On Sept. 29, 1998, California Governor Pete Wilson signed what is thought to be the nation's first "paparazzi law" - legislation designed to punish photographers considered too aggressive in taking pictures of celebrities and others. The new state law and similar proposals awaiting action in the U.S. Congress raise significant First Amendment concerns.

Death of Princess Di: Impetus for Bills

   Legislative proposals for curbing the excesses of celebrity photographers - the so-called "paparazzi" - have been around for a number of years, pushed primarily by the Screen Actors Guild in the California assembly. Then Princess Diana and her companions were killed in an automobile crash in a Paris street tunnel on Aug. 31, 1997. The initial perception that paparazzi chasing the limo were responsible for the tragedy quickly pushed legislative efforts much higher on the agenda. Other factors driving the legislation: more aggressive tactics by free-lance photographers in the pursuit of celebrity photos, the development of higher powered telephoto lenses and parabolic microphones, and an increasing public concern about privacy.

   Several bills under consideration in the California legislature were supported not only by stars but by victims-rights and law enforcement groups as well. The bill signed into law was sponsored by Sen. John Butler, a Democrat, and took effect Jan. 1, 1999. According to an analysis by the California First Amendment Coalition, the law "creates two new statutory versions of the common law tort of intrusion, and increases the likelihood of both liability and heavy damages for tabloid trespassers who succeed in capturing sounds, photos, or tape recordings of others engaged in a 'personal or familial activity' on private property." The trespass can be either "physical invasion" where someone actually ventures onto property or "constructive invasion" where camera lenses or microphones record from outside private property.

Congressional Actions

   H.R. 2448. Rep. Sonny Bono (R-Calif.) introduced the Protection From Personal Intrusion Act of 1997 on Sept. 10, 1997. The bill would have criminalized "harassment," which was defined as persistently following or chasing someone for the purpose of obtaining an image. Rep. Bono was killed in a skiing accident on Jan. 5, 1998 in South Lake Tahoe, Calif. Following a Judiciary Committee hearing in May, no further action was taken on the bill.

   H.R. 3224. On Feb. 12, 1998, California Republican Elton Gallegly introduced the Privacy Protection Act of 1998, which would punish persistent following or chasing of any individual in order to obtain a visual or sound impression intended to be sold commercially. Under this bill, only the person who takes the photograph would be punished; publishers would not be liable. When introduced, the bill called for both criminal and civil sanctions. But following a House Judiciary Committee hearing in May 1998, Rep. Gallegly announced that he intended to narrow the scope of his bill by eliminating criminal sanctions and requiring actual assault and/or battery, rather than just chasing, following, or harassing. The bill remained in committee at the end of the session.

   H.R. 4425. Rep. John Conyers, Jr. (D-Mich.) introduced the Personal Privacy Protection Act on Aug. 6, 1998. His proposal would have created civil and criminal liability for both reckless endangerment and invasion of privacy caused by pursuing a person for "commercial purposes." The bill defines reckless endangerment as chasing or following "in a manner that causes a person to have reasonable fear of bodily injury in order to capture an image." The bill was referred to committee on Aug. 6, with no further action before the end of the session.

   S. 2103. Sen. Dianne Feinstein (D-Calif.) introduced the Personal Privacy Protection Act on May 20, 1998. Sen. Feinstein's bill authorizes criminal and civil actions for harassment and personal intrusion for commercial purposes. Like the California law, the bill expands the concept of trespass to include capturing images or sound recordings, even if the journalist is on public property. This proposal is of particular concern to media and other groups because Sen. Feinstein enlisted the help of three constitutional lawyers to make the proposed law First Amendment-proof. The bill was referred to the Senate Judiciary Committee on May 20, but there was no action on it before the session ended.

First Amendment Concerns

   Laws designed to curb paparazzi run afoul of constitutional protections for the press and allow privacy concerns to trump the First Amendment, according to a number of media and other groups represented at a May 21, 1998 hearing of the House Judiciary Committee on the Gallegly and Bono bills. A number of criticisms of the proposals were voiced at the hearing. Such laws would allow Hollywood stars, who invite intense coverage when it suits them, to exert even greater control over how they are portrayed to the public. Other public figures such as elected officials and political candidates would also be able to influence how they are covered by the press. Further, such laws would permit fans, hobbyists, and others to engage in photography for which celebrity photographers could be punished. The media representatives also argued that the proposed laws would unnecessarily duplicate state laws and substitute national concerns for state and local priorities.