‘Anti-Paparazzi’ Law Passes Muster in Calif.

     (CN) – A so-called “anti-paparazzi” law that allows police to arrest photographers for reckless driving does not violate free speech or press rights under the First Amendment, a California court of appeals ruled.
     The law was first used against celebrity photographer Paul Raef, who pursued pop star Justin Bieber at high speeds on a Los Angeles freeway in 2012, and failed to stop when police attempted to pull him over.
     Raef was charged with two violations of the statute, Vehicle Code section 40008, which increases punishment for those who disobey safe driving laws “with the intent to capture any type of visual image, sound recording or other physical impression of another person for a commercial purpose.”
     Under the law, a single offense is punishable by six months in jail and a $2,500 fine.
     Los Angeles Superior Court Judge Thomas Rubinson dismissed the charges against Raef in 2012 after determining that the law was overly broad and could increase reckless driving penalties in unintended cases.
     An appellate court reversed that decision in 2014, prompting Raef to appeal the charges on the grounds that the law violates the First Amendment by constricting the freedom of news gatherers.
     A three-judge panel of the 2nd District Court of Appeals on Wednesday ruled that the law does not target or discriminate against the news media.
     As written, the law “applies without limitation, whether the intended image or recording is of a celebrity or someone with no claim to fame, whether it qualifies as news or is a matter of purely private interest, and whether it will be sold to the mass media or put to purely private use,” Judge Norman Epstein wrote on behalf of the panel.
     The panel rejected comparisons to New York’s invalidated “Son of Sam” law, which was meant to stop criminals from profiting off their crimes through books, movies, television shows or other depictions of their stories.
     That law “imposed a direct financial burden not only on the criminal who sold the crime story, but also on the publisher that bought it. In contrast, section 4008 is not limited to cases where the intended image or recording is to be used in a work to be made available to the general public through a communication medium; nor does the statute impose a direct penalty on any media outlet that buys material gathered in violation of traffic laws,” Epstein said.
     The law does not violate free speech rights, but rather is aimed at “the special problems caused by the aggressive, purposeful violation of traffic laws while targeting particular individuals for personal gain,” the panel found.
     “Since the legal sanction is triggered by the noncommunicative aspects of the violator’s conduct, any incidental effect on speech does not necessarily raise First Amendment concerns,” Epstein wrote.
     Raef has not “identified existing laws that would as effectively regulate the variety of traffic violations, short of actual crashes, that can be committed in paparazzi-like pursuits,” the judge said.
     Also, by creating a misdemeanor charge for reckless driving in the pursuit of images, lawmakers gave those charged under the statute a right to a jury trial, the panel noted.
     Raef’s attorney, Mark Kressel, said that the case “is of great statewide importance, both because of the need to determine this statute’s constitutionality and also for the implications for future attempts by the Legislature to impose enhanced penalties on people gathering newsworthy information.”
     The appellate court’s opinion “upends longstanding principles of First Amendment jurisprudence and will give the government broad power in the future to criminally prosecute persons simply for engaging in journalistic or expressive activity,” he said.
     “We are still considering our options for seeking Supreme Court review, but we believe this is an issue that would concern the California Supreme Court,” Kressel said.
     Jean-Paul Jassy, attorney for several media outlets, called the decision “very troubling.”
     “It imposes extra penalties on drivers simply for the desire to take newsworthy photographs. This could have a profound effect on mainstream photojournalists heading, for example, to cover people being displaced by a forest fire or covering the brave work of fire fighers themselves. The purpose and effect of the law is to punish the intent to take pictures, but pictures is not a crime,” he said.
     Attorneys for the city of Los Angeles did not immediately respond to a request for comment.
     The criminal case against Raef has been on hold during appeals. He also faces charges of traditional reckless driving and refusing to comply with a police officer.

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