California Law Punishing Paparazzi for High-Speed Celebrity Chases Is Upheld

Appeals court rules that it doesn't impinge free speech or press rights under First Amendment.
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This story is about a paparazzo who stalked Justin Bieber at 80 miles-per-hour on a Los Angeles road. It's also one that brought out media advocacy groups in force. Unfortunately for them, a California appeals court declared on Wednesday that a state law that enhances penalties for certain high-speed chases doesn't violate free speech or press rights under the First Amendment.

In 2012, after stalking Bieber, photographer Paul Raef was charged with two violations of 40008(a), which increased punishment for those who disobey safe driving laws "with the intent to capture any type of visual image, sound recording or other physical impression of another person for a commercial purpose."

Raef challenged the constitutionality of the law, and after a Los Angeles Superior Court judge rejected his objection, he found support from the National Press Photographers Association, the Reporters Committee for Freedom of the Press, the Society of Professional Journalists, E.W. Scripps Company and five other press associations warning that overzealous police might exploit California's anti-paparazzi law to do more than punish paparazzi. The media groups nodded to arrests of journalists in Ferguson, Missouri to make the point that it could lead to harassment.

Now the California appeals court shrugs off the concern and emphasizes that what compelled lawmakers to pass the statute was not the intent to take a photograph or make a recording but rather the "special harms" of paparazzi conduct.

"We conclude that section 40008 does not target the intent to engage in a First Amendment activity or the communicative aspects of any such activity," writes California appeals court justice Norman Epstein. "It is aimed at the special problems caused by the aggressive, purposeful violation of traffic laws while targeting particular individuals for personal gain. Since the legal sanction is triggered by the noncommunicative aspects of the violator’s conduct, any incidental effect on speech does not necessarily raise First Amendment concerns."

Some critics of the law compared it to "Son of Sam" statutes meant to stop criminals from profiting off their crimes by doing things like writing a book and selling movie rights. Some courts have found that problematic, but in a decision today, the California appeals court doesn't see the analogy, saying that the reckless driving law falls neither too short nor too far.

"Son of Sam" laws "imposed a direct financial burden not only on the criminal who sold the crime story, but also on the publisher that bought it," states the opinion. "In contrast, section 40008 is not limited to cases where the intended image or recording is to be used in a work to be made available to the general public through a communication medium; nor does the statute impose a direct penalty on any media outlet that buys material gathered in violation of traffic laws."

There were other arguments against the law. For example, was the law narrowly tailored? Would it punish filmmakers racing to film sets or unduly harm radio hosts hitting the gas to get to their own studios? Could the government's interest in stopping highway chases be achieved through less invasive measures to the First Amendment like increasing the penalties for all traffic offenders or charging offenders under existing criminal laws?

Epstein responds, "Because the record before us does not show that section 40008 imposes a serious burden on speech activity, we agree with the People that our consideration of such alternatives would constitute impermissible second-guessing of the Legislature."

Under 40008, Raef faces up to six months in prison.

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