Sunday, May 5, 2013

Celebs vs. Paparazzi: Challenging the First Amendment

Steven Tyler is furious with paparazzi who “don’t want to miss a thing.” Therefore, the Aerosmith frontman has advocated for legislation in Hawaii which would allow celebrities to sue anyone who “attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity on land owned or leased by the plaintiff."  (Reuters)
            The legendary rocker initiated his campaign after being photographed with his girlfriend in his Maui home in December. (Huffington Post)  The legislation establishes that if the window is exposed to common view, then photographing is not an invasion of privacy. The legislation states “constructive invasion of privacy shall include an assault or false imprisonment committed with the capture of or intent to capture any type of visual image, sound recording, or other physical impression of another person.” (Bill for an Act) The Steven Tyler Act has gained support from Mick Fleetwood, Britney Spears, and Avril Lavigne among other famous Hawaii vacationers.
            Under the state’s constitution, “a person is guilty of violation of privacy in the first degree if he or she intentionally or knowingly installs and/or uses, in any private place without consent of the person or persons entitled to privacy therein, any device for observing, recording, amplifying, or broadcasting another person in a stage of undress or sexual activity, unless authorized by law.” (HI Const. Art. I, Secs. 6 & 7)
            Although this would be the first legislation specifically directed at paparazzi in the Aloha State, California has enacted anti-paparazzi legislation since the fatal car crash involving Princess Diana and incessant picture takers in 1997.  Civil Code § 1708.8 prevented any physical invasion of privacy with the intent to capture an image of a person during a personal activity, restricted the use of “parabolic microphones and telephoto lenses” to capture an image from an extreme distance, and relegated any assault which would lead to capturing said image. (Loeb) The difference between the California law and the Steven Tyler Act is that, in the former, the paparazzi must intrude on a celebrity’s physical space; whereas the latter act punishes paparazzi from capturing an image from a distance.
            In J.P. Turnbull v. American Broadcasting Companies, (2004 U.S. Dist. LEXIS 24351, 32 Media L. Rep. 2442) several actors and actresses sued ABC for violating the Anti-Paparazzi Act by airing their images in conjunction with an episode about paying to meet casting directors. The United States District Court for the Central District of California granted ABC’s motion for summary judgment as to the request for an injunction; which essentially made the case go away.
            Despite 23 out of 25 members in Hawaii’s state Senate approving the Steven Tyler Act, the bill currently lingers in the House of Representatives after missing deadlines for consideration. Since Hawaii’s legislative process functions on a two-year period, the bill can return to the House next year without cycling through the Senate if it doesn't get a hearing in 2013.
            However, Rep. Angus McKelvey, chairman of the Consumer Protection Committee, claims pushing the bill is a lost cause.
            "To say there is absolutely zero support would be an understatement,” McKelvey said.
            While California’s government quickly enforced harsh restrictions upon paparazzi, the legislation was spawned in the wake of Princess Diana’s tragedy. Without the severity of an emotional event to influence lawmakers, the Steven Tyler Act will most likely appear as preferential treatment toward celebrities. Media organizations have slammed Tyler’s bill because it not only limits the freedom of the press but also interferes with Hawaii’s government from focusing on more significant issues affecting the majority of citizens. The press have the right to document daily happenings including celebrities, especially considering that these superstars would not be famous without the media giving them attention.
            A law forbidding the press from taking pictures through an unobstructed window is not grounded in current invasion of privacy statutes. So even if the Steven Tyler Act was passed, it would probably be deemed unconstitutional.


McManus, M. (2013). Hawaii's Senate passes Steven Tyler Act celebrity privacy bill.

Hofschneider, A. (2013). Steven Tyler Act Stalls in Hawaii.

Hawaii State Constitution

California’s Anti-Paparazzi Law

J.P. Turnbull v. American Broadcasting Companies

Hawaii State Senate: A Bill for an Act

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