The behavior engaged in by many overzealous photographers who make their living capturing celebrity navbar cannot be condoned. On this we all agree. But not only does the legislation recently proposed by Senators Feinstein and Hatch not offer any real solution to this problem, it gravely threatens First Amendment rights and improperly federalizes areas of traditional state concern. It would create a new federal crime and a new federal tort, both specifically targeting the press.
Freedom of the press, which is one of the greatest bulwarks of a democratic society, is ironically also one of the most vulnerable of our constitutional rights. The proposed legislation endangers the media's constitutionality-guaranteed rights while offering public figures no effective new protection against privacy intrusions and harassment. It is both destructive of our liberties and redundant.
There are already state laws in existence which prohibit the kind of behavior we condemn in some of the paparazzi. State law already offers protections against harassment, battery, assault, privacy invasions (including in public places); it already offers injunctive relief and it already provides for damages for intentional infliction of emotional distress, nuisance, and trespass. There are state civil and criminal remedies for practically all of the conduct the Feinstein-Hatch bill would federalize. False imprisonment is but one example. This criminal offense was recently invoked in the case involving Arnold Schwarzenegger and Maria Shriver, who were hounded as they drove their son to pre-school -- behavior the judge found "outrageous," and which subjected the defendants to potential prison sentences of up to two years.
Unlike these state laws which maintain a balance between First Amendment rights and privacy rights, the Feinstein-Hatch proposal is aimed specifically at the press and criminalizes legal First Amendment activity. The measure would make it a federal crime to "persistently follow" a person in order to photograph him/her, but "persistence" is obviously open to interpretation and will lead to uneven and potentially discriminatory enforcement. Can "persistence" be demonstrated in a really intense five minutes, or must the behavior occur over a period of several months? Moreover, by only targeting the actions of those who use their photographs Afor commercial purposes,- the bill exempts the exact same conduct if committed by someone who is not a member of the press - an obsessed fan for example. Making any conduct a federal crime only if committed for "commercial," read "media," purposes seriously compromises the First Amendment.
No matter what the issue, creating new federal crimes is always a dangerous business, particularly when we attach lengthy mandatory minimum sentences. We do not have a federal police force. Our drug laws are enforced by special drug police -- the DEA. Our immigration laws are enforced by another special force -- the INS. Only the FBI is available to enforce the few other national crimes that now exist, and, fortunately, we have been able to limit the size and the power of the FBI so that it has not become too great a threat to individual liberty, notwithstanding the abusive reign of J.Edgar Hoover. If murder, rape, burglary, assault and battery, and child abuse are not federal crimes, but are left to the state authorities to prosecute, should we really create a special new federal offense of "harassment by paparazzi?"
In addition, the bill enters treacherous waters by creating federal civil causes of action for "the use of visual or auditory enhancement devices to capture recordings [photographers] otherwise could not have captured without trespassing." This, too, raises serious First Amendment concerns. Consider the following hypothetical: a gubernatorial candidate who denies his association with an all-male, private club is photographed by a female photographer with a telephoto lens from the sidewalk (public space) as he sits on the club's front porch (private space). If the Feinstein-Hatch proposal becomes law, the photographer can be sued for damages and made to pay the plaintiff's attorneys fees and expert witness fees. This clearly chills her exercise of First Amendment rights.
We may need to consider narrowly drawn, carefully circumscribed legislation concerning developing new technologies such as hidden or off-site listening devices and certain types of enhancing photographic equipment. We many need to reexamine and strengthen laws designed to protect the right of privacy generally. But a bill specifically targeting only the press - while exempting both other private actors and law enforcement - is just another phony political solution that in the end would provide little benefit to those it is supposed to help. It is highly unlikely, for instance, that the FBI would devote much of its personnel and resources to enforcing such dubious legislation.
Law making by public relations is simply the wrong approach to serious First Amendment issues. The text of the "bill" was not released at the highly-trumpeted press conference at which Senator Feinstein and Hatch appeared. Nor has any text been made available by Senator Feinstein's office since then, despite repeated requests - only a "Summary" and a "Back grounder"stating that the bill will protect individuals against abusive conduct Aby commercial media,- in other words by the press. Moreover, aside from its vulnerability on First Amendment grounds, the bill's sponsors undoubtedly know that it faces a stiff Supreme Court challenge based on Congress's lack of authority to enact legislation regulating purely local conduct. In short, the Feinstein-Hatch proposal appears to be just one more instance of cynical political-grandstanding designed to appeal to prospective but powerful supporters.
The purported goal of the ill-fated measure is undoubtedly admirable, but the means are clearly wrong. One more federal criminal law with long mandatory prison sentences is not the answer. There are better ways to regulate the type of paparazzi behavior that society may properly prohibit - ways that do not lessen the protections offered by the First Amendment or further federalize our criminal law. As Camus said, "A free press can of course be good or bad, but, most certainly, without freedom it will never be anything but bad."