FOI Alert Volume 3, Issue 7 (1997-98)
Of the newspaper inches dedicated to a recent congressional hearing on the paparazzi, Paul Greenberg's syndicated column makes the most sense.
"There's really a very simple way to curb the excesses of paparazzi journalism. If the public would quit buying the publications that pay keyhole-peeping photographers for sleazy pictures, there would be no need for any legislation."
Greenberg is a Pulitzer Prize-winning editorial page editor of the Little Rock Democrat-Gazette.
Too bad he wasn't solicited to testify before the House Judiciary Committee.
The committee's more loquacious members, clearly bent on bashing the media and commiserating with celebrity victims such as Michael J. Fox and Paul Reiser, cut short any argument from the few journalists there.
"With video cameras, everyone is a freelancer. Now, our personal lives and private lives become sport," said Reiser. "Simply and obviously, there's a market for this." Reiser said he's never attempted to sue for what he believes is an invasion of his privacy.
Fox said he has sued--but didn't indicate if he was successful--and stressed that the proposed bills are about "the hunting, not the cooking."
The legislation also is supported by the Screen Actors Guild, which has taken a strong stand under the leadership of actor Richard Masur.
It is difficult not to sympathize with Fox talking about helicopters hovering above his wedding ceremony or Reiser's account of people sneaking into the hospital to get photos when his child was born.
Yet, we fail to counter these tales. We, the media, failed miserably before the committee to make a case for the First Amendment, the public's right to know the truth, or why a new federal penalty is unnecessary.
These are the key questions that need to be answered before Congress creates a federal law based on celebrity anecdotes.
Are current state laws adequate for trespass, stalking or harassment? If not, why not?
Are there better remedies to consider for celebrities who both court the paparazzi and despise them?
Will the bills impede daily news-gathering activities?
Can they pass constitutional muster?
If those questions can't be answered--by us or anyone else--Congress should proceed cautiously.
Though not mentioned at the House hearing, there are cases that have gone to court. The one most recently resolved involved actor Arnold Schwarzenegger and wife Maria Shriver.
Two photographers working for Splash news and photo agency chased the couple by car last May, surrounding the car when it stopped. Andrew O'Brien and Giles Harrison were given jail terms of 60 and 90 days respectively, ordered to pay $500 fines, and placed on probation for two years.
Rep. Barney Frank, a Democrat from Massachusetts, was asked by David Lutman, president of the National Press Photographers Association: "Can you foresee a situation where it might be in the public interest to shoot with a telephoto lens?"
Frank didn't hesitate.
"Just because it might be in the public interest doesn't mean we destroy everyone's rights. It's the mindset you manifest that makes me think some restraints are necessary," Frank said.
These bills seem hell-bent for passage. And calmer heads may not likely prevail. There are three bills pending. Another is promised from Rep. John Conyers, a Democrat from Michigan. State lawmakers in California also are leading the charge.
Collectively, the bills have provisions to:
Make it illegal to persistently chase someone in an attempt to photograph or record him or her for commercial purposes if that person has a reasonable expectation of privacy.
Create a criminal penalty of not less than 20 years if the person being pursued dies as a result of the chase (five years if the person is seriously injured and no more than one year if nobody is hurt).
Allow for suits against violators if "a personal or familial activity" is captured through the use of "a visual or auditory enhancement device," though neither of those phrases is well-defined.
That latter provision would make it tough on local television stations investing in high-powered, helicopter-mounted cameras.
In my hometown of Indianapolis, two of the four local stations have such gadgetry. But according to these bills, both might be subject to criminal prosecution for using them.
Editorial writer Greenberg notes quickly why we have a problem.
"The natural tendency of the press to stampede, for we are herd animals, might land us all in jail under this vaguely worded proposal aimed at paparazzi. For that matter, almost any enthusiastic demonstration at a national convention, or even some Shriners' parades I've seen, might qualify for prosecution... ."
Media coverage of the hearing also was dismal.
The Associated Press, Daily Variety, The Press-Enterprise (California), The Gazette (Montreal), The Atlanta Journal and Constitution, Los Angeles Times, and Electronic Media, all fashioned their stories around the testimony of Fox and Reiser.
Opponents to the legislation barely made it into the stories.
Next time, we'll be better-prepared.
A Senate hearing is rumored in July for one of the bills introduced by California Democrats Dianne Feinstein and Barbara Boxer, and Republican Orrin Hatch of Utah.
Boxer also was one of the senators who led the charge on the Driver's Privacy Protection Act, which served to shut down millions of drivers' records across the country, records that historically had been public.
Additional resources on this topic:
Law and the Media, Public Relief by Michael Higgins, December 1997
Libel Defense Resource Center, February, April, May 1998 newsletters
The News Media & The Law, Paparazzi trial ends in jail time; legislation considered, Spring 1998
CRS Report for Congress, Stalking: Recent Developments, Oct. 17, 1996 (being cited by Sen. Feinstein)
The New Yorker, Is Nothing Private? by Jeffrey Rosen, June 1, 1998