California's 2014 Media Restrictions Against Online Press and Paparazzi: An Analysis of Sections 1708.8 and 1708.7 of California's Civil Code

摘要

TMZ.com's founder Harvey Levin says that he runs a news operation, not a paparazzi firm. If that's the case, his reporters, who often act as paparazzi in how they pursue celebrity stories, could not be prosecuted under parts of Sections 1708.8 and 1708.7 of California's Civil Code. He could even argue that the laws are unconstitutional as written because they bar the physical activities his reporters do: record, monitor, and conduct surveillance on celebrities' activities. TMZ hires personnel to conduct these activities and pays informants who assist in gathering information. If TMZ is considered a news operation, then these informants are the equivalent of paid freelance staff and exempt under portions of these two laws. As the analysis in the article shows, the specific provisions of California's laws that focus on the intrusion tort within privacy law are legal because they are content neutral focusing on time, place, and manner regulations. Yet, the elements of the laws that contain provisions against the media may not withstand First Amendment scrutiny. Celebrity-focused media operations could argue that their conduct is based on celebrity news, and, therefore, have a First Amendment right to pursue these stories. Any attempt to place limits on the media poses a burden on the First Amendment's guarantee of free speech and press. Any law that restricts these rights must pass the Supreme Court's strict scrutiny test. The law must ban as little speech as possible while advancing a compelling government interest. Portions of Section 1708.8 of the California's Civil Code are content-based, and courts often strike down content-based laws. It punishes the media with a fine for publishing a photo, video, or audio clip of a celebrity taken by someone (possibly paparazzi) who may or may not have invaded that celebrity's privacy via physical or technological means. As already noted, the media is protected from publishing and broadcasting information it receives from third parties whether or not that third party obtained the information legally. If the California legislature and governor want to protect celebrities' privacy, the most solid legal approach may be imposing time, place, and manner restrictions on the paparazzi similar to a 2010 proposal by attorney Tara Sattler for a "safe zone" for the public. She advocated for physical space within public access areas such as sidewalks and streets where anyone, including celebrities, physically can move about without physical interference. This "safe zone" whether it's 10 to 20 feet or some other measured space could guarantee a zone of privacy as the state's civil code seek to do. While not a perfect solution for protecting one's personal and family's privacy, it is a start. The paparazzi could conduct their jobs without literally placing themselves in front of a subject. The safe zone does not solve the harassment struggle that many celebrities complain about, but it does provide a sense of personal space and the ability to conduct one's life without overt physical interference. The safe zone also would apply to children of celebrities as well. As minors and private figures, these children would have greater privacy protections than their well-known parents have. Celebrities and other public figures often conduct themselves within the public eye and whether it is fair or not, the press, including the paparazzi, does have a right to publish and broadcast these stories.