The Constitutionality of Anti-Paparazzi Laws

You may have heard about California's so-called anti-paparazzi laws if you - - - or someone you know - - - is a Justin Bieber fan.

 

Justin Bieber at the White House Easter Egg Roll 2010

The California statutory scheme includes California Vehicle Code § 40008 entitled “Intent to capture image, recording or impression for a commercial purpose,” that provides:

 

 a) Notwithstanding any other provision of law, except as otherwise provided in subdivision (c) [providing for multiple penalties], any person who violates Section 21701[Interference with driver or mechanism] 21703 [Following too closely], or 23103[Reckless driving] with the intent to capture any type of visual image, sound recording, or other physical impression of another person for a commercial purpose, is guilty of a misdemeanor and not an infraction and shall be punished by imprisonment in a county jail for not more than six months and by a fine of not more than two thousand five hundred dollars ($2,500).

It’s been well-publicized that one photographer was killed in a traffic accident while tracking Bieber’s car, and another photographer, Paul Raef, was prosecuted by the LA City Attorney pursuant to §40008 for conduct while tracking Beiber’s car.  The trial judge in that case dismissed the charges under §40008 as violating the First Amendment; an appellate panel is reviewing the case but has expressed preliminary doubts that the section is unconstitutional, citing Cohen v. Cowles Media Co.   

 Over at Justia, Julie Hilden argues that "picking out the state of mind of the paparazzi alone for censure and punishment may be a fatal mistake by the statute’s drafters."  Hilden also has some things to say about the role of the press, paparazzi, and celebrities themselves.

Hawai'i is also considering an anti-paparazzi law in part because of the considerable energies being spent by Steve Tyler (yes, of Aerosmith). Hawai'i HB 465 would create a civil cause of action and passed the Senate on March 1. 

ConLawProfs looking for an interesting in-class exercise - - - or even exam problem - - - might find Justin Bieber, Steven Tyler, and any other local celebrities, worth a second look.

RR