Ed. note: Please welcome Jenny M. Brandt, who will cover celebrities and the law. You can read her full bio at the end of this post.
Dax Shepard somewhat recently wrote in the Huffington Post of his support of the legislation signed into law in September aimed at curbing paparazzi from aggressively photographing children. Interesting. How could such a law comport with the First Amendment? Though there are several more paparazzi regulations that an organization called the Paparazzi Reform Initiative seek to enact, SB 606 is noteworthy because it was signed into law and because Jennifer Garner and Halle Berry were public supporters — they even testified before California’s Assembly Judiciary Committee in support of the bill.
Although it was previously illegal for a person to intentionally harass a child because of his parent’s employment (really? weird), SB 606 made it so that actually photographing or attempting to photograph a minor without his parent’s consent in a way that “seriously alarms, annoys, torments, or terrorizes” is harassment and punishable in the county jail for up to one year. The new language essentially specifies that if the conduct that seriously alarms the child is photographing him, then it is illegal, thereby implicating the First Amendment….
At the outset, it should be noted that the statute contains a phrase that arguably makes it so it could never apply to paparazzi. Specifically, the statute defines harassment as “knowing and willful conduct directed at a specific child or ward that seriously alarms, annoys, torments, or terrorizes the child or ward, and that serves no legitimate purpose” (emphasis added). Surely, taking a photograph of a child even in a way that seriously alarms the child serves the legitimate purpose of capturing newsworthy images (and making the photographer some money). Though this sentence might have been thrown in to make it so the law comports with the Constitution, how could the paparazzi ever violate the statute when the defense will always be that they had a legitimate purpose in capturing the image? And, if the paparazzi’s purposes are not legitimate, then doesn’t this statute fail as void for vagueness, because we don’t know what a “legitimate purpose” is?
The major First Amendment problem with the statute is that is seeks to proscribe the freedom of the press (assuming you define press to include TMZ and similar outlets) in entirely vague and overbroad terms. What does it mean to seriously alarm a child? To torment a child? Does taking a child’s photograph as he walks down the street terrorize him? Does the proscribed conduct depend only on the child’s reaction? Or is there something more objectively alarming, annoying, tormenting, or terrorizing in how a photographer goes about capturing the child’s image? Surely there is a scale from outrageous paparazzi conduct to not so outrageous, but how can the paparazzi be put on notice of which conduct is proscribed if the statute doesn’t tell them?
The statute also seems overbroad in the sense that juries might find that a paparazzi harassed a child when the paparazzi simply took a photograph of the child walking down the street in a completely benign manor. Or, there might be overbreadth in the sense that the law could have a chilling effect where paparazzi refrain from photographing adults when they are with their children for fear of eliciting a tantrum in the celebrity child.
It should be interesting to watch the first prosecution under this law and any subsequent appeals. And dear First Amendment scholars (#EugeneVolokh), please chime in! I found almost nothing on the internet meaningfully analyzing the First Amendment issues with the statute and I am no First Amendment scholar, so I’ll leave it up to the experts. I am, however, your biggest fan and I’ll follow you until you love me, papa, paparazzi.
Jenny M. Brandt is a criminal defense and appellate attorney in the Bay Area, California. She loves all things criminal law, celebrity gossip, and corgis, and has a blog at www.juicejusticeandcorgis.com. She graduated from UCLA (’05) and UCLA School of Law (’09) with a concentration in Critical Race Studies.