Dano: The Media is Regulated Already, and They Should Be

Back again, everyone...and, for a change, we're not doing a political subject this week (okay, maybe that's debatable). We all have strong opinions about paparazzi after being privy to their work with Princess Diana, Britney Spears, Paris Hilton, and even families of crime victims or accused perpetrators. It's an interesting subject, for sure. The coin toss this week has me arguing in favor of regulating the media's rights when covering celebrities and public figures. Because this subject requires some legal research, most everything I allude to here can be found at http://law.findlaw.com/state-laws/state-codes.html, or http://www.findlaw.com/casecode/.

A lot of discussions about this topic center around celebrities and their tendency to seek publicity until they get too much of it. Most of us don't feel too sorry for them, because they sort of "made their own beds and should have to sleep in them." Sometimes, this argument is hard to counter, because so many young Hollywood types, in particular, really do bring it on themselves (Paris Hilton comes to mind, who is famous just for being famous by her own tactics of seeking publicity). But many celebrities don't appreciate paparazzi intrusions, whether in public areas or otherwise. Celebrity status earned because you are a fine actor or popular politician, for instance, does not automatically invite intrusions of privacy by the media. Moreover, paparrazi, in particular, have become more and more bold over the years and have sometimes caused mayhem and physical and mental danger to their subjects. But doesn't the press have a right, under Article 1 of the Constitution, to report on newsworthy people in this way? Not always.

There are competing legal issues at stake: the Constitutional rights of free speech (and freedom of the press) vs. an individual's privacy rights. Rights to privacy are not specifically delineated in the U.S. Constitution, but the courts have repeatedly "found" those rights in various passages, and certain kinds of privacy are now considered defacto rights. But laws and regulations are not guided only by the U.S. Constitution; they are also informed by state Constitutions, state statutes, legal scholarship, and court precedents. Some of these will be discussed shortly.

Let's get a common misunderstanding out of the way. The notion that the freedom of press and freedom of speech rights are inalienable, or not subject to regulation or limitation, is incorrect. We all know, for instance, that courts routinely bar the press from legal proceedings or impose gag orders, because, even though potentially newsworthy, the right of a defendant to a fair trial could be compromised by the exercise of these rights. Constitutional rights are always relative -- they are granted as equitable rights, meaning that you have them if they don't impinge on the rights of others. Similarly, you can't legally holler "fire!" in a crowded movie theater when there is no fire, and you can't say the word, "bomb" in an airport in the absence of a bomb. Most people would not argue that these limitations are inappropriate. So, then, is it equally appropriate to regulate the media's rights as they relate to covering celebrities and other public figures? Certainly.

The courts have routinely recognized personal privacy rights for all citizens, whether they are public figures or not. However, they have also understood the unique nature of entertainment celebrities, and their tendency to seek publicity. Because of this difference between the famous and the non-famous, remedies at law are much harder to come by for celebrities; the fact that they often seek celebrity status and media coverage makes it harder for them to claim unwarranted intrusion, and the media has a greater case that the coverage is "newsworthy." Those that don't seek the attention in public, or are hounded to such a degree that they feel threatened, however, have some legal protection, thanks in part to Jaqueline Kennedy Onassis.

Without going into a lot of specifics, Onassis and her children were relentlessly followed, photographed and otherwise hounded by a man named Ron Galella, who believed that the minutia in the lifestyle of the Onassis family was newsworthy. In Galella v. Onassis, 487 F.2d 986 (2d cir., 1973), the court determined that Onassis and her family had a right to privacy that was being infringed upon by the activities of Mr. Galella. Specifically, he was enjoined from "approaching her within a distance of 25 feet or her children within a distance of 30 feet." In their ruling, the court recognized that the right to privacy includes:

"a general right to be left alone, and to define one's circle of intimacy; to sheild intimate and personal characteristics and activities from public gaze; to have moments of freedom from the unremitted assault of the world and unfettered will of others in order to achieve some measure of tranquility for contemplation or other purposes, without which life loses its sweetness."

Moreover, every state has statutes that govern the right to privacy. In most instances, the privacy rights fall into four categories that were taken from the Second Restatement of Torts, a scholarly legal treatise relied upon by the courts. Invasions of privacy are: 1) intrusion into solitude, 2) public disclosure of private facts, 3) depiction in a false light, and 4) commercial exploitation of a person's name or likeness, also called appropriation.

Upset celebrities rarely litigate based upon either Galella or privacy statutes, most likely because the paparazzi activity generally occurs in public places (where the expectation of privacy is not assumed), or the photos or other coverage of their private property activities is done from a distance (with telephoto lenses or helicopters, for instance). This latter method of gaining access to the private goings-on of famous people has yet to be examined by the courts. Entering the private property of an individual is a clear violation of both privacy statutes and trespass laws, but gaining images from public areas through the use of long lenses does not fall neatly under the statutory prohibitions. More often than not, celebrities who sue over these kinds of intrusion do so under copyright infringement laws (similar to the fourth invasion of privacy tort listed above) -- the unlicensed use of their copyright-protected images for financial gain.

It is also probable that celebrities who don't seek media exposure understand that the paparazzi are supplying the demand of the public for "the skinny" on them. Thus, even if they feel intruded upon, complaining about or litigating these intrusions may cause damage to their reputations of being responsive and appreciative of the public's adoration. Probably a powerful inhibition for most of them.

On a final note with regard to celebs, many have suggested that stalking laws be changed to cover the activities of papparazi -- particularly after both the Princess Diana episode and, more recently, the relentless and damaging hounding of Britney Spears. Stalking laws, however, are criminal statutes (privacy laws are civil) designed to prevent offenders from threatening harm or causing fear of harm in their victims. Paparazzi routinely and successfully deny these intentions. California legislators have recently tried to change the California Code to expand these laws such that the intent of the "stalker" to cause fear is not required to be proven, so long as the "victim" experienced fear. Although public support has been rising, it does not appear that they have passed any such changes to the stalking statutes, yet.

Who among us has not winced at the poor judgment of media who camp out on the lawns of folks who are the survivors of murder victims, or missing children, or other people who had no intention of being public figures, but got thrust into the position? What about regulating the media's access to these poor souls? Well, again, there are existing trespass laws, and I suspect that if they knew about it, many could avail themselves of the protections afforded by Galella, at least when they are in public places. These people are newsworthy, even if they don't want to be, but the media really ought to have more compassion than to rest their laurels on First Amendment rights to hound this brand of public figure. That's just common decency, and viewers and readers ought to complain about these media excesses (market forces can be powerful controls, no?).

So, then, the media are and should be regulated in their coverage of celebrities and public figures, the same as they are and should be in their coverage of ordinary citizens. It's nothing more than a balancing of rights. When they violate privacy rights by trespassing, legal protection is available to the victims. To the extent that the media relentlessly follow celebrities in public places and report on their activities, the Galella precedent is available to those public figures who feel their privacy rights are being violated in the way the Onassis family's were. Otherwise, they should just put up with market forces or stay home.