November 16, 2012 5:00am PT by Eriq Gardner
Justin Bieber Case Could Change California's Anti-Paparazzi Law (Analysis)
Should Justin Bieber thank the paparazzo who chased him at 80 miles per hour in Los Angeles in July?
On Wednesday, Los Angeles Superior Court Judge Thomas Rubinson threw out part of the criminal case against Paul Raef, the alleged Bieber-stalking shutterbug who was pulled over July 6 and later charged with two counts of reckless driving with the intent to capture pictures for commercial gain, one count of (traditional) reckless driving and one count of failing to obey the order of a police officer.
Raef still faces charges for the latter two counts, but the "intent to capture pictures" charges are what brought constitutional scrutiny from the judge.
The law was enacted in 2010 to crack down on the dangerous habits of paparzzi, but Rubinson said the statute was overly broad and improperly aimed at newsgathering activities protected by the First Amendment.
So why might Bieber have reason to thank Raef?
David Kestenbaum, who represented Raef in court, asks what if Bieber -- or any celebrity, for that matter -- was recklessly driving in order to shoot a film?
"As most special-interest laws go, this one was horribly written," he says.
That law, 40008(a), states:
"Any person who violates [various 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, is guilty of a misdemeanor and not an infraction and shall be punished by imprisonment in a county jail for not more than six months and by a fine of not more than $2,500."
Thus, in theory at least, if Bieber was racing along Santa Monica Boulevard because he was late to make his directorial debut on a film lot, he could be arrested and might face six months in prison.
No doubt this is an improbable scenario, but sometimes imagination is required to determine the merit of a given law. In Raef's case, the judge heard quite a few hypotheticals -- e.g. what if it was a radio disc jockey who merely wanted to interview Bieber? -- and agreed that the law was ridiculous. If California wanted to dissuade paparazzi from driving dangerously, why not just increase the penalties for reckless driving, the judge reportedly mused during Wednesday's hearing.
Bieber probably doesn't feel like thanking Raef for protecting his First Amendment liberties. After all, the singer got a speeding ticket as a result of the incident.
So maybe Bieber should sue Raef.
As Kestenbaum admits, the judge's ruling didn't do anything to impact another part of the 2010 anti-paparazzi crackdown -- the civil portion of California's legal code that makes a person liable for "constructive invasion of privacy."
Some attorneys have said that it is only a matter of time that this also gets some constitutional review, but Kestenbaum says, "There's a much lesser degree of scrutiny when you're talking about money rather than liberty."
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