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California wants another shot to protect a law intended to dissuade paparazzi from reckless driving in pursuit of a celebrity.
In November, in the criminal case of Paul Raef, who was alleged to have been stalking Justin Bieber at 80 miles per hour on a Los Angeles road, Los Angeles Superior Court Judge Thomas Rubinson rejected a 2010 law as being an unfair impingement on the First Amendment.
The judge accepted the viewpoint of Raef’s attorney, who argued that if California wanted to dissuade paparazzi from driving dangerously, it should just increase the penalties for reckless driving, not adopt a broad rule that could arguably be used to punish those on the road in pursuit of news-gathering or some other form of an “intent to capture any type of visual image, sound recording, or other physical impression of another person for a commercial purpose.”
On Wednesday, attorneys for California petitioned for an appellate review of Rubinson’s decision.
It’s the opinion of the Los Angeles City Attorney that the old criminal penalties aren’t sufficient to deter paparazzi from engaging in reckless driving and endangering bystanders. The paparazzi, it is argued, have no trouble paying nominal fines. So California made it a misdemeanor to violate driving laws with an “intent to capture…”
In the petition, California’s attorneys deem Judge Rubinson’s decision dismissing one of the counts against the alleged Bieber-stalking shutterbug to be “based on a fundamental misunderstanding of First Amendment jurisprudence.”
Yes, news-gatherers might “routinely” drive recklessly when gathering news — and these days, gathering news often happens with a camera — but that’s not what is important, say state attorneys.
“It was a criminal law of general application that applied to any person, including newsgatherers,” says the appellate petition. “The inclusion of the intent element in the statute was not superfluous and did not implicate the First Amendment. By including the intent element, the statute targeted the reason or intent behind the reckless driving — the aggressive intent to get the ‘money shot.’ This intent heightens the offender’s reckless driving to an even more dangerous level than reckless driving alone.”
State attorneys add that the statute was “content-neutral because it applied to all driving designed to capture an image without regard to the content of the image sought to be captured.”
Being “content-neutral” is generally the most important consideration in the review of whether a law passes constitutional muster. The First Amendment is generally understood to disallow lawmakers from making laws that favor one form of speech over another. As such, laws have to be written to be narrowly-tailored.
Although the case nominally had to do with a paparazzo who was chasing Bieber, Judge Rubinson imagined there was more at stake.
The judge stated, “[If] a statute is so overinclusive that it’s wrapping in…the newsman on the way to the political rally or the crime scene or the natural disaster, but also the portrait photographer, the yearbook photographer, the real estate broker, and you know the individual person who just gets a bug one day to go take some pictures and try to sell them and he drives crazily in order to do so…how can it be said that it is sufficiently tailored to advance the interests asserted by the state?”
The answer that California is attempting to make in its appellate petition is that the law regulates conduct — not speech — and that the press isn’t protected from liability for tortious or criminal acts. The attorneys quote various Supreme Court decisions affirming this concept and portray the rejected anti-paparazzi law as something that wouldn’t prohibit anything from being published, only have an indirect effect on certain conduct in the course of gathering information.
Here’s the full petition, which requests an immediate stay of the trial court proceedings.
E-mail: email@example.com; Twitter: @eriqgardner
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