On September 24, California passed a law, originally known as Senate Bill No. 606, that significantly increased the existing criminal penalties for a certain type of intentional harassment of children (and wards) aged sixteen years old or younger. This type of harassment is inflicted on the child due to his or her parent’s or guardian’s employment. In other words, the law seeks to crack down on paparazzi’s targeting famous people’s children simply because of who their parents are, and what their parents do for a living.
Although the law at issue does not specifically mention celebrities’ children, better protecting such children from the paparazzi seems to have been the core purpose of the updated law. Accordingly, it is no surprise that both Halle Berry and Jennifer Garner testified in favor of the new law, as Entertainment Weekly reported in its October 11, 2013 issue. Indeed, Berry described her dropping her daughter off for school, as being akin to entering a “battlefield”, thanks to the paparazzi, as Entertainment Weekly also reported. Meanwhile, other stars, such as Sandra Bullock, have publicly supported Berry and Garner in their stance in favor of the law, which also covers recordings of a child’s voice; lying in wait for the child to appear; and following the child’s activities. To come within the statute, the paparazzo’s conduct must be such that it would cause a reasonable child to suffer emotional distress.
A Civil Action, Rather Than Jail Time and Fines, Should Be the Preferable Remedy When Paparazzi Target Children
While the original law at issue here was a good idea—for no one wants to tolerate adult behavior that bothers and even, in some cases, actually frightens children—one can argue that the heightened penalties that the new law inflicts are too harsh, given the First Amendment context. In light of the new, enhanced penalties, for a first offense, the paparazzo at issue could serve up to a year in jail, and pay a fine of $10,000. And then, going from there, the jail time and fines for an infraction only increase with additional offenses, up to a potential $30,000 fine and a jail term of up to a year, or both.
Moreover, a parent or guardian can, under the law, also initiate a civil action against the paparazzo at issue, through which the parent or guardian may recover actual damages; punitive damages; reasonable attorneys’ fees; costs; and disgorgement of the price of the sale of the photograph or voice recording of the child. The existence of these civil penalties raises the question whether criminal penalties are really appropriate here.
Even though paparazzi may occupy the lowest rung of First Amendment activity, they still enjoy the Amendment’s full protection. And they must, if we are to protect First Amendment activity, because in some contexts, there may be a fine line between paparazzi and more legitimate journalists. Accordingly, the inclusion, in the new law, of harsher criminal penalties, and particularly of additional jail time, seems overly punitive. Paparazzi are often well compensated for getting hard-to-find or otherwise newsworthy photos. Force them to disgorge their profits—or even a healthy multiple of their profits—when they break the law to procure a shot. But don’t send them to jail for simply taking a photograph and trying to sell it.
The most troubling aspect of the law at issue is that it treats First Amendment-protected speech as if it had no constitutional protection at all, and can be treated as if it were solely conduct, and not conduct mixed with speech.