When people think of life in Southern California, one word often comes to mind: celebrities. The camera finds them sitting in the stands at Lakers, Kings, and Dodgers games. They are fixtures on the local news broadcasts every night. Our friends and families relate stories about who they ran into at the local shopping mall, or who they saw while they were out getting lunch. Even in an area where entertainment is a huge business, celebrity sightings always seem to capture our interest.
For whatever reason, the public has a thirst for images of celebrities behaving like the rest of us. TMZ, Us Weekly, and the like are hugely successful media outlets that pay good money for photos of celebrities doing the most ordinary of activities. Entertainment reporter Stephanie Dubois summed it up this way: "As long as there are readers willing to pay to see ... their favorite celebrities in all their lesser glory, there will be editors willing to pay paparazzi whatever it takes to get the story." 1
Where there is that interest, there also lies a tension between the right of famous people to have a private life away from the public’s eye and the right of the press to make a living covering celebrities in the name of news. The tension in this fight is over when and where the paparazzi can operate, and what the freedom of the press guaranteed by the First Amendment allows them to shoot. On that front, California has taken steps to restrict the paparazzi when it comes to shooting photos of the ultimate prize in celebrity coverage: photos of a celebrity’s child.
California Gets Tough on Paparazzi
Under California Civil Code Section1708.8, the paparazzi can be sued for damages if they trespass onto private property for the purpose of taking photos, videos, or audio recordings, whether by physically entering the property or through the use of equipment such as a telephoto lens or a microphone. 2 However, due to recent efforts from actresses such as Jennifer Garner and Halle Berry, California now has a tougher law that can make a paparazzo’s photographing of the children of celebrities a criminal act. 3
In 2013, Governor Jerry Brown signed into law SB 606, which amends California Penal Code Section 11414(a) to read:
“Any person who intentionally harasses the child or ward of any other person because of that person’s employment shall be punished by imprisonment in a county jail not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both that fine and imprisonment.” 4
The basic idea is that if a person photographs a child because of the type of work that the child’s parent does (for example, an actor or singer), and in so doing the person “seriously alarms, annoys, torments, or terrorizes” the child, that person has committed a crime that could cost them $10,000 and a year in county jail. 5
Though the word “celebrity” is found nowhere in the text of the law, it is clear that by making the crime depend upon the occupation of the child’s parents, the law targets photography of the children of people whose careers put them into the public eye.
Clashing with the First Amendment
The First Amendment guarantees that the government cannot interfere with our right to a free press. 6 However, this does not mean that this freedom is unlimited because the court has determined that under certain conditions, the right of the press can be limited. 7
The potential problem with California’s law is that it may be too vague to be enforceable. How can a person tell whether taking a photo of a child will “seriously alarm” the child before they take the photo? The Supreme Court has frowned on laws that restrict the kinds of stories the press can cover, 8 and on laws designed to “chill” the freedom of the press by causing a fear of legal trouble as a result of covering a story. 9
Under California’s law, the crime for which a paparazzo could be charged would be based on the unpredictable reaction of the child, which would certainly cause the paparazzo to have to think twice about snapping the picture. Because there is no way to tell what the reaction will be, and because what constitutes alarming a child is a vague standard, this could be viewed as either a prior restraint or a law that “chills” free speech.
California’s anti-paparazzi law also suffers from another problem. It states that the act that offends the child must be one that “serves no legitimate purpose.” 10 There is an argument to be made that these kinds of photos serve a legitimate purpose because millions of people consider the photos to be newsworthy (in other words, a matter of legitimate public concern). Under California law, the prosecutor has to prove that the facts published were not a matter of legitimate public concern. The courts consider three factors when deciding whether facts are of legitimate public concern:
- The social value of the facts published;
- The depth of the intrusion into ostensibly private affairs; and
- The extent to which the plaintiff voluntarily assumed a position of public notoriety. 11
Under this standard, most facts about celebrities and public officials are considered matters of legitimate public concern.
Though many people may find the paparazzi to be distasteful and not part of the “legitimate” media, those people do not get to decide that the paparazzi should receive any less constitutional protection than the rest of us. After all, this law could apply to any of us. Most of us are just a click of the camera button on our smartphone away from being photographers ourselves.
Share Your Feedback with Us
We at Wallin & Klarich would like to hear from you about this topic. Should California’s government enact a law making the photographing and selling of children of celebrities a crime? What are some of the reasons you see that would make this either a good or bad idea? Please feel free to leave your comments below.
1. [Keith D. Willis, Paparazzi, Tabloids, and the New Hollywood Press: Can Celebrities Claim A Defensible Publicity Right in Order to Prevent the Media from Following Their Every Move?, 9 Tex. Rev. Ent. & Sports L. 175 (2007), quoting Stephanie Dubois, “Stars' Run-Ins with Paparazzi Show Lessons Unlearned,” http://webcenters.netscape.compuserve.com/celebrity/becksmith.jsp?p=ce bsf 151 (last visited Mar. 7, 2007). ]↩
6. [Though the First Amendment applies to the federal government, it has been applied to the state governments through the Fourteenth Amendment.]↩
7. [For example, the Court ruled in Branzburg v. Hayes that a reporter could be ordered to reveal the identity of a person who violated federal law to obtain the information that the person gave to the reporter. Branzburg v. Hayes, 408 U.S. 665 (1972).]↩
8. [New York Times Co. v. United States, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971)]↩
9. [Branzburg v. Hayes, 408 U.S. 665 (1972).]↩
11. [Capra v. Thoroughbred Racing Association, 787 F.2d 463, 12 Media L. Rep. 2006 (9th Cir.), cert denied, 479 U.S. 1019 (1986).]↩