In Pursuit Of The Paparazzi: Is Harassing Justin Bieber Constitutionally Protected?

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On the morning of July 10, Justin Bieber drove his chrome-colored sports car down the 101 Freeway at 80-plus mph as a swarm of brazen photographers aggressively trailed behind. The teenage pop phenom was eventually pulled over by the California Highway Patrol and ticketed for reckless driving. The photographers -- five cars full of them, by Bieber's count -- eluded police. When the incident was over, Bieber got back into his car and drove away. But before he knew what hit him, the same paparazzi were back on his tail. This time, he made a 911 call in which he tried to plead his case, identifying himself as Justin Johnson, just another scared citizen with an emergency.

In a recording of that phone call, later posted on TMZ.com, the dispatcher can be heard asking Bieber if he is the same person who was pulled over earlier that day. The pop star explained that he had a good reason: He was trying desperately to flee his pursuers.

"When I explained to the police officers, they were being, like, not nice about it, Bieber told the dispatcher. They were just like, 'You waive your rights to privacy when you're a celebrity.'"

Many readers of the above story will find it difficult to muster sympathy for an 18-year-old pop star who drives a $100,000 Fisker Karma, but the dismissive comment allegedly uttered by the patrolman who pulled Bieber over raises an important question. In the war against aggressive paparazzi, what expectation of privacy do mega-celebrities have? Even if the officer's comment is true, and the price of fame is a life under the microscope, when did it become okay to eschew public safety for the sake of snapping a few candid photographs?

The answer, according to the California state legislature, is never. In 2011, the Golden State enacted the toughest anti-paparazzi laws in the country, reforming earlier anti-pap provisions by adding increased penalties for photographers who drive recklessly in an attempt to capture a visual image. With overwhelming support from the Screen Actors Guild, the law was signed by Gov. Arnold Schwarzenegger -- himself a target of paparazzi during his action-hero days -- who made aggressive photographers one of the final targets of his seven-year governorship.  

And now it looks as if Arnold's baby is getting its first test.

On Wednesday the Los Angeles Times reported that the city attorney's office may soon file the first case under the new anti-paparazzi law. The alleged perpetrator? One of the photographers who chased Justin Bieber down the 101 at 80 mph. After City Councilman Dennis Zine, an eyewitness to the chase, described the wild scene in which the Biebs swerved frantically in and out of traffic at dangerous speeds, authorities managed to track one of the chasers down. That photographer, whose name has not been released, now faces a $5,000 fine and up to a year in jail if convicted under the statute. And many entertainment professionals think it's about time the state got tough.

"It had to come to this," said Gary Lee Boas, a celebrity photographer since 1966 and author of the book Starstruck. "Being a celebrity photographer used to mean hanging around a hotel room waiting for Bette Davis. Now they're bum-rushing Nicole Kidman at parties, crawling on people's cars. It's gotten out of hand."

Boas, who has captured more than four decades of celebrity life -- including the likes of Katherine Hepburn, Elizabeth Taylor and Sophia Loren -- says the virtual anarchy of aggressive paparazzi has made it difficult for decent photographers to eke out a living. "The minute you say you take pictures of celebrities, you get these looks," he said. "But I've always tried to disassociate myself from that."

Although Boas hasn't studied the details of the California law, he said stiffer penalties might serve to even the playing field between what he calls the "good guys and the bad guys," i.e., photographers who are invited on the red carpet versus those who chase Justin Bieber down the freeway.

But not everyone thinks it's a good idea to single out photographers for engaging in behavior that no one should be doing in the first place.

"If you want to punish a paparazzo for reckless driving, then charge him with reckless driving," said Peter Eliasberg, legal director of the ACLU of Southern California. "All you're doing here is taking something that's already illegal and creating a special law that applies only to photographers."

Eliasberg's concerns are shared by news organizations such as the California Newspaper Publishers Association (CNPA), which lobbied heavily against the anti-paparazzi bill as it worked its way up the legislative chain. The organization worries the law could be used to prosecute legitimate journalists in a way that violates the First Amendment's guarantee of a free press. Moreover, because the law specifically targets photographers, the CNPA says it also infringes upon the 14th Amendment's equal protection clause, a concern shared by ACLU's Eliasberg. "We just don't think it's a good idea to create a law that applies only to a subclass of people who are doing something that's constitutionally protected," he added.

Sean Burke, founder of the Paparazzi Reform Initiative, a California nonprofit that played a hand in creating some of the language for the new law, strongly disagrees. Having worked for many years as a security professional for celebrity clients (he wouldn't name names), Burke said legislation was necessary to rein in the often dangerous confrontations between celebrities and the paparazzi. Although few people these days are surprised to learn of a paparazzo camping out in front of Katie Holmes' apartment or hiding in the bushes, Burke says the culture is far more pernicious than most people realize.         

"Unless you're part of that world, you not going to see it," he said. "It's really bad. The collisions between celebrities and photographers are out of hand. The car chases are not uncommon. Eventually someone is going to get hurt -- and I don't mean a celebrity, but a pedestrian."

As for the charge that anti-paparazzi laws are unconstitutional, Burke said his organization is not looking to curtail the press with superfluous legislation. "We're not interested in throwing new laws on the books all the time," he added. "That's not what we're about. We just want things to ease up."

Duncan Crabtree-Ireland, chief administrative officer and general counsel for SAG-AFTRA, added that the union's support of the legislation is not a reflection of its views on celebrity photographers as a whole. "The vast majority of photographers are professional and courteous," he said. "However, we also know that some of them employ extreme tactics that result in frightening and even dangerous situations or accidents."

The Big Picture

The term paparazzi is said to have been first popularized in Federico Fellini's 1960 film, La Dolce Vita. The film is a comic look at celebrity culture through the eyes of a journalist, whose sidekick is an aggressive photographer named Paparazzo -- a combination of the Italian words papatacci, meaning gnat, and razzi, meaning the popping of flashbulbs. The movie today stands as a kind of precursor to the celebrity-obsessed culture that dominates the 21st century.

And next month will mark 15 years since the event that sparked the first serious dialogue about the dangers of aggressive photographers. On Aug. 31, 1997, Princess Diana was killed as a result of injuries from a car accident in a Paris road tunnel. Many blamed her death on the paparazzi who were in hot pursuit of her at the time of the crash. Since that time, the issue of photographers who pursue celebrities at the expense of both public safety and personal liberty has become a political one on both sides of the pond.

In the U.K., the issue continues fiercely today in the form of the Leveson Inquiry, an ongoing investigation into the ethics of the British press following the phone-hacking scandal at Rupert Murdoch's News of the World. Staunch anti-paparazzi advocate Hugh Grant testified at the inquiry in November 2011, claiming his voicemail messages were hacked by the tabloid. Other inquiry testimonies include Sienna Miller claiming she was spat at by photographers, and council David Barr angrily proclaiming that the British press have learned nothing from the tragic death of the Princess of Wales.

In the United States, efforts to combat paparazzi have been equally frustrating. Within a year of Diana's death, the California legislature was already ironing out the first anti-paparazzi law in the country. But that law, which took effect in 1999, focused largely on trespassing and prohibiting the use of telephoto lenses. It was ultimately found to have no teeth, as the next 10 years would prove through ever-increasing incidents of celebrity run-ins with photographers. Remember Woody Harrelson strangling a pap on a Hollywood street? Or Kanye West's altercation at LAX? Or the unruly surfers who "defended Matthew McConaughey's honor" by pouncing on a group of paparazzi in Malibu? California's original anti-paparazzi statute prevented none of those incidents, nor did it thwart countless more.  

Meanwhile, changes in the media landscape over the last 15 years have only compounded the problem. The Internet and cable news have produced 24-hour-a-day outlets for the kind of celebrity-driven bunkum that feeds the public's endless appetite for the mundane details in the lives of the famous. Add to that the celebrity-sighting websites, where throngs of citizen paparazzi post up-to-date information on celebrities' whereabouts, and you have a burgeoning industry built around intrusive candid photography.

Burke says the key to curtailing that industry is legislation that specifically addresses the actions of paparazzi -- legislation he believes will act as a deterrent. Indeed, he says there is evidence that the state's 2009 paparazzi reform is already working. That law, which imposes penalties on media outlets that knowingly purchase an illegally taken photograph, was condemned by First Amendment advocates, including the CNPA, and yet at least some statistics show that it may have had an effect. The Beverly Hills Police Department reported 278 paparazzi complaints in 2008 versus 78 in 2011.

Whether or not California's newest anti-paparazzi law will have any effect on reckless driving by paparazzi remains to be seen. News groups such as the CNPA contend that, even if the Bieber-hungry pap from the 101 Freeway is charged under the statute, the constitutionality of the law is likely to be challenged. None of this, of course, will answer the question of whether or not intensely famous celebrities waive their right to privacy simply because they're famous. The ACLU's Eliasberg, for one, doesn't think that they do. And yet the First Amendment laws that protect the rest of us may still be their doubled-edged sword.         

"Celebrities have a right to walk down the street just like you or I do," he said. "But if the question is whether or not you can create a law that allows celebrities to walk around in a 300-foot bubble so they won't ever be bothered, I don't think you can do that in a way that's constitutional."

But Gary Lee Boas, who says his decades-long photography career was simply the result of a genuine love of celebrities, thinks he has a solution to this seemingly inextricable dilemma: Perhaps photographers could practice good old-fashioned common courtesy.

"I always say please and thank you when I take a picture," he said. "Celebrities look at me funny when I do. It's like, 'Wow, you actually know those words.'"

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