Is Arnold's new anti-paparazzi law unconstitutional?

By Eriq Gardner

Since giving up an acting career for life in California's governor's mansion, Arnold Schwarzenegger has made it one of his political missions to make life tough for intrusive paparazzi.

Schwarzenegger has enacted laws that expand privacy protections and punish photographers for assaults and altercations. He's endorsed the idea of a "celebrity buffer zone" and now he's signed a bill that's the most assertive yet in cracking down on paparazzi intrusion.

Maybe the Governator has gone too far this time.

Specifically, the new law will impose liability on those who knowingly publish or broadcast material that's unlawfully obtained and violates state statutes for constructive invasion of privacy. Sounds fair, right? The law is being read by many as an "anti-paparazzi law" but we're pretty sure a court will soon give this statute a thorough First Amendment shakedown to see if it interferes with less offensive news-gathering.

In recent decades, the U.S. Supreme Court has been extremely leery of laws that encroach upon First Amendment protections without a compelling government interest. The high court has made it tougher for plaintiffs to sue for libel and defamation, but what about invasion of privacy? In cases like Cox Broadcasting Corp. v. Cohn, the Court seemed to be skeptical that a State could ever "define and protect an area of privacy free from unwanted publicity in the press" without fully resolving the question.

Upon consideration in the California legislature, the anti-paparazzi law was attacked by the ACLU, the California Newspaper Publishers Association and the Radio Television Digital News Association, who warned potential defendants would have a significant burden at trial to prove no actual knowledge of an unlawfully obtained image. The RTDNA added that litigation costs would cause risk-adverse news organizations into self-censorship.

California could become to privacy what the U.K. is to defamation, but before that happens, there should be a significant courtroom challenge on this new law.