PAPARAZZI LEGISLATION: POLICY ARGUMENTS AND LEGAL ANALYSIS IN SUPPORT OF THEIR
CONSTITUTIONALITY
Copyright (c) 1999 Regents of the University of California; Sharon A. Madere
Paparazzi behavior has been a topic of public debate for many years. Celebrity scuffles with aggressive paparazzi typically make interesting news, or at least engaging headlines. Additionally, public figures have become more and more assertive in their confrontations with paparazzi and increasingly forceful in speaking out about the paparazzi problem. Public concern over paparazzi behavior reached its zenith after the untimely death of Princess Diana in 1997. Soon afterwards, proposals emerged in both the U.S. House of Representatives and the California Senate that would attempt to regulate paparazzi conduct.
In this Comment, Sharon Madere argues that these proposed laws regulating paparazzi conduct are desirable and can be constitutional. She maintains that both public figures and private individuals should not be subject to dangerous and intimidating situations presented by paparazzi. A public figure should not be required to surrender all interests in privacy simply because he is the focus of media attention or public fascination. More importantly, an individual, whether public or private, should be able to go about his daily activities without fear of harassment or personal injury to himself or his companions. These societal interests in privacy and safety show the desirability of paparazzi regulations.
Madere enlists both constitutional policy arguments and legal analysis to support her conclusion that, with respect to paparazzi regulations, interests in personal privacy and safety outweigh the paparazzi's interest in freedom of the press. The unusual characteristics of the paparazzi, as distinguished from the institutional press, further support the constitutionality of these regulations. Additionally, Madere argues that the proposed paparazzi regulations are content neutral and generally applicable and that they should accordingly survive both the O'Brien test and an intermediate scrutiny test for constitutionality. Finally, Madere concludes her Comment with a brief discussion of some overbreadth and vagueness concerns that may arise in connection with paparazzi regulations.
Introduction
Paparazzi, literally “buzzing insects,” [FN1] have existed for decades. They are photographers who hound Hollywood celebrities and other public figures, looking for shots of them in unguarded moments. [FN2] In recent years, the game to capture celebrities on film has become increasingly fierce, [FN3] in part *1635 because of the astronomical amount of money a paparazzo stands to make by capturing a highly coveted photograph. [FN4] Consequently, in order to keep up with tabloid demands, the paparazzi and other aggressive news gatherers have utilized more intrusive and dangerous tactics, such as provoking confrontations with their subjects in order to catch their outbursts on film. [FN5]
The most notorious incident that reflects the dangers created by aggressive paparazzi is the death of Diana, Princess of Wales. Many were quick to place blame on the paparazzi after Princess Diana's sudden and violent death. [FN6] Witnesses at the accident scene reported that the paparazzi were swarming around Princess Diana's automobile on motorcycles, thus contributing to, if not actually causing, her death. Apparently, Princess Diana and her companions were trying to evade the paparazzi and prevent them from taking pictures of her and her lover, Dodi al-Fayed. Ironically, when seven photographers were detained at the accident site and questioned by police, other photographers at the scene declined to take photographs of their colleagues. As one photographer explained, “‘If it's clear they don't want me to take their pictures, I won't, out of professional solidarity.”’ [FN7]
We may never know exactly what happened in that Paris tunnel or exactly what role the paparazzi played in the tragedy, which killed al-Fayed as well as Princess Diana. But this incident and other highly publicized paparazzi celebrity scuffles have caused public backlash against the increasing number and aggressiveness of the paparazzi. [FN8] The public's reaction to the death of Princess Diana may be indicative of its escalating concern regarding the treatment of public figures by the press. Indeed, some commentators assert that the press is “‘far more interested in finding sleaze and *1636 achieving fame and fortune than in serving as an honest broker of information between citizens and government.”’ [FN9]
Warren and Brandeis's The Right to Privacy, published in the Harvard Law Review in 1890, [FN10] predicted the degradation of the integrity of the press. Although it was written over 100 years ago, this article accurately depicts the current problems with the press. If anything, the problems that Warren and Brandeis described are more pronounced today than ever before. They wrote that [t]he press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. [FN11]
These problems no doubt exist today. Furthermore, they are exacerbated by such things as modern electronic media, which allow the press to engage in virtually instantaneous dissemination of information. Additional factors, such as our consumer-oriented society and our obsession with the cult of celebrity, further contribute to an increase in press impropriety. As a result, not only is the press overstepping appropriate bounds in what it reports, but it is also overstepping appropriate bounds of propriety and decency in the manner in which it gathers information. Yet, aggressive news gatherers like the paparazzi continue to use the Press Clause of the First Amendment [FN12] as a shield against criminal prosecution and civil liability.
The notion of freedom of the press is the most likely justification for the conduct of the paparazzi. Journalism, almost by definition, involves some degree of intrusion and requires that journalists often investigate people who would rather not have their affairs publicized. [FN13] Additionally, journalists are quick to point out that celebrities and public figures do not *1637 hesitate to use the press for their own purposes. [FN14] Furthermore, the philosophy behind news gathering trains journalists to be apathetic and unemotional when documenting a scene. The journalistic philosophy maintains that it is the journalist's job to report events and remain external to the subject of the report. Journalists are conditioned to separate documenting the scene from worrying about the consequences of what they record. [FN15] Finally, some argue that any harm journalists cause is toward a valued end. Essentially, this argument is that journalists
work to benefit society at large, not the individual subject of their reporting. [FN16]
This Comment argues that “‘[t]here's a difference between observing celebrities and hunting them down”’; [FN17] the former should be legal, the latter illegal. This Comment further argues that legislative proposals aimed at regulating the conduct of aggressive and intrusive photographers are desirable and can be constitutional. Part I introduces some legislative proposals that attempt to regulate the conduct of the paparazzi and articulates the governmental interests that underlie these proposals. It also analogizes such legislative proposals to stalking statutes and distinguishes them from antiabortion protest regulations. Part II argues that the conduct of aggressive news gatherers does not have expressive elements and therefore does not implicate the First Amendment. Thus, under a rational basis test, the proposals *1638 introduced in Part I would be upheld as constitutional. In any event, even if the actions of aggressive news gatherers do have some expressive elements, the proposed laws are generally applicable and only incidentally burden First Amendment interests. Thus, under an intermediate scrutiny test, these proposals would also be upheld as constitutional. Finally, Part II concludes with a brief discussion of overbreadth and vagueness, other possible constitutional challenges to these proposed laws.
Solutions
A. Proposals
The increased resentment of the paparazzi by celebrities and the general public has galvanized legislators to propose legislation imposing liability on members of the paparazzi who engage in intrusive and dangerous news-gathering activity. [FN18] In September 1997, late Congressman Sonny Bono introduced the Protection from Personal Intrusion Act [FN19] in the House of Representatives. This bill seeks to amend Chapter 89 of Title 18 of the United States Code, by adding the following:
§ 1822. Harassment
(b) Definition of ‘Harass'.--As used in this section, the term ‘harass' means persistently physically following or chasing a victim, in circumstances where the victim has a reasonable expectation of privacy and has taken reasonable steps to insure that privacy, for the purpose of capturing by a camera or sound recording instrument of any type a visual image, sound recording, or other physical impression of the victim for profit in or affecting interstate or foreign commerce. [FN20]
*1639 Additionally, last year California State Senator Tom Hayden introduced the Paparazzi Harassment Act of 1998 [FN21] in the California legislature. Currently a Senate bill, this proposal declares that [a] person is liable for the tort of invasion of privacy when he or she intentionally comes within 10 feet of any person
who is the subject of media interest for the commercial purpose of photographing, videotaping, or recording that person in a manner that causes the plaintiff to reasonably expect physical harm or emotional distress to children or other family members present and refuses to leave the 10-foot zone upon request. [FN22]
Included in the bill is a reaffirmation of both freedom of the press (specifically the vital importance of independent investigative journalism) and the right to privacy set forth in the California Constitution. [FN23] The bill further declares that it stems from the legislature's “concern at the growth of the paparazzi phenomenon, with its emphasis on massive commercial *1640 rewards or bounties for behavior that raises questions about privacy and the public interest.” [FN24]
While these two bills have some differences, [FN25] what they propose is essentially the same. They both seek to deter dangerous paparazzi behavior by imposing liability for the harassment that often occurs when the paparazzi photograph celebrities and other public figures. These proposals attempt to impose reasonable regulations on the manner in which photographs can be obtained. Their goal is modest and their means are reasonable. They do not ban photographers from taking pictures of public figures. They do not impose a strict buffer zone into which the paparazzi can never intrude.
Nor do they create a blanket prohibition on the use of technologically advanced media equipment, such as telescopic lenses. Instead, these bills propose to regulate paparazzi conduct that, in the mind of a reasonable person, constitutes both a violation of the right to privacy and a danger to public safety.
People who oppose these bills will likely argue that they violate freedom of the press. They may argue that the paparazzi, although not a part of the established press, play an important role in our society, contributing valuable information to the marketplace of ideas. They may also point out that, because the subjects of the paparazzi's attention are generally celebrities and other public figures, the threshold for what constitutes an invasion of privacy should be higher. Additionally, paparazzi supporters may argue that no one can have a reasonable expectation of privacy as to activities occurring in public view. Therefore, because the paparazzi generally conduct their activities on public property (e.g., sidewalks, streets, and restaurants), they do not invade legitimate privacy expectations. Finally, people who oppose these proposed laws will likely also attack them on overbreadth and vagueness grounds. Ultimately, the competing interests involved in a constitutional analysis of these bills are public safety and an individual's right to privacy, on the one hand, and the freedom of the press, on the other. When considered in light of the unique characteristics of the paparazzi, the privacy and safety interests outweigh the interest of freedom of the press. These proposals should accordingly be upheld as constitutional.
B. Societal Interests
Paparazzi regulations are needed to protect privacy and safety interests. Society in general has significant interests in protecting both famous and unknown private individuals from the dangers that aggressive news gatherers pose.
1. Safety
First, society has a significant interest in protecting the physical safety of the targets of paparazzi actions. These concerns also extend to the targets' companions, who may also be placed in danger. The paparazzi's actions are calculated to produce shocking and intriguing events. As a result, actions of the paparazzi can cause harm to the intended subject, harm to others present at the scene, [FN26] and even harm to the paparazzi themselves. [FN27] Sometimes, the very purpose of paparazzi conduct is to provoke violent outbursts by the victim and subsequently capture those outbursts on film. This scenario, if outrageous enough, will result in a high demand for photographs of the incident, and consequently a large monetary return for the paparazzo who snapped the photographs. Individuals should be protected from this type of dangerous, calculated conduct.
Additionally, individuals also need to be protected from kidnappers, stalkers, or obsessed fans who might masquerade as paparazzi. [FN28] Such people may argue that they are exempt from liability because of the Press Clause. [FN29] But such an exemption would enable an aggressor to be in close contact with a public figure, thereby posing a great threat to the public figure's safety.
2. Privacy
Society also has an interest in protecting the reasonable privacy expectations of its citizens. All citizens, regardless of their fame or notoriety, deserve *1642 the opportunity to preserve some aspects of their lives as private. According to Warren and Brandeis, [t]he common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others. Under our system of government, he can never be compelled to express them ... and even if he has chosen to give them expression, he generally retains the power to fix the limits of the publicity which shall be given them. [FN30]
The paparazzi invade this right by thrusting themselves into the personal and private sphere of an individual. Their actions reveal personal and even intimate details about a person--details that are meant to be kept private. The privacy interest aims to protect the right to be free from repulsive and unconscionable behavior intended to expose personal details about one's life.
Privacy concerns become even more pronounced when considered in light of the unique dangers the paparazzi present. There is a legally significant difference between merely observing a person and actually photographing a person. A photograph intensifies an invasion of privacy in three ways. [FN31] First, it makes a permanent record of the scene, which allows the photographer to take a part of the subject with him. [FN32] Second, a photograph allows information to be revealed that would not normally be noticed by the human eye alone. [FN33] Finally, and most importantly, a photograph has the potential to augment the impact of the original invasion through wide dissemination. [FN34]
Thus, these unique characteristics of photography distinguish the paparazzi from the average passerby because they enhance the magnitude of the invasions of privacy that they commit. The invasions are further augmented because the paparazzi hope for and anticipate mass dissemination *1643 when taking the photographs. The uniquely intrusive nature of photographs should be taken into consideration when determining the extent of the privacy invasion by the paparazzi.
a. The Right to “Public Privacy” Does Exist
Those who oppose paparazzi regulations may argue that there is no right to privacy in public places. This argument centers on the notion that one cannot have a reasonable expectation of privacy in activities occurring in a public place in plain view of the general public. This argument continues that people assume the risk that when they walk on a public street or eat in a restaurant, other people may take their photographs. Additionally, people who oppose paparazzi regulations will likely argue that individuals must tolerate annoying and even offensive behavior; [FN35] that is the price we pay for living in a free society.
However, courts are increasingly recognizing the right to privacy in public places. [FN36] This has been termed “public privacy” by some. [FN37] The notion of public privacy is supported by Katz v. United States, [FN38] this century's watershed privacy case, which declares that the “Fourth Amendment protects people, not places.” [FN39] Additionally, in Kramer v. Downey, [FN40] a Texas appellate court fell just short of expressly recognizing a right to recovery for public intrusion. In that case, the plaintiff sued his former lover for invasion of privacy based upon the defendant's surreptitious course of conduct, which included “‘maintain[ing] visual contact with him in public places,”’ [FN41] after he ended the relationship. The defendant unsuccessfully argued that so long as she kept her distance from the plaintiff and stayed on public property, her conduct was not actionable. The trial court entered judgment for the plaintiff and the court of appeals affirmed. It declared that “we now hold that the right to privacy is broad enough to include the right *1644 to be free of those willful intrusions into one's personal life at home and at work which occurred in this case.” [FN42]
Further, the court in Nader v. General Motors Corp. [FN43] held that the defendant's activities of surveillance, shadowing, and eavesdropping violated the plaintiff's right of privacy under District of Columbia law. [FN44] The court distinguished between mere observation of a person in a public place, which does not constitute an invasion of privacy, and “overzealous” surveillance, which in some circumstances does constitute an invasion of privacy. [FN45] Significantly, the court noted that “[a] person does not automatically make public everything he does merely by being in a public place.” [FN46]
As these cases show, courts are willing to recognize a right to privacy in public places. No one can reasonably be expected to surrender all of his privacy rights simply by virtue of his presence in a public place. There are many things about a person that remain private, even if that person is walking down a public sidewalk in plain view. Individuals surely have a reasonable expectation of privacy in such things.
Again, those who oppose paparazzi regulations may argue that people assume the risk that their photographs may be taken if they are in a public place. However, this argument is unpersuasive when applied to common day-to-day activit-ies, such as walking on a sidewalk or eating in a restaurant. For example, just because one drives a car on the highway, that does not mean that one assumes the risk of being injured in an accident. Driving a car is a daily activity in which people need to be able to engage freely. Similarly, the ability to go about one's daily activities unrestrained from unreasonable interference is a right everyone possesses.
b. Public-Figure Implications
People who oppose paparazzi regulations might also argue that the privacy threshold should be higher for public figures. The paparazzi interact almost exclusively with celebrities and other public figures. Just as the threshold for what constitutes libel is higher for a public figure than for a *1645 private individual, [FN47] the threshold for determining at what point the paparazzi may be regulated should also be higher. This argument centers on the fact that public figures typically thrust themselves out into the public eye. Sometimes the public figure even relies on paparazzi exposure to enhance his popularity or notoriety.
This argument ignores the fact that dangerous and intrusive activity is dangerous and intrusive activity, regardless of its target. This argument also ignores the fact that there are different types of public figures, not all of whom voluntarily thrust themselves into the public eye. [FN48] In any event, the bottom line is that the Press Clause of the First Amendment does not provide protection for those who engage in dangerous and harassing conduct. It is not relevant that the conduct is intended to gather information about or take a photograph of a public figure. As the district court in Galella v. Onassis [FN49] explains, “[t]here is no general constitutional right to assault, harass, or unceasingly shadow or distress public figures.” [FN50]
C. Analogies
1. Stalking Laws
Paparazzi regulations would be closely analogous to widely adopted stalking statutes. [FN51] The first statute criminalizing stalking was passed in 1991 in California. [FN52] Every state now recognizes the crime of stalking. [FN53] Though there is of course variation in the details, stalking statutes generally make it an offense to “engage in a repeated course of surveillance or harassment of another under circumstances raising a credible threat of bodily harm.” [FN54] Surreptitious following, surveillance, and threats all constitute conduct that can potentially serve as the basis for a stalking charge. [FN55] Like *1646 paparazzi conduct, stalking generally occurs in public places. In finding a stalking violation, many courts have required a pattern of conduct by the defendant rather than a mere isolated incident. [FN56]
The rationale that justifies stalking statutes applies equally to paparazzi regulations. Furthermore, the same government interests underlie both sets of regulations. Stalking statutes are rooted in a concern for public safety. Before these statutes were passed, victims of stalking did not have a legal vehicle to stop this harmful activity. Because the act of stalking was not a crime itself, victims of stalking did not have redress in the law until their stalkers committed some other offense. [FN57] By making the act of stalking itself illegal, stalking statutes attempt to stop actual physical harm before it occurs. A similar rationale underlies paparazzi regulations.
It can be argued, however, that the government should not be able to prohibit nonharmful conduct. The government should not be able to prohibit behavior that is not yet criminal, even if it might lead to dangerous activity in the future. In other words, there must be some kind of present harm before the government can step in and prosecute or impose civil liability.
With respect to stalking and paparazzi regulations, this argument fails because the behavior being regulated is harmful in and of itself. The behavior of stalkers and paparazzi is threatening, harassing, and intimidating. It creates fear and anxiety in the mind of the victim who, to make matters worse, often has no place to turn except to the protection of the law. Thus, the aim of the legislature in enacting these statutes is not only to prevent violent attacks by outlawing those actions that serve as a pre-cursor to such attacks, but also to prevent the harm produced by such harassing actions in and of themselves. [FN58] That is, “[t]he statute[s are] intended to prevent intimidation and the infliction of reasonably grounded apprehension and fear.” [FN59]
Whether the aggressor is a stalker or a paparazzo, his conduct presents a very real and significant threat to the safety and privacy of the victim. Stalking statutes hold the general public to a minimum standard of decency and propriety. The paparazzi should not be exempt from the standards to *1647 which the law holds the general public. Both stalking statutes and paparazzi legislation “[r]ecogniz[e] a civil cause of action for public intrusion for episodes of harassing surveillance, ... help further [a] deterrent purpose, [and] furnish a vehicle to the victims of such conduct for obtaining compensation.” [FN60] These characteristics confirm the desirability of such regulations and support the government interests underlying their constitutionality.
Many of the paparazzi's actions would easily fall under the definition of stalking. In fact, the stalking of celebrities by obsessed fans was a driving force behind the passage of the first stalking statute in California. [FN61] However, many state stalking laws provide explicit exceptions for news reporters. [FN62] This not only presents a safety concern for public figures and celebrities, but it also explains why stalking statutes may be inadequate to provide them with a remedy in the law. A stalker or an obsessed fan could engage in news-reporting activity and then use his press status to
immunize any dangerous or otherwise illegal behavior. Paparazzi regulations would fill this void and provide additional protection for public and private individuals.
In State v. Culmo, [FN63] the defendant was charged with second-degree stalking. He moved to dismiss the indictment on the grounds that the stalking statute under which he was indicted was unconstitutionally vague and overbroad and that it invited abuse by police and prosecutorial agencies. [FN64] Specifically, [t]he defendant claim[ed] that the [stalking] statute implicate[d] numerous basic constitutional liberties and first
amendment rights... (1) the free exercise of religion because it could deter individuals from proselytizing in a public place; (2) the rights of assembly and petition, because it could chill picketing and political demonstrations; ... (3) freedom of the press, because it could have an impact on the news gathering activities of aggressive *1648 investigative reporters[;] ... [and (4)] “the right to travel and move about” in public places. [FN65]
In ruling on the defendant's motion, the only issue the court addressed was the defendant's constitutional right t travel. In regard to this right, the court invoked intermediate scrutiny in analyzing the constitutionality of the stalking statute. [FN66] The court noted that the state's interest in criminalizing stalking behavior is not only an important interest, but a compelling one as well. [FN67] Specifically, the court noted that protect[ing individuals] from stalking conduct is at the heart of the state's social contract with its citizens, who should be able to go about their daily business free of the concern that the[y] may be the targets of systematic surveillance by
predators .... The freedom to go about one's daily business is hollow, indeed, if one's peace and safety endangered, by the threatening presence of an unwanted pursuer. [FN68]
The court ultimately arrived at the conclusion that society's interest in criminalizing the behavior of stalkers outweighed the defendant's fundamental right to freedom of travel. [FN69]
Finally, the court in Culmo also ruled that the stalking statute, on its face, does not implicate any First Amendment rights. [FN70] The court recalled the distinction between statutes that regulate conduct and statutes that regulate expression. [FN71] It ruled that when a statute, like the one at issue, regulates nonexpressive conduct, as opposed to speech, the First Amendment*1649 is not implicated. [FN72] Thus, the stalking statute is not rendered unconstitutional even if it has incidental adverse effects on First Amendment rights.
Additionally, the court in State v. Cooney [FN73] held that the stalking statute at issue did not violate the defendant's constitutional right to free speech. Here, the defendant repeatedly sent letters to the victim, telephoned her, and left messages on her telephone answering machine. [FN74] On these grounds, the defendant was convicted of stalking. The Supreme Court of Montana affirmed his conviction and held that the stalking statute was not unconstitutional. [FN75] First, it noted that the First Amendment does not protect all speech. [FN76] It further noted that First Amendment rights do not include the right to cause substantial emotional distress by harassment or intimidation. [FN77] Thus, because the defendant's conduct lacked any social value, the court found that his conduct was not protected by the First Amendment. [FN78]
The courts' analyses in Culmo and Cooney strongly support the con-stitutionality of paparazzi regulations, as such regulations are similar in form and in substance to stalking statutes. Essentially, these analyses suggest that the First Amendment does not apply to statutes that regulate conduct as opposed to speech. Additionally, these analyses also reinforce the idea that the First Amendment does not provide a license to engage in intimidating and dangerous conduct.
2. Laws Restricting Abortion Protesting
Some who oppose paparazzi regulations may try to compare them to regulations partially invalidated in recent antiabortion protest cases, most notably Schenck v. Pro-Choice Network. [FN79] They may argue that these cases reject the idea that there is a right not to be harassed in public.
In Schenck, the Supreme Court upheld fifteen-foot “fixed buffer zones” while at the same time striking down fifteenfoot “floating buffer zones.” As Chief Justice Rehnquist wrote, “[w]e strike down the floating buffer zones around people entering and leaving the clinics because they burden more *1650 speech than is necessary.” [FN80] Rehnquist went on to assert that on the streets and sidewalks “our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.” [FN81] The Court in Schenck seemed to “‘reject[ ] the notion that listeners have a zone of privacy or that there is a right not to be hassled.”’ [FN82]
The injunction in Schenck is distinguishable from proposed paparazzi regulations. First, the paparazzi regulations do not impose strict buffer zones around the subjects of the paparazzi's attention. While the antiabortion protest injunction in Schenck was more similar to a blanket ban of activity occurring within a fifteen-foot radius of the subject, paparazzi regulations do not impose such rigid restrictions. Instead, they merely regulate the manner in which paparazzi activity may be conducted.
Second, unlike the floating buffer zones struck down in Schenck, paparazzi regulations leave open ample alternative channels of communication. In Schenck, the Court pointed to the fact that the sidewalks surrounding the abortion clinics were only seventeen feet wide. Given that the floating-buffer-zone injunction called for a fifteen-foot zone of privacy, abortion protesters trying to comply with the regulation either would be forced out into the street or would not be able to engage in their protest activities. Therefore, the injunction did not leave open ample alternative channels of communication for those wishing to express their views. In contrast, paparazzi regulations do not quantify the zone of privacy afforded to the subject in terms of inches or feet. [FN83] They are aimed at harassing, intimidating, and dangerous conduct, regardless of the actor's distance from his subject. Photographers are free to continue photographing their subjects, even in ranges closer than fifteen feet, as long as their conduct is not dangerous or unreasonably harassing.
*1651 Hence, paparazzi legislation is distinguishable from the floating-buffer-zone injunction struck down in Schenck for three reasons: First, it is not as sweeping; second, it leaves open ample alternative channels of communication; and third, it does not burden more speech than necessary to accomplish its goals.
Constitutional Analysis
The most obvious argument against laws regulating the conduct of the paparazzi is that such laws violate the constitutional rights to a free press and to free speech. This Comment maintains that the paparazzi should not be allowed to use the Press Clause as a shield to immunize otherwise dangerous behavior. Similarly, the paparazzi should not be able to use the Press Clause as a sword to enable them to engage in activity that is highly offensive and intrusive. The ultimate constitutional analysis surrounding these proposed laws will hinge on the balance between the right to privacy [FN84] and the freedom of the press. [FN85] When considered in the context of the paparazzi, the balance between the right to privacy and the freedom of the press should tilt in favor of the right to privacy. In the end, the unique characteristics of the paparazzi make their actions less deserving of constitutional protection.
A. Constitutional Policy Arguments--The First Amendment Is Inapplicable Because No Speech Is Involved
Paparazzi behavior does not have any expressive elements. Even if members of the paparazzi intend to “say” something, their conduct does not automatically become protected speech simply because they intend to convey a message through either their conduct when they take photographs or the actual photographs themselves. [FN86] Furthermore, members of the paparazzi are too far removed from the core of the First Amendment to be considered part of “the press,” as the term is used in the First Amendment. [FN87]
*1652 1. Framers' Intent
Generally speaking, the Press Clause of the First Amendment was meant to protect the press. However, a deeper analysis into the purpose behind the Press Clause demonstrates that the Framers had a specific expectation in mind when they provided constitutional protection for the press. The purpose of the Press Clause is to allow the press to exist as an institution independent from and external to the government, thus serving as an additional check on government. [FN88] As one scholar explained, “the press clause should be construed to afford the institutional press special protection in certain circumstances, allowing the press to perform its proper role as both an adversary to, and check upon, an everexpanding government.” [FN89]
Freedom of the press was certainly a matter of serious concern for the Framers. Scholars believe that the Press Clause was intended to allow the press to combat “‘government oppression and tyranny.”’ [FN90] Literature regarding
the Framers' intent as to the Press Clause focuses on the anticipated role of the press as a check on government. [FN91] The Framers reasoned that such an external check is essential in our system of self-governance.
Admittedly, the Press Clause has been expanded to protect the press even in its non-government-related capacities. [FN92] In this sense, the current doctrine of freedom of the press has strayed far away from the Framers' initial purposes. However, constitutional boundaries still exist in the realm of First Amendment freedom of the press doctrine. [FN93] Paparazzi regulations crystallize one of those boundaries.
*1653 With the advent of a more powerful government in the twentieth century, some scholars argue that there exists a need for a more effective press with greater access to information and greater news-gathering capabilities. [FN94] This argument may be extended even farther and used as a justification to protect the paparazzi in their information-gathering activities. Essentially, some scholars would invoke a Framers' intent argument to justify the claim that an increasingly large government creates the need for greater protection of the press, including the paparazzi.
In conducting a Framers' intent analysis with respect to paparazzi regulations, it is essential to ask how much, if at all, the paparazzi are included in the group of individuals who were originally intended to be protected by the Press Clause. In resolving this question, it is necessary to examine exactly how much the paparazzi serve as an effective check on government. To that end, let us consider the purpose and motives of the paparazzi. It is reasonable to presume that the motive of the paparazzi is largely to make money. They do not function as an effective check upon government. [FN95] In this sense, the actions of the paparazzi are inharmonious with the purpose underlying the Press Clause. Again, the central purpose of the Press Clause is to enable an independent press to exist freely, thereby assisting the citizenry in its attempt at effective self-governance. The type of conduct that will be affected by paparazzi regulations will have little, if anything, to do with maintaining a citizenry capable of self-governance.
The Framers did not intend the Press Clause to protect the actions of the paparazzi, even if the paparazzi are considered part of the press. The paparazzi are more closely associated with the entertainment industry and are not concerned
with the core, high-value political speech that the First Amendment was meant to protect. When considering the unique characteristics of the paparazzi, its purpose and its motives, it is doubtful that the Framers would have intended the Press Clause to immunize the dangerous and intrusive conduct of the paparazzi.
2. Paparazzi Do Not Fulfill the Traditional Roles of the Press
Those opposing paparazzi regulations may argue that these laws unconstitutionally burden news-gathering activity to such a degree that they violate the First Amendment's Press Clause. They may argue that the paparazzi, as *1654 part of the press, play an important role in our society, contributing valuable information to the marketplace of ideas. They may further contend that the information captured by the paparazzi is widely disseminated to the public and contributes importantly to public discourse.
This argument falsely assumes that the paparazzi are included in the definition of the press. [FN96] In fact, the paparazzi should not be considered part of the press. Anyone with a camera who can point and click does not automatically become a member of the press. The paparazzi tend to include independent, freelance, or amateur photographers with distinct motives and characteristics.
The Supreme Court has defined the press as an institution that “serve[s] as a powerful antidote to any abuses of power by governmental officials” [FN97] and brings to the public in convenient form information regarding the operations of government. [FN98] This definition of the press focuses on the role of the press in the dissemination of information regarding government officials and the operations of government. This information is distinguished from the type of information disseminated by the paparazzi. The purpose of that information is merely to satisfy public curiosity and entertainment desires. [FN99] As one scholar argues, while there appears to be a Fifth Amendment “right to satisfy public curiosity and publish lurid gossip about private lives,” that right is not afforded the “absolute or unqualified” privilege granted under the First Amendment. [FN100]
The paparazzi should not be considered to be members of the press within the meaning of the First Amendment. They do not expose information regarding the operations of government and do not contribute valuable informa-tion to the marketplace of ideas. There are two main differences between the paparazzi and the institutional press. First, the value of informa-tion conveyed by the paparazzi is less than the value of that conveyed by *1655 the institutional press. Second, the purely monetary motives of the paparazzi distinguish them from the members of the established press.
a. Value of Information Gathered by Paparazzi
The political and social value of the information gathered and conveyed by the paparazzi is minimal because the paparazzi do not gather information that is of legitimate public concern, much less information that is essential to selfgovernance. Rather, they attempt to document scenes of celebrities and other public figures in unguarded, awkward moments. [FN101] Such information has at most limited entertainment value and is not related to educating a citizenry capable of self-governance.
Many adhere to the view that the central purpose in legitimate journalism is to further the public interest by disseminating information about a newsworthy event. [FN102] An investigative reporter can be characterized as one who embodies “[t]he desire ... to be less dependent on what others say and know, and to do more independent truth seeking, reflect[ing] ... an urge to present a more accurate picture of reality to [her] public[ ].” [FN103]
This surely is not an accurate characterization of the desires and actions of the paparazzi. For example, paparazzi often stage scenes or provoke reactions from celebrities. This “information” is not only misleading, but can be simply untruthful as well. Insofar as the actions of the paparazzi are calculated to provoke the subject of their attention to respond violently (or at least notably), [FN104] their actions should not constitute protected speech. [FN105] When the paparazzi provoke their subjects to engage in violent *1656 behavior so that the photographers can get a better story, the
paparazzi are not trying to present an accurate picture of reality. Rather, they are attempting to capture the most dramatized, outrageous portrayal possible. The more shocking and outrageous their photographs are, the more profitable the photographs become. [FN106]
Therefore, the information gathered and conveyed by the paparazzi is best characterized as low-value speech. [FN107] As to low-value speech, the Supreme Court has stated that “such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” [FN108] This reasoning was used by the Court to designate fighting words as low-value speech. Such reasoning can also be applied to categorize the information gathered by the paparazzi as having low value. [FN109] The societal interests in protecting the safety and privacy of private individuals outweigh whatever slight social value may be assigned to the information gathered by the paparazzi.
In The Right to Privacy, Warren and Brandeis recognized that not everything in print is valuable, that not everything published is newsworthy. Indeed, as they asserted, some of what is published can be damaging to society: When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things. Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence. [FN110]
*1657 b. Motives of Paparazzi
Second, the motives of the paparazzi are easily distinguished from those of the institutional press. [FN111] Unlike the established press, the paparazzi do not intend to facilitate the free exchange of information or to contribute to the robust exchange of ideas. They are not trying to serve as an effective check on the government by exposing the corruption of government officials or the secrets of the government. They do not even attempt to contribute valuable information to the marketplace of ideas, and sometimes even contribute untruthful “information” to it. Instead, the paparazzi are only concerned about exposing the secrets of the subjects of their photographs insofar as such exposure will make the photographs they take more valuable. In other words, the paparazzi's sole motive is a monetary one. [FN112]
The paparazzi's central purpose is quite clearly to “make a buck.” They are not motivated by the desire to facilitate the free flow of information or protect the public's right to know. Nor are they interested in uncovering the truth. Moreover, they are only interested in the photographic value of their pictures insofar as it will enable them to sell the pictures for more money. Simply put, they are only interested in what commands the most money. Accordingly, what is most important to them is the shock value of what they capture.
The paparazzi may contend that they have a right to try to make a living. While everyone has the right to attempt to make a living, that right does not include the right to harass others or intrude into the private lives of others. One's right to make a living does not exempt one from the law. Nor should it excuse one for violating common notions of decency and propriety.
Therefore, their purely financial motive, in addition to the low value of the information that they gather and convey, are reasons why the paparazzi should not be considered part of the institutional press. Accordingly, they should not be able to seek protection in the Press Clause of the First Amendment.
*1658 3. Public's Right to Know
One argument in opposition to the proposed paparazzi regulations is rooted in the theory that the public has a general “right to know.” Even if the information gathered by the paparazzi is not central to issues of self-governance, the paparazzi may argue that the mere fact that the public wants to know about such information is enough to provide protection for actions aimed at gathering that information. It is not disputed that some members of the public desire the information obtained by the paparazzi. This is clearly demonstrated by the astounding prices some paparazzi photographs command. Here, the paparazzi may try to invoke the rights of the general public in order to get protection for their actions.
Like the view that the function of the press is to serve as a check on government, the right-to-know argument is rooted in concerns regarding the potential abuse of power by the government. However, the right-to-know argument centers on the role of the public (as opposed to the press) in preventing government abuses. [FN113] The right-to-know argument is essentially that the Constitution established a system of self-governance and people need information about the government in order to govern themselves effectively. [FN114] The press serves as one vehicle by which the public
receives that information. Under this theory, the government may not “‘limit [[[ ] the stock of information from which members of the public may draw.”’ [FN115]
There is some debate about the existence of a right to know. [FN116] However, the Supreme Court has extended some First Amendment protections based upon this right [FN117] For example, in New York Times Co. v. Sullivan, [FN118] the Court declared that the central meaning of the First Amendment is the “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open.”[FN119] The Court has more recently noted that the First Amendment “protects ‘not only the dissemination, but also the receipt of information and ideas.”’ [FN120]
The right-to-know argument is not persuasive as an argument against paparazzi regulations. First, it is still not quite clear that a right to know *1659 even exists.[FN121] Even assuming arguendo that a right to know does exist, an analysis of the Court's application of the right-to-know doctrine makes clear that the Court has not found this to be a viable argument when considered in light of issues outside of those related to self-governance. In other words, the circumstances in which the Court has been willing to invoke this right involved situations in which the information conveyed went to the core of the First Amendment (i.e., information associated with the “‘freedom of communication on matters relating to the function[ ] of government”’).[FN122] Significantly, the central premise of the right-to-know doctrine is that the press plays an important role in providing the public with information essential to maintain control over the political process. [FN123]
Again, the Press Clause as interpreted today protects a larger scope of information than did the clause as originally conceived. However, with respect to the successful application of the right-to-know doctrine, the Court has upheld the core purpose of the Press Clause of the First Amendment. Accordingly, it has only applied this argument when questions of self-governance were at issue.
While the information gathered by the paparazzi may satisfy the public's curiosity about the private lives of public figures, and while it may provide a source of entertainment for the public, it certainly does not contribute to the public's ability to maintain control over the political process. Accordingly, because the information gathered and conveyed by the paparazzi is unrelated to “matters relating to the function of government,” the right-to-know argument is inapplicable. Therefore, the paparazzi should not be able to invoke the rights of the general public in an attempt to gain protection for
their conduct.
B. Constitutional Legal Analysis--Even if Speech Is Involved, an Incidental Burden on First Amendment Interests Does Not Render These Regulations Unconstitutional
The paparazzi might argue that their actions involve not only conduct, but also speech. Even if the paparazzi's conduct does have expressive elements, paparazzi regulations are both generally applicable and content neutral. These regulations target the paparazzi's dangerous and intrusive *1660 conduct, not their speech. Even if there are expressive elements to paparazzi conduct, and even if those elements are burdened by these regulations, the regulations can still be constitutional.
Even though termed “paparazzi regulations,” these bills are not aimed solely at the paparazzi. They are termed “paparazzi regulations” for the sake of convenience. They apply to anyone who engages in intrusive and abusive newsgathering activity. For example, they would apply equally to photographers or journalists from CNN and to members of the paparazzi. Admittedly, because of the inherent aggressive nature of their conduct, members of the paparazzi are most likely to have their activities regulated by these proposals, which is why the motives of the paparazzi in particular are so important. However, these bills do not become content based just because one group (i.e., the paparazzi) is more likely to participate in the prohibited conduct.
1. Applicable Tests
Assuming for the sake of argument that paparazzi conduct has elements of speech, there are two standards of review that could be applied in analyzing the constitutionality of these proposals. First, although these laws are aimed at regulating conduct, they may generate incidental adverse affects on some First Amendment freedoms, such as free speech or freedom of the press. Thus, because these proposed laws would regulate conduct that has both speech and nonspeech elements, a court may choose to apply the test set forth in United States v. O'Brien. [FN124] Second, paparazzi regulations may also be viewed as neutral, generally applicable laws that have incidental effects on First Amendment freedoms. Thus, a court could invoke intermediate scrutiny, which is the standard applicable to content-neutral laws that seek to regulate conduct or speech on the basis of time, place, or manner. Both of these standards, and their applicability to paparazzi regulations, are briefly discussed below.
a. O'Brien Test
First, the O'Brien standard maintains that “when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” [FN125] Paparazzi *1661 regulations are aimed at conduct, not at speech. They stem from a concern over the manner in which photographs are taken. Instead of trying to prevent the acquisition, publication, or dissemination of photographs, these laws prevent conduct that is dangerous and intrusive.
A government regulation is sufficiently justified under the O'Brien test
[1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial government interest; [3] if the government interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms is no greater than essential to the furtherance of that interest. [FN126]
First, the government surely has the power--indeed, the duty--to ensure the safety and privacy of its citizens. Pursuant to that power, the government can enact laws that regulate dangerous behavior and intrusive conduct that endangers safety and privacy. Second, paparazzi regulations further these important governmental interests of safety and privacy. [FN127] Indeed, some courts have found similar interests to be compelling. [FN128] Third, the governmental interests of safety and privacy of its citizens are unrelated to the suppression of free expression. Finally, the incidental burden on the alleged expressive conduct of the paparazzi is no greater than necessary to further the government interests of safety and privacy. The regulations impose liability only for dangerous and intrusive conduct, while leaving untouched the actual gathering, publishing, and dissemination of information. [FN129]
Thus, under the O'Brien standard, paparazzi regulations, such as the regulations proposed in Part I, are constitutional. The government clearly has an important governmental interest in regulating the dangerous conduct of the paparazzi.
b. Content-Neutral Time, Place, or Manner Test
Second, these laws can be analyzed under the test for content-neutral time, place, or manner restrictions. In enacting content-neutral regulations, the government is not concerned with the message being conveyed, but rather with the method in which the message is conveyed. A court will apply intermediate scrutiny when determining the constitutionality of a *1662 content-neutral law if that law has an incidental effect on First Amendment rights. A law satisfies intermediate scrutiny if it (1) is supported by a significant government interest; (2) is narrowly tailored to that interest; and (3) leaves open ample alternative channels of communication.
Paparazzi regulations satisfy the requirements of intermediate scrutiny. First, they are backed by significant, and arguably compelling, government interests. [FN130] Second, these laws are narrowly tailored to serve those interests. Asdiscussed above, they do not attempt to place a blanket ban on the taking of photographs, impose strict buffer zones, or prohibit the use of technologically advanced media equipment. Neither do they impose liability for the publication or dissemination of photographs. Thus, they are solely aimed at harmful or dangerous conduct. Finally, these laws leave open ample alternative channels of communication. Photographs of and information about celebrities and public figures can still be gathered. These regulations just require that the information be gathered in a more decent, humane, and ethical manner. Hence, under intermediate scrutiny, paparazzi regulations should be upheld as reasonable restrictions on the manner in which photographs can be taken and other information gathered.
Under both the O'Brien analysis and the content-neutral time, place, or manner analysis, these proposed laws should be upheld as constitutional. They are neutral, generally applicable laws that are not inspired by an animus against the collection or dissemination of information. Instead, they are inspired by a desire to deter dangerous and highly offensive conduct that presents a very real and imminent threat to the physical safety of private individuals and the general public. Thus, their focus is on the individual conduct, not on the press per se. Therefore, because paparazzi regulations are not aimed at stifling the media, any incidental burdens these laws have on freedom of the press do not render them unconstitutional. [FN131]
2. Case Law Analysis
Like all constitutional protections, the freedom of the press is not absolute. There are limits to First Amendment protection of news-gathering activities [FN132] and courts have repeatedly declared that the press does not have *1663 unrestrained access to information. As stated by one court, “[t]he First Amendment has never been construed to provide immunity from either tortious or criminal conduct committed in the course of newsgathering; it provides no license to trespass, steal, or surreptitiously intrude into another's home or office.” [FN133]
There is both old and more recent case law that supports the constitutionality of a generally applicable law directed at news-gathering activities. The following cases all rejected the media's argument that the First Amendment's Press Clause immunized their conduct. In doing so, these cases reflect the courts' reluctance to extend First Amendment protections to dangerous, and sometimes tortious, news-gathering activity.[FN134] These cases also emphasize the courts' unwillingness to apply First Amendment protections to media actions unrelated to publication. [FN135] Finally, the following cases describe situations in which an individual's right to privacy has placed limits upon freedom of the press.
The case of Galella v. Onassis [FN136] introduces some of the key issues that are raised by the proposed paparazzi laws. In this case, Ronald E. Galella, a freelance photographer, brought suit against Jacqueline Kennedy Onassis and three secret service agents for false arrest, malicious prosecution, and interference with trade. Onassis counterclaimed with charges of invasion of privacy, assault and battery, and harassment. The district court dismissed the photographer's suit and held that the photographer's conduct was not protected by the First Amendment.[FN137] In addition, the court held that the plaintiff's conduct constituted actionable assault, [FN138] battery, [FN139] harassment, [FN140] and violation of the common-law[FN141] and constitutional rights to privacy. [FN142] The court noted that the argument that the First Amendment authorizes the press to engage in a wide range of behavior in the process of gathering *1664 news, no matter how offensive that behavior, has been flatly rejected. [FN143] As to the violation of the right to privacy, the district court noted that [t]he essence of the privacy interest includes a general “right to be left alone,” and to define one's circle of intimacy; to shield intimate and personal characteristics and activities from public gaze; to have moments of freedom from the unremitted assault of the world and unfettered will of others in order to achieve some measure of tranquility for contemplation or other purposes, without which life loses its sweetness. The rationale extends to protect against unreasonably in-trusive behavior which attempts or succeeds in gathering information, ... and includes, but is not limited to, such disparate abuses of privacy as the unreasonable seeking, gathering, storing, sharing and disseminating of information by humans and machines. [FN144]
The district court in Onassis also noted that the First Amendment has never been construed to shield newsmen from liability for torts or crimes committed in the process of news gathering. [FN145] To protect Onassis and her family from the further abuses of Galella, the district court granted an injunction enjoining Galella's conduct by limiting it to certain specified activities. [FN146]
The district court in Onassis conducted a balancing test that was sensitive to the protection of both an individual's ight to privacy and the freedom of the press. [FN147] It weighed Galella's interest in obtaining information about Onassis and her children against the torment inflicted upon them by Galella's actions. In striking this balance, the court was faced with determining the newsworthiness of a particular subject matter or incident. Such a determination included a consideration of such factors as the social value of the published material, the depth of the intrusion into ostensibly private affairs, and the extent to which the subject of the published material voluntarily acceded to a position of public notoriety. [FN148] Even though Onassis was clearly a public figure whose life included events of great public concern, the court concluded that Galella's interests were clearly outweighed by Onassis's interests. [FN149] The court indicated that it could see “no constitutional*1665 violence done by permitting defendant to prevent intrusion on her life which serves no useful purpose.” [FN150] Again, the interests of the right to privacy outweighed those of the First Amendment.
In affirming the district court's injunction, the court of appeals reiterated that the First Amendment does not immunize the defendant's actions. The court of appeals agreed with the district court that Galella's behavior went far beyond the boundaries of reasonable news gathering. When weighed against the de minimis importance of the public's knowing of Onassis's daily activities, Galella's constant surveillance was unwarranted and unreasonable. [FN151]
In Dietemann v. Time, Inc., [FN152] the court noted that while freedom of speech and freedom of the press are constitutional guarantees, so is the right to privacy. [FN153] In Dietemann, the plaintiff was a disabled veteran with little education who purported to heal his patients through the use of clay, minerals, and herbs. The defendant sent reporters to the plaintiff's house equipped with a hidden camera and radio transmitter. The reporters gained access to the plaintiff's house by deceit, took photographs, and recorded their conversation with the plaintiff. The district court rejected the defendant's claim that it had a First Amendment right to engage in such conduct and held that this conduct was an actionable invasion of privacy under California law. [FN154] Again, the court favored the protection of the right of privacy over the freedoms of speech and of the press.
In Wolfson v. Lewis, [FN155] the plaintiffs filed suit against reporters and producers of a tabloid television program alleging tortious stalking, harassment, trespass, intrusion upon seclusion, and invasion of privacy. In attempting to gather information regarding executive salaries, the defendants engaged in such behavior as following the plaintiffs to and from work and their child's nursery school, surreptitiously videotaping the plaintiffs' home, and even following the plaintiffs to the family's vacation home. The defendants used high-powered camera lenses and “shotgun” microphones in their attempt to obtain video and audio tapes of the plaintiffs. The court granted an injunction against the defendants' behavior, [FN156] noting that the public interest in protecting citizens' privacy rights favored issuing the injunction. *1666 In granting the injunction, the court reaffirmed the principle that the press is subject to all laws of general applicability and that the “First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.” [FN157] Significantly, the court also noted that matters occurring in public view do not generally give rise to a valid claim of intrusion upon seclusion. However, persistent harassment and unreasonable surveillance may give rise to a valid claim of intrusion upon seclusion, even when the plaintiff's conduct occurs in public. [FN158]
Additionally, in Risenhoover v. England, [FN159] the court rejected the defendant's argument that the First Amendment protected the media from liability for negligence claims. This case arose out of injuries occurring at the Branch Davidian compound in Waco, Texas in 1993. The plaintiffs were Bureau of Alcohol, Tobacco and Firearms agents who asserted that the media's physical presence alerted compound residents of the approaching raid, thereby causing the plaintiffs' injuries. The defendant moved for summary judgment on the grounds that the First Amendment immunized his activities. The court denied the motion on the grounds that the media is subject to laws of general applicability. [FN160]
Finally, in KOVR-TV, Inc. v. Superior Court, [FN161] the defendant news reporter videotaped the reaction of children to the news that a neighborhood mother had killed her children. The defendant entered the home of the children when no adults were present. The plaintiffs sued for intentional infliction of emotional distress. The trial court denied the defendant's motion for summary judgment and the court of appeals affirmed. The appeals court pointed to the fact that the defendant “‘devoted little or no thought’ to the probable consequences of his conduct” [FN162] and reaffirmed the proposition that a reporter “‘has no special privilege to invade the rights and liberties of others.”’ [FN163]
These cases demonstrate that the First Amendment will not always protect news reporters from suit when liability is alleged under laws of general applicability. They stand for the proposition that the law is not willing to provide people with protection when their conduct exceeds the boundaries of decency and propriety. Justice will not allow members of the press to *1667 secure refuge in the doctrine of the First Amendment when their behavior becomes unreasonable, abusive, or unconscionable. These cases also stand for the proposition that the right to privacy is an increasingly important interest that will, in appropriate circumstances, supplant the equally compelling freedom of the press.
C. Overbreadth and Vagueness
Some may argue that these proposed laws regulating the paparazzi and other aggressive photographers are improperly constructed, in that they are unconstitutionally overbroad and vague. First, as to overbreadth, some may contend that the laws are not narrowly tailored--that is, that they restrict more speech than necessary to achieve the desired ends. Second, as to vagueness, some may argue that the language of these laws is so unclear as to compel people to guess at their meaning.
1. Overbreadth
A law is unconstitutionally overbroad if it restricts substantially more speech or conduct than necessary to achieve its desired end. [FN164] The rationale behind the overbreadth doctrine is that such improperly constructed statutes have a chilling effect by sweeping in speech and conduct that could not constitutionally be prohibited. [FN165]
In Gooding v. Wilson, [FN166] for example, the defendant was convicted of using opprobrious words and abusive language in violation of a Georgia statute. [FN167] The Supreme Court reversed the defendant's conviction on the grounds that the statute was unconstitutionally overbroad. The Court reasoned that the statute was not limited in its application to words that “‘have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.”’ [FN168] Notably, however, Chief Justice Burger argued in dissent that the overbreadth doctrine should only be invoked when there is “a significant likelihood of deterring important First Amendment speech.” [FN169] *1668 In fact, in Broadrick v. Oklahoma, [FN170] the Court agreed with Justice Burger and significantly cut back on the standard set forth in Gooding. Broadrick involved a statute that prohibited civil servants from engaging in political activities. The Court rejected the plaintiff's argument that the statute was unconstitutionally overbroad. [FN171] In doing so, the Court adopted the position that in order for the overbreadth doctrine to apply, the statute must be substantially overbroad. [FN172]
In analyzing proposed paparazzi regulations under the standard set forth in Broadrick, it is clear that they are not unconstitutionally overbroad. Indeed, paparazzi regulations are not designed to restrict expression at all. They do not prohibit the taking of photographs, the gathering of information, the publication of information, or the dissemination of information. Neither do they impose a buffer zone of privacy or prohibit the use of modern media equipment. Instead, these laws are aimed at specific conduct that is deemed by the reasonable person to be dangerous, intrusive, and unreasonable. Thus, these laws regulate only as much conduct as is necessary to protect the government's legitimate safety and privacy interests.
2. Vagueness
Finally, as the Supreme Court stated in Connally v. General Construction Co., [FN173] a statute that is so vague that people of common intelligence have to guess at its meaning (i.e., at what it forbids or permits them to do) violates due process of law and is unconstitutional. [FN174] In analyzing whether a statute is void for vagueness, a court must apply the standard that *1669 “if the law defining the offense fails to give adequate notice of what conduct is prohibited” so that “it is unfair to subject someone to prosecution,” [FN175] then the law is unconstitutionally vague. The Supreme Court has set forth a two-prong test for vagueness: If (1) ordinary citizens can understand the intended scope of the law, and (2) the law contains detailed standards to preclude arbitrary or capricious enforcement, [FN176] then the law is not unconstitutionally vague. Significantly, a heavy presumption of constitutionality attaches to a law enacted by the legislature. [FN177]
Stalking laws are commonly challenged on grounds of unconstitutional vagueness. Some “have been attacked as unconstitutionally vague or overbroad, too narrow, and insufficiently enforced.” [FN178] Nevertheless, because many statutes contain detailed definitions of the terms used, [FN179] many stalking statutes have been upheld as sufficiently clear to pass constitutional muster. [FN180]
For example, the statute in Culmo required that the defendant act “repeatedly.” The defendant argued that the term “repeatedly” was ambiguous. The court disagreed. [FN181] It defined “repeatedly” as meaning “again and again,” and ruled that the requirement of “repeatedly” was satisfied if the defendant acted on more than one occasion. [FN182] Similarly, the court also rejected the defendant's contention that the word “following” was ambiguous. The court ruled that the inherent ambiguities in the term “follow” are not significant enough to render the statute unconstitutionally vague. [FN183]
*1670 Similarly, the terms used in proposed paparazzi regulations are not so vague as to render them unconstitutional. For example, the operative language in the federal proposal is “persistently physically following or chasing a victim.” [FN184] In Culmo, the word “following” by itself has been upheld as not unconstitutionally vague. [FN185] Certainly then, adding the words “persistently physically” to precede “following” only enhances the clarity of the language. Of course, there are inherent ambiguities in all words and many statutes leave some parameters of time, place, and space undefined. However, this alone does not render a statute unconstitutional.
Conclusion
Success should not require the forfeiture of rights. Fame should not mandate the surrender of privacy. When an individual trespasses upon another's private life in a ruthless manner and with a greedy motive, an assault upon universal notions of decency and propriety has been committed. Victims of such violations are deserving of legal protection and individual peace of mind. As Rodney Smolla has suggested, [FN186] the right to privacy and the freedom of the press are like jealous siblings who often quarrel over their relative importance. No doubt both are of considerable importance in our system of constitutional protection of basic rights. There are circumstances, however, when even the precious freedom of the press is trumped by the likewise indispensable right of privacy.
[FNa1]. Managing Editor, UCLA Law Review, Volume 46. J.D., UCLA School of Law, 1999; B.A., University of California, Los Angeles, 1996. In deep appreciation for his invaluable guidance and insight, I would like to thank Professor William Rubenstein. I would also like to extend my sincere gratitude to the members of the UCLA Law Review family, in particular Laura Reider, Veronica Sanchez, Kelly Farmer, and Tanya Samazan. Working with these tremendous individuals has been, for me, the most memorable aspect of my Law Review experience. All errors are mine. Finally, for their undying love and immeasurable support, I would like to thank my family. All of my endeavors are an attempt to honor them. outrageous portrayal possible.
