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PLAGUED BY THE PAPARAZZI: HOW
CALIFORNIA SHOULD SHARPEN THE
FOCUS ON ITS NOT-SO-PICTURE PERFECT
PAPARAZZI LAWS
I.
INTRODUCTION
Whether it is MTV, Perez Hilton‘s ―Celebrity Juice‖ website, the TMZ
application for iPhones, or The New York Times, interest in popular culture
intrigues all people men and women, young and old, in cities near and far.
In recent years, this intrigue has grown into an infatuation that can only be
quelled by the paparazzi. While many proclaim that the paparazzi are
journalists and should rightfully keep their title as such,1 their numerous
detractors maintain that the paparazzi are nothing more than an aggressive
public nuisance.2 California, like many other states, has continually and
aggressively created, maintained and updated both common law and
statutory regulations that protect the private rights of individuals from the
hazardous and invasive paparazzi.3 Unfortunately, the policies that
California has in place simply do not adequately restrain the paparazzi,4 and
more drastic measures are necessary in order to quell the blatantly
dangerous and invasive actions of the increasingly photo-hungry paparazzi
and enhance privacy protection for individuals.
I propose that the spreading plague of the paparazzi can be solved by
the legislative creation of a paparazzi-free zone that will balance public
safety, privacy and free press ideals without offending any of these
1. See Kierra Barnes, Paparazzi: Taking Over the Media, ASSOCIATED CONTENT, Jan. 6,
2010, available at http://www.associatedcontent.com/article/2556075/paparazzi_taking_over_
the_media.html?singlepage=true&cat=37 (―[T]he paparazzi have slowly made their mark and now
have become the masses main outlet for ‗news‘ in the entertainment industry.‖).
2. See Assem. Comm. On Judiciary, Bill Analysis, A.B. 524, 2009-2010 Leg., Reg. Sess., at
6 (Cal. 2009) [hereinafter A.B. 524] (as amended Apr. 29, 2009), available at
http://www.leginfo.ca.gov/pub/09-10/bill/asm/ab_0501-0550/ab_524_cfa_20090511_105624_asm
_comm.html.
3. See infra text accompanying notes 5-27.
4. See infra text accompanying notes 78-87.
403
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principles. Part II will discuss the pervasive paparazzi problem that has
developed in recent years as paparazzi have become dangerous and
unscrupulous in pursuing their prey. Part III will review current California
law that consists of a broad, well-developed body of common law and
statutory provisions encompassing public safety and privacy rights. Finally,
Part IV will propose that the creation of a paparazzi-free zone will
complement the current California public safety, privacy and free press
ideals without offending the sacred First Amendment principles of our
Constitution.
II. THE PAPARAZZI PROBLEM
The paparazzi have not always been a problem. In fact, their presence
used to be welcomed.5 Recently, however, the paparazzi have become a
plague to almost everyone who lives in a big city especially those people
who have acquired public notoriety of any kind. In 2002, a relaxed Jennifer
Aniston was photographed while sunbathing topless in her backyard by
paparazzo Francois Navarre who ―scaled [a] neighbor‘s eight-foot wall‖ in
order to capture the photos.6 Over half a decade later, ESPN reporter Erin
Andrews experienced a similarly embarrassing and intrusive act, this time
committed by a man who hid a recording camera in peepholes he created in
many of Andrews‘s hotel rooms.7 Even though the ―peeping tom‖ would
not necessarily be considered a paparazzo within the traditional sense of the
word, the illegal recordings quickly spread over the Internet resulting in the
precise type of serious damage that is customarily done by the paparazzi
themselves.8
Is this type of blatant invasion into the privacy of these women a
problem? Of course it is—but the paparazzi get even worse. Picturehungry photographers have also taken to the streets, the public roads on
which all citizens drive, as when a paparazzo boxed in actor-turnedGovernor Arnold Schwarzenegger‘s car while he and his wife waited to
5. See Barnes, supra note 1 (explaining that photographers and paparazzi were at least
―semi-welcomed‖ when stars like Marilyn Monroe, Frank Sinatra and Elizabeth Taylor were the
hottest celebrities).
6. David Rosenzweig, Aniston Settles Suit Against Magazines, L.A. TIMES, July 3, 2002, at
B4.
7. Raquel Dillon, FBI: Man Arrested in ESPN reporter nude video case, ASSOCIATED
PRESS (Oct. 3, 2009), available at 10/3/09 AP Online–Sports 12:37:52 (Westlaw).
8. See id.
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pick their child up from day care.9 A California court appropriately
recognized the problem this paparazzo caused and subsequently convicted
the man of a misdemeanor for false imprisonment and reckless driving.10
Unfortunately, the parade of egregious behavior perpetuated by the
paparazzi also further permeates the lives of innocent citizens, endangering
them and causing unnecessary nuisance. The paparazzi seem to have
forgotten that moving motorcycles and cars are dangerous and potentially
fatal vehicles that should be driven with caution and care. The most
notorious example, of course, is the death of Princess Diana, which is
indisputably linked to a speeding paparazzo on a motorcycle.11 Another
photographer thought that the best way to get a riveting photograph of
Lindsay Lohan would be to ―intentionally ram[] his minivan into the
teenage actress‘ Mercedes-Benz.‖12 In an even more dangerous feat, four
paparazzi in cars chased Scarlett Johansson‘s car around the parking lot at
Disneyland,13 a favorite attraction always crowded with throngs of young
children,14 causing Johansson to drive so quickly that she struck another
car. When she stopped to assess the damage, the paparazzi quickly
swarmed her car, snapping photographs all the while.15
In addition to the public danger created by paparazzi who use their cars
to block and entrap celebrities in an attempt to get the perfect snapshot, the
paparazzi also create a public nuisance. For instance, when a paparazzo
intentionally collides with a celebrity‘s car on busy streets, such as Wilshire
Boulevard in Beverly Hills,16 traffic accumulates on the already overcrowded streets for hundreds of innocent Los Angeles citizens simply
9. Pamela McClintock, Governator Snaps Back at Paparazzi, DAILY VARIETY, Oct. 3,
2005, at 1, 13, available at http://www.variety.com/article/VR1117930079.html.
10. Id.
11. Mary Jordan, Paparazzi and Driver Found Negligent in Princess Diana’s Death, WASH.
POST, Apr. 8, 2008, at C1, available at http://www.washingtonpost.com/wp-dyn/content/
article/2008/04/07/AR2008040702743.html.
12. Jennifer Myers, Shuttering Paparazzi, 29 THE NEWS MEDIA & THE LAW 18 (2005).
13. See McClintock, supra note 9, at 13.
14. In 2009, 15.9 million people visited southern California‘s Disneyland theme park, an
increase in crowd numbers by eight percent from the 14.7 million visitors in 2008. Hugo Martín,
Disney Theme Park Attendance Up In 2009, L.A. TIMES, Apr. 27, 2010, available at
http://articles.latimes.com/2010/apr/27/business/la-fi-0426-disney-attendance-20100427; see also
Themed Entertainment Association, 2009 Theme Index: The Global Attractions Attendance
Report, at 6, available at http://www.aecom.com/deployedfiles/Internet/Capabilities/2009%20
Theme%20Index%20Final%20042710_for%20screen.pdf.
15. 2009 Theme Index, supra note 14, at 6.
16. E.g., Nicole Richie Hurt, Rear-Ended by Paparazzi, KTLA NEWS, (Oct. 6, 2009, 14:23
PDT), http://www.ktla.com/search/ktla-nicole-richie-hurt,0,5554619.story; Nicole Richie Banged
Up in Car Accident, TMZ.COM, (Oct. 5, 2009, 14:24 PDT), http://www.tmz.com
/2009/10/05/nicole-richie-in-car-accident/.
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trying to go about their daily lives.17 Even some innocent shop owners who
own popular stores frequented by celebrities have been forced to file
restraining orders against paparazzi who barge into their stores after
repeatedly being told to leave because they disturb honest, paying
customers.18 More seriously, ―hoards of photographers many times block
entrances to vital public service centers such as hospitals and
courthouses.‖19
Feeling helpless, many celebrities have begun to act out against the
paparazzi and the cameras that accompany them, in an attempt to combat
the paparazzi problem themselves. After fighting with a paparazzo at Los
Angeles International Airport and throwing the man‘s camera onto the
ground, Kanye West was charged with misdemeanor battery, grand theft
and vandalism.20 Paparazzo Jordan Dawes similarly filed a police report
alleging assault after Sean Penn kicked Dawes out of sheer frustration one
afternoon in the upscale neighborhood of Brentwood, California.21
In October of 2009, avant garde musician Lady GaGa voiced her
feelings in the form of lyrical revenge in her new song entitled Paparazzi.22
With lines such as ―I‘ll follow you until you love me,‖23 ―I won‘t stop until
that boy is mine,‖24 and ―[c]hase you down until you love me,‖25 Lady
GaGa paints a picture of money-hungry, gossip-thirsty photographers who
will go anywhere, say anything, and do everything just to get a juicy
snapshot of a celebrity, especially when they are most vulnerable. Lady
GaGa is not the first celebrity to use her craft as an artistic outlet to either
17. Elex Michaelson & Rob Hayes, MTA Approves Bus-Only Lane for Wilshire Blvd., Dec.
10, 2010, available at http://abclocal.go.com/kabc/story?section=news/local/los_angeles&id
=7836169.
18. See Richard Winton & Tony Alanez, Paparazzi Flash New Audacity, L.A. TIMES, Oct.
16, 2005, at A1 (telling the story of the Lisa Kline boutique in Beverly Hills that had to file a
restraining order against paparazzo Todd K. Wallace after he repeatedly entered the store to get a
picture of Mischa Barton).
19. Dennis P. Zine, Councilmember, 3rd District, LOS ANGELES, CAL., MOTION, (Feb. 1,
2008) [hereinafter MOTION], available at http://ens.lacity.org/council/cd3/oldmotion08/
cd3motions14352105_02012008.pdf (requesting new restrictions on paparazzi, including a
minimum personal safety zone of clear space).
20. Kanye West Charged in Paparazzi Scuffle, CNN, (Mar. 18, 2009), http://edition.cnn.com/
2009/SHOWBIZ/Music/03/18/kanye.west.charged/index.html.
21. Papper Files Police Report against Sean Penn, TMZ.COM, (Oct. 2, 2009, 20:32 PST),
http://www.tmz.com/2009/10/02/paperazzi-files-police-report-against-sean-penn-battery-attack/.
22. Lady GaGa: Paparazzi Lyrics, METROLYRICS, http://www.metrolyrics.com/paparazzilyrics-lady-gaga.html (last visited Oct. 2, 2010).
23. Id.
24. Id.
25. Id.
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take aim at or criticize the paparazzi.26 ―Kill the Lights‖ by Britney Spears
voices a similar opinion about the pervasive, problematic paparazzi.27
In an attempt to remedy the paparazzi problem that is clearly fueled by
entertainment news tabloids, one such tabloid attempted to regulate the
paparazzi from whom they purchased material.28 In June of 2005, the
tabloid magazine US Weekly initiated a formal policy that banned photos
obtained in an illegal way, ranging from the violation of traffic laws, to
trespassing, to invasion of privacy.29 Unfortunately, other entertainment
news media outlets did not follow US Weekly‘s lead in their attempt to
control the reckless ways of the paparazzi, and instead have begun to solicit
photographs from anyone who pushed and shoved in order to snap a
picture.30 The high prices that media outlets pay for pictures only
encourages and exacerbates the paparazzi problem.31
III. CALIFORNIA‘S PUBLIC SAFETY AND PRIVACY RIGHTS
As one of the most populous celebrity residences in the world,
California has established a well-developed body of both common law
principles and statutory regulations that protect the safety and the privacy of
all people, whether celebrity or not. The four common law privacy torts of
intrusion, publication of private facts, false light, and appropriation of
likeness form the backbone of privacy law in the state of California.32 In
the realm of statutory laws, California‘s right of publicity statute,33 and
26. The 2004 movie ―Paparazzi‖ portrayed the paparazzi in a very negative light, leaving
audiences with a quote that is remembered to this day: ―The public wants real and raw and that‘s
what we give ‗em. Let me tell you something, my friends, we‘re the last of the real hunters.‖
Barnes, supra note 1.
27. Britney Spears: Kill the Lights Lyrics, METROLYRICS, http://www.metrolyrics.com/killthe-lights-lyrics-britney-spears.html (last visited Oct. 2, 2010) (―All the flashin‘, tryin‘ to cash in,
hurts my eyes/All the poses, out of focus, I despise . . . They all want a pic, they all wanna see,
see/See what you‘re made of, what you‘re gonna do/Is life gonna get the best of you?‖).
28. Chris Lee, US Weekly Sets Paparazzi Policy, L.A. TIMES, June 15, 2005, at E3.
29. Id.
30. Many agencies ―increasingly encourage amateurs and young photographers to send in
their findings.‖ Andrew LaVallee, The Rise of the ‘Citizen Paparazzi’, WALL ST. J., Feb. 26,
2008, available at http://online.wsj.com/article/SB120214555663941015.html.
31. See, e.g., Rachel Abramowitz, Paparazzi Have Their Lenses on Miley Cyrus, L.A. TIMES,
May 28, 2008, at E1 (reporting that the price for a picture of Miley Cyrus‘ first kiss was as high as
$150,000.00).
32. A.B. 524, supra note 2, at 2.
33. CAL. CIV. CODE § 3344 (West 1984).
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most importantly, California‘s recently amended anti-paparazzi statute,34
provide additional protections to individuals.
A. California’s Common Law Privacy Torts
William Prosser, famous for his legal studies in the area of privacy
torts, has reviewed many tort cases in the area of privacy law and
consolidated privacy law into four torts: intrusion, publication of private
facts, false light, and appropriation.35 Subsequently, many legal scholars
and eventually many states agreed with Prosser‘s classifications and
ultimately these four privacy torts came to be recognized not only by
Prosser, but by the Restatement (Second) of Torts as well.36 Even though
privacy laws are particularly valuable to those people who find themselves,
their lives, and their families the focus of the paparazzi‘s hunt, the realm of
privacy surely extends beyond the world of fame and celebrity to protect all
Californians.
1.
Intrusion
The tort of intrusion is one that has developed alongside the
technological advancements of the time. Early intrusion cases involved
some level of actual, physical trespass, such as a man who entered a room
where a woman was giving birth to a child.37 Recently, however, intrusion
has extended into the realm of microphones38 and recording devices.39 The
three elements of an intrusion cause of action are as follows: (1) the
plaintiff had a reasonable expectation of privacy; (2) the defendant
intentionally intruded on the plaintiff‘s private place, conversation or
matter; and (3) the ―intrusion would be highly offensive to a reasonable
34. CAL. CIV. CODE § 1708.8 (West 2010). Note that the amendment to this statute is
subsection (f) which became effective January 1, 2010.
35. William Prosser, Privacy, 48 CAL. L. REV. 383, 389 (1960).
36. RESTATEMENT (SECOND) OF TORTS § 625A (1977).
37. DeMay v. Roberts, 9 N.W. 146 (Mich. 1881).
38. See Shulman v. Group W Prods., Inc., 955 P.2d 469, 492 (Cal. 1998); Sanders v.
American Broadcasting Cos., 978 P.2d 67, 72 (Cal. 1999) (each involving the use of a hidden
microphone in order to record conversations).
39. See Miller v. Nat‘l Broad. Co., 232 Cal. Rptr. 668, 679 (Ct. App. 1986) (holding an NBC
news crew was held liable for intrusion when the news crew entered a man‘s bedroom
immediately following a seizure, and taped the man and his wife as they appeared in their
vulnerable states following the incident).
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person.‖40 As with most common law torts, these elements may differ
slightly among existing case law,41 but these elements represent the core
principles of the intrusion tort as it currently exists in California privacy
law.42
California has also taken intrusion regulation one step further by
enacting a criminal wiretapping statute.43 A violation of California‘s
Wiretapping Statute, delineated in California Penal Code § 632, occurs if a
person: (1) intentionally; (2) without the consent of all parties to a;
(3) confidential communication; (4) records or eavesdrops on the
confidential communication by means of an electronic amplifying or
recording device.44 The intrusion laws in California are one of the many
forms of protection that any person, famous or not, has against anyone who
violates their personal privacy.
2.
Publication of Private Facts
The tort of publication of private facts is a slightly less commonly
known tort.45 The origins of this tort directly relate to the press, and its
tendency to ―overstep[] in every direction the obvious bounds of propriety
and of decency.‖46 Some information, regardless of its truth or its potential
for public intrigue, is not meant for widespread display. As such, the
elements of a tort claim for publication of private facts are as follows: (1) a
public disclosure about the plaintiff; (2) of private and true information;
(3) that would be highly offensive to a reasonable person; and (4) such
information is not of legitimate concern to the public.47 This tort has been
the basis of a wide range of cases arising out of various events such as the
gruesome audio and visual recordings of the events that transpired after a
horrific car accident48 to a motion picture that depicts the early life an elite
40. Id.
41. See, e.g., Shulman, 955 P.2d at 490; Sanders, 978 P.2d at 971 (stating that a cause of
action for intrusion has only two elements: ―intrusion into a private place, conversation or matter;‖
and that such intrusion occurred ―in a manner highly offensive to a reasonable person‖).
42. See ROBERT TRAGER ET AL., THE LAW OF JOURNALISM & MASS COMMUNICATION 17779 (2007).
43. CAL. PENAL CODE § 632(a) (West 2008).
44. Id.
45. Prosser, supra note 35, at 392.
46. Samuel Warren & Louis Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 196
(1890).
47. Shulman, 955 P.2d at 478.
48. Id. at 492.
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socialite led as a prostitute.49 The tort of publication of private facts
provides yet another form of protection to the privacy of individuals.
3.
False Light
The tort of false light has developed alongside, and in addition to, the
tort of defamation in California. Of all of the privacy torts, this tort is
probably newest,50 given its similarity to the more common defamation
tort.51 Despite the resemblance between defamation and false light, the
nature of the privacy tort of false light affords protection in certain instances
where defamation does not,52 because while defamation provides protection
to a person‘s reputation, false light provides protection in the form of
compensation for the emotional distress caused by the publication of false
information.53 Elements for a claim of false light are as follows:
(1) publication; (2) of false facts; (3) about an identified individual; (4) in a
highly offensive manner; and (5) with fault.54 The false light tort provides
additional protection to people who find untrue information about
themselves disseminated to the public.
4.
Appropriation
The tort of appropriation is used when a person‘s characteristics,
features, identity and the like are exploited without permission.55 Today‘s
world is one of commercialization, driven by advertisers and endorsements
that has led to this type of exploitation that can ultimately harm a person‘s
dignity and reputation, as well as their right to remain private.56 The
elements of the appropriation tort, designed to remedy such exploitation,
are as follows: (1) use of the plaintiff‘s identity for the defendant‘s
commercial advantage or otherwise; (2) lack of consent; and (3) a resulting
49. Melvin v. Reid, 112 Cal. App. 285, 285-87 (Ct. App. 1931).
50. See Prosser, supra note 35, at 398 (stating that even though not all states recognize the
tort of false light, the tort of false light provides redress for the emotional distress caused by a
false publication that the defamation tort does not provide).
51. Prosser, supra note 35, at 400.
52. Id. at 400-01.
53. TRAGER ET AL., supra note 42, at 192
54. Id.; see Cantrell v. Forest City Publ‘g Co., 484 F.2d 150, 152 (6th Cir. 1973) (ruling for
defendants because the plaintiff could not prove fault), rev’d, 419 U.S. 245 (1974); see also Time,
Inc. v. Hill, 385 U.S. 374, 391 (1967).
55. TRAGER ET AL., supra note 42, at 166-67.
56. Id.
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injury.57 The appropriation tort provides further protection from the
unauthorized exploitation of the name, likeness and identity of a person.58
B. California’s Statutory Privacy Laws
In addition to the traditional privacy torts incorporated into California‘s
common law, California has developed a body of statutory principles that
supplement the common law. California‘s Right of Publicity statute,59 as
well as California Civil Code § 1708.8, that has been termed California‘s
―Anti-Paparazzi‖ statute,60 have long been the most important statutes in the
area of privacy. On October 12, 2009, California Governor Arnold
Schwarzenegger passed yet another piece of legislation61 that will amend
the existing Anti-Paparazzi statute in an effort to curb the aggressive
paparazzi.
1.
California‘s Right of Publicity Statute
The right of publicity statute, though of a slightly different nature than
the other privacy laws, both common law and statutory, is worth brief
discussion as it is deeply connected to the policy rationales underlying the
laws previously discussed.62 Similar to the appropriation tort,63 the right of
publicity statute serves to protect the economic and monetary value64 a
person maintains in his or her name, voice, signature, photograph or
likeness.65 A person violates this statute when the following elements are
met: (1) one who knowingly uses the name, voice, signature, photograph or
likeness of another; (2) on or in products, merchandise or goods; (3) for the
purposes of advertising, selling or soliciting the purchase of such products,
merchandise or goods; and (4) without consent.66
57. See White v. Samsung, 971 F.2d 1395, 1397 (9th Cir. 1992).
58. Midler v. Ford Motor Co., 849 F.2d 460, 463-64 (9th Cir. 1988).
59. CAL. CIV. CODE § 3344 (West 2009).
60. CAL. CIV. CODE § 1708.8 (West 2010). is commonly referred to as the ―Anti-Paparazzi‖
statute. See Lisa Vance, Amending its Anti-Paparazzi Statute: California’s Latest Baby Step in its
Attempt to Curb the Aggressive Paparazzi, 29 HASTINGS COMM. & ENT. L.J. 99, 103-04 (2006).
61. CAL. CIV. CODE § 1708.8(f).
62. See supra text accompanying notes 35-58.
63. See supra text accompanying notes 55-56.
64. TRAGER ET AL., supra note 42, at 166-67.
65. CAL. CIV. CODE § 3344 (West 2009).
66. Id. § 3344(a).
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However, the right of publicity statute also incorporates many
exceptions, such that the paparazzi who take the photographs and the
companies that publish the pictures fall within the exceptions and do not
violate this statute. For instance, the statute includes a public affairs
exception that does not require consent if the likeness of a person is
depicted in an account of news, public affairs or other similar situations.67
The statute also includes an incidental use exception whereby consent is not
required to depict the likeness of a person if the depiction is ―not essential[]
to the purpose of the publication in which it appears.‖68 While these
exceptions take the teeth out of the right of publicity statute, the statute
nonetheless provides protection for the economic value a person possesses
in his or her name, voice, signature, photograph or likeness of another.69
2.
California‘s Anti-Paparazzi Statute
In 2005, California became the first state to enact anti-paparazzi
legislation as a result of the Princess Diana tragedy.70 This 2005 legislation
came in the form of an amendment to California‘s already existing statute.71
As it reads today, the anti-paparazzi statute holds a person liable for
invasion of privacy72 if that person: (1) physically trespasses onto another‘s
land with the intent to capture any type of image or recording of the
plaintiff engaging in a personal or familial activity, and does so in a manner
offensive to a reasonable person;73 or (2) attempts to capture any type or
image or recording of the plaintiff engaging in a personal or familial
activity in circumstances in which the plaintiff had a reasonable expectation
of privacy.74 Additionally, any person violates the statute when they
commit an assault with the intent to capture any type of physical impression
of the plaintiff.75 Penalties for violation include treble and punitive
67. Id. § 3344(d) (stating that the following uses do not require consent under the statute:
news, public affairs, or sports broadcast or account, or any political campaign).
68. Id. § 3344(c).
69. TRAGER ET AL., supra note 42, at 167.
70. McClintock, supra note 9 (referring to the first amendment California Civil Code
§ 1708.8 that Schwarzenegger passed).
71. CAL. CIV. CODE § 1708.8(c) (West 2010).
72. Id. § 1708.8(a) (stating that a person may be held liable for a physical invasion of
privacy); see also id. § 1708.8(b) (stating a person may be held liable for a constructive invasion
of privacy).
73. Id. § 1708.8(a).
74. Id. § 1708.8(b).
75. Id. § 1708.8(c).
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damages.76 However, despite the potentially high penalties, some believe
that the statute is generally ineffective.77
3.
California‘s First Amendment to the Anti-Paparazzi Statute
In an effort to further curb the obnoxiously invasive and violent
behavior of the paparazzi, California enacted yet another piece of
legislation that took effect on January 1, 2010.78 The new law has been
incorporated as an amendment to California‘s existing Anti-Paparazzi
statute, California Civil Code § 1708.8.79 This subsection of the statute is
violated if the first transaction in which an image, sound recording or
impression is obtained in a manner that violates any other subsections of the
statute, subsequently publicly transmitted, published, broadcast, sold or
offered for sale, and the transmission, publication, broadcast, sale, or offer
for sale is done with actual knowledge that such image, recording or
impression was obtained in a way that violates the statute.80 Actual
knowledge under this statute means an ―actual awareness, understanding,
and recognition, obtained prior to the time at which the person purchased or
acquired‖ the image, recording or impression that was taken or captured in
violation of the statute.81 Such actual knowledge must be established by
clear and convincing evidence.82 The new statute also adds more teeth by
setting the monetary damages available at not less than $5,000.83 As this
amendment to the anti-paparazzi statute has recently become effective, the
actual impact this statute will have on the paparazzi and the media at large
has yet to be determined.
4. California‘s Second Amendment to the Anti-Paparazzi Statute and
Other Related Laws
California recently made another strike against the insidious paparazzi
by amending its Anti-Paparazzi legislation yet again on September 30,
76.
77.
78.
79.
80.
81.
82.
83.
Id. § 1708.8(d).
Vance, supra note 60, at 112.
CAL. CIV. CODE § 1708.8(f).
Id.
Id. § 1708.8(f)(1).
Id. § 1708.8(f)(2).
Id.
Id. § 1708.8(e). This section of the statute also caps total damages at $50,000.
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2010.84 The specific monetary penalties that will be imposed upon
paparazzi in violation of the Anti-Paparazzi statute remain unchanged.85
However, the scope of behavior that violates the statute, and therefore
becomes subject to the penalties set forth therein, has been expanded to
include false imprisonment such that the commission of both assault and/or
false imprisonment ―with the intent to capture any type of visual image,
sound recording, or other physical impression‖86 now violate the AntiPaparazzi statute.87
The most extreme change to California‘s paparazzi laws, however, lies
in the additions to the California Vehicle Code88 that California enacted
simultaneously with the amendment to the Anti-Paparazzi statute.89 The
new provision is violated if a driver violates the California Vehicle Code by
interfering with the driver of a vehicle or the mechanism thereof,90
following another vehicle too closely91 or driving recklessly92 ―with the
intent to capture any type of visual image, sound recording, or other
physical impression of another person for a commercial purpose.‖93 The
statute creates strict penalties for violation: a misdemeanor conviction,
imprisonment not to exceed six months and a monetary fine not more than
$2,500.94 Additionally, if a driver endangers a minor child the statute
requires the stiffer penalties of imprisonment for no longer than one year,
and a monetary fine not to exceed $5,000.95 Despite the dramatic expansion
of the scope of the Anti-Paparazzi statute96 and the expansive increase in
driving related penalties applicable to the paparazzi, some advocates still
believe that the recent amendments do not curtail the paparazzi enough 97
and that further measures need to be adopted.
84. Cal. State Assem., A.B. 2479, 2009-2010 Leg., Reg. Sess. (Cal. 2010) [hereinafter A.B.
2479].
85. See supra text accompanying note 83.
86. CAL. CIV. CODE § 1708.8(c).
87. Id.
88. CAL. VEH. CODE § 40008 (West 2010).
89. A.B. 2479, supra note 84.
90. CAL. VEH. CODE § 21701.
91. CAL. VEH. CODE § 21703.
92. CAL. VEH. CODE § 23103.
93. CAL. VEH. CODE § 40008.
94. Id.
95. Id.
96. See supra text accompanying notes 1-4.
97. Robin Sax and Carmela Kelly, New Law Jails Paparazzi—Now What?, Dec. 30. 2010,
available at http://www.pinow.com/news/2011/01/05/new-paparazzi-law-in-california/.
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IV. THE PAPARAZZI-FREE ZONE
Despite California‘s well-developed body of common law and statutory
principles, even the most recent addition of the amendment to California‘s
pre-existing anti-paparazzi laws is not sufficient to combat the plethora of
paparazzi causing all of the problems. I propose that California should
enact a law that effectively creates a paparazzi-free zone, or ―celebrity
buffer zone‖ between paparazzi and the individuals they are
photographing.98
On February 1, 2008, Los Angeles City Councilman Dennis P. Zine99
proposed a motion100 that, if adopted and enacted into law, would
effectively create a ―personal safety zone‖101 of space into which paparazzi
could not invade when photographing celebrities.102 A personal safety zone
will consist of ―several feet of clear space between paparazzi and the
individuals they are photographing.‖103
The paparazzi-free zone is a content neutral proposition that aims to
place appropriate restrictions on the taking of commercial photography
around certain sensitive locations.104 Due to the unscrupulous nature of the
paparazzi, this is precisely the type of legislation California should add to
bolster its current common law and statutory scheme as it seeks to eliminate
the paparazzi problem.105
98. Governor Schwarzenegger has used this term of art in voicing his support for the motion.
California Paparazzi Law, Feb. 2, 2008, http://hitsusa.com/blog/479/california-paparazzi-law.
Such term has subsequently been used by others in discussing the proposed law. See Eriq
Gardner, Is Arnold’s New Anti-Paparazzi Law Unconstitutional?, THR, Esq., (Oct. 13, 2009, 9:42
PDT), http://www.hollywoodreporter.com/blogs/thr-esq/arnolds-anti-paparazzi-law-unconstitution
al-63387.
99. Dennis P. Zine is a Councilman for Council District 3 in the City of Los Angeles, first
elected to represent the district in 2001.
100. MOTION, supra note 19.
101. Id.
102. Id.
103. Id.
104. See id.
105. Though not addressed by Councilman Zine in his motion, such a paparazzi-free zone law
will certainly need to be more clearly defined, especially what constitutes ―several feet.‖ For
example, the United States Supreme Court upheld a law enacted by the legislature in Colorado
that created an eight-foot restriction around patients entering a health care facility, but the
restriction specifically stated that a person could not ―knowingly approach‖ a patient‘s restricted
zone to hand out pro-life pamphlets. Hill v. Colorado, 530 U.S. 703, 707-08 (2000). Specifically,
the eight-foot limitation and the ―knowingly approach‖ elements of the law bolstered the
regulation to a constitutional status. See id. at 714-15.
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A. The Paparazzi-Free Zone Will Not Burden First Amendment Principles
First Amendment protection is one of the sacred principles underlying
the history of the United States of America,106 and without the freedom of
the press, this country would hardly be what it is today. Nonetheless, ―the
First Amendment has never been construed to accord newsmen immunity
from torts or crimes committed during the course of newsgathering. The
First Amendment is not a license to trespass, to steal, or to intrude.‖107
Regardless of these basic First Amendment parameters, a law such as the
paparazzi-free zone, like many other ―buffer zone‖ laws,108 would surely be
met with opposition on the First Amendment front. After all, photographs
are speech protected by the First Amendment.109
The concept of personal safety zone types of laws is far from
revolutionary.110 As such, established case law and precedent111 clearly
demonstrate that the paparazzi-free zone law would withstand constitutional
muster for the following reasons: (1) the paparazzi-free zone law is a
content neutral law;112 (2) the paparazzi-free zone law is narrowly tailored
to serve a significant government interest;113 and (3) the paparazzi-free zone
law leaves open ample alternative means for communication.114
106. ―The freedom of speech . . . ‗[is] among the fundamental personal rights and liberties
which are secured to all persons by the Fourteenth Amendment against abridgment by a state.‘‖
Burson v. Freeman, 504 U.S. 191, 196 (1992) (quoting Thornhill v. Alabama, 310 U.S. 88, 95
(1940)).
107. Dietemann v. Time, Inc., 449 F.2d 245, 249 (9th Cir. 1971).
108. ―Buffer zone‖ is the term used by the Supreme Court in Schenck v. Pro Choice Network
of Western NY, 519 U.S. 357 (1997) and many other cases that analyze similar types of laws. See,
e.g., Hill, 530 U.S. 703; Madsen v. Women‘s Health Center, Inc., 512 U.S. 753 (1994); Berger v.
City of Seattle, 569 F.3d. 1029 (9th Cir. 2004).
109. A variety of cases recognize photographs as protected by the First Amendment, while
courts have repeatedly held that the protection accorded to photographs is not absolute. See, e.g.,
Miller v. California, 413 U.S. 15, 23 (1973) (creating a standard for obscene photographs that do
not receive First Amendment protection); see also Gill v. Hearst Publ‘g Co., 253 P.2d 441, 444-45
(Cal. 1953) (holding that certain photographs that invade an individual‘s privacy cannot hide
behind First Amendment ideals).
110. See Schenck, 519 U.S. at 369; United States v. Scott, 187 F.3d 282 (2d Cir. 1999); Hill v.
Thomas, 973 P.2d 1246 (Colo. 1999).
111. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v.
Community for Creative Non-Violence, 468 U.S. 288, 293 (1984):
[I]n a public forum the government may impose reasonable restrictions on the time, place, or
manner of protected speech, provided the restrictions ―are justified without reference to the
content of the regulated speech, that they are narrowly tailored to serve a significant
governmental interest, and that they leave open ample alternative channels for
communication of the information.‖
112. See id.
113. See id.
114. See id.
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1. The Paparazzi-Free Zone Law is a Content Neutral Law Created
by the Legislature of the State of California
The paparazzi-free zone law is a content neutral regulation because the
buffer zone applies to all people equally, regardless of the content to be
captured by the paparazzo‘s ―speech.‖ A statute is content neutral if it is
―justified without reference to the content of the regulated speech.‖115 ―A
regulation that serves purposes unrelated to the content of expression is
deemed neutral, even if it has an incidental effect on some speakers or
messages but not others.‖116 In determining content neutrality, the
government‘s principal justification for enacting the law is the primary
consideration.117 Accordingly, so long as the government does not seek to
regulate or control the content of speech because the government disagrees
with the message relayed, a restriction on speech is content neutral.118
The paparazzi-free zone fits well within the established content neutral
definition. If enacted, the paparazzi-free zone law would be created and
enacted by the Legislature of the State of California.119 As such, the
primary purposes and justifications that prompted the California
Legislature‘s enactment of the law serve an influential purpose in the
content neutral discussion. As Councilman Zine explained in his motion,
safety and privacy are the most important rationales supporting the
paparazzi-free zone law.120 Such safety goals are completely independent
of the message and the content contained in a paparazzo‘s pictures or
videos.121 Though enacted in an effort to protect celebrities and other
individuals of public notoriety, the paparazzi-free zone law will ultimately
protect the privacy and personal space of all people.122 Further, the
paparazzi-free zone will apply to all paparazzi, regardless of the type of
speech they are utilizing—be it still photographs or recording devices.123
115. Id.
116. Id.
117. Ward, 491 U.S. at 791.
118. 7250 Corp v. Board of County Comm‘rs, 799 P.2d 917, 925 (Colo. 1990); see also Ward,
491 U.S. at 782.
119. For instance, the California State Assembly passed AB 524 in 2009 after the Assembly
Committee on Judiciary discussed the need to enact further paparazzi regulations for nearly
identical reasons. A.B. 524, supra note 2.
120. MOTION, supra note 19; see also infra text accompanying notes 110-21.
121. Furthermore, courts have labeled numerous buffer zone laws as content neutral laws even
when such laws limited distribution of pamphlets and protesting in public places, when such
activities go to the heart of the purpose of the First Amendment. Schenck, 519 U.S. at 384-85.
122. MOTION, supra note 19.
123. Id.
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In addition, the nature of the paparazzi-free zone law as a legislatively
created restriction will incline courts to give greater deference to the
legislative findings that support the law.124 Buffer zone laws like the
paparazzi-free zone law come into existence either through legislative or
judicial enactment.125 The legislative process creates ―rule[s] of general
application representing the public policy choices‖ of the state
government.126 Judicial enactment of buffer zone laws, however, comes in
the form of injunctions issued by a court as the result of the judge‘s
examination of evidence that is submitted solely by the parties involved in
the present litigation.127 Thus, courts give greater deference to legislative
laws ―intended for general application reaching all citizens‖128 in the First
Amendment context than to those narrow judicially constructed
injunctions.129 For these reasons, the paparazzi-free zone law is clearly a
content neutral law that will apply to all paparazzi while enhancing the
privacy and safety rights of individual citizens.
2. The Paparazzi-Free Zone Law is Narrowly Tailored to Serve a
Significant Government Interest
The paparazzi-free zone law also meets the specifications of a narrowly
tailored law that serves a significant government interest. The regulation
―must be narrowly tailored to serve the government‘s legitimate, contentneutral interests but . . . it need not be the least restrictive or least intrusive
means of doing so.‖130 In fact, a regulation will pass the narrowly tailored
test even if there is ―some imaginable alternative that might be less
burdensome on speech.‖131 The law need only serve some justifiable,
legitimate government interest ―that would be achieved less effectively
absent the regulation.‖132 The primary, legitimate content neutral interest
behind the paparazzi-free zone law is that of public safety, to ―protect
public safety on streets, sidewalks, [and] access points to emergency care
124. Hill v. Thomas, 973 P.2d 1246, 1255 (Colo. 1999).
125. Madsen v. Women‘s Health Center, Inc., 512 U.S. 753, 764 (1994).
126. Hill, 973 P.2d at 1255.
127. Id.
128. Id.
129. Id.; see also Madsen, 512 U.S. at 765 (applying ―a somewhat more stringent application
of general First Amendment principles‖ when determining the constitutionality of an injunction).
130. Ward v. Rock Against Racism, 491 U.S. 781, 79 (1989).
131. United States v. Albertini, 472 U.S. 675, 689 (1985).
132. Id.
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facilities . . . when paparazzi converge on an individual or location.‖133
Such threat to public safety has long been a concern of both the courts and
the legislature in California.134
Further, courts have continually supported a state‘s interest in
protecting the safety of its citizens.135 The Supreme Court of Colorado
concluded that ―a legislative response to conduct that subjected citizens . . .
to harassing, confrontational, and violent conduct‖ appropriately constitutes
legitimate government interests.136 The United States Supreme Court
similarly held that interests such as ―ensuring public safety and order,
promoting the free flow of traffic on streets and sidewalks, [and] protecting
property rights‖ sufficiently justified a buffer zone similar to the paparazzifree zone law.137
Additionally, the paparazzi-free zone law is not more restrictive than
necessary to achieve the intended safety goals. The paparazzi that prey on
individuals do so only to obtain the perfect picture, video, or quote that they
can sell for hundreds or sometimes thousands of dollars.138 With the
technology available today, both video cameras and traditional still-frame
cameras have the ability to capture images and sounds from afar.139 As
such, the creation of the paparazzi-free zone will in no way limit the
pictures, videos, or sound bytes that the paparazzi will be able to capture.
The paparazzi will instead need to keep several feet of free space between
themselves and their subjects,140 and capture their material with the use of
the prevalent technological features with which their devices are already
equipped. The interests of public safety can be effectuated with a
133. MOTION, supra note 19.
134. See supra notes 32-97 and accompanying text.
135. Schenck, 519 U.S. at 372-73; Hill, 973 P.2d at 1258.
136. Hill, 973 P.2d at 1258. Although Hill dealt with a legislatively created buffer zone
enacted to prevent protesters from approaching patients entering into an abortion clinic, the
Colorado Supreme Court‘s analysis of the buffer zone provides valuable guidance because of the
buffer zone‘s resemblance to the paparazzi-free zone.
137. Schenck, 519 U.S. at 372-73.
138. See supra note 31.
139. For example, the Canon Super Telephoto Lens is specifically designed for ―any longdistance application . . . [including] news photojournalism‖ and has a minimum focusing distance
of 19.7 feet, such that a subject being photographed with this lens must be twenty feet or farther
from the camera in order for the camera to capture a good quality photograph. Canon, Inc., EF
800mm f/5.6L IS USM, available at http://www.usa.canon.com/cusa/consumer/products/cameras/
ef_lens_lineup/ef_800mm_f_5_6l_is_usm#Overview (product overview); Canon, Inc., EF 800mm
f/5.6L IS USM, at ENG-15 (2008) (user manual), available at http://gdlp01.cwss.com/gds/0/0300003480/01/ef800f56lisusm-en.pdf. Due to this type of capability, the
California legislature has enacted statutes that criminalize intrusion by inappropriate use of such
advanced technology. See, e.g., CAL. PENAL CODE § 632(a) (West 2010).
140. MOTION, supra note 19.
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reasonable paparazzi-free zone that does not, and will not, limit the
paparazzi‘s craft.141
3. The Paparazzi-Free Zone Law Leaves Open Ample Alternative
Means for Communication
The paparazzi-free zone law additionally satisfies the final requirement
that a law ―leave open ample alternative channels of communication.‖142
The ability to ―protest, counsel, shout, implore, dissuade, persuade, educate,
inform, and distribute literature‖ have been upheld as ample alternative
channels of communication.143 In addition, so long as ―communication of
[a] message through demonstrative devices‖ remains available, this element
is satisfied.144 A law that ―may reduce to some degree the potential . . . for .
. . speech is of no consequence [if] there has been no showing that the
remaining avenues of communication are inadequate.‖145
Again the existence of technologically advanced photographic and
recording equipment available to the paparazzi today allows the paparazzi
to communicate with their photography in ways that do not involve
permeation of the paparazzi-free zone. The paparazzi-free zone law does
not seek to cut off all photographs, videos, or recordings altogether.146
Instead the law seeks only to keep the paparazzi a physically safe and fair
distance from their subjects.147 From a few feet away,148 paparazzi will still
be able to communicate with their subjects, whether verbally with the use of
recording devices, or artistically with the use of a zoom lens on a camera.
Either way, the existence of a paparazzi-free zone law will not close all
channels of communication for the paparazzi, but will instead leave open
141. It is important to call attention to the Supreme Court‘s reasoning in the noteworthy case
Schenck v. Pro Choice Network of W. N.Y., 519 U.S. 357, 377-78 (1997). In this case the
Supreme Court declared unconstitutional a ―floating buffer zone‖ that banned pro-life protestors
from demonstrating within fifteen feet of any person or vehicle attempting to enter or exit certain
abortion clinics. The Supreme Court decided that such a law burdened more speech than
necessary because protesters would be forced to communicate their message by standing in the
street in order to comply with the law. Additionally, a district court had initiated the ―buffer zone‖
in this case, instead of the state legislature. In contrast, the paparazzi-free zone law does not
present the same challenges to the narrowly tailored requirements as those created by the ―floating
buffer zone‖ in Schenck.
142. Ward, 491 U.S. at 802.
143. Hill, 973 P.2d. at 1258.
144. Id.
145. Ward, 491 U.S. at 802.
146. See MOTION, supra note 19.
147. Id.
148. Id.
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ample means by which the paparazzi can exercise their rights of free
speech.
B. The Paparazzi-Free Zone Will Balance Existing Ideals
Governmental interests of public safety and privacy have long been of
the utmost importance.149 The paparazzi-free zone law aims to protect these
same objectives,150 and as such will surely balance free speech ideals with
these notable constitutional interests. Privacy and the right to be let alone
has been characterized as ―the most comprehensive of rights and the right
most valued by civilized men.‖151 In this way, privacy is a common law
―right‖ that a state can choose to protect in certain circumstances, so long as
such protection lies within the confines of the Constitution.152 The
constitutional right of free speech, and thus, ―[the] right to speak and
publish, does not carry with it the unrestrained right to gather
information.‖153
On the other hand, a paparazzo‘s craft is largely dependent on being in
the right place at the right time, and simultaneously being able to access
their subjects.154 Thus, any and all of California‘s attempts to promote
personal privacy, whether legislative or judicial, are subject to strict judicial
construction.155
The California State Assembly has recently analyzed a nearly identical
balancing test.156 Accordingly, a ―privacy protection measure [that] seeks
to strengthen existing legal law designed to thwart privacy invasions that
can cause great harm to many Californians,‖157 properly balanced the
existing First Amendment rights of the paparazzi in May of 2009.158 The
paparazzi-free zone law similarly aims to protect all people, celebrity and
private individuals alike, from dangerous and unwelcome privacy
149. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting), overruled
by Berger v. New York, 388 U.S. 41 (1967), and Katz v. United States, 389 U.S. 347 (1967).
150. MOTION, supra note 19.
151. Olmstead, 277 U.S. at 478.
152. See Katz v. United States, 389 U.S. 347, 350-51 (1967), superseded by statute, Title III of
the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (1968).
153. Zemel v. Rusk, 381 U.S. 1, 17 (1965).
154. See Andrew Morton, Comment, Much Ado about Newsgathering: Personal Privacy, Law
Enforcement, and the Law of Unintended Consequences for Anti-Paparazzi Legislation, 147 U.
PA. L. REV. 1435, 1447 (1999).
155. Id. at 1448.
156. See A.B. 524, supra note 2, at 6.
157. Id. at 1.
158. Id. at 6.
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invasions.159 The paparazzi-free zone law will enhance the safety of
California citizens because it will apply to all people.160 The First
Amendment freedoms of speech and the press that protect the content of
various forms of speech thus remain intact.161 In the process of promoting
personal safety, however, the paparazzi-free zone will not in any way
destroy the abilities of the paparazzi to capture the perfect picture; the
paparazzi simply need to keep ―several feet of clear space‖ from the
individuals they photograph.162
Admittedly, the group most affected by the paparazzi-free zone law
will be celebrities and other individuals who have gained notoriety and
public attention.163 California current statutory law contains two statutes
that similarly have a primary effect on celebrities and other public officials,
while applying to all people on the face: the right of publicity statute164 and
the anti-paparazzi statute.165 Furthermore, First Amendment constitutional
law also imposes different standards of law in regards to ―public figures‖166
in the defamation context. While this different and stricter standard only
applies in the realm of defamation law,167 the existence of these standards
nonetheless demonstrate that the law takes notice of the ―vehement, caustic,
and sometimes unpleasant[]‖168 issues that well-known individuals in the
public eye may encounter. The paparazzi-free zone will fit nicely in place
with the current laws that acknowledge the difference among celebrities and
public figures and other California citizens.
Public safety, privacy, and the freedom of speech will always compete
as important rights and interests that apply to all United States and
California citizens.169 The paparazzi-free zone law not only withstands
such appropriate judicial scrutiny levels mandated by the First Amendment,
159. MOTION, supra note 19.
160. Id.
161. See supra notes 106-14 and accompanying text.
162. MOTION, supra note 19.
163. See id.
164. CAL. CIV. CODE § 3344 (West 1984); see also supra notes 62-69 and accompanying text.
165. CAL. CIV. CODE § 1708.8 (West 2010); see also supra notes 70-97 and accompanying
text.
166. New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). In this case, the United
States Supreme Court gave First Amendment protection to defamatory statements made about a
public official or a public figure so long as the party that made the statement did not act with
actual malice when speaking about a public official or a public figure.
167. See New York Times Co., 376 U.S. at 279-80 (applying the strict actual malice standard to
defamation cases only).
168. Id. at 270.
169. See A.B. 524, supra note 2, at 6-7.
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but the law also extends the additional privacy protections that individuals,
particularly those individuals with public notoriety, desperately need.170
V.
CONCLUSION
In conclusion, the paparazzi-free zone is precisely the type of law that
California needs in order to drastically reduce the dangerous and invasive
actions by the paparazzi, and significantly alleviate the threat the paparazzi
place on the privacy and personal safety of California citizens. Even the
California state legislature has found that professional, public, and private
persons alike are not only bothered, but are ―harassed and endangered‖171
by paparazzi who ―attempt[] to capture images or other reproductions of
their private lives for commercial purposes.‖172 In order to honor
California‘s longstanding common law and statutory provisions that protect
an individual‘s right to privacy and public safety, California should enact a
paparazzi-free zone law that would effectively create a buffer zone of
personal safety without offending this country‘s bedrock First Amendment
principles.
Tara Sattler
170. See supra notes 106-48 and accompanying text.
171. A.B. 524, supra note 2.
172. Id.
J.D. Candidate, May 2011, Southwestern University School of Law; B.A., 2007, Hofstra
University. Special thanks to the Southwestern Law Review board, editors, and staff for their
contributions to this Comment. I would also like to thank Alison Peck and Daniel Rose for their
knowledge and expertise, and without whom this Comment would not have been possible.
Further acknowledgement is due to Elsa Ramo and Erika Canchola who have been incredible and
inspirational role models. I am eternally grateful to my friends who have been so incredibly
tolerant and supportive during all of my law school endeavors. Last, and certainly not least,
many, many thanks to my family, my parents and my little sister whose unfaltering presence,
support and encouragement have enabled me to conquer law school.