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For years, shouting fire in a crowded theater has been shorthand trope to describe the limitations of free speech. Will chasing Justin Bieber at 80 miles-per-hour in a vehicle similarly tell the impediments to an absolutely free press?
On Wednesday, after a California appeals court granted permission, several media groups filed an amicus brief in support of Paul Raef, a freelance paparazzo who was charged in 2012 with stalking Bieber on a Los Angeles road. Raef was specifically accused of violating a 2010 law that was enacted by the California legislature to crack down on the dangerous habits of paparazzi.
Now, 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 are warning that overzealous police might exploit California’s anti-paparazzi law to do more than punish paparazzi. They point to arrests of journalists in Ferguson, Missouri and other events nationwide as a worrisome trend showing how California’s law could provide a legal tool for the harassment of news gatherers.
Back in 2012, when prosecutors charged Raef, the focus of the case was on the state statute, 40008(a), which created additional penalties for those who disobeyed 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.”
Los Angeles Superior Court judge Thomas Rubinson ruled the statute was overly broad and was improperly aimed at newsgathering activities protected by the First Amendment. In coming to the conclusion, the judge entertained other hypotheticals —what if Quentin Tarantino was rushing to get to his film set? What if Howard Stern was racing to get to the studio to do an interview with a celebrity — and figured there was better ways to clamp down on paparazzi without having a law that specifically targeted newsgathering and imposed the prospect of six months of prison time for speeding in pursuit of a story. Why not just increase the penalties for reckless driving, the judge wondered.
State attorneys argue the statute is “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.”
And thus, the case of the Justin Bieber chaser has gone up to a state appeals court.
In the amicus brief (read here) authored by attorney Kimberly Chow, the issue of whether 40008 is a “duplicative law which establishes unconstitutional heightened penalties for photographers engaged in expressive activities” is addressed, but the media groups are adding something new to the debate. From the brief:
“In addition, countless current examples demonstrate how photojournalists in particular are vulnerable to harassment for performing their jobs, simply because the act of filming or taking pictures can provoke negative reactions from the individuals, including law enforcement officers, being recording. The many arrests of journalists in Ferguson, Missouri, last year are illustrative. Section 40008 provides a legal tool for such harassment to continue.”
The media groups mention Ferguson repeatedly in the brief, but also evoke a 2011 lawsuit by the ACLU on behalf of three photographers who were taking pictures in public places, freelance photojournalist Mannie Garcia who was arrested for disorderly conduct by Maryland police while filming police activity, and other photojournalists who were arrested for trespassing while taking pictures of “Occupy” protests.
“Photographers are never charged with the crime of ‘photography,’ but it is that activity that often brings them to the attention of law enforcement officers who use a range of catch-all charges to punish them,” states the brief, which later adds that what the incidents of Ferguson and elsewhere show is that while photographers can later resolve their situations, they are “forced to engage in protracted litigation in order to vindicate their rights” and the incidents serve as a “reminder that First Amendment freedoms are often ignored by law enforcement.”
Safe roads might be a legitimate government interest, but the media groups don’t want to give police another “legally sanctioned means” to chill their endeavors. The state of California has been given a May 22 deadline to reply to the amicus brief.
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