J.D., 2002, New York University School of Law; B.A., 1999, magna cum laude, English, University of Pennsylvania; Associate, Stroock & Stroock & Lavan. The author would like to thank Scott Landau for his friendship and assistance and
Professor Marci Hamilton for her insight and guidance throughout this process.
1. GEORGE ORWELL, NINETEEN EIGHTY-FOUR 158 (Clarendon Press 1984) (1949).
2. Steve Wulf, Lights, Camera, Reaction, TIME, Nov. 13, 1995, at 102, 102 (quoting
LA DOLCE VITA (Riama Film, 1961)).
3. Phillip Pullella, Paparazzi have changed since the days of Dolce Vita, NANDO
TIMES, Aug. 31, 1997, at http://archive.nandotimes.com/newsroom/nt/831changed.
html (on file with the New York University Journal of Legislation and Public Policy).
4. Id. 207 \\server05\productn\N\NYL\6-1\NYL110.txt unknown Seq: 2 11-DEC-02 12:10
208 LEGISLATION AND PUBLIC POLICY [Vol. 6:207
8. Allan R. Andrews, We’ve Met the Dark Side of Journalism, PACIFIC STARS AND
STRIPES, Sept. 7, 1997, at http://www.toad.net/~andrews/diana.html (on file with the
New York University Journal of Legislation and Public Policy).
9. See Jonathan Alter, Dying for the Age of Diana, NEWSWEEK, Sept. 8, 1997, at
39; Richard Zoglin, Hey, Wanna Buy Some Pix?, TIME, Sept. 15, 1997, at 56.
10. See generally Clay Calvert, The Voyeurism Value in First Amendment Jurisprudence,
17 CARDOZO ARTS & ENT. L.J. 273 (1999).
11. Jacqueline Sharkey, The Diana Aftermath, AM. JOURNALISM REV., Nov. 1997,
at 18, 22.
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12. Protection from Personal Intrusion Act and Privacy Protection Act of 1998:
Hearing on H.R. 2448 and H.R. 3224 Before the House Comm. on the Judiciary,
105th Cong. 15 (1998) [hereinafter Privacy Hearing] (statement of Paul Reiser,
actor).
13. Richard J. Curry, Jr., Diana’s Law, Celebrity and the Paparazzi: The Continuing
Search for a Solution, 18 J. MARSHALL J. COMPUTER & INFO. L. 945, 945 (2000)
(quoting Brooke Shields, actor, May 15, 1997) .
14. See Privacy Hearing, supra note 12, at 7 (statement of Michael J. Fox, actor). R
15. Privacy Hearing, supra note 12, at 15 (statement of Paul Reiser, actor). R
16. D. Scott Gurney, Note, Celebrities and the First Amendment: Broader Protections
Against the Unauthorized Publication of Photographs, 61 IND. L.J. 697, 703
(1986); see also Richard Roeper, Persecuted by Tabs: Don’t We ALL Know Feeling,
ST. LOUIS POST-DISPATCH, Sept. 15, 1997, at 3E.
17. Privacy Hearing, supra note 12, at 6 (statement of Michael J. Fox, actor). R
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say, don’t help me.”18 As hard as it may be to sympathize with celebrities,
as a society, we must try.
18. Yahlin Chang & Gregory Beals, Too High a Price for Fame, NEWSWEEK, Sept.
15, 1997, at 16, 16 (quoting Tom Selleck, actor).
19. See Griswold v. Connecticut, 381 U.S. 479, 484–85 (1964); ELLEN ALDERMAN
& CAROLINE KENNEDY, THE RIGHT TO PRIVACY, at xiii-xvi (1995).
20. FRED H. CATE, PRIVACY IN THE INFORMATION AGE 52 (1997).
21. 381 U.S. at 484 (citation omitted).
22. CATE, supra note 20, at 51. R
23. See Peter B. Edelman, Free Press v. Privacy: Haunted by the Ghost of Justice
Black, 68 TEX. L. REV. 1195, 1198 (1990).
24. CATE, supra note 20, at 55. R
25. Cox Broad. Corp. v. Cohn, 420 U.S. 469, 487 (1975).
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26. See id. at 491. “By placing the information in the public domain on official
court records, the State must be presumed to have concluded that the public interest
was thereby being served.” Id. at 495.
27. See id.
28. This analogy is pertinent because constitutional and statutory interpretation
strives to achieve internal consistency, and a definition or standard applicable in one
section of the law might serve other areas. See generally Delf Buchwald, Statutory
Interpretation in the Focus of Legal Justification: An Essay in Coherentist Hermeneutics,
25 U. TOL. L. REV. 735 (1994) (discussing desire for both internal and external
consistence and coherence in interpretation).
29. See Katz v. United States, 389 U.S. 347, 361 (1967).
30. Id. at 362.
31. Id.
32. Id. at 348.
33. Id. at 351–52.
34. Id. at 91.
35. CATE, supra note 20, at 92. R
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36. Id. at 92 (quoting PRESIDENT’S INFORMATION INFRASTRUCTURE TASK FORCE,
INFORMATION POLICY COMMITTEE, PRIVACY WORKING GROUP, PRIVACY AND THE NATIONAL
INFORMATION INFRASTRUCTURE: PRINCIPLES FOR PROVIDING AND USING PERSONAL
INFORMATION, I.A-I.C at ¶ 2, 4 (Washington 1995)).
37. Id.
38. See Shulman v. Group W Prod., Inc., 955 P.2d 469 (Cal. 1998). Shulman is
discussed infra in detail in Part III.A.3 and Part IV.A.
39. CAL. CIV. CODE § 1708.8 (West Supp. 2001). The code is discussed infra at
length in Part IV.A.
40. CATE, supra note 20, at 59. R
41. Id. (quoting PAUL M. SCHWARTZ & JOEL R. REIDENBERG, DATA PRIVACY LAW:
A STUDY OF UNITED STATES DATA PROTECTION 63–64 (Michie 1996)).
42. 410 U.S. 113, 152 (1973) (quoting Palko v. Connecticut, 302 U.S. 319, 325
(1937)).
43. CATE, supra note 20, at 61. R
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44. Francis S. Chlapowski, Note, The Constitutional Protection of Informational
Privacy, 71 B.U. L. REV. 133, 143–44 (1991).
45. See Prosser, supra note 5, at 389–406. R
46. RESTATEMENT (SECOND) OF TORTS §§ 652B–E (1977).
47. See Lyrissa Barnett Lidsky, Prying, Spying, and Lying: Intrusive Newsgathering
and What the Law Should Do About It, 73 TUL. L. REV. 173, 200 (1998) (arguing
that “an individual’s right to privacy receives almost no protection from the public’s
insatiable demand for information” and that recent Supreme Court jurisprudence
“makes it almost impossible for states to impose liability on the publication of truthful
information”).
48. Id. at 199.
49. Id. at 200 (quoting Virgil v. Time, 527 F.2d 1122, 1129 (9th Cir. 1975)).
50. Lidsky, supra note 47, at 200 (quoting Linda N. Woito & Patrick McNulty, The R
Privacy Disclosure Tort and the First Amendment: Should the Community Decide
Newsworthiness?, 64 IOWA L. REV. 185, 196 (1979)).
51. Id.
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52. See generally Marci A. Hamilton, The Constitution and Its Information Pathways
(Spring 2001) (describing in detail priority and value Constitution places on
various types of public and private information) (unpublished manuscript, on file with
the New York University Journal of Legislation and Public Policy).
53. But cf. Rosemont Enter. v. Random House, Inc., 294 N.Y.S.2d 122, 127 (1968)
(stating that law affords little protection to public figures’ privacy).
54. See Lidsky, supra note 47, at 199–200; see also Shulman v. Group W Prod., R
Inc., 995 P.2d 469, 496 (Cal. 1998).
55. Harry Kalven, Jr., Privacy in Tort Law—Were Warren and Brandeis Wrong?
31 LAW & CONTEMP. PROBS. 326, 336 (1996) (exploring whether defense is “so overpowering
as virtually to swallow the tort”).
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56. See Roth v. United States, 354 U.S. 476, 484 (1957); New York Times Co. v.
Sullivan, 376 U.S. 254, 269 (1964); Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964)
(“[S]peech concerning public affairs is more than self-expression; it is the essence of
self-government.”).
57. Stephen M. Stern, Witch Hunt or Protected Speech: Striking a First Amendment
Balance Between Newsgathering and General Laws, 37 WASHBURN L.J. 115, 124
(1997) (citing Roth, 354 U.S. at 484 (quoting 1 JOURNALS OF THE CONTINENTAL CONGRESS
108 (1774))).
58. CATE, supra note 20, at 28; Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 41 R
(1971).
59. CATE, supra note 20, at 68. R
60. See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting)
(“But when men have realized that time has upset many fighting faiths, they may
come to believe even more than they believe the very foundations of their own conduct
that the ultimate good desired is better reached by free trade in ideas—that the
best test of truth is the power of the thought to get itself accepted in the competition of
the market, and that truth is the only ground upon which their wishes safely can be
carried out.”).
61. CATE, supra note 20, at 69 (citing Sullivan, 376 U.S. at 269 (quoting Roth, 354 R
U.S. at 484)).
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62. See Sullivan, 376 U.S. at 269; see also NAACP v. Clairborne Hardware Co.,
458 U.S. 886, 913 (1982); Roth, 354 U.S. at 484.
63. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758 (1985).
64. J. THOMAS MCCARTHY, 2 THE RIGHTS OF PUBLICITY AND PRIVACY § 8:2 (2d
ed. 2000) (relying on Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J.
and Holmes, J., concurring)).
65. Id.
66. Id.
67. Id.
68. Id. at § 8:3.
69. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
70. Richard A. Posner, The Right of Privacy, 12 GA. L. REV. 393, 396 (1978).
71. See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759–60
(1985) (“[S]peech on matters of purely private concern is of less First Amendment
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self-government’ . . . .” (quoting Harley-Davidson Motorsports, Inc. v. Markley,
568 P.2d 1359, 1363 (Or. 1977))); Gertz v. Robert Welch, Inc., 418 U.S. 323, 420
(1974).
72. Calvert, supra note 10, at 311 (quoting ALEXANDER MEIKLEJOHN, POLITICAL R
FREEDOM: THE CONSTITUTIONAL POWERS OF THE PEOPLE 24 (Harper & Bros. 1960)).
73. MEIKLEJOHN, supra note 72, at 24. R
74. 376 U.S. 254, 270 (1964).
75. Michael Higgins, Public Relief, 83 A.B.A. J. 68, 70 (1997).
76. See CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 2–3
(The Free Press 1993).
77. MEIKLEJOHN, supra note 72, at 26. R
78. See generally SUNSTEIN, supra note 76. R
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79. Id.
80. Sharky, supra note 11, at 22. R
81. Jack M. Balkin, Populism and Progressivism as Constitutional Categories, 104
YALE L.J. 1935, 1956–57 (1995) (book review).
82. SUNSTEIN, supra note 76, at 20–21. R
83. Cf. Rosemont Enter. v. Random House, Inc., 294 N.Y.S.2d 122, 127 (1968).
84. 527 F.2d 1122, 1128–29 (9th Cir. 1975); see also RESTATEMENT (SECOND) OF
TORTS § 652D (1977).
85. Virgil, 527 F.2d at 1129 (quoting RESTATEMENT (SECOND) OF TORTS § 652D,
cmt. f (Tentative Draft No. 13, 1967). This comment was later adopted in RESTATEMENT
(SECOND) OF TORTS § 652D, cmt. h (1977)).
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86. Diane L. Zimmerman, Requiem for a Heavyweight: A Farewell to Warren and
Brandeis’s Privacy Tort, 68 CORNELL L. REV. 291, 353 (1983).
87. Id.
88. See id. at 354–55.
89. See generally, Bob Rowland, Diana’s Law: Would It Survive Constitutional
Scrutiny?, 27 CAP. U. L. REV. 191 (1998).
90. See id.
91. See Prosser, supra note 5, at 410–12. R
92. Time, Inc. v. Hill, 385 U.S. 374, 388 (1967) (quoting, in part, Thornhill v.
Alabama, 310 U.S. 88, 102 (1940)).
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93. Id. at 388–89. See infra Part III.B.3 for examples of private matters deemed to
be of public interest.
94. Time, 385 U.S. at 388 (quoting, in part, Thornhill, 310 U.S. at 102).
95. Id.
96. See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985).
97. Id. at 761 (quoting Connick v. Myers, 461 U.S. 138, 146–48 (1983)).
98. Stern, supra note 57, at 149–50. R
99. 459 P.2d 912 (Cal. 1969).
100. Id. at 918.
101. See id. at 922.
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102. See Kapellas, 459 P.2d at 922.
103. See infra Part III.B.3. (addressing courts’ seeming disability to find any private
event “private” enough to warrant protection).
104. Kapellas, 459 P.2d at 922.
105. Briscoe v. Reader’s Digest Ass’n, 483 P.2d 34, 44 (Cal. 1969).
106. Shulman v. Group W Prod., Inc., 995 P.2d 469, 485 (Cal. 1998); see, e.g.,
Campbell v. Seabury Press, 614 F.2d 395, 397 (5th 1980) (requiring, that “logical
nexus exist between the complaining individual and the matter of legitimate public
interest”).
107. Virgil v. Time, Inc., 527 F.2d 1122, 1131 (1975).
108. Id.
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114 Amongst these cases, romances between movie stars were
deemed newsworthy,115 as was a celebrity’s visit to a vacation re-
109. RESTATEMENT (SECOND) OF TORTS § 652D, cmt. j (1977).
110. See generally Lidsky, supra note 47. R
111. See, e.g., Ann-Margret v. High Soc’y Magazine, Inc., 498 F.Supp. 401
(S.D.N.Y. 1980). See generally Lidsky, supra note 47. R
112. Ann-Margret, 498 F.Supp. at 405 (quoting Paulsen v. Personality Posters, Inc.,
299 N.Y.S.2d 501, 506 (1968)).
113. Cf. New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964).
114. MCCARTHY, supra note 64, at § 8:52. R
115. See id. (discussing Eastwood v. Superior Court for L.A. County, 198 Cal. Rptr.
342 (1983)).
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116. See id. (discussing Booth v. Curtis Publishing Co., 223 N.Y.S.2d 737 (1962),
aff’d 228 N.Y.S.2d 468 (1962)).
117. See, e.g., Shulman v. Group W Productions, Inc., 955 P.2d 469, 478 (Cal.
1998).
118. See id. at 475–76.
119. Id. at 477.
120. Id. at 494.
121. See Miller v. Nat’l Broad. Co., 232 Cal. Rptr. 668, 685 (1986).
122. See Benno C. Schmidt, Jr., Libel and the First Amendment, in 3 ENCYCLOPEDIA
OF THE AMERICAN CONSTITUTION 1157 (Leonard W. Levy et al. eds., 1986).
123. 376 U.S. 254, 279–80 (1964).
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124. DERRICK A. BELL, JR., 1 CONSTITUTIONAL CONFLICTS 392 (Anderson Publishing
Co. 1997) (referring to Curtis Publ’g Co. v. Butts, 388 U.S. 130 (1967), and its
companion case, Associated Press v. Walker).
125. Curtis Publ’g Co., 388 U.S. at 164.
126. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974).
127. Carlisle v. Fawcett Publ’ns, Inc., 20 Cal. Rptr. 405, 414 (1962).
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226 LEGISLATION AND PUBLIC POLICY [Vol. 6:207128. Gilbert v. Nat’l Enquirer, 51 Cal. Rptr. 2d 91, 98 (1996) (citation omitted). 129. See New York Times Co. v. Sullivan, 376 U.S. 254, 269–70 (1964).130. See id. at 279–80 (holding that public officials must prove “actual malice” to prevail in defamation action).131. See RESTATEMENT (SECOND) OF TORTS § 652D cmt. f (1977). 132. See, e.g., Sipple v. Chronicle Publ’g Co., 201 Cal. Rptr. 665 (1984). 133. RESTATEMENT (SECOND) OF TORTS § 652D cmt. f (1977). 134. See, e.g., Friedan v. Friedan, 414 F.Supp. 77, 79 (S.D.N.Y. 1976) (finding that although defendant’s ex-husband did nothing to become public figure, that “role has been thrust upon him”). 135. See Sipple, 201 Cal. Rptr. at 670.\\server05\productn\N\NYL\6-1\NYL110.txt unknown Seq: 21 11-DEC-02 12:102002] ALL THE WORLD IS NOT A STAGE 227
136. Id.
137. See id. at 666.
138. See id. at 670–71.
139. Sipple, 201 Cal. Rptr. at 669.
140. Id. at 667.
141. In Haynes v. Alfred A. Knopf, Inc., Chief Judge Posner supported this
8 F.3d 1222, 1232 (7th Cir. 1993).
142. See Prosser, supra note 5, at 389–92; see also RESTATEMENT (SECOND) OF R
TORTS § 652B cmt. b (1977).
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228 LEGISLATION AND PUBLIC POLICY [Vol. 6:207 143. RESTATEMENT (SECOND) OF TORTS § 652B (1977). 144. See supra Part III.A.3. 145. See Andrew Jay McClurg, Bringing Privacy Law Out of the Closet: A Tort Theory of Liability for Intrusions in Public Places, 73 N.C. L. REV. 989, 1086–87 (1995). 146. See U.S. CONST. amend. IV. For a further discussion of Fourth Amendment 147. See Galella v. Onassis, 353 F.Supp. 196, 205, 227 (S.D.N.Y. 1972). \\server05\productn\N\NYL\6-1\NYL110.txt unknown Seq: 23 11-DEC-02 12:10 2002] ALL THE WORLD IS NOT A STAGE 229 148. Sanders v. Am. Broad. Cos., 85 Cal. Rptr. 2d 909, 914 (1999). 149. See Wolfson v. Lewis, 924 F.Supp. 1413, 1433–35 (E.D. Pa. 1996). 150. Id. at 1417 (quoting Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 103 (1979)). 151. See id. at 1433–35 (issuing injunction to prevent surveillance of plaintiffs’ family). 152. Id. at 1420. 153. Prosser, supra note 5, at 395; see also McClurg, supra note 145, at 1044–55. R 154. McClurg, supra note 145, at 1048. R 155. Galella v. Onassis, 353 F. Supp. 196, 217 (S.D.N.Y. 1972). 156. Id. at 200 n.6. 157. Id. at 206. \\server05\productn\N\NYL\6-1\NYL110.txt unknown Seq: 24 11-DEC-02 12:10 230 LEGISLATION AND PUBLIC POLICY [Vol. 6:207 158. Id. at 200 n.6. 159. Id. at 216. 160. See, e.g., Gill v. Hearst Publ’g Co., 253 P.2d 441 (Cal. 1953) (finding no liability for picture taken in public place). 161. See State v. Bryant, 177 N.W.2d 800, 804 (Minn. 1970). 162. See Green v. Chicago Tribune Co., 675 N.E.2d 249, 252 (Ill. App. Ct. 1997). 163. See Stressman v. Am. Black Hawk Broad. Co., 416 N.W.2d 685, 687 (Iowa 1987). 164. RESTATEMENT (SECOND) OF TORTS § 652B (1977). 165. See Lidsky supra note 47, at 205. See generally McClurg, supra note 145. R 166. See Stern, supra note 57, at 133. R 167. See supra Part III.A.1. 168. See, e.g., Shulman v. Group W Prods., Inc., 955 P.2d 469, 484 (Cal. 1998); Kapellas v. Kofman, 459 P.2d 912, 922 (Cal. 1969). \\server05\productn\N\NYL\6-1\NYL110.txt unknown Seq: 25 11-DEC-02 12:10 2002] ALL THE WORLD IS NOT A STAGE 231
171. Id. at 486 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 343 (1974)).
172. See Lidsky, supra note 47, at 199. R
173. See, e.g., Shulman, 955 P.2d at 478.
174. See, e.g., Katz v. United States, 389 U.S. 347, 350 (1967).
175. See CATE, supra note 20, at 81. R
176. Id.
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232 LEGISLATION AND PUBLIC POLICY [Vol. 6:207
177. 47 U.S.C. § 551 (1994).
178. 15 U.S.C. § 1601 (1996).
179. 47 U.S.C. § 222 (1994 & Supp. V 2000).
180. CATE, supra note 20, at 100. R
181. See Hamilton, supra note 52, at 46; see also United States v. O’Brien, 391 U.S. R
367 (1968).
182. See City of Renton v. Playtime Theaters, 475 U.S. 41 (1986).
183. See Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
184. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S.
557 (1980).
185. See Lee v. Int’l Soc’y for Krishna Consciousness, Inc., 505 U.S. 672 (1980).
186. See Haig v. Agee, 453 U.S. 280 (1981); see also Hamilton, supra note 52, at R
50.
187. See, e.g., RESTATEMENT (SECOND) OF TORTS §§ 652A–652I (1965); CAL. CIV.
CODE § 1708.8 (West Supp. 2001).
188. CAL. CONST. art. I, § 1 (emphasis added).
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2000 ANN. SURV. AM. L. 183, 186.
191. CAL. CIV. CODE § 1708.8(b) (West Supp. 2001).
192. § 1708.8.
193. RESTATEMENT (SECOND) OF TORTS § 652B (1977).
194. Victor A. Kovner et al., Recent Developments in Newsgathering, Invasion of
Privacy and Related Torts, in 1 COMMUNICATIONS LAW 1996, at 507 (PLI Patents,
Copyrights, Trademarks, and Literary Prop. Course, Handbook Series No. G-460).
195. RESTATEMENT (SECOND) OF TORTS § 652B cmt. b (1977) (emphasis added).
196. Kovner, supra note 194, at 573. R
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234 LEGISLATION AND PUBLIC POLICY [Vol. 6:207 pertaining to treble and punitive damages,206 profit recap- 197. CAL. CIV. CODE § 1708.8(b) (West Supp. 2001). 198. Id. 199. RESTATEMENT (SECOND) OF TORTS § 652B (1977). 200. CAL. CIV. CODE § 1708.8(b) (West Supp. 2002). 201. See Lidsky, supra note 47, at 207 (“[A]s newsgathering techniques that were R once considered objectionable become more common, it becomes less likely that the public will view them as highly offensive and correspondingly less likely that liability will be imposed for them.”). 202. CAL. CIV. CODE § 1708.8(b) (West Supp. 2001). 203. Id. 204. Note, Privacy, Technology, and the California “Anti-Paparazzi” Statute, 112 HARV. L. REV. 1367, 1373 (1999). 205. Shulman v. Group W Prods., Inc., 955 P.2d 469, 490 (Cal. 1998). 206. CAL. CIV. CODE § 1708.8(c) (West Supp. 2001). \\server05\productn\N\NYL\6-1\NYL110.txt unknown Seq: 29 11-DEC-02 12:10 2002] ALL THE WORLD IS NOT A STAGE 235
207. Id.
208. § 1708.8(d).
209. Warren & Brandeis, supra note 6, at 196. R
210. Id.
211. Id.
212. See, e.g., United States v. Calandra, 414 U.S. 338, 347 (1974).
213. See CAL. CIV. CODE § 1708.8(c) (West Supp. 2001).
214. 955 P.2d 469, 497 (Cal. 1998).
215. Id.
216. TIMOTHY LYNCH, IN DEFENSE OF THE EXCLUSIONARY RULE (CATO Inst., Briefing
Paper No. 319, Oct. 1, 1998), available at http://www.cato.org/pubs/pas/pa-
319.pdf (on file with New York University Journal of Legislation and Public Policy).
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217. Personal Privacy Protection Act, S. 2103, 105th Cong. § 2(a)(6) (1998).
218. See Paul McMasters, California Enacts First “Paparazzi Law”; U.S. Congress
Takes No Action on Bills, THE FIRST AMENDMENT AND THE MEDIA (1999), at http://
www.mediainstitute.org/ONLINE/FAM99/LPT_C.html (noting that “bill was referred
to the Senate Judiciary Committee on May 20, but there was no action on it before the
session ended”) (on file with the New York University Journal of Legislation and
Public Policy).
219. S. 2103, § 2(a)(6).
220. Id. at § 2(a)(5).
221. Id. at § 3(a)(2).
222. Id.
223. See, e.g., RESTATEMENT (SECOND) OF TORTS § 21 (1934):
224. See BELL, supra note 124, at 338; see also Irene L. Kim, Defending Freedom of R
Speech: The Unconstitutionality of Anti-Paparazzi Legislation, 44 S.D. L. REV. 275,
286 (1999).
225. Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 104 (1978).
226. CAL. CIV. CODE § 1708.8 (West Supp. 2002); S. 2103, 105th Cong. § 2 (1998).
227. See City of Erie v. Pap’s A.M., 529 U.S. 277, 289 (1999).
228. See Simon and Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502
U.S. 105 (1991).
229. Turner Broad. System, Inc. v. FCC, 512 U.S. 622, 642 (1994).
230. Id. at 662.
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238 LEGISLATION AND PUBLIC POLICY [Vol. 6:207
231. Personal Privacy Protection Act, S. 2103, 105th Cong. § 2(a)(7) (1998).
232. See Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926).
233. Id.
234. See Shulman v. Group W Prods., Inc., 955 P.2d 469, 486 (Cal. 1998).
235. S. 2103 § 2, 105th Cong.
236. California, for example, defines harassment as “a knowing and willful course of
conduct directed at a specific person which seriously alarms, annoys, or harasses a
person, and which serves no legitimate purpose.” CAL. CIV. PROC. CODE § 527.6(b)
(West 1999).Alternatively, New York provides a criminal remedy for harassment
PAPARAZZI LEGISLATION: POLICY ARGUMENTS AND LEGAL ANALYSIS IN SUPPORT OF THEIR
CONSTITUTIONALITY
[FNa1]. Managing Editor, UCLA Law Review, Volume 46. J.D., UCLA School of Law, 1999; B.A., University of California,
Los Angeles, 1996. In deep appreciation for his invaluable guidance and insight, I would like to thank Professor
William Rubenstein. I would also like to extend my sincere gratitude to the members of the UCLA Law Review family,
in particular Laura Reider, Veronica Sanchez, Kelly Farmer, and Tanya Samazan. Working with these tremendous individuals
has been, for me, the most memorable aspect of my Law Review experience. All errors are mine. Finally, for
their undying love and immeasurable support, I would like to thank my family. All of my endeavors are an attempt to
honor them.
[FN1]. See Matthew Cooper, Was the Press to Blame?, Newsweek, Sept. 8, 1997, at 36, 36.
[FN2]. See Richard Zoglin, Hey, Wanna Buy Some Pix?, Time, Sept. 15, 1997, at 56, 56.
[FN3]. See id. (attributing this trend to the proliferation of media outlets devoted to celebrities, the arrival of new technology
like digital photo transmission, and the absence of world crises). Says Valerie Virga, photo editor for the National
Enquirer, “‘people really go[ ] over the edge to get the picture--climbing roofs, scaling buildings, super-super long lenses
into people's backyards.”’ Id.
[FN4]. See id. (noting that Mario Brenna, the man who took photographs of Princess Diana and Dodi al-Fayed on their
vacation two weeks before her death, stood to make as much as $3 million worldwide); see also Cooper, supra note 1, at
37 (reporting that even grainy, barely decipherable photographs of the couple commanded upwards of $6 million); Too
Close for Comfort, People, Sept. 15, 1997, at 70, 70 (noting that the photographer who obtained the first photo of Princess
Diana and al-Fayed embracing earned a reported $1 million).
[FN5]. See Zoglin, supra note 2, at 56.
[FN6]. Coincidentally, Princess Diana had won a restraining order against a photographer less than a year before she
died. The photographer persistently followed her on a motorcycle and twice crashed into her vehicle. In an affidavit, she
said that his actions were “‘calculated to cause [her] harm.”’ Cooper, supra note 1, at 36. The court ordered the photographer
to stay at least 300 meters away from the Princess. See id. She termed this assault of intrusive news gatherers
“‘face rape.”’ See Jonathan Alter, Diana's Real Legacy, Newsweek, Sept. 15, 1997, at 59, 62.
[FN7]. James Fallows, Are Journalists People?, U.S. News & World Rep., Sept. 15, 1997, at 31, 32 (quoting an unnamed
photographer).
[FN8]. See Cooper, supra note 1, at 36.
[FN9]. Lyrissa C. Barnett, Note, Intrusion and the Investigative Reporter, 71 Tex. L. Rev. 433, 435 (1992) (quoting Larry
J. Sabato, Feeding Frenzy: How Attack Journalism Has Transformed American Politics 2 (1991)).
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[FN10]. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).
[FN11]. Id. at 196.
[FN12]. See U.S. Const. amend. I (“Congress shall make no law ... abridging the freedom ... of the press ...”).
[FN13]. See Zoglin, supra note 2, at 57.
[FN14]. See Cooper, supra note 1, at 37 (noting that Princess Diana was not above using the press when it was in her best
interest to do so, clearly not minding when the press extensively covered her charity work).
[FN15]. See Richard Folkers, When Our Worlds Collide, U.S. News & World Rep., Sept. 15, 1997, at 40, 40.
Leave your conscience in the office. You get the picture or the footage; the decision whether to print or air it
comes later. A victim may lie bleeding, unconscious, or dead: Your job is to record the image. You're a photographer,
not a paramedic. You put away your emotions and document the scene.
Id.
[FN16]. See Fallows, supra note 7, at 31-32 (arguing also that journalists are authorized to do harm and that the harm is
necessary). Fallows also explains part of the problem:
Because there are so few external limits on what journalists can do (mainly libel laws, a remote concern for
most in the news business in most of their work), and because we know we must anesthetize part of our humanity, many
influential people in this business take a further step. They begin to assume that there is no balance, no tradeoff, no limit
to what we should do. ... The ethic is like that of lawyers willing to use any courtroom trick to help their clients. But in
court there is someone fighting back from the other side.
Id. at 32.
[FN17]. Timothy Noah et al., All Steve Coz Wants Is a Little R-E-S-P-E-C-T, U.S. News & World Rep., Sept. 15, 1997,
at 36, 36 (quoting Steve Coz regarding the National Enquirer's anti-“stalkerazzi” policy, which forbids the purchase of
photographs obtained by extreme physical harassment).
[FN18]. Other countries have their own ways of addressing the paparazzi problem. The French enacted a law in 1970 that
prohibits press actions that are an “assault on intimacy or privacy.” See Zoglin, supra note 2, at 57. Actress Isabelle Adjani
used this law to obtain a judgment against a tabloid magazine for running photographs of her without her permission.
See id. In 1991, the British formed the Press Complaints Commission to write “a code of practice to prevent invasive
press tactics.” See id. While these rules have been hard to enforce, they have had some success in preventing paparazzi
photographs from appearing in the tabloids. See id.
[FN19]. H.R. 2448, 105th Cong. § 1 (1997).
[FN20]. Id. The act continues:
(c) Limitation on Defenses.--It is not a defense to a prosecution under this section that--
(1) no image or recording was in fact captured; or
(2) no image or recording was in fact sold for profit.
(d) Cause of Action.--(1) Any person who is legally present in the United States and is the victim of a violation
of this section may, in a civil action against the person engaging in the violation, obtain any appropriate relief...
(e) Use of Images.--Nothing in this section may be construed to make the sale, transmission, publication, broadcast,
or use of any image or recording of the type or under the circumstances described herein in any otherwise lawful
manner by any person subject to criminal charge or civil liability.
(f) Limitation.--Only a person physically present and pursuing or assisting in pursuing the plaintiff at the time a
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violation of this section occurred is subject to criminal charge or civil liability based on this section.
Id. After it was introduced, this bill was referred to the House Committee on the Judiciary, and Committee Hearings were
held on May 21, 1998.
[FN21]. S.B. 1379, 1997-98 Reg. Sess. (Cal. 1998).
[FN22]. Id. The bill also declares:
(e) It shall be an affirmative defense to a cause of action under this section if it can be shown that there was a
substantial, overriding public interest which could not be achieved in a less intrusive way.
...
(g) It is not necessary to prove an intent to actually cause or carry out harassment.
(h) A violation of this section shall give rise to a cause of action for three times actual damages plus any net proceeds
or profit derived from the prohibited conduct.
(i) A publisher, employer, or other person who requests, encourages, induces, or instructs another to take photographs
or videotapes and knows or reasonably should know that obtaining the photographs or videotapes will violate this
section shall be strictly liable for any damages and proceeds or profits, as specified in subdivision (h).
(j) For purposes of this section, a “commercial purpose” means with the expectation of sale, financial gain, or
other consideration; but a visual image, sound recording, or other physical impression shall not be found to have been, or
intended to have been, captured for a commercial purpose unless it is intended to be, or was in fact, sold, published, or
transmitted.
Id.
[FN23]. See id.
[FN24]. Id.
[FN25]. For example, while the federal bill explicitly exempts everyone except the person who is physically present and
actually pursuing the subject of the photographs, see H.R. 2448, the California bill holds strictly liable a “publisher, employer,
or other person who requests, encourages, induces, or instructs another to take photographs or videotapes and
knows or reasonably should know that obtaining the photographs or videotapes” would violate state law, Cal. S.B. 1379.
[FN26]. In May 1997, Arnold Schwarzenegger and his wife, Maria Shriver, were driving to their son's school in Santa
Monica, California. Paparazzi cut off the car in which they were riding about a quarter of a mile from the school. The
photographers continued to take photographs once the family arrived at their son's school. In the ensuing chaos, the
school principal, who was trying to bring some order to the situation, was knocked over by the paparazzi. See Cooper,
supra note 1, at 38.
[FN27]. Paparazzi have provoked actor Will Smith to slap a photographer and John F. Kennedy, Jr. to dump a bucket of
water on a photographer's head. See id.; see also Zoglin, supra note 2, at 56 (noting that actor Marlon Brando once broke
a photographer's jaw, and that actor Sean Penn once punched a photographer).
[FN28]. See Too Close for Comfort, supra note 4, at 71.
[FN29]. See discussion infra notes 61-62 and accompanying text (discussing stalking).
[FN30]. Warren & Brandeis, supra note 10, at 198 n.2 (“It is certain every man has a right to keep his own sentiments, if
he pleases. He has certainly a right to judge whether he will make them public, or commit them only to the sight of his
friends.” (quoting Millar v. Taylor, 4 Burr. 2303, 2379 (1769))).
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[FN31]. See generally Andrew Jay McClurg, Bringing Privacy Law Out of the Closet: A Tort Theory of Liability for Intrusions
in Public Places, 73 N.C. L. Rev. 989, 1041-43 (1995).
[FN32]. See id. at 1041 (noting that this has the effect of causing the victim to lose control over an aspect of herself).
[FN33]. See id. at 1042 (noting that a photograph eliminates the temporal limitations inherent in public observations, and
that “[b]ecause we can study a photograph at leisure, we may be able to detect subtleties not otherwise discernible”).
[FN34]. See id. at 1042-43 (noting that the dissemination occurs not only to a larger audience than that to which the subject
was exposed, but also to a different audience). For example, while a person may be willing to expose parts of her
body at a beach or at a pool, she may not be willing to do so in other contexts. See id. at 1043.
[FN35]. See Texas v. Johnson, 491 U.S. 397 (1989) (declaring that the desecration of the American flag, no matter how
offensive, is protected expression under the First Amendment).
[FN36]. See generally McClurg, supra note 31. “While a person necessarily surrenders a great deal of privacy when she
ventures from a place of physical solitude into the light of public view, it does not follow that she forfeits all legitimate
expectations of privacy.” Id. at 1044. McClurg borrows Professor Ruth Gavison's position that privacy comprises three
components: “(1) secrecy, which relates to the information known about a person; (2) anonymity, which has to do with
the attention paid to a person; and (3) solitude, which relates to physical access to a person.” Id. at 1030 (citing Ruth
Gavison, Privacy and the Limits of Law, 89 Yale L.J. 421, 429-33 (1980)).
[FN37]. Id. at 1044.
[FN38]. 389 U.S. 347 (1967).
[FN39]. Id. at 351.
[FN40]. 680 S.W.2d 524 (Tex. Ct. App. 1984).
[FN41]. Id. at 525 (quoting the defendant Shirley Kramer).
[FN42]. Id.
[FN43]. 255 N.E.2d 765 (N.Y. 1970).
[FN44]. Id. at 770-71.
[FN45]. See id. at 771.
[FN46]. Id. “Although acts performed in ‘public,’ especially if taken singly or in small numbers, may not be confidential,
at least arguably a right to privacy may nevertheless be invaded through extensive or exhaustive monitoring and cataloguing
of acts normally disconnected and anonymous.” Id. at 772 (Breitel, J., concurring).
[FN47]. See New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964) (holding that a public figure must establish
actual malice on the part of the press in order to prove libel).
[FN48]. According to one definition, there are three types of public figures: all-purpose public figures, limited-purpose
public figures, and involuntary public figures. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974).
46 UCLALR 1633 Page 24
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[FN49]. 353 F. Supp. 196 (S.D.N.Y. 1972), aff'd, 487 F.2d 986 (2d Cir. 1973).
[FN50]. Id. at 223.
[FN51]. Indeed, the aggressive and persistent actions of the paparazzi have earned them the name “stalkerazzi.” See Too
Close for Comfort, supra note 4, at 70.
[FN52]. See Laurie Salame, Note, A National Survey of Stalking Laws: A Legislative Trend Comes to the Aid of Domestic
Violence Victims and Others, 27 Suffolk U. L. Rev. 67, 67 (1993).
[FN53]. See id. at 102. Within two years after the California statute was passed, the remaining states all passed laws
criminalizing stalking behavior. See id. at 67.
[FN54]. McClurg, supra note 31, at 1065; see also Marjorie A. Caner, Annotation, Validity, Construction, and Application
of Stalking Statutes, 29 A.L.R.5th 487, 487 (1995).
[FN55]. See McClurg, supra note 31, at 1064-65.
[FN56]. See id. To find a stalking violation, courts have required that the defendant knowingly harass, follow, survey, or
threaten the victim, and that the victim's emotional distress or fear of physical harm resulted from the defendant's conduct.
Harassment, as defined in one stalking statute, is conduct “that serves no legitimate purpose.” Cal. Penal Code §
646.9(e) (West Supp. 1999).
[FN57]. See Salame, supra note 52, at 67-68.
[FN58]. See People v. Krawiec, 634 N.E.2d 1173, 1179 (Ill. App. Ct. 1994).
[FN59]. Id. Significantly, the court in Krawiec added that in order to be guilty of stalking, one need not cause, or even intend
to cause, any physical harm. See id. at 1178-79.
[FN60]. McClurg, supra note 31, at 1065.
[FN61]. See Salame, supra note 52, at 80-81 (noting that the Hollywood elite strongly supported the passage of California's
stalking law). While the murder of popular actress Rebecca Schaeffer in 1989 is one of the most publicized cases of
celebrity stalking, the stalking that preceded her murder is unfortunately not a rare phenomenon. Countless other celebrities
have had encounters with stalkers prior to the enactment of stalking laws, including Johnny Carson, Jodi Foster, Michael
J. Fox, Michael Landon, and David Letterman. Celebrities face real risks and have well-founded fears. See id. at
81-82.
[FN62]. See id. at 93 (noting that exceptions include those for law enforcers, private detectives, process servers, bail
bondsmen, photographers, news reporters, organized protesters, and attorneys). Salame also notes that even without these
explicit exceptions, stalking laws in most states would not apply to the lawful activity of those listed above because they
would lack the requisite intent. See id.
[FN63]. 642 A.2d 90 (Conn. Super. Ct. 1993).
[FN64]. See id. at 91.
[FN65]. Id. at 95 (citation omitted).
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[FN66]. See id. at 100-02. The court ruled that content-neutral time, place, or manner restrictions are constitutional if the
restrictions are “‘narrowly tailored to serve significant government interests--not necessarily compelling ones--while
leaving open ample alternative channels of communication.”’ Id. at 101 (quoting Lutz v. City of York, 899 F.2d 255, 269
(3d Cir. 1990)).
[FN67]. See id. at 101-02. In regard to the state interests underlying stalking statutes, the court in Culmo stated that these
interests are
compelling in protecting citizens from the immediate consequences of stalking behavior. [They are] compelling
in providing law enforcement authorities with a means for intervening in stalking situations early on, before the behavior
can escalate into something more serious, including physical assault. And [they are] compelling in safeguarding the
mental well-being of victims.
Id.
[FN68]. Id. at 102.
[FN69]. See id. at 105.
[FN70]. See id. at 104.
[FN71]. See id. at 104 & n.11 (“The central idea of a system of freedom of expression is that a fundamental distinction
must be drawn between conduct which consists of ‘expression’ and conduct which consists of ‘action.’ ... ‘Action’ can be
controlled.” (citing Thomas Emerson, The System of Freedom of Expression 17 (1970))).
[FN72]. See id. at 103 (explaining that conduct is subject to regulation for the protection of society).
[FN73]. 894 P.2d 303 (Mont. 1995).
[FN74]. See id. at 304-06.
[FN75]. See id. at 307.
[FN76]. See id.
[FN77]. See id.
[FN78]. See id.
[FN79]. 519 U.S. 357 (1997).
[FN80]. Id. at 377.
[FN81]. Id. at 383 (internal quotation marks omitted) (quoting Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 774
(1994) (quoting Boos v. Barry, 485 U.S. 312, 322 (1988))).
[FN82]. David G. Savage, First Amendment in Your Face, 83 A.B.A. J., Apr. 1997, at 42, 43 (quoting Rodney A.
Smolla, a free-speech expert at the Marshall-Wythe School of Law at the College of William and Mary). Smolla goes on
to say that the Court's ruling in Schenck may call into question the decision in Galella v. Onassis, 487 F.2d 986 (2d Cir.
1973), which required a photographer to stay 25 feet away from Jacqueline Kennedy Onassis when she traveled in public.
See id. Schenck stands for the proposition that such a “floating buffer zone is unconstitutional.” See id.
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[FN83]. Admittedly, the California Senate bill discusses a 10-foot zone around any person who is the subject of media
interest. However, mere presence within the 10-foot zone would not in and of itself be a violation of this bill. In order to
be liable, one would have to “intentionally” enter the 10-foot zone “in a manner that causes the plaintiff to reasonably expect
physical harm or emotional distress” and one would have to “refuse[ ] to leave the 10-foot zone upon request.” S.B.
1379, 1997-98 Reg. Sess. (Cal. 1998).
[FN84]. Even though privacy is a central concept in our society, it is also extremely amorphous. However, despite its resistance
to definition, few would doubt the importance of privacy in our culture. See Barnett, supra note 9, at 435 & n.20;
see also Rodney A. Smolla, Free Speech in an Open Society 119 (1992) (“Laws protecting privacy are the means through
which the collective acknowledges rules of civility that are designed to affirm human autonomy and dignity.”).
[FN85]. See Smolla, supra note 84, at 119 (“Freedom of expression and the right to privacy are often thought of as natural
enemies, but it is better to think of them as jealous siblings.”).
[FN86]. See Wisconsin v. Mitchell, 508 U.S. 476, 484 (1993).
[FN87]. See U.S. Const. amend. I (“Congress shall make no law ... abridging the freedom ... of the press ...”).
[FN88]. See David F. Freedman, Note, Press Passes and Trespasses: Newsgathering on Private Property, 84 Colum. L.
Rev. 1298, 1314-18 (1984).
[FN89]. Timothy B. Dyk, Newsgathering, Press Access, and the First Amendment, 44 Stan. L. Rev. 927, 931 (1992)
(citing Zurcher v. Stanford Daily, 436 U.S. 547, 571-72 (1978) (Stewart, J., dissenting), and Branzburg v. Hayes, 408
U.S. 665, 727 (1972) (Stewart, J., dissenting)).
[FN90]. Id. at 932 (quoting David A. Anderson, The Origins of the Press Clause, 30 UCLA L. REV. 455, 537 (1983));
see also O. Marie Anderson, Note, Mine Accident Investigations: Does the Press Have a Right To Be Present?, 98 W.
Va. L. Rev. 1121, 1124 (1996) (“The Framers of the Constitution intended that the freedom given to the press in the Constitution
would ‘improve our society and keep it free.’ ... [T]he press seeks to uncover the truth.” (quoting Mills v.
Alabama, 384 U.S. 214, 219 (1966))). Anderson also argues that because the Press Clause does not grant unqualified access
to all sources of government information, the First Amendment should not be used as a club to gain access to mine
accident investigations. See id. at 1123-48.
[FN91]. See, e.g., Dyk, supra note 89, at 931-34.
[FN92]. Today, even the established press seems more concerned with ratings and public opinion than with being an effective
adversary to the government or baring the government's secrets.
[FN93]. See, e.g., Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) (declining to create special First Amendment
rights of press access to a criminal trial); Saxbe v. Washington Post Co., 417 U.S. 843 (1974) (declining to create
special First Amendment rights of press access to a prison); Pell v. Procunier, 417 U.S. 817 (1974) (same); Branzburg v.
Hayes, 408 U.S. 665 (1972) (declining to create a First Amendment privilege for reporters' confidential services and information).
[FN94]. See generally Dyk, supra note 89, at 929 (arguing that it is both appropriate and desirable that the press enjoy a
special constitutional right of access in news gathering).
[FN95]. See infra notes 111-112 and accompanying text.
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[FN96]. The Court in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), implied that whether the
defendant is a member of the institutional press is relevant to the question of whether the matter reported would be a matter
of public concern. See id. at 762.
[FN97]. Mills v. Alabama, 384 U.S. 214, 219 (1966).
[FN98]. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491 (1975).
[FN99]. See generally Edward J. Bloustein, The First Amendment and Privacy: The Supreme Court Justice and the
Philosopher, 28 Rutgers L. Rev. 41 (1974).
[T]he weight to be given “the public interest in obtaining information” should depend on whether or not the information
is relevant to the public's governing purposes.
“Public interest,” taken to mean curiosity, must be distinguished from “public interest,” taken to mean value to
the public of receiving information of governing importance.
Id. at 56-57 (quoting Sidis v. F-R Publishing Corp., 113 F.2d 806, 809 (2d Cir. 1940)).
[FN100]. See id. at 57.
[FN101]. See, e.g., Cooper, supra note 1, at 37 (recounting an interview with Princess Diana). Princess Diana stated that
“the press is ferocious. It pardons nothing. It only hunts for mistakes. Every motive is twisted, every gesture criticized.”
Id.
[FN102]. See Note, And Forgive Them Their Trespasses: Applying the Defense of Necessity to the Criminal Conduct of
the Newsgatherer, 103 Harv. L. Rev. 890, 897 (1990) (arguing that “[a]lthough the journalist may have numerous
motives in reporting a particular newsworthy event, a central purpose is undoubtedly his desire to further the public interest”).
[FN103]. Id. at 900 n.52 (quoting David H. Weaver & Maxwell E. McCombs, Journalism and Social Science: A New Relationship?,
44 Pub. Opinion Q. 477, 491 (1980)).
[FN104]. See Cooper, supra note 1, at 38 (noting that the paparazzi have provoked actor Will Smith to slap a photographer,
actor Alec Baldwin to use shaving cream to lather an intrusive lens, and John F. Kennedy, Jr. to dump a bucket of water
on a photographer's head).
[FN105]. Some conduct of the paparazzi is consciously calculated to produce imminent violent behavior. The whole
point of the provocation is to try to catch the celebrity's outburst on camera. It is these scenes that command the huge
monetary returns that the paparazzi desire. Although such actions would not satisfy the stringent incitement test set forth
in Brandenburg v. Ohio, 395 U.S. 444 (1969), they also should not be entitled to constitutional protection. Brandenburg
set forth the principle that
the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy
of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless
action and is likely to incite or produce such action.
Id. at 447.
[FN106]. See Cooper, supra note 1, at 38 (“[T]he more provocative the shot, the more money it commands. To make real
money, the celebrity has to be doing something that's shocking. That's one reason so many photographers antagonize
their subjects.”).
[FN107]. But see Stephano v. News Group Publications, Inc., 64 N.Y.2d 174 (1984) (holding that the newsworthiness
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exception to the statute “applies not only to reports of political happenings and social trends ..., but also to news stories
and articles of consumer interest including developments in the fashion world”).
[FN108]. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
[FN109]. Another similarity between the actions of the paparazzi and “fighting words,” besides the fact that they are intended
to cause a violent outburst, is that both are directed at a particular person.
[FN110]. Warren & Brandeis, supra note 10, at 196.
[FN111]. The motives of photographers are relevant in assessing a legal cause of action. See McClurg, supra note 31, at
1059-62.
[FN112]. This is not to say that members of the institutional press do not also have some financial motives in reporting
the news. The difference is that the financial motives of the paparazzi are their primary, if not their only, motives. It is
the opinion of the author that while members of the institutional press do have financial motives as well, they generally
are also interested in serving as an effective check on government, or at least in contributing truthful information to the
marketplace of ideas.
[FN113]. See Freedman, supra note 88, at 1318.
[FN114]. See id. at 1318-19.
[FN115]. Id. at 1319 (quoting First Nat'l Bank v. Bellotti, 435 U.S. 765, 783 (1978)).
[FN116]. See id. at 1320.
[FN117]. See Note, supra note 102, at 900 n.51.
[FN118]. 376 U.S. 254 (1964).
[FN119]. Id. at 270.
[FN120]. Freedman, supra note 88, at 1320 (quoting Houchins v. KQED, 438 U.S. 1, 30 (1978) (Stevens, J., dissenting)).
[FN121]. See id.
[FN122]. See Note, supra note 102, at 900 n.51 (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575
(1980)).
[FN123]. See Freedman, supra note 88, at 1323 (adding that implicit in the right-to-know theory is the idea that information
obtained by the press be used by the populace in “making political decisions” (emphasis added)).
[FN124]. 391 U.S. 367 (1968).
[FN125]. Id. at 376.
[FN126]. Id. at 377.
[FN127]. See supra notes 26-50 and accompanying text.
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[FN128]. See State v. Culmo, 642 A.2d 90, 101-02 (Conn. Super. Ct. 1993) (finding the governmental interests behind
stalking statutes to be compelling).
[FN129]. Insofar as the California proposal, see supra note 21, imposes liability for those not directly engaged in the conduct
the regulations are meant to prevent, those sections may not satisfy this element of the O'Brien test.
[FN130]. See discussion supra notes 26-50 and accompanying text.
[FN131]. If a court concludes that the paparazzi regulations are directly targeted at suppressing speech, the court will apply
strict scrutiny. Under this standard, the regulations most likely would not pass constitutional muster.
[FN132]. See, e.g., Houchins v. KQED, Inc., 438 U.S. 1 (1978) (regarding press access to prisons); Saxbe v. Washington
Post Co., 417 U.S. 843 (1974) (same); Pell v. Procunier, 417 U.S. 817 (1974) (same); Branzburg v. Hayes, 408 U.S. 665,
684-85 (1972) (declaring in dictum that “[n]ewsmen have no constitutional right of access to the scenes of crime or disaster
when the general public is excluded”). See generally Genevra Kay Loveland, Newsgathering: Second-Class Right
Among First Amendment Freedoms, 53 Tex. L. Rev. 1440 (1975).
[FN133]. State v. Cantor, 534 A.2d 83, 86 (N.J. Super. Ct. App. Div. 1987).
[FN134]. See David W. Zimmerman & Randy L. Dryer, Recent Developments in Media Law, 32 Tort & Ins. L.J. 481,
491 (1997) (noting that recent decisions have reaffirmed the tenet that “‘a reporter has no special immunity from the application
of general laws ... [and] no special privilege to invade the rights and liberties of others”’ (quoting Associated
Press v. NLRB, 301 U.S. 103, 132-33 (1937)) (alteration in original)).
[FN135]. See id. at 493.
[FN136]. 487 F.2d 986 (2d Cir. 1973).
[FN137]. See Galella v. Onassis, 353 F. Supp. 196, 220 (S.D.N.Y. 1972), aff'd, 487 F.2d 986 (2d Cir. 1973).
[FN138]. See id. at 226.
[FN139]. See id.
[FN140]. See id. at 227.
[FN141]. See id.
[FN142]. See id. at 233.
[FN143]. See id. at 220.
[FN144]. Id. at 232.
[FN145]. See id. at 221 (noting also that the “First Amendment is not a license to trespass, to steal, or to intrude by electronic
means into the precincts of another's home or office”).
[FN146]. See id. at 233.
[FN147]. See id. at 225.
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[FN148]. See id. at 224 (citing Kapellas v. Kofman, 1 Cal. 3d 20, 36 (1969)).
[FN149]. See id. In making this determination, the court noted that “it cannot be said that information about [Onassis's]
comings and goings, her tastes in ballet, the food that she eats, and other minutiae which are the sole product of Galella's
three years of pursuit, bear significantly upon public questions ... It merely satisfies curiosity.” Id. at 225.
[FN150]. Id. at 226.
[FN151]. See Galella v. Onassis, 487 F.2d 986, 995 (2d Cir. 1973).
[FN152]. 284 F. Supp. 925 (C.D. Cal. 1968), aff'd, 449 F.2d 245 (9th Cir. 1971).
[FN153]. See id. at 929 (citing Griswold v. Connecticut, 381 U.S. 479 (1965)).
[FN154]. See id. at 931-32.
[FN155]. 924 F. Supp. 1413 (E.D. Pa. 1996).
[FN156]. See id. at 1434-35 (basing the injunction on the conclusion that the plaintiffs demonstrated a likelihood of succeeding
on their invasion of privacy claim, based on intrusion upon seclusion, under both Florida and Pennsylvania law).
[FN157]. Id. at 1417 (quoting Branzburg v. Hayes, 408 U.S. 665, 684 (1972)).
[FN158]. See id. at 1419-20.
[FN159]. 24 Media L. Rep. (BNA) 1705 (W.D. Tex. 1996).
[FN160]. See id. at 1713.
[FN161]. 37 Cal. Rptr. 2d 431 (Ct. App. 1995).
[FN162]. Id. at 436 (quoting Miller v. National Broadcasting Co., 232 Cal. Rptr. 668, 682 (1986)).
[FN163]. Id. (quoting Associated Press v. NLRB, 301 U.S. 103, 132-33 (1937)).
[FN164]. See Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).
[FN165]. See id.
[FN166]. 405 U.S. 518 (1972).
[FN167]. The statute provided: “‘Any person who shall, without provocation, use to or of another, and in his presence ...
opprobrious words or abusive language, tending to cause a breach of the peace ... shall be guilty of a misdemeanor.”’ Id.
at 519 (citation omitted).
[FN168]. Id. at 520 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 573 (1942)).
[FN169]. Id. at 531 (Burger, J., dissenting) (emphasis added).
[FN170]. 413 U.S. 601 (1973).
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[FN171]. See id. at 609-10 (rejecting the argument that the law was unconstitutional because it attempted to prohibit civil
servants from constitutionally protected activities such as displaying political bumper stickers).
[FN172]. See id. at 615.
Although ... laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a
point where that effect--at best a prediction-- cannot, with confidence, justify invalidating a statute on its face and so prohibiting
a State from enforcing the statute against conduct that is admittedly within its power to proscribe.
Id. The Court concluded “that the overbreadth of a statute must not only be real, but substantial as well, judged in relation
to the statute's plainly legitimate sweep.” Id. (emphasis added).
[FN173]. 269 U.S. 385 (1926).
[FN174]. See id. at 391.
That the terms of a ... statute creating a new offense must be sufficiently explicit to inform those who are subject
to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike
with ordinary notions of fair play and the settled rules of law.
Id. at 391.
[FN175]. State v. Culmo, 642 A.2d 90, 96-97 (Conn. Super. Ct. 1993) (citing Connally, 269 U.S. at 391).
[FN176]. See Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).
[FN177]. See Culmo, 642 A.2d at 97 (“‘In choosing between two constructions of a statute, one valid and one constitutionally
precarious, we will search for an effective and constitutional construction that reasonably accords with the legislature's
underlying intent.”’) (quoting State v. Breton, 562 A.2d 1060, 1066 (Conn. 1989)).
[FN178]. McClurg, supra note 31, at 1065 (footnotes omitted).
[FN179]. See Salame, supra note 52, at 95.
[FN180]. See, e.g., People v. McClelland, 42 Cal. App. 4th 144 (1996); People v. Heilman, 25 Cal. App. 4th 391 (1994);
State v. Culmo, 642 A.2d 90 (Conn. Super. Ct. 1993); Bouters v. State, 659 So. 2d 235 (Fla. 1995); Pallas v. State, 636
So. 2d 1358 (Fla. Dist. Ct. App. 1994); People v. Bailey, 657 N.E.2d 953 (Ill. 1995); State v. Martel, 902 P.2d 14 (Mont.
1995); State v. Benner, 644 N.E.2d 1130 (Ohio Ct. App. 1994); State v. Saunders, 886 P.2d 496 (Okla. Crim. App.
1994); State v. McGill, 536 N.W.2d 89 (S.D. 1995); State v. Lee, 917 P.2d 159 (Wash. Ct. App. 1996); Luplow v. State,
897 P.2d 463 (Wyo. 1995).
[FN181]. See Culmo, 642 A.2d at 98.
[FN182]. See id. The court did concede that it may not always be easy to determine when a single course of conduct has
become repeated conduct. The final determination of whether one's conduct amounts to repeated conduct is ultimately a
question for the trier of fact. See id. at 98-99.
[FN183]. See id. at 99 (noting that the trier of fact needs to consider a variety of factors to determine whether the defendant
deliberately maintained enough visual or physical proximity with another person, for a substantial enough period of
time, to constitute “following”).
[FN184]. See supra note 20 and accompanying text.
[FN185]. See Culmo, 642 A.2d at 99.
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[FN186]. See supra note 85.
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AMENDING ITS ANTI-PAPARAZZI STATUTE:
CALIFORNIA'S LATEST BABY STEP IN ITS ATTEMPT TO CURB THE AGGRESSIVE PAPARAZZI
[FNa1]. University of California, Hastings College of the Law, Juris Doctor Candidate, 2007; Cornell University, B.A.,
2004.
[FN1]. On August 31, 1997, Princess Diana died in Paris from injuries sustained when the car in which she was traveling
crashed at high speed in a narrow tunnel. Peter Howe, Paparazzi, 120 (2005).
[FN2]. Mark Ellis, Di Paparazzi Fine, The Mirror (Scots Edition), Feb. 23, 2006, at 8.
[FN3]. Id. France's highest court had previously dropped manslaughter and breach of privacy charges against ten photographers
including the same three who got the slap on the wrist in this case. Id.
[FN4]. Charles Bremner, Paparazzi Convicted Over Diana Intrusion, Times (London), Feb. 23, 2006, at 9.
[FN5]. Tim Cavanaugh, The Myth of the ‘Stalkerazzi’, L.A. Times, Feb. 20, 2006, at B15 (quoting an interview with
People for its February 27, 2006 issue after Spears was caught driving with her unsecured infant on her lap). “I was terrified
that this time the physically aggressive paparazzi would put both me and my baby in danger.” Id.
[FN6]. RedEye Edition, Camera Shy, Chicago Tribune, Feb. 17, 2006, at 64.
[FN7]. Howe, supra note 1 at 120.
[FN8]. Id. at 123.
[FN9]. See infra notes 28-30 and accompanying text.
[FN10]. David Halbfinger & Alison Hope Weiner, As Paparazzi Push Harder, Stars Try to Push Back, N.Y. Times, June
9, 2005, at A1.
[FN11]. Id.
[FN12]. Civil Assault: Liability: Hearing on AB 381 Before the Assemb. Comm. on Judiciary, 2005-2006 Sess. 3 (Cal.
2005), available at http:// www.leginfo.ca.gov/pub/bill/asm/ab_0351-0400/ab_381_cfa_20050908_094509_asm_
comm.html.
[FN13]. Id. at 3.
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[FN14]. Id. at 4.
[FN15]. Michelle Caruso, Photogs Wage War of Wheels, N.Y. Daily News, Aug. 21, 2005, available at http://
www.nydailynews.com/news/story/339133p-289651c.html (last visited Mar. 19, 2006).
[FN16]. Howe, supra note 1, at 135. “Street photographers do what the paparazzi do, but they don't take it to such extremes.”
Id. at 29.
[FN17]. Italian Director Federico Fellini coined the term “paparazzo” for one of his characters in his 1960 film La Dolce
Vita. Camrin L. Crisci, All the World is Not a Stage: Finding a Right to Privacy in Existing and Proposed Legislation, 6
N.Y.U. J. Legis. & Pub. Pol'y 207, 207 (2002) (“Fellini's depiction of the invasive tactics of Paparazzo... came to represent
the photojournalists who hunt celebrities for their pictures.”).
[FN18]. Howe spent two years researching and interviewing the paparazzi as the basis for understanding the profession.
Gina Piccalo, Caught in Their Sights; Savvy and Chutzpah Pay Off For Paparazzi, L.A. Times, June 4, 2005, at E1. He
has served as Picture Editor for N.Y. Times Magazine and is a regular contributor to USA Today, American Photo, and
other publications. Howe, supra note 1.
[FN19]. Id. at 17-18.
[FN20]. A celebrity pursuit involving the actress Scarlet Johansson serves as an example of how easily and incidentally
bystanders can get swept up in a celebrity-paparazzi conflict. In August, 2005, paparazzi in four vehicles pursued Johansson
into a parking lot at Disneyland. In an attempt to evade the paparazzi, she clipped another car carrying a woman and
her children. The four vehicles “then surrounded hers, with the photographers jumping out of the cars, cameras ready.”
Pamela McClintock, Governator Snaps Back at Paparazzi, Daily Variety, Oct. 3, 2005, at 1. Fortunately, this time,
neither the woman nor her children were injured. Id.
For the purposes of this note, the distinction between paparazzi and other photojournalists is irrelevant. All photographers
engaging in overly aggressive conduct pose the same dangers and should be subject to the same liability since it
is the process by which the pictures are captured, not the content of the pictures themselves, at issue. However, for the
purpose of clarity, and in light of current events and the California legislature's specific aim to curb inappropriate
paparazzi conduct, this note will focus on the “paparazzi” as such, since the hyper-aggressive, dangerous pursuits posing
a public safety risk are most commonly associated with this subset of photographers.
[FN21]. Cavanaugh, supra note 5.
[FN22]. Civil Assault: Liability: Hearing on AB 381 Before the Assemb. Comm. on Judiciary, supra note 12, at 4
(crediting Lohan's accident as the incident that prompted the California legislature to take action).
[FN23]. Id. However, the Ninth Circuit has held that “[t]he First Amendment has never been construed to accord newsmen
immunity from torts or crimes committed during the course of newsgathering.” Dietemann v. Time, Inc., 449 F.2d
245, 249 (9th Cir. 1971).
[FN24]. Richard Winton, Paparazzo Will Not Face Charges in Lohan Crash, L.A. Times, Dec. 29, 2005, at B1.
[FN25]. Lawrence Van Gelder, No Charges in Lohan Crash, N.Y. Times, Dec. 30, 2005, at E3.
[FN26]. But see Howe, supra note 1, at 44 (arguing “it's too simplistic to assume that the only motivation for enduring a
life of abuse, disrespect, and sometimes physical aggression is financial. Some... are fascinated by and in love with the
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craft of photography.... For younger photographers, there's excitement and glamour in a job that allows them a high degree
of independence and moves them beyond the constraints of a nine-to-five job.”).
[FN27]. Halbfinger & Weiner, supra note 10.
[FN28]. Howe, supra note 1, at 32.
[FN29]. Civil Assault: Liability: Hearing on AB 381 Before the Assemb. Comm. on Judiciary, supra note 12, at 4.
[FN30]. Piccalo, supra note 18.
[FN31]. Id.
[FN32]. Civil Assault: Liability: Hearing on AB 381 Before the Assemb. Comm. on Judiciary, supra note 12, at 4.
[FN33]. See Cal. Civ. Code § 1708.8 (2006).
[FN34]. Id.
[FN35]. Restatement (Second) of Torts § 21 (1965).
[FN36]. Piccalo, supra note 18, at E1.
[FN37]. Dietemann v. Time Inc., 449 F.2d 245, 248 (9th Cir. 1971) (citing Melvin v. Reid, 297 P. 91)).
[FN38]. Under the common law, the right of privacy is also invaded by appropriation of a plaintiff's picture or name for
defendant's commercial advantage, publication of facts placing a plaintiff in a false light, and public disclosure of private
facts. See Restatement (Second) of Torts § 652A (1977).
[FN39]. Miller v. Nat'l Broad. Co., 187 Cal. App. 3d 1463, 1482 (1986) (quoting Restatement (Second) of Torts § 652B
(1977)).
[FN40]. Shulman v. Group W Prods., Inc., 955 P.2d 469, 490 (Cal. App. Ct. 1998).
[FN41]. Id.
[FN42]. Shulman, 955 P.2d at 490.
[FN43]. Sanders v. Amer. Broad. Co., 52 Cal. App. 4th 543, 548 (1997).
[FN44]. Deteresa v. Amer. Broad. Co., 121 F.3d 460, 466 (9th Cir. 1997).
[FN45]. Id. at 466 (citing Aisenson v. Amer. Broad. Co., 220 Cal. App. 3d 146, 162-163 (1990)).
[FN46]. Sanders v. Amer. Broad. Co., 978 P.2d 67, 71 (Cal. 1999).
[FN47]. Sanders, 978 P.2d at 72.
[FN48]. See, e.g., Restatement (Second) of Torts § 652B (1977); Shulman, 955 P.2d at 490.
[FN49]. Sanders, 978 P.2d at 72 (citing 1 McCarthy, The Rights of Publicity and Privacy § 5.10 (1998)).
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[FN50]. In Dietemann, reporters for a news magazine deceitfully gained access to a doctor's home office, where they
secretly photographed and recorded his examination of one of them. Dietemann, 449 F.2d at 246.
[FN51]. Sanders, 978 P.2d at 72.
[FN52]. See § 1708.8(a).
[FN53]. See § 1708.8(b). Liability under the constructive invasion of privacy subsection requires the “the use of a visual
or auditory enhancing device” and involves “circumstances in which the plaintiff had a reasonable expectation of privacy.”
Id.
[FN54]. § 1708.8.
[FN55]. § 1708.8(d). Pursuant to Civil Code section 3294, “where it is proven by clear and convincing evidence that the
defendant has been guilty of oppression, fraud, or malice, the plaintiff... may recover damages for the sake of example
and by way of punishing the defendant.” Cal. Civ. Code § 3294 (2006).
[FN56]. “Commercial purpose” is defined here as the “expectation of a sale, financial gain, or other consideration.” §
1708.8(k).
[FN57]. § 1708.8(h).
[FN58]. § 1708.8(e). While holding the publishers as well as the individual photographers accountable prevents publication
of the pictures in the United States, it cannot prevent them from being printed in foreign magazines. Howe, supra
note 1, at 100. A June 2004 Ruling by the European Court of Human Rights, however, may be rapidly closing these markets
for photos taken under such circumstances. Photos printed purely for entertainment purposes rather than to advance
public debate violate Article 8 of the European Convention of Human Rights, which pertains to respect for private and
family life. Id.
[FN59]. § 1708.8(j).
[FN60]. § 1708.8.
[FN61]. “Personal and familial activity does not include illegal or otherwise criminal activity as delineated in subsection
(f),” but does include the activities of victims of crime in circumstances where either the subdivisions regarding constructive
or physical invasion of privacy apply. § 1708.8(l).
[FN62]. § 1708.8(b) (“under circumstances in which the plaintiff had a reasonable expectation of privacy”).
[FN63]. §§ 1708.8(a)-(b).
[FN64]. See Shulman, 18 Cal. 4th at 231.
[FN65]. § 1708.8(c).
[FN66]. Civil Assault: Liability: Hearing on AB 381 Before the Assemb. Comm. on Judiciary, supra note 12, at 3.
[FN67]. Id. at 5.
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[FN68]. See Physical Invasion of Privacy: Liability: Hearing on AB 381 Before the Senate Judiciary Comm., 2005-2006
Sess. 5 (Cal. 2005), available at http://www.leginfo.ca.gov/pub/bill/asm/ab_0351-0400/ab_381_cfa_20050906_111401_
sen_floor.html (citing the strong opposition of the California Newspaper Publishers Association Services, Inc to the 1998
legislation, to which the organization sent a letter urging Governor Pete Wilson to veto the Bill).
[FN69]. Judicial Council of Cal. Civil Jury Instructions, CACI No. 1800, Intrusion Into Private Affairs (2005).
[FN70]. § 1708.8(i).
[FN71]. See § 1708.8(c).
[FN72]. Civil Assault: Liability: Hearing on AB 381 Before the Assemb. Comm. on Judiciary, supra note 12, at 5.
[FN73]. Id.; see also Restatement (Second) of Torts § 21 (1965).
[FN74]. Judicial Council of Cal. Civil Jury Instructions, CACI No. 1301, Assault - Essential Factual Elements (2005).
[FN75]. Restatement (Second) of Torts § 21 cmt. d (1965). Thus, the defendant may not avoid liability by claiming that
he did not mean to place the plaintiff in fear of an unwanted touching, if he knew to a substantial certainty that fear of a
touching would result.
[FN76]. .Id. at § 21 cmt. f.
[FN77]. Id.
[FN78]. This problem is exemplified by the inability to find the requisite intent to prosecute the paparazzo for assault in
the Lindsay Lohan incident. See supra notes 22, 24-25 and accompanying text.
[FN79]. Restatement (Second) of Torts § 21 (1965).
[FN80]. See id. at § 29 cmt. b (Imminent “does not mean immediate, in the sense of instantaneous contact... [but] that
there will be no significant delay.”).
[FN81]. Cal. Civ. Code § 1708.8(c) (2006).
[FN82]. Paul Harris, LA Paparazzi Cry Foul Over ‘Terminator’: A Law To Protect Stars From Being Hounded Sounds
Reasonable, But Does Not Focus On the Reality of Being Celebrity, The Observer, Jan. 8, 2006, at 9.
[FN83]. “A civil action for assault is based upon an invasion of the right of a person to live without being put in fear of
personal harm.” Thing v. La Chusa, 771 P.2d 814, 816 (Cal. 1989) (quoting Lowry v. Standard Oil Co., 146 P.2d 57, 60
(Cal. Dist. App. Ct. 1944)).
[FN84]. See supra note 13 and accompanying text.
[FN85]. Although the constitutionality of California's anti-paparazzi statute has not been challenged, several scholars and
critics have opined that the free speech implications of the law are ominous. The California Newspaper Publisher's Association
opposed the amendment, in part, because it regarded it as “an attempt to amend and expand a constitutionally suspect
law that makes those engaged in First Amendment protected activities susceptible to special penalties for which the
rest of society is exempt.” Physical Invasion of Privacy: Liability: Hearing on AB 381 Before the Senate Judiciary
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Comm., supra note 68, at 5; see also David A Browde, Warning: Wearing Eyeglasses May Subject You To Additional
Liability and Other Foibles of Post-Diana Newsgathering - An Analysis of California's Civil Code Section 1708.8, 10
Fordham Intell. Prop. Media & Ent. L.J. 697 (2000); Richard J. Curry, Jr., Diana's Law, Celebrity and the Paparazzi: The
Continuing Search for A Solution, 18 J. Marshall J. Computer & Info L. 945 (2000). But see also Sharon A. Madere,
Paparazzi Legislation: Policy Arguments and Legal Analysis in Support of Their Constitutionality, 46 UCLA L. Rev.
1633 (1999).
[FN86]. See Civil Assault: Liability: Hearing on AB 381 Before the Assemb. Comm. on Judiciary, supra note 12. See
also supra notes 74-77 and accompanying text.
[FN87]. Dietemann, 449 F.2d at 248 (citations omitted).
[FN88]. Id. at 248-249.
[FN89]. See Restatement (Second) of Torts § 870 (1965) (supporting liability for intentional infliction of harm that does
not fit the elements of traditional intentional torts).
[FN90]. KOVR-TV, Inc. v. Super. Ct., 31 Cal. App. 4th 1023, 1028 (1995).
[FN91]. Id.
[FN92]. Acting in reckless disregard of a high probability that emotional distress will result. See generally Restatement
(Second) of Torts § 500 (1965) (“The actor's conduct is in reckless disregard of the safety of another if he does an act or
intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which
would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another,
but also that such risk is substantially greater than that which is necessary to make his conduct negligent.”).
[FN93]. “The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary
to make it negligent is a difference in the degree of the risk, but this difference of degree is so marked as to amount substantially
to a difference in kind.” Id. at § 500 cmt. g.
[FN94]. Thing, 771 P.2d at 818.
[FN95]. See Dillon v. Legg, 441 P.2d 912 (Cal. 1968) (allowing recovery to a mother who suffered emotional trauma and
physical injury from witnessing the infliction of death to her child resulting from the defendant's negligence).
[FN96]. Cal. Civ. Code § 1708.8(c) (2006).
[FN97]. Van Gelder, supra note 25.
[FN98]. Thing, 771 P.2d 814.
[FN99]. California Assemblywoman Cindy Montanez expressed that the amendment was concerned more with public
safety than with crafting special protections for celebrities: “[w]hen paparazzi engage in reckless behavior on the streets
and sidewalks of L.A.--or anywhere--it puts everyone in harm's way: the movie star and the movie-goer alike.” Schwarzenegger
Signs Law Limiting Paparazzi Pursuits, City News Service, Sept. 30, 2005.
[FN100]. Civil Assault: Liability: Hearing on AB 381 Before the Assemb. Comm. on Judiciary, supra note 12, at 4.
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[FN101]. Crisci, supra note 17, at 235.
[FN102]. See § 1708.8(d).
[FN103]. Crisci, supra note 17, at 235-236.
[FN104]. See § 1708.8(d).
[FN105]. See Civil Assault: Liability: Hearing on AB 381 Before the Assemb. Comm. on Judiciary, supra note 12.
[FN106]. Howe, supra note 1, at 100.
[FN107]. Barry Levine also serves as the publication's New York bureau chief and has served in various roles at the Star,
A Current Affair, and Extra!. Howe, supra note 1, at 12.
[FN108]. Howe, supra note 1, at 100.
[FN109]. Entertainment Lawyer John H. Lavely, who won a restraining order in 2004 against the photographer who attempted
to run Justin Timberlake off the road. Halbfinger & Weiner, supra note 10.
[FN110]. Id.
[FN111]. It is important to note that the difficulty of compelling paparazzi to appear in court is not eliminated in the
criminal context. For example, although the paparazzo who was arrested stemming from his efforts to photograph actress
Reese Witherspoon and her children at Disney's California Adventure theme park was charged with child endangerment
and battery, the paparazzo failed to appear in court to face the charges. Richard Winton, Paparazzo Fails to Come to
Court, L.A. Times, Jan. 5, 2006, at B3. He held both U.S. and British Honduras passports and had used a dozen aliases
over the years.
[FN112]. City News Service, supra note 99.
[FN113]. Cavanaugh, supra note 5.
[FN114]. This marks “the first time anyone has ever been successfully prosecuted in France for taking an unpublished
picture.” Ellis, supra note 2.
[FN115]. Id.
[FN116]. Harris, supra note 82.
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PAPARAZZI LEGISLATION: POLICY ARGUMENTS AND LEGAL ANALYSIS IN SUPPORT OF THEIR
CONSTITUTIONALITY
[FN1]. See Matthew Cooper, Was the Press to Blame?, Newsweek, Sept. 8, 1997, at 36, 36.
[FN2]. See Richard Zoglin, Hey, Wanna Buy Some Pix?, Time, Sept. 15, 1997, at 56, 56.
[FN3]. See id. (attributing this trend to the proliferation of media outlets devoted to celebrities, the arrival of new technology
like digital photo transmission, and the absence of world crises). Says Valerie Virga, photo editor for the National
Enquirer, “‘people really go[ ] over the edge to get the picture--climbing roofs, scaling buildings, super-super long lenses
into people's backyards.”’ Id.
[FN4]. See id. (noting that Mario Brenna, the man who took photographs of Princess Diana and Dodi al-Fayed on their
vacation two weeks before her death, stood to make as much as $3 million worldwide); see also Cooper, supra note 1, at
37 (reporting that even grainy, barely decipherable photographs of the couple commanded upwards of $6 million); Too
Close for Comfort, People, Sept. 15, 1997, at 70, 70 (noting that the photographer who obtained the first photo of Princess
Diana and al-Fayed embracing earned a reported $1 million).
[FN5]. See Zoglin, supra note 2, at 56.
[FN6]. Coincidentally, Princess Diana had won a restraining order against a photographer less than a year before she
died. The photographer persistently followed her on a motorcycle and twice crashed into her vehicle. In an affidavit, she
said that his actions were “‘calculated to cause [her] harm.”’ Cooper, supra note 1, at 36. The court ordered the photographer
to stay at least 300 meters away from the Princess. See id. She termed this assault of intrusive news gatherers
“‘face rape.”’ See Jonathan Alter, Diana's Real Legacy, Newsweek, Sept. 15, 1997, at 59, 62.
[FN7]. James Fallows, Are Journalists People?, U.S. News & World Rep., Sept. 15, 1997, at 31, 32 (quoting an unnamed
photographer).
[FN8]. See Cooper, supra note 1, at 36.
[FN9]. Lyrissa C. Barnett, Note, Intrusion and the Investigative Reporter, 71 Tex. L. Rev. 433, 435 (1992) (quoting Larry
J. Sabato, Feeding Frenzy: How Attack Journalism Has Transformed American Politics 2 (1991)).
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[FN10]. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).
[FN11]. Id. at 196.
[FN12]. See U.S. Const. amend. I (“Congress shall make no law ... abridging the freedom ... of the press ...”).
[FN13]. See Zoglin, supra note 2, at 57.
[FN14]. See Cooper, supra note 1, at 37 (noting that Princess Diana was not above using the press when it was in her best
interest to do so, clearly not minding when the press extensively covered her charity work).
[FN15]. See Richard Folkers, When Our Worlds Collide, U.S. News & World Rep., Sept. 15, 1997, at 40, 40.
Leave your conscience in the office. You get the picture or the footage; the decision whether to print or air it
comes later. A victim may lie bleeding, unconscious, or dead: Your job is to record the image. You're a photographer,
not a paramedic. You put away your emotions and document the scene.
Id.
[FN16]. See Fallows, supra note 7, at 31-32 (arguing also that journalists are authorized to do harm and that the harm is
necessary). Fallows also explains part of the problem:
Because there are so few external limits on what journalists can do (mainly libel laws, a remote concern for
most in the news business in most of their work), and because we know we must anesthetize part of our humanity, many
influential people in this business take a further step. They begin to assume that there is no balance, no tradeoff, no limit
to what we should do. ... The ethic is like that of lawyers willing to use any courtroom trick to help their clients. But in
court there is someone fighting back from the other side.
Id. at 32.
[FN17]. Timothy Noah et al., All Steve Coz Wants Is a Little R-E-S-P-E-C-T, U.S. News & World Rep., Sept. 15, 1997,
at 36, 36 (quoting Steve Coz regarding the National Enquirer's anti-“stalkerazzi” policy, which forbids the purchase of
photographs obtained by extreme physical harassment).
[FN18]. Other countries have their own ways of addressing the paparazzi problem. The French enacted a law in 1970 that
prohibits press actions that are an “assault on intimacy or privacy.” See Zoglin, supra note 2, at 57. Actress Isabelle Adjani
used this law to obtain a judgment against a tabloid magazine for running photographs of her without her permission.
See id. In 1991, the British formed the Press Complaints Commission to write “a code of practice to prevent invasive
press tactics.” See id. While these rules have been hard to enforce, they have had some success in preventing paparazzi
photographs from appearing in the tabloids. See id.
[FN19]. H.R. 2448, 105th Cong. § 1 (1997).
[FN20]. Id. The act continues:
(c) Limitation on Defenses.--It is not a defense to a prosecution under this section that--
(1) no image or recording was in fact captured; or
(2) no image or recording was in fact sold for profit.
(d) Cause of Action.--(1) Any person who is legally present in the United States and is the victim of a violation
of this section may, in a civil action against the person engaging in the violation, obtain any appropriate relief...
(e) Use of Images.--Nothing in this section may be construed to make the sale, transmission, publication, broadcast,
or use of any image or recording of the type or under the circumstances described herein in any otherwise lawful
manner by any person subject to criminal charge or civil liability.
(f) Limitation.--Only a person physically present and pursuing or assisting in pursuing the plaintiff at the time a
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violation of this section occurred is subject to criminal charge or civil liability based on this section.
Id. After it was introduced, this bill was referred to the House Committee on the Judiciary, and Committee Hearings were
held on May 21, 1998.
[FN21]. S.B. 1379, 1997-98 Reg. Sess. (Cal. 1998).
[FN22]. Id. The bill also declares:
(e) It shall be an affirmative defense to a cause of action under this section if it can be shown that there was a
substantial, overriding public interest which could not be achieved in a less intrusive way.
...
(g) It is not necessary to prove an intent to actually cause or carry out harassment.
(h) A violation of this section shall give rise to a cause of action for three times actual damages plus any net proceeds
or profit derived from the prohibited conduct.
(i) A publisher, employer, or other person who requests, encourages, induces, or instructs another to take photographs
or videotapes and knows or reasonably should know that obtaining the photographs or videotapes will violate this
section shall be strictly liable for any damages and proceeds or profits, as specified in subdivision (h).
(j) For purposes of this section, a “commercial purpose” means with the expectation of sale, financial gain, or
other consideration; but a visual image, sound recording, or other physical impression shall not be found to have been, or
intended to have been, captured for a commercial purpose unless it is intended to be, or was in fact, sold, published, or
transmitted.
Id.
[FN23]. See id.
[FN24]. Id.
[FN25]. For example, while the federal bill explicitly exempts everyone except the person who is physically present and
actually pursuing the subject of the photographs, see H.R. 2448, the California bill holds strictly liable a “publisher, employer,
or other person who requests, encourages, induces, or instructs another to take photographs or videotapes and
knows or reasonably should know that obtaining the photographs or videotapes” would violate state law, Cal. S.B. 1379.
[FN26]. In May 1997, Arnold Schwarzenegger and his wife, Maria Shriver, were driving to their son's school in Santa
Monica, California. Paparazzi cut off the car in which they were riding about a quarter of a mile from the school. The
photographers continued to take photographs once the family arrived at their son's school. In the ensuing chaos, the
school principal, who was trying to bring some order to the situation, was knocked over by the paparazzi. See Cooper,
supra note 1, at 38.
[FN27]. Paparazzi have provoked actor Will Smith to slap a photographer and John F. Kennedy, Jr. to dump a bucket of
water on a photographer's head. See id.; see also Zoglin, supra note 2, at 56 (noting that actor Marlon Brando once broke
a photographer's jaw, and that actor Sean Penn once punched a photographer).
[FN28]. See Too Close for Comfort, supra note 4, at 71.
[FN29]. See discussion infra notes 61-62 and accompanying text (discussing stalking).
[FN30]. Warren & Brandeis, supra note 10, at 198 n.2 (“It is certain every man has a right to keep his own sentiments, if
he pleases. He has certainly a right to judge whether he will make them public, or commit them only to the sight of his
friends.” (quoting Millar v. Taylor, 4 Burr. 2303, 2379 (1769))).
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[FN31]. See generally Andrew Jay McClurg, Bringing Privacy Law Out of the Closet: A Tort Theory of Liability for Intrusions
in Public Places, 73 N.C. L. Rev. 989, 1041-43 (1995).
[FN32]. See id. at 1041 (noting that this has the effect of causing the victim to lose control over an aspect of herself).
[FN33]. See id. at 1042 (noting that a photograph eliminates the temporal limitations inherent in public observations, and
that “[b]ecause we can study a photograph at leisure, we may be able to detect subtleties not otherwise discernible”).
[FN34]. See id. at 1042-43 (noting that the dissemination occurs not only to a larger audience than that to which the subject
was exposed, but also to a different audience). For example, while a person may be willing to expose parts of her
body at a beach or at a pool, she may not be willing to do so in other contexts. See id. at 1043.
[FN35]. See Texas v. Johnson, 491 U.S. 397 (1989) (declaring that the desecration of the American flag, no matter how
offensive, is protected expression under the First Amendment).
[FN36]. See generally McClurg, supra note 31. “While a person necessarily surrenders a great deal of privacy when she
ventures from a place of physical solitude into the light of public view, it does not follow that she forfeits all legitimate
expectations of privacy.” Id. at 1044. McClurg borrows Professor Ruth Gavison's position that privacy comprises three
components: “(1) secrecy, which relates to the information known about a person; (2) anonymity, which has to do with
the attention paid to a person; and (3) solitude, which relates to physical access to a person.” Id. at 1030 (citing Ruth
Gavison, Privacy and the Limits of Law, 89 Yale L.J. 421, 429-33 (1980)).
[FN37]. Id. at 1044.
[FN38]. 389 U.S. 347 (1967).
[FN39]. Id. at 351.
[FN40]. 680 S.W.2d 524 (Tex. Ct. App. 1984).
[FN41]. Id. at 525 (quoting the defendant Shirley Kramer).
[FN42]. Id.
[FN43]. 255 N.E.2d 765 (N.Y. 1970).
[FN44]. Id. at 770-71.
[FN45]. See id. at 771.
[FN46]. Id. “Although acts performed in ‘public,’ especially if taken singly or in small numbers, may not be confidential,
at least arguably a right to privacy may nevertheless be invaded through extensive or exhaustive monitoring and cataloguing
of acts normally disconnected and anonymous.” Id. at 772 (Breitel, J., concurring).
[FN47]. See New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964) (holding that a public figure must establish
actual malice on the part of the press in order to prove libel).
[FN48]. According to one definition, there are three types of public figures: all-purpose public figures, limited-purpose
public figures, and involuntary public figures. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974).
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[FN49]. 353 F. Supp. 196 (S.D.N.Y. 1972), aff'd, 487 F.2d 986 (2d Cir. 1973).
[FN50]. Id. at 223.
[FN51]. Indeed, the aggressive and persistent actions of the paparazzi have earned them the name “stalkerazzi.” See Too
Close for Comfort, supra note 4, at 70.
[FN52]. See Laurie Salame, Note, A National Survey of Stalking Laws: A Legislative Trend Comes to the Aid of Domestic
Violence Victims and Others, 27 Suffolk U. L. Rev. 67, 67 (1993).
[FN53]. See id. at 102. Within two years after the California statute was passed, the remaining states all passed laws
criminalizing stalking behavior. See id. at 67.
[FN54]. McClurg, supra note 31, at 1065; see also Marjorie A. Caner, Annotation, Validity, Construction, and Application
of Stalking Statutes, 29 A.L.R.5th 487, 487 (1995).
[FN55]. See McClurg, supra note 31, at 1064-65.
[FN56]. See id. To find a stalking violation, courts have required that the defendant knowingly harass, follow, survey, or
threaten the victim, and that the victim's emotional distress or fear of physical harm resulted from the defendant's conduct.
Harassment, as defined in one stalking statute, is conduct “that serves no legitimate purpose.” Cal. Penal Code §
646.9(e) (West Supp. 1999).
[FN57]. See Salame, supra note 52, at 67-68.
[FN58]. See People v. Krawiec, 634 N.E.2d 1173, 1179 (Ill. App. Ct. 1994).
[FN59]. Id. Significantly, the court in Krawiec added that in order to be guilty of stalking, one need not cause, or even intend
to cause, any physical harm. See id. at 1178-79.
[FN60]. McClurg, supra note 31, at 1065.
[FN61]. See Salame, supra note 52, at 80-81 (noting that the Hollywood elite strongly supported the passage of California's
stalking law). While the murder of popular actress Rebecca Schaeffer in 1989 is one of the most publicized cases of
celebrity stalking, the stalking that preceded her murder is unfortunately not a rare phenomenon. Countless other celebrities
have had encounters with stalkers prior to the enactment of stalking laws, including Johnny Carson, Jodi Foster, Michael
J. Fox, Michael Landon, and David Letterman. Celebrities face real risks and have well-founded fears. See id. at
81-82.
[FN62]. See id. at 93 (noting that exceptions include those for law enforcers, private detectives, process servers, bail
bondsmen, photographers, news reporters, organized protesters, and attorneys). Salame also notes that even without these
explicit exceptions, stalking laws in most states would not apply to the lawful activity of those listed above because they
would lack the requisite intent. See id.
[FN63]. 642 A.2d 90 (Conn. Super. Ct. 1993).
[FN64]. See id. at 91.
[FN65]. Id. at 95 (citation omitted).
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[FN66]. See id. at 100-02. The court ruled that content-neutral time, place, or manner restrictions are constitutional if the
restrictions are “‘narrowly tailored to serve significant government interests--not necessarily compelling ones--while
leaving open ample alternative channels of communication.”’ Id. at 101 (quoting Lutz v. City of York, 899 F.2d 255, 269
(3d Cir. 1990)).
[FN67]. See id. at 101-02. In regard to the state interests underlying stalking statutes, the court in Culmo stated that these
interests are
compelling in protecting citizens from the immediate consequences of stalking behavior. [They are] compelling
in providing law enforcement authorities with a means for intervening in stalking situations early on, before the behavior
can escalate into something more serious, including physical assault. And [they are] compelling in safeguarding the
mental well-being of victims.
Id.
[FN68]. Id. at 102.
[FN69]. See id. at 105.
[FN70]. See id. at 104.
[FN71]. See id. at 104 & n.11 (“The central idea of a system of freedom of expression is that a fundamental distinction
must be drawn between conduct which consists of ‘expression’ and conduct which consists of ‘action.’ ... ‘Action’ can be
controlled.” (citing Thomas Emerson, The System of Freedom of Expression 17 (1970))).
[FN72]. See id. at 103 (explaining that conduct is subject to regulation for the protection of society).
[FN73]. 894 P.2d 303 (Mont. 1995).
[FN74]. See id. at 304-06.
[FN75]. See id. at 307.
[FN76]. See id.
[FN77]. See id.
[FN78]. See id.
[FN79]. 519 U.S. 357 (1997).
[FN80]. Id. at 377.
[FN81]. Id. at 383 (internal quotation marks omitted) (quoting Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 774
(1994) (quoting Boos v. Barry, 485 U.S. 312, 322 (1988))).
[FN82]. David G. Savage, First Amendment in Your Face, 83 A.B.A. J., Apr. 1997, at 42, 43 (quoting Rodney A.
Smolla, a free-speech expert at the Marshall-Wythe School of Law at the College of William and Mary). Smolla goes on
to say that the Court's ruling in Schenck may call into question the decision in Galella v. Onassis, 487 F.2d 986 (2d Cir.
1973), which required a photographer to stay 25 feet away from Jacqueline Kennedy Onassis when she traveled in public.
See id. Schenck stands for the proposition that such a “floating buffer zone is unconstitutional.” See id.
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[FN83]. Admittedly, the California Senate bill discusses a 10-foot zone around any person who is the subject of media
interest. However, mere presence within the 10-foot zone would not in and of itself be a violation of this bill. In order to
be liable, one would have to “intentionally” enter the 10-foot zone “in a manner that causes the plaintiff to reasonably expect
physical harm or emotional distress” and one would have to “refuse[ ] to leave the 10-foot zone upon request.” S.B.
1379, 1997-98 Reg. Sess. (Cal. 1998).
[FN84]. Even though privacy is a central concept in our society, it is also extremely amorphous. However, despite its resistance
to definition, few would doubt the importance of privacy in our culture. See Barnett, supra note 9, at 435 & n.20;
see also Rodney A. Smolla, Free Speech in an Open Society 119 (1992) (“Laws protecting privacy are the means through
which the collective acknowledges rules of civility that are designed to affirm human autonomy and dignity.”).
[FN85]. See Smolla, supra note 84, at 119 (“Freedom of expression and the right to privacy are often thought of as natural
enemies, but it is better to think of them as jealous siblings.”).
[FN86]. See Wisconsin v. Mitchell, 508 U.S. 476, 484 (1993).
[FN87]. See U.S. Const. amend. I (“Congress shall make no law ... abridging the freedom ... of the press ...”).
[FN88]. See David F. Freedman, Note, Press Passes and Trespasses: Newsgathering on Private Property, 84 Colum. L.
Rev. 1298, 1314-18 (1984).
[FN89]. Timothy B. Dyk, Newsgathering, Press Access, and the First Amendment, 44 Stan. L. Rev. 927, 931 (1992)
(citing Zurcher v. Stanford Daily, 436 U.S. 547, 571-72 (1978) (Stewart, J., dissenting), and Branzburg v. Hayes, 408
U.S. 665, 727 (1972) (Stewart, J., dissenting)).
[FN90]. Id. at 932 (quoting David A. Anderson, The Origins of the Press Clause, 30 UCLA L. REV. 455, 537 (1983));
see also O. Marie Anderson, Note, Mine Accident Investigations: Does the Press Have a Right To Be Present?, 98 W.
Va. L. Rev. 1121, 1124 (1996) (“The Framers of the Constitution intended that the freedom given to the press in the Constitution
would ‘improve our society and keep it free.’ ... [T]he press seeks to uncover the truth.” (quoting Mills v.
Alabama, 384 U.S. 214, 219 (1966))). Anderson also argues that because the Press Clause does not grant unqualified access
to all sources of government information, the First Amendment should not be used as a club to gain access to mine
accident investigations. See id. at 1123-48.
[FN91]. See, e.g., Dyk, supra note 89, at 931-34.
[FN92]. Today, even the established press seems more concerned with ratings and public opinion than with being an effective
adversary to the government or baring the government's secrets.
[FN93]. See, e.g., Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) (declining to create special First Amendment
rights of press access to a criminal trial); Saxbe v. Washington Post Co., 417 U.S. 843 (1974) (declining to create
special First Amendment rights of press access to a prison); Pell v. Procunier, 417 U.S. 817 (1974) (same); Branzburg v.
Hayes, 408 U.S. 665 (1972) (declining to create a First Amendment privilege for reporters' confidential services and information).
[FN94]. See generally Dyk, supra note 89, at 929 (arguing that it is both appropriate and desirable that the press enjoy a
special constitutional right of access in news gathering).
[FN95]. See infra notes 111-112 and accompanying text.
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[FN96]. The Court in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), implied that whether the
defendant is a member of the institutional press is relevant to the question of whether the matter reported would be a matter
of public concern. See id. at 762.
[FN97]. Mills v. Alabama, 384 U.S. 214, 219 (1966).
[FN98]. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491 (1975).
[FN99]. See generally Edward J. Bloustein, The First Amendment and Privacy: The Supreme Court Justice and the
Philosopher, 28 Rutgers L. Rev. 41 (1974).
[T]he weight to be given “the public interest in obtaining information” should depend on whether or not the information
is relevant to the public's governing purposes.
“Public interest,” taken to mean curiosity, must be distinguished from “public interest,” taken to mean value to
the public of receiving information of governing importance.
Id. at 56-57 (quoting Sidis v. F-R Publishing Corp., 113 F.2d 806, 809 (2d Cir. 1940)).
[FN100]. See id. at 57.
[FN101]. See, e.g., Cooper, supra note 1, at 37 (recounting an interview with Princess Diana). Princess Diana stated that
“the press is ferocious. It pardons nothing. It only hunts for mistakes. Every motive is twisted, every gesture criticized.”
Id.
[FN102]. See Note, And Forgive Them Their Trespasses: Applying the Defense of Necessity to the Criminal Conduct of
the Newsgatherer, 103 Harv. L. Rev. 890, 897 (1990) (arguing that “[a]lthough the journalist may have numerous
motives in reporting a particular newsworthy event, a central purpose is undoubtedly his desire to further the public interest”).
[FN103]. Id. at 900 n.52 (quoting David H. Weaver & Maxwell E. McCombs, Journalism and Social Science: A New Relationship?,
44 Pub. Opinion Q. 477, 491 (1980)).
[FN104]. See Cooper, supra note 1, at 38 (noting that the paparazzi have provoked actor Will Smith to slap a photographer,
actor Alec Baldwin to use shaving cream to lather an intrusive lens, and John F. Kennedy, Jr. to dump a bucket of water
on a photographer's head).
[FN105]. Some conduct of the paparazzi is consciously calculated to produce imminent violent behavior. The whole
point of the provocation is to try to catch the celebrity's outburst on camera. It is these scenes that command the huge
monetary returns that the paparazzi desire. Although such actions would not satisfy the stringent incitement test set forth
in Brandenburg v. Ohio, 395 U.S. 444 (1969), they also should not be entitled to constitutional protection. Brandenburg
set forth the principle that
the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy
of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless
action and is likely to incite or produce such action.
Id. at 447.
[FN106]. See Cooper, supra note 1, at 38 (“[T]he more provocative the shot, the more money it commands. To make real
money, the celebrity has to be doing something that's shocking. That's one reason so many photographers antagonize
their subjects.”).
[FN107]. But see Stephano v. News Group Publications, Inc., 64 N.Y.2d 174 (1984) (holding that the newsworthiness
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exception to the statute “applies not only to reports of political happenings and social trends ..., but also to news stories
and articles of consumer interest including developments in the fashion world”).
[FN108]. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
[FN109]. Another similarity between the actions of the paparazzi and “fighting words,” besides the fact that they are intended
to cause a violent outburst, is that both are directed at a particular person.
[FN110]. Warren & Brandeis, supra note 10, at 196.
[FN111]. The motives of photographers are relevant in assessing a legal cause of action. See McClurg, supra note 31, at
1059-62.
[FN112]. This is not to say that members of the institutional press do not also have some financial motives in reporting
the news. The difference is that the financial motives of the paparazzi are their primary, if not their only, motives. It is
the opinion of the author that while members of the institutional press do have financial motives as well, they generally
are also interested in serving as an effective check on government, or at least in contributing truthful information to the
marketplace of ideas.
[FN113]. See Freedman, supra note 88, at 1318.
[FN114]. See id. at 1318-19.
[FN115]. Id. at 1319 (quoting First Nat'l Bank v. Bellotti, 435 U.S. 765, 783 (1978)).
[FN116]. See id. at 1320.
[FN117]. See Note, supra note 102, at 900 n.51.
[FN118]. 376 U.S. 254 (1964).
[FN119]. Id. at 270.
[FN120]. Freedman, supra note 88, at 1320 (quoting Houchins v. KQED, 438 U.S. 1, 30 (1978) (Stevens, J., dissenting)).
[FN121]. See id.
[FN122]. See Note, supra note 102, at 900 n.51 (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575
(1980)).
[FN123]. See Freedman, supra note 88, at 1323 (adding that implicit in the right-to-know theory is the idea that information
obtained by the press be used by the populace in “making political decisions” (emphasis added)).
[FN124]. 391 U.S. 367 (1968).
[FN125]. Id. at 376.
[FN126]. Id. at 377.
[FN127]. See supra notes 26-50 and accompanying text.
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[FN128]. See State v. Culmo, 642 A.2d 90, 101-02 (Conn. Super. Ct. 1993) (finding the governmental interests behind
stalking statutes to be compelling).
[FN129]. Insofar as the California proposal, see supra note 21, imposes liability for those not directly engaged in the conduct
the regulations are meant to prevent, those sections may not satisfy this element of the O'Brien test.
[FN130]. See discussion supra notes 26-50 and accompanying text.
[FN131]. If a court concludes that the paparazzi regulations are directly targeted at suppressing speech, the court will apply
strict scrutiny. Under this standard, the regulations most likely would not pass constitutional muster.
[FN132]. See, e.g., Houchins v. KQED, Inc., 438 U.S. 1 (1978) (regarding press access to prisons); Saxbe v. Washington
Post Co., 417 U.S. 843 (1974) (same); Pell v. Procunier, 417 U.S. 817 (1974) (same); Branzburg v. Hayes, 408 U.S. 665,
684-85 (1972) (declaring in dictum that “[n]ewsmen have no constitutional right of access to the scenes of crime or disaster
when the general public is excluded”). See generally Genevra Kay Loveland, Newsgathering: Second-Class Right
Among First Amendment Freedoms, 53 Tex. L. Rev. 1440 (1975).
[FN133]. State v. Cantor, 534 A.2d 83, 86 (N.J. Super. Ct. App. Div. 1987).
[FN134]. See David W. Zimmerman & Randy L. Dryer, Recent Developments in Media Law, 32 Tort & Ins. L.J. 481,
491 (1997) (noting that recent decisions have reaffirmed the tenet that “‘a reporter has no special immunity from the application
of general laws ... [and] no special privilege to invade the rights and liberties of others”’ (quoting Associated
Press v. NLRB, 301 U.S. 103, 132-33 (1937)) (alteration in original)).
[FN135]. See id. at 493.
[FN136]. 487 F.2d 986 (2d Cir. 1973).
[FN137]. See Galella v. Onassis, 353 F. Supp. 196, 220 (S.D.N.Y. 1972), aff'd, 487 F.2d 986 (2d Cir. 1973).
[FN138]. See id. at 226.
[FN139]. See id.
[FN140]. See id. at 227.
[FN141]. See id.
[FN142]. See id. at 233.
[FN143]. See id. at 220.
[FN144]. Id. at 232.
[FN145]. See id. at 221 (noting also that the “First Amendment is not a license to trespass, to steal, or to intrude by electronic
means into the precincts of another's home or office”).
[FN146]. See id. at 233.
[FN147]. See id. at 225.
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[FN148]. See id. at 224 (citing Kapellas v. Kofman, 1 Cal. 3d 20, 36 (1969)).
[FN149]. See id. In making this determination, the court noted that “it cannot be said that information about [Onassis's]
comings and goings, her tastes in ballet, the food that she eats, and other minutiae which are the sole product of Galella's
three years of pursuit, bear significantly upon public questions ... It merely satisfies curiosity.” Id. at 225.
[FN150]. Id. at 226.
[FN151]. See Galella v. Onassis, 487 F.2d 986, 995 (2d Cir. 1973).
[FN152]. 284 F. Supp. 925 (C.D. Cal. 1968), aff'd, 449 F.2d 245 (9th Cir. 1971).
[FN153]. See id. at 929 (citing Griswold v. Connecticut, 381 U.S. 479 (1965)).
[FN154]. See id. at 931-32.
[FN155]. 924 F. Supp. 1413 (E.D. Pa. 1996).
[FN156]. See id. at 1434-35 (basing the injunction on the conclusion that the plaintiffs demonstrated a likelihood of succeeding
on their invasion of privacy claim, based on intrusion upon seclusion, under both Florida and Pennsylvania law).
[FN157]. Id. at 1417 (quoting Branzburg v. Hayes, 408 U.S. 665, 684 (1972)).
[FN158]. See id. at 1419-20.
[FN159]. 24 Media L. Rep. (BNA) 1705 (W.D. Tex. 1996).
[FN160]. See id. at 1713.
[FN161]. 37 Cal. Rptr. 2d 431 (Ct. App. 1995).
[FN162]. Id. at 436 (quoting Miller v. National Broadcasting Co., 232 Cal. Rptr. 668, 682 (1986)).
[FN163]. Id. (quoting Associated Press v. NLRB, 301 U.S. 103, 132-33 (1937)).
[FN164]. See Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).
[FN165]. See id.
[FN166]. 405 U.S. 518 (1972).
[FN167]. The statute provided: “‘Any person who shall, without provocation, use to or of another, and in his presence ...
opprobrious words or abusive language, tending to cause a breach of the peace ... shall be guilty of a misdemeanor.”’ Id.
at 519 (citation omitted).
[FN168]. Id. at 520 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 573 (1942)).
[FN169]. Id. at 531 (Burger, J., dissenting) (emphasis added).
[FN170]. 413 U.S. 601 (1973).
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[FN171]. See id. at 609-10 (rejecting the argument that the law was unconstitutional because it attempted to prohibit civil
servants from constitutionally protected activities such as displaying political bumper stickers).
[FN172]. See id. at 615.
Although ... laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a
point where that effect--at best a prediction-- cannot, with confidence, justify invalidating a statute on its face and so prohibiting
a State from enforcing the statute against conduct that is admittedly within its power to proscribe.
Id. The Court concluded “that the overbreadth of a statute must not only be real, but substantial as well, judged in relation
to the statute's plainly legitimate sweep.” Id. (emphasis added).
[FN173]. 269 U.S. 385 (1926).
[FN174]. See id. at 391.
That the terms of a ... statute creating a new offense must be sufficiently explicit to inform those who are subject
to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike
with ordinary notions of fair play and the settled rules of law.
Id. at 391.
[FN175]. State v. Culmo, 642 A.2d 90, 96-97 (Conn. Super. Ct. 1993) (citing Connally, 269 U.S. at 391).
[FN176]. See Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).
[FN177]. See Culmo, 642 A.2d at 97 (“‘In choosing between two constructions of a statute, one valid and one constitutionally
precarious, we will search for an effective and constitutional construction that reasonably accords with the legislature's
underlying intent.”’) (quoting State v. Breton, 562 A.2d 1060, 1066 (Conn. 1989)).
[FN178]. McClurg, supra note 31, at 1065 (footnotes omitted).
[FN179]. See Salame, supra note 52, at 95.
[FN180]. See, e.g., People v. McClelland, 42 Cal. App. 4th 144 (1996); People v. Heilman, 25 Cal. App. 4th 391 (1994);
State v. Culmo, 642 A.2d 90 (Conn. Super. Ct. 1993); Bouters v. State, 659 So. 2d 235 (Fla. 1995); Pallas v. State, 636
So. 2d 1358 (Fla. Dist. Ct. App. 1994); People v. Bailey, 657 N.E.2d 953 (Ill. 1995); State v. Martel, 902 P.2d 14 (Mont.
1995); State v. Benner, 644 N.E.2d 1130 (Ohio Ct. App. 1994); State v. Saunders, 886 P.2d 496 (Okla. Crim. App.
1994); State v. McGill, 536 N.W.2d 89 (S.D. 1995); State v. Lee, 917 P.2d 159 (Wash. Ct. App. 1996); Luplow v. State,
897 P.2d 463 (Wyo. 1995).
[FN181]. See Culmo, 642 A.2d at 98.
[FN182]. See id. The court did concede that it may not always be easy to determine when a single course of conduct has
become repeated conduct. The final determination of whether one's conduct amounts to repeated conduct is ultimately a
question for the trier of fact. See id. at 98-99.
[FN183]. See id. at 99 (noting that the trier of fact needs to consider a variety of factors to determine whether the defendant
deliberately maintained enough visual or physical proximity with another person, for a substantial enough period of
time, to constitute “following”).
[FN184]. See supra note 20 and accompanying text.
[FN185]. See Culmo, 642 A.2d at 99.
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[FN186]. See supra note 85.
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