Is new legislation necessary to protect
the privacy and safety of public figures?

Yes

• Charles Calderon

State Senate Majority Leader Charles Calderon (D-Montebello) is chair of the Senate Select Committee on the Entertainment Industry and a member of the legislature’s Joint Task Force on Personal Information and Privacy.

No

• Terry Francke

Terry Francke is executive director of the California First Amendment Coalition, a Sacramento-based nonprofit alliance of journalists and others supporting freedom of information and expression. He can be reached at tfrancke@cfac.org.

by Charles Calderon

Though the tragic death of Princess Diana has focused the world’s attention on the offensive, dangerous tactics of celebrity photographers, the real issue here is not her death, but her life and how she was forced to live — with her last moments on earth stolen by the peering eye of the paparazzi.

Here in California, the world’s entertainment capital, the quarry is bountiful. Photographers taunt well-known figures, seeking to get an angry reaction — any reaction — that will bring the highest price. They stalk, harass, provoke and lie for their pictures. Most importantly, they don’t record news events; they too often manufacture them.

While some argue that existing laws are sufficient to address problems with the media’s bad actors, the proof of the need for more specific laws is regularly splashed across the front pages of supermarket tabloids. Litigation in defense of lies and harassment has simply become a cost of doing business for the tabloid industry.

In the meantime, the plaintiff has suffered numerous other incidences of harassment, stalking, trespass, false imprisonment, defamation, assault or battery.

Gossip as a trade

As long ago as 1890, Louis D. Brandeis and Samuel D. Warren wrote: "The press is overstepping in every direction the obvious bounds of propriety and 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."

While celebrities may be the biggest victims of tabloid journalism, the continuing erosion of the right to privacy in our society is at stake not only for the rich and famous. It threatens the journalistic integrity of our news media, the lives of ordinary people who are thrust into the public spotlight, and information about our everyday lives which is the new currency in the information age.

For several years, I have sought to strike a balance between the rights of speech and privacy.

Last year, I authored legislation to re-introduce criminal penalties for defamation. I believe that criminal penalties would act to deter the offensive conduct engaged in by some in the media.

This year, I tried a different approach and introduced a bill which would provide for personal liability of those who make the final decision to publish or broadcast a defamatory statement and prohibit their employers from indemnifying them for these costs.

It also provided that a public prosecutor could sue an individual or entity that engaged in a pattern or practice of publishing or broadcasting defamatory material for civil penalties.

First Amendment rights

This legislation preserves First Amendment rights. It retains the New York Times v. Sullivan malice standard and the Civil Code 3244 standard for punitive damages.

However, it distinguishes between daily news operations that don’t have the time to re-check facts as they come in and the weekly or monthly news organizations that have more time to verify their sources.

This method of segregating treatment of media defendants based on a "time-frame" concept has been used by the United States Supreme Court and the California Supreme Court.

I am currently proposing a bill that will contain, in addition to the civil defamation proposal above, a new Civil Code section which will bring together many of the torts most often committed by paparazzi and tabloid-style media and provide punitive and other damages that remove the financial incentives of individuals to engage in this conduct as well as personal liability for those who publish or broadcast the fruits of this offensive conduct.

My proposals are intended as a starting point for rational and dispassionate discussion among lawmakers, media leaders and legal experts on how to craft reasonable restrictions on an industry that has consistently flouted the ethical boundaries of propriety and civility. As chair of the Senate Select Committee on the Entertainment Industry, I intend to facilitate such debate in the coming weeks.

‘Slippery slope’

So far, the reaction from the mainstream press to such efforts has been mixed. On the one hand, the soul-searching by the worldwide media in the wake of the Princess Diana tragedy has been encouraging.

Yet the general reaction to legislative efforts to curb tabloid harassment has been a rather predictable knee-jerk response — that is, any attempt to restrict tabloids starts us on the slippery slope of infringement on the First Amendment rights of the press.

There is no such thing as absolute freedom of the press. Until a mere 34 years ago, when the United States Supreme Court decided New York Times v. Sullivan, the balance between the right to privacy and the right to free speech weighed more heavily on the side of privacy.

Absolute freedom rejected

It is important to remember that in New York Times, the court soundly rejected the concept of an absolute freedom of the press, even though Justices Douglas and Black strongly argued for such a ruling.

In the major cases following New York Times, as the court expanded the application of the Times malice standard from public officials to public figures, the court has continued to reiterate the need to protect the individual’s right to privacy.

The "slippery slope" argument should not be the end of the debate. It should be the beginning. Since it has only been 34 years since New York Times, perhaps we should examine whether we are slipping in the wrong direction.

I agree that it is a difficult task — but the difficulty of the task should not prevent us from attaining our goals.

by Terry Francke

Nothing has demonstrated the inadequacy of existing civil remedies, equitable relief and criminal penalties to redress invasions of the privacy of anyone, well-known or otherwise.

We would not be discussing limits on celebrity photographers were it not for the death of Princess Diana. Assume the worst, namely that the paparazzi vehicles were tailing, blocking or crowding her limousine so aggressively that its driver was startled into losing control.

Those facts in California would almost certainly, depending on the provable or inferable mental state of the defendant driver(s), support a prosecution for vehicular manslaughter or even second-degree murder. Even without injury, such conduct could be prosecuted as reckless driving.

No proof yet

As for celebrities’ complaints about the relentless, aggressive and intrusive attention they sometimes receive from photographers, it has yet to be shown why new laws are needed.

There are tort actions for trespass and/or intrusion (highly offensive interference with one’s right to seclusion, irrespective of technical trespass).

There are criminal penalties for trespass and/or assault. Courts have uniformly held that there are no First Amendment privileges or defenses for torts or crimes committed in the course of gathering information for the media.

There is even a basis for injunctive relief called "harassment," defined as "a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, . . . which serves no legitimate purpose," which "would cause a reasonable person to suffer substantial emotional distress," and which causes such distress in fact (Code of Civil Procedure §527.6). An intentional and knowing violation of such an order is punishable as a misdemeanor with up to a $1,000 fine, a year in jail or both. If physical harm results, the fine increases to $2,000.

Courts presented with a record of sufficiently outrageous or dangerous photo-stalking don’t need media-specific statutes. In 1973, the Second Circuit, U.S. Court of Appeals upheld, as modified, a permanent injunction ordering arch-paparazzo Ron Galella to keep his distance from Jacqueline Kennedy Onassis (25-foot radius) and her children (30-foot radius).

Existing statutes

In Galella v. Onassis (487 F.2d 986), the district court had predicated its order on two sources of authority: a New York State anti-harassment statute (Penal Law §240.25) directly comparable to California’s CCP §527.6, and general principles of personal privacy.

Although the Second Circuit noted that New York common law did not recognize the privacy tort at the time, it concluded that the harassment statute alone provided authority for the injunction. And under that authority, the record of Galella’s conduct (see 353 F.Supp. 196) warranted relief.

But the Galella-free zone was the result of a specific adjudication and a well-developed record of repeated, shameless and often unnerving intrusiveness.

By contrast, the proposals discussed or introduced so far to punish paparazzi excesses require no evidence of injury.

Struck down already

Instead, one approach would create floating zones around public figures into which the incursion by media photographers or electronic journalists without the subject’s consent would be a per se tort or crime.

The U.S. Supreme Court has, in the abortion protest context, held that the First Amendment will not permit judicially imposed floating "buffer zones" that insulate clinic patients from protesters outside the immediate entryways to the clinics themselves (Schenk v. Pro-Choice Network of Western New York, Case No. 95-1065, decided 2/19/97).

The court has previously held that the press cannot be singled out for differentially onerous regulation (Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983)).

And the only way in which the court has altered the balance of interests between public figures on the one hand and the press on the other is not to reduce protection for the latter in favor of the former, but to the contrary (New York Times v. Sullivan, 376 U.S. 254 (1964)).

Another approach, already introduced in Congress by Rep. Sonny Bono, would criminalize and create tort liability for persistent media "following or chasing" in efforts, successful or not, published or not, harmful or not, to photograph or interview those who had taken steps to preserve their privacy. As introduced, H.R. 2448 is probably both fatally overbroad and vague.

Just an easy argument

Despite all the existing protections, the proponents say draconian deterrents are essential because anything less will be ignored when the payoff for a sensational photo is so great.

That’s an easy argument to raise, but where’s the proof?

Where, in particular, is the picture taken by someone violating a Galella-type court order?

And if there is one, where is the judge who would not soon find a sanction substantial enough to discourage a repeat performance?

I may appear to be making the litigator’s mistake of asking a question without already knowing the answer, but until we all have an answer, legislation is premature, to say the least.