In Malibu City, an ocean-side enclave of Los Angeles, local government officials are considering regulations that aim to protect the privacy and safety interests of both celebrities hounded by the paparazzi and local residents, after local surfers went to fisticuffs with photographers trying to capture Matthew McConaughey surfing at Malibu's Little Dume Beach.
According to the Malibu Times, some Malibu City Council members are considering a range of possibilities including buffer zones around certain areas, requiring all "celebrity photographers" to file for a permit, and taxing revenues generated from the photos. Malibu Councilman Jefferson Wagner supports the idea of a licensing requirement for paparazzi because of what he considers the commercial nature of the photographs. Earlier this year, Los Angeles City Councilman Dennis Zine proposed creating a "personal safety zone" that would require paparazzi to stay several feet away from the celebrities they photograph.
At first blush, the proposed regulations seem like a well-reasoned response to a problem that has plagued the area for some time. With the demand for candid images of celebrities at an all-time high in part due to highly popular entertainment blogs like Perez Hilton, who is sued frequently over his use of celebrity pics (see CMLP’s summaries here, here, and here), finding a way to wrangle the unruly photographers is a topic that isn't likely to go away.
However, the regulations pose some issues for advocates of free speech and freedom of the press. In an article at MSNBC.com, Lucy Dalglish, executive director of the Virginia-based Reporters Committee for Freedom of the Press, expressed the legal difficulties that arise if the law tries to distinguish between a paparazzo and any other type of photographer (note: Lucy Dalglish is on the CMLP's Board of Advisors):
The paparazzo is just as much covered by the First Amendment as you or I, or any Joe Schmo up the street. I don't think under any First Amendment law you can single out a paparazzi photographer.Malibu Mayor Pamela Conley Ulich, in an official press release quoted by the Malibu Times, had similar concerns, expressing hope that Malibu would try and balance “public safety concerns against protecting the First Amendment activities and commercial activities.”
Photographing a person, whether famous or not, on a public beach or surfing in the ocean, an activity on public property in public view, will not violate that person’s privacy under the law of intrusion in California. Assuming the paparazzo isn’t assaulting someone or trespassing or otherwise doing something illegal while taking such a photograph, he or she is not violating the law. Nor does California's Anti-Paparazzi Statute, California Civil Code, §1708.8, preclude someone from photographing surfers at a public beach because the activity is taking place on public property and their being in full public view eliminates any reasonable expectation of privacy that the person may have.
Regardless of the free speech issues, the new regulations may be unnecessary. As the San Francisco Chronicle reports, Los Angeles County Sheriff Lee Baca, whose department provides police services for Malibu, thinks existing laws prohibiting reckless driving, obstructing movement, and battery are sufficient to deal with the paparazzi.
Further, Reuters quoted a report issued by Los Angeles Police Chief William Bratton in response to Councilman Zine’s proposed “personal safety zone” that cited existing laws on jaywalking, speeding and assault that could be used to deter aggressive photographers. Chief Bratton went on to question the enforceability of Zine's proposal, raising such vexing issues as how to define a "celebrity" or "paparazzo" and whether celebrities can be given special treatment.
The paparazzi profession attracts adventurous and aggressive personalities - hardly the type to line up at City Hall to get a permit to shoot. And if the Malibu ordinance passes, how would one distinguish between a local news reporter for the Malibu Times who was charged with capturing a photo of the local surfing conditions for the weather section of the newspaper and a paparazzo shooting Matthew McConaughey surfing?
The proposed regulations are impractical and are too restrictive on newsgathering activities. Malibu and Los Angeles officials should utilize existing California law to provide adequate protections for journalists, citizens and celebrities alike - and yes, for the annoying paparazzi too.
(Jason Crow is a second-year law student at Boston College Law School and a CMLP Legal Intern.)