This guest post was written by Mary P. Ray, a law student enrolled in Southwestern’s Entertainment Law and Web 2.0 class.
Paul Raef in 2012 was in his car pursuing Justin Bieber, the one-time teen heart-throb turned rock bad boy, on the 101 Freeway in Los Angeles. Little did photographer Raef know that he was driving into California’s law books, creating the test case for a state appellate court’s recent decision upholding some of the state’s anti-paparazzi statutes as constitutional.
Lawmakers had sought to curb dangerous situations involving notoriously aggressive shooters trying to capture celebrities in photos and videos on California roads. The legislators, effective Jan. 1, 2011, increased the misdemeanor penalties under Code § 40008 for motorists judged to be driving recklessly as they tried to “capture any type of visual image” for commercial purposes.
Raef (above) was charged with violating this statute and other road rules as he chased Bieber on the highway as the young star drove his $100,000, chrome-finished Fisher Karma hybrid at speeds guesstimated at between 80- and 100-miles-an-hour. But the photographer challenged the statute, claiming that it was an unconstitutional infringement on his First Amendment rights.
The trial court agreed, dismissing the charges.
The state Court of Appeal for the Second Appellate District reversed the lower court, and Raef, with the assistance of press groups, challenged the matter all the way to the state Supreme Court, which ordered the appellate court to show cause as to why the matter should not stay dismissed. Raef has not gone to trial until the courts could rule on the validity of statute he was charged with violating.
The appellate court said he should face trial because the statute slapping at the “paps” was neither over-broad nor targeted too narrowly as to impinge on journalists’ news-gathering rights. The measure had a “plainly legitimate sweep,” in part because it is directed at all who capture still or moving images for commercial purposes, not merely paparazzi members of the press. The law also addresses a genuine concern about non-speech activities, mainly public safety, and it “is aimed at the special problems caused by the aggressive, purposeful violation of traffic laws while targeting particular individuals for personal gain,” the appellate court said. In addressing distinctions it found to preserve the statute, the court saw a difference between photography or videography that has a “commercial purpose” versus “commercial expressive activity,” with the former subject to regulation and the latter constitutionally protected.
Lawmakers increased the penalties in this misdemeanor, partly in response to an incident in which actress Jennifer Aniston reported that she was surrounded and trapped by celebrity shooters. The offense is punishable by six months in jail and a $2,500 fine. Raef, subsequent to the incident with Bieber, attracted attention when he paid for and pumped gas for Selena Gomez, a Bieber ex. She tried to pay for the fuel but he declined.