Can California’s Anti-Paparazzi Statute Survive a First Amendment Challenge?

Last year, paparazzo Paul Raef—who was photographing Justin Bieber—became the first person ever to be charged under a 2010 California statute that was intended to stop the paparazzi from engaging in dangerous car chases in which they follow celebrities.  A trial court in California dismissed that charge against Raef, finding that the anti-paparazzi law violated the First Amendment.  However, a California appellate court issued a contrary preliminary opinion that the law may, in fact, be constitutional.  The appellate court then directed the trial judge to reconsider his ruling.  The trial judge, however, stood by his ruling.  The matter will now return to the appellate court for a full appeal, in what may be the most significant case in years about the rights of journalists to gather the news.  Moreover, if the statute is upheld, it may substantially change the cat-and-mouse games that the paparazzi play with the celebrities whom they seek to photograph.

The anti-paparazzi statute was built on three other prior driving-related infractions: (1) interference with a driver; (2) following too closely; and (3) reckless driving: stalking. Those three basic infractions, under the 2010 statute, are transformed into misdemeanor offenses if they are done “with the intent to capture any type of visual image, sound recording, or other physical impression of another person for a commercial purpose….” (In other words, if they are done by a paparazzo.) And under the statute, those offenses, now misdemeanors, can carry six months in jail, and a fine of up to $2,500.  Moreover, if a minor is endangered, the potential jail sentence increases to one year, and the fine increases to up to $5,000.  Finally, the statute notes that if a given act or omission fits into two different categories of offense, the harsher one of the two offenses will be applied by the court adjudicating the case.

The First Amendment Issue

As disliked as the paparazzi are, they have the same First Amendment rights as, for instance, a New York Times reporter does—at least, in theory. (In practice, of course, it’s likely, (though unfair), that some judges will treat the Times much better than a paparazzo due to the newspaper’s prestige.)  But one key difference between the Times and the paparazzi is that the paparazzi do not have a history of self-regulation; they have not voluntarily instituted various forms of checks and reviews to ensure the integrity of their journalism, including the integrity and safety of their newsgathering methods. Perhaps the paparazzi should take a lesson from the Times; the initiation, and following, of a self-imposed and voluntary paparazzi code of conduct might help keep law enforcement away, and might change the public’s strongly negative view of the profession, at least somewhat.

As it is, though, far from banding together to self-regulate and change their profession’s image, some of the paparazzi actually seem to delight in their intrusions upon celebrities’ private lives.  Indeed, the worst among them lack any sense of decency whatsoever.  (For a good recent example of paparazzi overreaching, take a look at the current TMZ photo of Ben Affleck’s frightened young daughter, and an irate Affleck confronting the paparazzi for scaring her.)  Nevertheless, there are First Amendment limits on how much the paparazzi can be restrained.

Can Conduct Be Transformed From an Infraction Into a Misdemeanor Due to First Amendment Activity?

As noted above, the anti-paparazzi statute increases the penalty if the conduct at issue is done “with the intent to capture any type of visual image, sound recording, or other physical impression of another person for a commercial purpose . . . .”  There is no question but that this clause raises First Amendment issues.  Indeed, the trial judge dismissed it due to those very issues.

But the three-judge appellate court that will now resolve the case has indicated that it thinks differently, as The First Amendment Center reported.  That court, it seems, likely will uphold the law.  Yet there is a good argument for the appellate court’s ruling the other way, as the trial judge did.  Indeed, picking out the state of mind of the paparazzi alone for censure and punishment may be a fatal mistake by the statute’s drafters.  It indicates that this one state of mind, among all the possible states of mind that a person might have while driving, is uniquely and particularly dangerous and culpable, perhaps because it is driven by greed.  Yet numerous other states of mind may be just as dangerous for a driver to possess—anger, jealousy, grief, hatred, irritation, and distraction being among them.  And none of those other states of mind would trigger First Amendment concerns, as the statute’s decision to pick out the paparazzi does.  So why is the state of mind that raises First Amendment concerns the one to be singled out for censure?  A better statute would not look to the driver’s motive, but rather to (1) his or her conduct; (2) the risk his or her conduct had of hurting people; and, (3) if her conduct actually did hurt someone, the extent of the damage caused.

There’s one caveat here, though, I think:  It might be worth regulating the driving of paparazzi when a number of them gang up on a particular celebrity, which could be a phenomenon that could raise additional concerns about safety, as various paparazzi swarm a celebrity’s car or residence.  Otherwise, celebrities ought to avoid high-speed chases by slowing down themselves, and just submitting to the taking of photos.  Granted, it isn’t fair that celebrities, to be safe, must give in to their pursuers and let them win, but it’s the safest thing to do, for everyone concerned.