A proposed California law aimed at celebrity photographers could have First Amendment implications.
From the Summer 2005 issue of The News Media & The Law, page 18.
By Jennifer Myers
A herd of celebrity photographers flocked to photograph a shaken Lindsay Lohan earlier this summer after one photographer allegedly intentionally rammed his minivan into the teenage actress’ Mercedes-Benz while she was driving through Los Angeles.
Lohan’s experience sparked a California lawmaker to push an anti-paparazzi bill aimed at over-aggressive photographers who pursue celebrities. The bill is not aimed toward most press photographers, but some worry that it could have implications for the mainstream press.
Galo Ramirez, the photographer driving the minivan that allegedly hit Lohan’s car, was arrested and charged with assault with a deadly weapon and later with felony assault.
Under the anti-paparazzi bill, A.B. 381, photographers like Ramirez who are found guilty could be required to pay triple damages for assault under a section of the California Civil Code. The bill, sponsored by Assemblywoman Cindy Monteñez (D-San Fernando), won hasty Senate Judiciary Committee endorsement in late July. A full Senate vote is expected after the Legislature resumes work in August.
“This is not just [about] privacy,” said Dana Mitchell, legislative director for Monteñez. The paparazzi are “physically trying to attack people.”
After the Lohan incident, Monteñez gutted an unrelated bill and inserted the anti-paparazzi provisions. A person would be liable for assault if he or she intentionally injures another person under circumstance causing the victim to have a reasonable fear of violence. Such an action already constitutes assault, but under Monteñez’ bill it would invoke greater punishment.
Opponents argue increased damages are not reason enough to change existing law.
“The only thing it does is create a damage remedy; that kind of act is already tortious,” said Peter Scheer, executive director of the California First Amendment Coalition. “We don’t see the need for further legislation.”
Thomas Newton, general counsel of the California Newspaper Publishers Association agreed.
“It’s constitutionally suspect, a bad amendment on a bad law,” he said. “Under existing law, without having to deal with intent, there are existing remedies for assault. We tend to oppose ridiculous laws that could have an affect on mainstream journalists.”
But Mitchell thinks the bill’s intent-to-harm requirement would protect most working journalists from prosecution. “You have to intend to place someone in harm’s way or make them feel threatened,” she said. “Mainstream journalists don’t do that.”
Newton, however, is concerned about possible attempts “to use the law in a way that chills the First Amendment.
“Our big concern is a situation where a photographer is attempting to capture an image of a subject of the news who is very reluctant about being a subject of the news who may attempt to use the law in order to chill legitimate reporting about their conduct,” he said. “It’s in the vein of a frivolous lawsuit.”
Frank Griffin of the Los Angeles paparazzi agency Bauer-Griffin dismisses the bill for different reasons. “What’s the point of this bill?” he said. “They’re trying to pass a ludicrous law against something that doesn’t happen.”
Griffin said incidents such as the one involving Lohan are rare, and questioned Monteñez’ motives. “This town lives off its celebrities,” he said. “I do think she [Monteñez] is someone who is trying to climb on the bandwagon without doing proper research thinking this bill is going to attract campaign contributions from Paris Hilton and Angelina Jolie, and I think she’s mistaken.”
Others, however, are not waiting for legislation to clamp down on paparazzi actions.
In June, Us Weekly, a major consumer of paparazzi photographs, created a formal policy banning “photos obtained in an illegal way,” said Claudia DiRomualdo, an Us publicist. “We imposed the regulation on ourselves.”
Bill Hodgeman of the Los Angeles District Attorney’s office calls US Weekly’s position “laudable.”
“Hopefully it will be followed by others, but in the real world dynamics it seems like the competition to obtain photographs in a manner that is sometimes illegal is very intense,” he said.
The District Attorney’s office, which backs the bill, has considered a variety of tactics to combat over-aggressive paparazzi including charging them with felony conspiracy. Officials are investigating who coordinates paparazzi to be in the same location at the same time, as well as who provides their vehicles and cell phones.
The possible use of criminal conspiracy charges are a way for law enforcement to keep up with the latest generation of paparazzi, whom some are labeling “stalkerazzi” for their overly aggressive tactics.
That distinction is important to Rhonda Saunders, a Los Angeles prosecutor and vice president of the Association of Threat Assessment Professionals who wrote California’s anti-stalking law.
“What I’m concerned about is not the legitimate press or legitimate photographers but people who are actually endangering the public,” she said. Saunders supports the bill, but is unsure if it would be a deterrent.
“Because of the intent element to get the picture and forget the cost of taking pictures, whether that’s a human life or money or damages, I think that criminal sanctions are appropriate,” she said.
Saunders and Hodgeman agree that the actions of paparazzi are increasingly dangerous.
“In certain instances the paparazzi photographers are violating California criminal laws and my overarching concern about that is given this sort of behavior it strikes me as inevitable that someone is going to get seriously hurt or killed,” Hodgeman said. “I would like to prevent that.”
Mitchell is “cautiously, guardedly optimistic” about the bill’s chances. She hopes the Los Angeles prosecutor’s office and representatives from the Screen Actors Guild, which is endorsing the bill, will testify at a California Assembly hearing.
SAG President Melissa Gilbert might testify, said guild spokeswoman Pamm Fair, who dismissed the idea that the proposed law is redundant. ” I think this draws a direct line to [assaultive] behavior and says unequivocally ‘that it’s an assault and celebrities aren’t fair game.’
“The vast majority of those who are victimized by paparazzi who put them in harm’s way are SAG members and they are our high-profile members,” she said.
Fair also pointed to the probable support of one of the Guild’s most influential members: movie star Gov. Arnold Schwarzenegger.
“I would expect that the governor will support the bill; he has own personal perspective of the issue,” she said.
Mitchell also said Schwarzenegger, a Republican, likely will support the bill. She pointed to a 1998 incident where paparazzi “boxed” in Schwarzenegger and Maria Shriver while they were picking up their child from school. Boxing — using multiple vehicles to prevent a car from escaping — is used by some paparazzi.
“The bill is moving,” said Newton, of the publishers group. “It’s backed by the 60,000-plus strong Screen Actors Guild, we have a celebrity governor; it will get passed and signed probably — over our objections.”