Legislation to discourage the more invasive and assertive behavior of tabloid celebrity photographers keeps growing, with the latest anti-paparazzi bills signed by Governor Brown broadening the legal exposure of such activity. But while the 17-year history of this largely needless corner of the law shows no reported cases invoking it, a conflict brewing in San Bernardino County shows how unanticipated the consequences of such constitutionally marginal statutes can be.
The latest anti-paparazzi bills, signed by the Governor in his last big swath of reactions to proposed legislation over the weekend, expand the law considerably.
One, AB 1256 by Assembly Member Bloom (D-Los Angeles) attempts to make actionable for damages by a civil plaintiff, or subject to an injunction sought by any prosecutor, the capturing for commercial publication the sounds or scenes of the plaintiff’s “personal or familial activity” either by a literal physical trespass on private property or a “constructive invasion of privacy” using long-range microphones or telescopic camera lenses. These elements of the paparazzi law have been at its core since its first enactments in the 1990s, but AB 1256 extends the protected behavior to:
- simply “private” activity, whether or not “personal or familial”—if the plaintiff had a “reasonable expectation of privacy,” thus returning the issue to the classic common law intrusion tort principles that made most of the paparazzi legislation unnecessary in the first place; and
- any activity occurring where minors are present either on or adjacent to school grounds, if the defendant “has been” convicted of disruptive activity on school grounds without lawful business, although it’s not clear whether the conviction must relate to a visit previous to or simultaneous with the photography or recording.
The other, AB 1356, also by Bloom, would expand the civil tort of stalking to include stakeouts, i.e. remaining present outside the plaintiff’s school, workplace, vehicle, residence, or any “other place occupied by the plaintiff”, if the surveillance would cause a reasonable person substantial emotional distress. Press activity would be exempt from liability only when “temporally connected to a newsworthy event,” whatever that may mean.”
But as an example of how this ever-broadening area of the law, which does not appear to have been enforced even once in its 17-year history, can result in a wholly unanticipated confrontation with other protected rights, there is the case of Fritz Koenig, a resident of Yucca Valley. He under criminal investigation, accused of violating last year's expansion of the law, in an incident involving neither paparazzi nor celebrities.
SB 606 by Senator De Leon (D-Los Angeles) was enacted to make the “harassment” of a child because of his or her parent’s occupation apply to photography and audio or video recording, which could be, in the words of the Legislative Counsel’s summary,
punishable by imprisonment in a county jail not exceeding one year, or by a fine not exceeding $10,000, or by both that fine and imprisonment for a first conviction. For a 2nd conviction, the bill would require a fine not exceeding $20,000 and imprisonment in a county jail for a period of not less than 5 days but not exceeding one year. For a 3rd or subsequent conviction, the bill would require a fine not exceeding $30,000 and imprisonment in a county jail for a period of not less than 30 days but not exceeding one year.
The bill would specify that harassment means knowing and willful conduct directed at a specific child or ward that seriously alarms, annoys, torments, or terrorizes the child or ward, and that serves no legitimate purpose, including, but not limited to, that conduct occurring during the course of any actual or attempted recording of the child’s or ward’s image or voice without the written consent of the child’s or ward’s parent or legal guardian, by following the child’s or ward’s activities or by lying in wait . . .
(U)pon a violation of the above provisions, a parent or legal guardian of an aggrieved child or ward may bring a civil action against the violator on behalf of the child or ward for specified remedies.
Mr. Koenig’s alleged offense was to hire a professional videographer to document a planning commission meeting at which he was going to be complaining of the objectionable activity of a neighbor applying for a home occupation permit. As Mr. Koenig describes the situation,
The criminal complaint was filed by David Joseph Falossi. As best we can infer from communications from Yucca Valley Police Deputy Cantu, Mr. Falossi named me and one videographer I hired to record the events of the meeting as suspects.
The Yucca Valley Police Chief wrote that Mr. Falossi claimed, "that the video crew was not recording a public hearing but that the intent was to harass the Falossi family as they had their cameras trained on their family the entire time and not the meeting."
The public forum was a June 10, 2014 evening hearing of the Town of Yucca Valley Planning Commission at which Mr. Falossi was attempting to obtain a permit for a Home Occupation he operates at his residence. Click here for Agenda Packet.
Mr. Falossi's property is adjacent to three residential parcels I own in Yucca Valley. Some of my neighbors and I are opposed to this business operation on various grounds to include our position that the operation is industrial in character and completely out of the scope of a Home Occupation. The opposition started in 2005, and remains unresolved.
I was present at the June 10, 2014 meeting to oppose the permit by petition of government and to collect evidence for future petition of government, litigation both active and planned, and free speech solicitation of public support for my positions, and generally to document the events as an amateur journalist and social critique. I expected administrative and judicial appeals of the decision of the Planning Commission. In fact the permit was granted and I now pursuing those appeals and will be using the recordings as evidence.
I was also there to oppose another permit application to allow residences to be used for the sales and dealing of firearms, and a general revision of the codes which regulate Home Occupation use (home businesses)
Due to the high level of controversy and the history of peculiar behavior of many of the participants at such meetings, three cameras operated by two documentary filmmakers were used to capture the events of the entire room. At no time did the Chairman of the Hearing make any effort to address the videographers or otherwise direct them as to the manner of their actions in the room. Nor did Police Deputy Cantu, essentially acting as Sgt. of Arms for the meeting, address the videographers or me. However, the location chosen by the Town where the videographers were told they would be allowed to freely operate was designated to a small fixed location behind stanchions and ropes which had a sign indicating "Public Filming Area". In addition to the videographers, a Certified Court Reporter hired by me documented the proceedings.
I never had a camera in my hand that night. I never before met the cameramen before that night and had hired them for the job them only days earlier.
Mr. Falossi addressed the Commission via the podium set for public comment. The very first material issue he raised in addressing the Commission was to focus the attention of all 50-60 people of the room upon his allegation that the videographer was "photographing my 11 year old daughter". As he did this, Mr. Falossi turned away from the Commissioners, addressed the videographer, and pointed to him accusingly.
On June 24, 2014, Police Deputy Cantu contacted my videographer and attempted to contact me.
The latest communication from Police Deputy Cantu is a request to view the entirety of the recordings "to determine if any evidence of crime exists on those images."
The Brown Act provides, in Government Code Section 54953.5 (a):
Any person attending an open and public meeting of a legislative body of a local agency shall have the right to record the proceedings with an audio or video recorder or a still or motion picture camera in the absence of a reasonable finding by the legislative body of the local agency that the recording cannot continue without noise, illumination, or obstruction of view that constitutes, or would constitute, a persistent disruption of the proceedings.