Is Hawaii’s Steven Tyler Act Consistent With the First Amendment?

In my most recent column for Justia’s Verdict, I discussed California’s anti-paparazzi legislation, and the First Amendment issues it raises.  Today, I’ll discuss a Hawaii law that was reportedly inspired by that very California law. The Hawaii law is called the Steven Tyler Act (“the Act”), after the well-known musician and former “American Idol” judge, who has a home on Maui.  With the Hawaii legislation, too, as with the California legislation, some First Amendment issues arise, as I’ll explain.

Let’s begin with some background:  Although one motivation for the Tyler Act was clearly to protect celebrity privacy in Hawaii, there was clearly an economic motivation, too for the State.  Indeed, the Act itself notes that celebrities “are deterred from buying property or vacationing in Hawaii because the same paparazzi that harass them on the mainland are more likely to follow them to Hawaii.”  That deterrent effect surely must aggravate Hawaii’s high-end realtors, and other local industries that cater to the rich and super-rich.

But the Act also points out that Steven Tyler is a notable exception to the pattern of celebrities’ staying away from Hawaii.  Hence, the Act was named after him.  And the Act’s stated purpose is to attract more celebrity visitors and residents like Tyler, by penalizing the paparazzi who currently bother, and invade the privacy of, celebrities and their families.  And Tyler himself seems delighted with his namesake Act, commenting, after its passage, “Now I can walk around naked.”

Will the Act truly serve its stated purpose of bringing more celebrities to Hawaii?  Unfortunately, it’s quite possible that it won’t, based on a longstanding principle of Hawaiian law that holds that all Hawaii’s beaches are public and open to all.  As a result of that principle, no celebrity can buy a slice of private beach in Hawaii, as he or she might be able to do elsewhere in the world.  And in Hawaii, if a celebrity’s house and/or grounds can be seen from a nearby beach, there is nothing the celebrity can do except sacrifice his or her own beach view by installing a high fence or the like.

In short, despite the Act, there are some good reasons why celebrities may still want their vacation homes to be located not in Hawaii, but elsewhere in the world.

The Provisions of the Act

Still, the Act may be helpful for celebrities who do want a house in Hawaii, and who would likely otherwise find themselves plagued by paparazzi.  It creates a civil action for the constructive invasion of privacy—which, in the statute’s terms, occurs when a person captures or intends to capture, in a manner that is offensive to a reasonable person, through any means, a visual image, sound recording, or other physical impression of another person while that person is engaging in a personal or familial activity with a reasonable expectation of privacy. (Here, I’d like to have seen a more specific definition of what counts as a “personal or familial activity,” as the phrase seems quite vague.)

The civil action also includes an action for assault or false imprisonment if those torts are committed in order to capture, or with the intent to capture, images, recordings, or other impressions.  (An example of a violation would be a group of paparazzi encircling a celebrity and effectively holding him or her hostage in order to get photos of him or her.)

Those who violate the statute are liable for general and special damages, and punitive damages up to thrice the combination of general and special damages.  And if the constructive invasion of privacy at issue is committed for a commercial purpose (read: by paparazzi), the person who committed it must disgorge the proceeds he or she pocketed from the photos that were taken.

In addition, someone who causes another person to violate the law is liable for damages to the same extent as that person. Thus, even if paparazzi use local kids hanging out on the beach to accomplish their schemes, the paparazzi themselves also remain on the hook for damages.

In addition, those further down the chain who transmit, publish, broadcast, sell, or offer for sale or use a visual image, sound recording or other physical impression are also liable for damages under the Act. In other words, not only the photographers, but also everyone in the chain of dissemination and profit is liable under the Act.

Liable, too, are all those who retransmit, republish, resell and so on, if they knew that the images, recordings and impressions at issue arose from a violation of the statute, and they received compensation for the rights to the images, recordings or impressions.

Finally, the law applies to a person within Hawaii’s marine waters—with that provision likely added so that the law cannot be circumvented by the paparazzis’ taking shots while they or the celebrity at issue is out at sea, on a boat or surfboard.

As for additional remedies, the court can grant injunctions, as well as awarding damages.  And the injunctive relief that is available includes a restraining order prohibiting the commission of future violations.

The Lack of a Requirement That the Images at Issue Were Actually Captured Raises Serious First Amendment Issues

It is no defense to a violation of the Act that the images, recordings, or impressions were not actually captured or sold.  In my opinion, this aspect of the Act is its most glaringly objectionable from a First Amendment point of view.  It seems to mean that even if a paparazzo left his or her lens cap on, he or she could still be liable under the Act, because he or she merely intended to take a photo.  That seems preposterous.  The better rule here would be “No harm, no foul.”  The law could require proof, including an affidavit under oath, from the paparazzi that no shot was actually gotten, but that should be all.

Perhaps the legislature created the “intent only” provision to target paparazzi who were, for instance, stopped by security before taking a photo, but even so, the Hawaii legislature’s imposing an “attempt” framework in this tort context is disturbing.  The concept of attempt usually belongs squarely in the criminal context; it generally shouldn’t be invoked in the civil context, as it is here.

The Requirement of Only Minimal Consideration to Constitute a Violation of the Act Also Raises Serious First Amendment Issues

First Amendment issues are also raised by the Act’s definition of what it means to create images, recordings, or impressions “for a commercial purpose.”  The Act defines an act done for a commercial purpose as being done with the expectation of a sale, financial gain, or other consideration.  But as any first-year law student knows, consideration—which is defined under the law as “a thing of value”—may be minimal, such as a mere peppercorn.

So, in theory, if a local kid took a photo of Tyler on the beach, and traded it with a friend for his friend’s flip-flops, the local kid would technically have run afoul of the Act, which seems crazy and unfair.

A better solution would at least require substantial consideration.   That requirement could prevent mere vacationing photo hobbyists from naively falling into a net that the Act has set, seeking to catch paparazzi out for profit.