‘Paparazzi bill would unduly restrict and punish protected newsgathering practices’

Wednesday, May 20, 1998


Testimony of Paul K. McMasters about H.R. 3224, “The Privacy Protection Act of 1998,” before The United States House of Representatives Committee on the Judiciary, Henry J. Hyde, chairman, on Thursday, May 21, 1998, in Room 2141, Rayburn House Office Building.


Chairman Hyde. Members of the Committee. I would like to thank you for inviting me to share a First Amendment perspective on H.R. 3224, “The Privacy Protection Act of 1998.” I worked in daily journalism as a reporter and editor for more than 30 years, have served as national president of the Society of Professional Journalists and presently serve on the freedom-of-information committees of both the American Society of Newspaper Editors and the Society of Professional Journalists. For the past few years I have worked exclusively on free press, freedom of information, and other First Amendment issues at The Freedom Forum, a financially independent, non-partisan foundation dedicated to free press, free speech and free spirit. As First Amendment Ombudsman at The Freedom Forum, I write, lecture, and serve as a resource for the public and the press. The Freedom Forum does not take positions on legislative proposals but allows me to appear before congressional committees and government commissions to speak on free speech and free press issues.


Visual images quicken the pulse of news. Still and video photographs burn their way into our minds and hearts. Who can forget the picture of the Oklahoma City firefighter clutching the tiny child injured in the Murrah Building bombing? Young John Kennedy saluting his slain father as the caisson passed by? The courageous student stopping the tank in Tiananmen Square? Joe Rosenthal’s picture of U.S. Marines raising the flag on Iwo Jima? This is the sort of journalism that transforms public opinion and public policy. John Paul Filo’s photo of a young woman kneeling over the body of a student killed at Kent State appeared on front pages around the nation on May 5, 1970. Huynh Cong Ut’s video clip of an unclothed and badly burned girl running from the napalm blast in South Vietnam transfixed viewers of the evening news on June 8, 1972. Both played significant roles in galvanizing anti-war sentiment in this nation. In 1992, President Bush ordered U.S. troops to Somalia to distribute food after pictures of starving children moved the American public. A year later, the public outrage over pictures of a U.S. Army Ranger’s body dragged through the streets of Mogadishu pushed President Clinton to order withdrawal of our troops.


News photography has the capacity to chill our senses, inflame our passions, awaken us to the need for action, connect us to our own communities, to inform us, and to entertain us. It is possible for good writers to tell credible stories from a distance, but photographers must be there, must have access to the people and events that make the news. Their ability to tell a graphic story is compromised, however, if they are forced to second-guess themselves in the fleeting moment when news comes into focus in their lenses. It is an instant too easily lost if reflexes are dulled by the threat of civil suits and prosecution under ambiguous laws.


Which brings us to H.R. 3224, “The Privacy Protection Act of 1998.” The
stated purpose of the Act is to punish still and video photographers who
harass or invade the privacy of celebrities. That is an understandable
undertaking, given the nature of some of the highly publicized incidents
involving public figures. And it may well be that this legislation would
curb the so-called excesses of the “paparazzi.” What is more certain,
however, is that this legislation would unduly restrict and punish protected
newsgathering practices of mainstream news organizations. Just as
importantly, it would curb the First Amendment rights of the public to news
and images that have not been screened or edited by the law, directly or
indirectly.


To give you some general sense of how grave the concern about this proposed
legislation is, the following news organizations — representing radio,
television, newspapers, and magazines — have endorsed this testimony:


  • American Society of Newspaper Editors
  • Magazine Publishers of America
  • Newspaper Association of America
  • National Newspaper Association
  • National Press Photographers Association
  • Radio-Television News Directors Association
  • Reporters Committee for Freedom of the Press
  • Society of Professional Journalists


The fact that H.R. 3224 carves out an exception for editors and publishers
does not ameliorate that concern. Editors and publishers routinely support
their photographers financially and otherwise when they are called into
court. Editors and publishers lose good pictures for their publications when
photographers fear to do their best. And at a smaller newspaper, an editor
or publisher may well be a photographer, also.


Our reading of H.R. 3224 is that it would unnecessarily broaden the category
of those largely immune from newsgathering. It would unwisely add
problematic new categories of criminal and civil actions as well as new
penalties against journalists who ran afoul of these restrictions while
exercising their rights under the First Amendment. And finally, it would
unconstitutionally expand restrictions on newsgathering. For those reasons
and more, enacting a new federal law regulating the news media would be
unnecessary, unwise, and unconstitutional.


A federal law is unnecessary
The Privacy Protection Act is unnecessary because state and local
jurisdictions already have laws dealing with invasion of privacy, intrusion
upon seclusion, trespass, harassment, and other problems taken up in the
federal legislation. In this particular instance, concerns of free speech
as well as federalism counsel due deference to the states. There is simply
no need to require — by federal fiat — what state and local laws already
cover. There simply is no need to create another layer of regulation over
one that already exists.


The proposed law is not needed because the courts have demonstrated their
willingness to mete out harsh punishment for true violations of the law.
For example, in 1973, a judge ordered free-lance photographer Ron Galella to
stay 25 feet from Jacqueline Kennedy Onassis and 30 feet from her children
after a period of harassing coverage. In 1996, a trial judge imposed
similar restrictions on an “Inside Edition” camera crew that had staked out
a family in pursuit of a story. Earlier this year, two British
photographers were convicted in a California court and sentenced to jail
terms for their attempts to photograph actor Arnold Schwarzenegger and his
wife, Maria Shriver.


Further, a federal law is unnecessary because celebrities themselves
frequently have proved both creative and effective in dealing with media
they consider overly intrusive. Actor George Clooney, for example, led a
boycott of tabloid TV shows for what he considered intrusive and unfair
coverage. He was joined by his colleagues on the cast of “ER,” as well as
other stars, including Whoopi Goldberg, Rosie O’Donnell, and Steven
Spielberg. As a result of the boycott, the shows changed their rules about
what would be accepted and aired.


Finally, H.R. 3224 is unnecessary because the news media do respond when
egregious incidents occur. A recent example is the agreement of five
networks last month to pool their camera crews to reduce the media crush
around key figures in Special Prosecutor Ken Starr’s investigation. In
reality, it is the media who inform us of transgressions by photographers,
and media leaders most often are the first to condemn their actions.


The proposed law is unwise
H.R. 3224 is unwise because it allows anyone from public figures to ordinary
citizens to dictate the terms of coverage when they are subject to news
reporting. Under this law, virtually anyone — from celebrities to
criminals — could invoke the authority of federal courts to distort, delay,
and deny legitimate newsgathering activities. Judges and publicists would
determine when, where and under what circumstances photographs could be
made. Of course, this is to turn the First Amendment on its head. Mr. Lutman
and Mr. Tash present testimony that demonstrates in more detail how this law
would interfere with newsgathering techniques used to get vital information
to the public.


Further, this proposal would be unwise because it would flood our already
overburdened federal court system with unsubstantiated claims. Think of it:
Almost anyone who objected to having his or her photograph taken could yell
“Paparazzi!” and then file charges in federal court. Given the ambiguity of
its provisions, H.R. 3224 invites burdensome litigation. Such terms as
“personal intrusion,” “commercial purposes,” “intended to be sold,”
“consideration,” “reasonable expectation of privacy,” and “follows or
chases” will launch a legion of lawyers in pursuit of what exactly they can
be made to mean. Most of these cases will have to be tried in court because
they are fact-based claims, pitting one party’s words against the
other’s.


The resulting protracted and costly litigation is clearly at odds with
free-speech and free-press principles. The stakes are high enough with civil
cases, but even higher when a news photographer is facing a prison sentence.
The proposed law also is unwise because it might stay the hand of an
ordinary citizen capturing a newsworthy event, such as George Holliday’s
videotape of the police beating of Rodney King or Abraham Zapruder’s amateur
footage of the assassination of President John F. Kennedy.


Such a law would be unwise because it encourages a troubling sort of
elitism, the idea that “the people” do not know what they like or need, that
tabloid readers are too unlearned, coarse, or brutish to have their tastes
attended to, or that paparazzi don’t have the same claim to First Amendment
rights as other photographers.


It is unwise because it fails to recognize the public’s interest in getting
news and news images unrestricted by federal law. The press serves as a
surrogate for the public. It is the public’s eyes and ears. It provides
the information that provides the informed citizenry that provides a viable
democracy. When a vague and ambiguous law interferes with the public’s right
to see, hear and be touched by the news, they are robbed of their ability to
make their own judgments about what they consider “news.” It must be an
individual’s choice whether to prefer “responsible” photographs or
“paparazzi” photos. The First Amendment exists precisely to allow American
citizens to form and assert the values they wish to live by.


This proposed legislation is unconstitutional
In addition to H.R. 3224 being unnecessary and unwise, it would be
unconstitutional. Professor Richards will treat this subject in more
detail, but we would nonetheless like to touch on just a few of the more
troubling constitutional concerns.


The Privacy Protection Act as written is overbroad and vague. A criminal
statute must clearly define offenses to give fair notice of illegal
activities and prevent police from acting in an arbitrary or discriminatory
manner. The proposed bill does not have an intent requirement, thus
criminalizing inadvertent conduct. That makes photographers vulnerable to
prosecution even though they did not know that their conduct was prohibited
and even though they may not have intended to cause harm. In other words,
photographers could be subject to punishment for merely showing up.


The courts traditionally have insisted on a far stricter standard with
respect to vagueness when laws touch upon First Amendment rights. A law that
requires one to guess at when and where the line of illegality is crossed
inevitably will cause the public and press to steer away from protected
free-speech activity. Because the U.S. Supreme Court has
required regulation to be more specific when touching upon these fundamental
rights, police, prosecutors, and the courts cannot be allowed to make ad hoc
and subjective decisions about when the law has been violated.


H.R. 3224 violates this principle, for example, by punishing “persistent
following” that constitutes a “personal intrusion.” The ambiguity of these
terms puts at risk veteran reporters or photographers whose job it is to
record newsworthy occurrences in a single industry or on “beats” because
they might seem to be engaged in persistent following simply by being on
assignment where public figures often appear. Under such circumstances,
making a sound or photographic recording could constitute a “personal
intrusion” depending entirely on the subject’s personal view of whether he
or she desires publicity at the time. Yet being out in plain view long has
been regarded as carrying no reasonable expectation of privacy and thus
lacks sufficient grounds for asserting a violation of the law.


Further, this proposal degrades the definition and concept of newsgathering.
It attempts to distinguish “paparazzi” journalism and “responsible”
journalism. How, consistent with the First Amendment, can it create such a
hierarchy of journalistic rights? We are not told. The Supreme Court,
however, in Regan v. Time, Inc. (1984) did reject such hierarchical
categorizations when it comes to evaluating non-obscene photographs under
the First Amendment. This is a prime example of impermissible content-based
discrimination. The committee will recall that in the Regan ruling,
the government’s determination of publishability of photographs based on
whether they were “newsworthy or educational” constituted content-based
discrimination in violation of the First Amendment.


Not only does the First Amendment not make a distinction between “paparazzi”
journalism and “responsible” journalism, the Court found in Winter v. New
York
(1948) that pulp dime-magazines containing tales of bloodletting,
violence, and sex had no discernible value but nonetheless received the same
First Amendment protections as the “best of literature.”


Neither does the First Amendment distinguish between commercial and
non-commercial press. Certainly, the nation’s newspapers are not given out
for free but are sold as a commercial enterprise. So, too, are television
and radio news operations, and newsmagazines commercial enterprises. Their
reporters and photographers are not volunteers but are paid for their
professional work. Under H.R. 3224, they are all engaged in a commercial
enterprise and subject to the legislation. But this has never been the
understanding of the First Amendment. The free circular, handed out by
volunteers, receives the same — no more and no less — protection as the
publication of a major newspaper chain.


This proposed law is unconstitutional because it would expand the zone of
privacy for public figures, although courts traditionally have declined to
do so. And for good reason — the more public a figure, the more newsworthy.
This is particularly true of Hollywood celebrities, as pointed out by Jane
Kirtley, executive director of the Reporters Committee for Freedom of the
Press: “Actors fight to preserve their carefully cultivated personas,
using them to promote not only themselves but their favorite causes, ranging
from more tax dollars for AIDS research, financial assistance for farmers or
circus elephants, or challenging Germany’s policy on the legal status of the
Church of Scientology. Several of them … have been elected to public
office on the strength of a Hollywood image. … In short, these folks are
influential.”


All of this raises a constitutional dilemma: Whether there is a compelling
governmental interest that is sufficient to override the First Amendment
principles at stake. We don’t believe there is.


We recognize the difficulty of making the case for an abstract public good
in the face of compelling and specific stories about the quest for personal
privacy by good people caught in the public spotlight. But the case must be
made. A paramount principle of the First Amendment is that it protects
speech and the press from the power of government, the will of the majority,
or the passion of the moment.


In sum, this proposed legislation is neither needed nor wise, and it does
not hold up to constitutional scrutiny. We urge the sponsors of this
legislation and the members of this committee to keep in mind that the
courts have been quite able under existing laws to provide civil remedies,
equitable relief, and criminal penalties when newsgatherers violate state or
local law.


We urge you to keep in mind that while the focus of these deliberations is
on the plight of Hollywood stars, the fact is that this legislation goes far
beyond what is needed for their protection and creates a situation that
allows public figures to dictate the way they are portrayed to the public.
What’s more, this proposal substitutes the uninformed and self-interested
opinion of newsmakers, prosecutors, and the courts for the informed
editorial judgment of editors and news directors.


The First Amendment is a constitutional contract between the government and
the people; it is not a movie script. When Hollywood calls for rewrite, we
respectfully urge you to remember that the first six words of the First
Amendment counsel the utmost restraint when it comes to making laws that
restrict freedom of speech and the press. We trust that you will honor that
constitutional mandate by voting against H.R. 3224.


Thank you, Mr. Chairman, for this opportunity to make these points.