A lawyer for the Greater Los Angeles chapter of the Society of Professional Journalists sent the following letter Friday to City Councilmen Dennis Zine, Eric Garcetti and Jack Weiss in response to Zine's November motion to curtail paparazzi activity near schools and medical facilities.

Dear Councilmembers Garcetti, Weiss and Zine:

            We represent the Greater Los Angeles Chapter of the Society of Professional Journalists ("SPJ/LA").  I write on behalf of SPJ/LA regarding Los Angeles City Councilmember Dennis P. Zine's "anti-paparazzi"/"access zone" motion, introduced to the City Council on November 18, 2008 and referred to the Public Safety Committee.  The motion asks the Office of the City Attorney to draft an ordinance that would prevent photographers and videographers who intend to photograph or videorecord with a "commercial purpose" from approaching within 20 feet of an "access zone" of a school or "hospital or medical facility" unless consent is given by the school, hospital, medical facility or a "targeted individual."
            SPJ/LA appreciates and shares Councilmember Zine's desire to curb the excesses of the paparazzi.  SPJ/LA is concerned, however, that Councilmember Zine's proposed ordinance would unduly burden legitimate newsgathering in a way that is unnecessary, impractical and contrary to state and federal laws, including the First Amendment.  
            Councilmember Zine's proposal is unnecessary because laws already exist to prevent the undue obstruction of traffic and public walkways.  Laws also exist to prevent harassment, assault, battery, stalking and invasions of privacy.  These laws, if properly applied and enforced, make Councilmember Zine's proposed ordinance unnecessary.
            The proposal is also impractical.  In order to enforce the proposed ordinance, a law enforcement official would need to ascertain about each person in the area: (1) whether the individual is within 20 feet of an "access zone" of a school, "hospital or medical facility"; (2) whether the individual has the intent to take photographs or video; (3) whether the individual has the intent to later sell such photographs or video; (4) whether the school, "hospital or medical facility" has given the individual permission and/or asked the individual to be present; and (5) whether the "targeted individual" has "consent[ed] to being photographed or recorded."  All of this would be unduly cumbersome, if not impossible, to accomplish in a meaningful, legal and appropriate way.
            Councilmember's Zine's proposed ordinance would impermissibly contradict state law.  Section 627.2 of the California Penal Code requires all "outsiders" to register with the principal (or designated official) before entering the buildings or grounds of a public school.  The definition of "outsider," however, expressly excludes reporters and other media representatives.  Cal. Pen. C. § 627.1(a)(7); see also Cal. Evid. C. § 1070. Thus, the California Legislature has determined that reporters may enter public school grounds without prior permission from school officials.  If state law permits reporters to enter school grounds, a local ordinance preventing reporters from getting within 20 feet of an "access zone" to school grounds cannot pass muster because a local ordinance may not contradict state law.  See Cal. Const., art. XI, § 7; Bravo Vending v. City of Rancho Mirage, 15 Cal. App. 4th 383, 396-97 (1993).   
            The First Amendment protects the gathering of information.  See, e.g., Branzburg v. Hayes, 408 U.S. 665, 681 (1972); Schoen v. Schoen, 5 F.3d 1289, 1292-93 (9th Cir. 1993).  The terms in the Motion (and would-be ordinance) are unconstitutionally vague.  See, e.g., Coates v. Cincinnati, 402 U.S. 611, 614-615 (1971).  What constitutes an "access zone"?  Does that include loading docks and parking garages?  Does it include elevator banks?  What constitutes a "hospital or medical facility"?  What about a large office building with one suite dedicated to podiatry?  What about a veterinary hospital?  Who is a "targeted individual"?  What if more than one individual is present in the "target" area?  What if one person in the area consents to a photograph and the other does not?  What if the photographer, with camera in hand, has a child who attends the same school?  What if the photographer has an appointment in the "medical facility"?  What constitutes consent for the purposes of the proposed ordinance?   Does the law apply to a tourist, walking by, but hoping to get a glimpse and a photo (which may ultimately be sold)?   Will the law be enforced to protect everyone or just people that law enforcement considers sufficiently famous?  The questions roll on ad infinitum, and they leave the typical person wondering whether the law applies to his or her actions.  That is the essence of an impermissibly vague law.
            The ordinance, as proposed, would also be unconstitutional because it would be overbroad.  Under the overbreadth doctrine, a law is unconstitutional if it restricts substantially more First Amendment activities than the Constitution allows to be restricted.  See Board of Airport Commissioners v. Jews for Jesus, 482 U.S. 569, 574 (1987).  As a result, and out of fear of punishment under an overbroad law, people refrain from engaging in legitimate First Amendment activity.  Even if the City Council could establish that particular individuals had behaved poorly in the past in and around schools and/or hospitals and medical facilities, that provides no excuse to restrict the First Amendment activities of all journalists in those areas.
              We are also concerned that the proposed ordinance would suffer from other legal and constitutional infirmities, but the problems outlined above should be sufficient to demonstrate that the ordinance is not worth pursuing.
              SPJ/LA respectfully urges the City Council to reject the proposed ordinance.  SPJ/LA also asks the City Council to have faith in the ability of law enforcement officials to properly apply and enforce laws that already exist.  The proposed ordinance is a new dull meat axe where tested sharp scalpels will do.


Jean-Paul Jassy