California's New Anti-Paparazzi Law and the First Amendment
There exists a fundamental misunderstanding made by opponents of the new California anti-paparazzi law: that the bill violates the First Amendment to the United States Constitution. The charge that the law violates the First Amendment rests on a basic misconception about the scope of protection offered by the First Amendment. The First Amendment, in part, governs a citizen’s right to speak or not to speak. However, its scope is largely circumscribed when, as here, a law regulates conduct, rather than the content of speech. As such, First Amendment jurisprudence explicitly repeats that the press does not have any special privileges to gather information; the press is subject to the same generally applicable laws governing conduct to which all Americans are subject.
No Supreme Court of the United States case pronouncing on the issue interprets the First Amendment to allow the press to violate generally applicable laws to gather information. And, engaging in conduct that violates the law to gather information is precisely what the new California anti-paparazzi law is about. The law does not target the content of speech; rather, it targets the conduct used to gather information. These are two radically different concepts under First Amendment jurisprudence. The law aims to punish the invasion of privacy, a generally applicable tort, not the content of what someone has to say. Indeed, under the new law, the press is unobstructed in its ability to use the written word to convey various observations.
If the methods used to gather information are tortious, then paying someone money to violate the law can be recognized as a tort in-and-of-itself. Just as someone cannot pay someone else to batter a third-party, someone cannot pay someone to invade another’s privacy. The First Amendment does not, and should not, shield publishers from aiding and abetting violations of the law. The liability imposed by the new law on publishers for knowingly purchasing tortiously obtained photographs reflects this age-old concept of aiding and abetting, and properly imposes punishment to deter publishers from inducing others to violate the law. Indeed, it’s the very prospect of large payouts that induce the paparazzi to spend large amounts of time and money to stake-out others, or to otherwise violate the law.
Finally, the new bill wisely recognizes that there are competing interests in the First Amendment v. privacy rights calculus, and they should be balanced against each other. On one side, there is the interest of the photographer to make a large sum of money for photographing a famous person engaged in private affairs. On the other, there is the interest of the famous person to maintain a sphere of privacy and to develop personal relationships without being under an omniscient public gaze. Thus, there exists on the one hand the economic interest of the photographer, and on the other, an interest that has both emotional and personal primacy with an individual in maintaining some privacy in his or her life. To argue that one’s interest in making money by invading another’s privacy weighs more heavily on the scales of justice, rather than recognizing that one’s emotional and personal sanctity outweigh someone else’s right to exploit your privacy, would turn a very basic concept of personal rights on its head – one cannot subjugate or oppress another for his or her profit. The law does not, and should not, endorse the exploitation of fundamental personal rights by an unrelated person’s seeking to benefit financially from privacy invasions.
As explained above, the new law does not violate the First Amendment. The law was a resounding and overwhelmingly supported measure by the body politic to warn those who habitually invade, or induce others to invade, privacy rights that the public does not support their conduct. Ultimately, the people have the last word. And, the people have spoken.