortunate to receive this clip as a gift from a Hollywood producer who had interviewed Ms. Reynolds for a documentary about another subject. In the clip, the legendary actress discusses the "good ol' days" of Hollywood where celebrities had a life without the paparazzi driving them out of town and what she would have done with her BB gun.

The Paparazzi Reach Their Zenith Capturing Michael Jackson’s Death

2009-07-07T07:03:49Z

All professions have their zenith, a time when those in it know they’ve made it, that point when all their hard work pays off and they reap their rewards. In business it might be the successful sale of a business. In politics, it might be getting elected to a national office. If an actor, it might be an Oscar win. If a paparazzo, it most probably would be selling the final photo ever taken of Michael Jackson for half a million dollars…reportedly what occurred this week.

When I heard, like everyone else, that Michael Jackson had died, I could only think of the loss to his family, his music I enjoyed and how unfortunate it was that he was gone.

And then I heard through the news that the first to report his demise was a paparazzo. Of course, he always had paparazzi at his house or following him around…for this exact purpose: to capture his demise. It is what all paparazzi ultimately hope for, that they might be in the right spot to capture the last photo of some star alive. It is the big payoff. To capture a shot of Michael Jackson at his death – oh, what would it be worth!? Well, we know now if the reports are correct: $500,000.

Most people, I’ve found, don’t really know about or understand the paparazzi industry. They definitely enjoy paparazzi photos splashed across magazines at the checkout counter but they don’t connect that it was a paparazzo who captured that photo of their favorite celebrity out shopping. What almost no one understands is that ultimately what the paparazzi hope for is their big payday. That day when they capture a photo of the famous person dead, injured, arrested, breaking their marriage vows, ugly or fat. It came when Lindsay crashed her car, when Britney shaved her head and when Michael went into cardiac arrest.

It reminds me of the night earlier this year when I pretended to be a paparazzo and stood with a group of them outside a party in Hollywood. We all waited hours for Eva Longoria Parker to emerge from a building and walk 20 feet to her car. In the wee hours of the morning, the moment finally came and, surrounded by a mob of body guards and assistants, she made the crowded trip to her vehicle. After she drove away and the crowds were dispersing, one veteran paparazzo walked over to me and displayed on the back of his camera a perfect photo of her he had captured. As he showed it to me, in all sincerity said: “God forbid this is the last photo taken of her alive.” I stood repulsed by his words and his hope for the actress’ demise – he stood hoping for the zenith of his profession.

Santa Monica City Councilman working to protect kids from the paparazzi

2009-06-13T17:16:16Z

Councilman Richard Bloom is looking at what the city of Santa Monica can do to protect the children who attend a local nursery school from the mobs of prying paparazzi. You can see the full article from the Santa Monica Daily Press here.

Council to examine protecting children from paparazzi
June 9, 2009 - A circus-like atmosphere began unfolding at the First Presbyterian Nursery School, the source of chaos coming not from crying children, but rather a group of two dozen photographers snapping away from behind a fence.

They hooked their cameras into the fence, some even climbing up the divider erected between the playground and the alley where they stood, all to capture photos of a few celebrity parents with their children....see full article HERE.

How refreshing it is to see someone standing up and doing something to help the kids of celebrities who are constantly the focus of the paparazzi's attention.

Email Councilman Bloom and give him your support: richard.bloom@smgov.net.

Do the paparazzi drive away positive role models for our kids?

2009-05-29T22:39:48Z

From the website NJ.com comes this refreshing piece by Amber Watson-Tardiff:

'Britain's Got Talent' star Susan Boyle has public meltdown
Friday, May 29th, 2009

"Have you ever wondered why we don't have more good, clean entertainment for our children? I'm thinking it has something to do with the way we, as society, treat our entertainers...

If true stars like Susan Boyle continue to go in hiding due to the actions of the paparazzi, the only people left to influence our kids will be teeny-bopper fame-starved starlets who will do almost anything to catch the public eye (I think you get my drift without naming names here)." See full article HERE.

Ms. Watson-Tardiff is very astute in understanding that if we harass those artists that get to the top, if we make their lives miserable by constant badgering, what kind of incentive will that provide to artists in general to come out and share their talents with all of us?

Bottom line: without art this planet we live on would be very, very dreary. Why hammer away at individuals who provide us with music, literature, movies, sculpture, paintings and in many cases, inspiration?

Paparazzi and the "they can't have it both ways" excuse

2009-05-15T05:07:00Z

When someone is doing something they shouldn't, you can be sure they have a really "good" reason for doing it. The truth is, in their mind they ARE convinced whatever they are doing - as wrong as it might seem to the rest of the world - is absolutely right. It's how we humans are built. The arsonist knows burning down that building is what he should be doing. The thief is convinced the money in the cash register is his. And the paparazzi are convinced celebrities "can't have it both ways".

At first, when you hear this excuse it kind of makes sense. You think, "well, yea, you can't have it both ways!" I think my mom told me this first when I was out playing in the snow as a little boy. If I was going to jump in snow banks, I was going to get wet and cold. "Well, you can't have it both ways - you can't be dry and warm AND jump in the snow banks." Then I had a girlfriend tell me once I couldn't date another girl AND still date her: "No way, you can't have it both ways!"

So, in a lot of situations, this saying does ring true - you can't have it both ways. The only problem is...it doesn't apply to the paparazzi swarming celebrities. The thinking of the paparazzi goes this way: "You love us when you have a movie or CD coming out and want us to take your picture. Then, when you are famous you don't want us any more!" Kinda sounds like 2nd graders on the play ground, doesn't it?

But the truth is, yes, celebrities do need and want their picture taken and they are grateful for it when the time is right. And, those people who take the picture get rewarded in the form of money because that celebrity has VALUE and their pictures have value so when the paparazzi sells them they get paid. Celebrities keep the paparazzi in business. Then, when CD promotion time is over, the celeb wants some privacy, just like everyone else. But the paparazzi don't want this - they somehow think they are owed more for taking pictures of the celeb during the promotion time.

It's like when you hire painters to paint your house. They paint, you pay them. But how would it be if they kept coming back every day and painting your house again and wanting more payment? They come back the next day and paint the house again and want to be paid...again! Then the next day they come and paint the house again (even when you tell them to GO AWAY) and want to be paid...AGAIN!

The truth is people do have choices, everyone has a right to privacy, celebrities don't owe photographers just as much as photographers don't owe celebrities. And in this case, they definitely CAN have it both ways: photos taken during promotion time and privacy during private time. Even a second grader can understand this.