BILL ANALYSIS Ó
SB 606
Page 1
Date of Hearing: August 13, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
SB 606 (De Leon) - As Amended: August 6, 2013
SENATE VOTE : 35-0
SUBJECT : Harassment: Child or Ward
KEY ISSUES :
1)Should the existing statute that makes it a misdemeanor to
harass a child because of the employment of the child's parent
or guardian specify that attempting to photograph or record
the child without the consent of the parent or guardian could
constitute prohibited conduct under the statute?
2)Should a person who violates the existing harassment statute
be subject to civil liability and enhanced criminal penalties?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
Existing law makes it a misdemeanor to harass a child because of
the occupation of his or her parent or guardian. That law was
enacted in response to the harassment of children whose parents
worked for, or were clients of, a reproductive health clinic.
However, the statute's general language makes it a misdemeanor
to harass any child because of the occupation of the parent or
guardian, whatever that occupation may be. This bill, which is
primarily supported by groups concerned with aggressive
paparazzi, would clarify that misdemeanor child harassment could
include conduct occurring during an attempt to record the
child's image or voice without the consent of the child's parent
or guardian. Because existing law already makes it a crime to
harass a child because of the occupation of the parent or
guardian without identifying any specific forms of conduct, the
conduct targeted by this bill may already be found to be covered
by existing law. That is, the bill does not make taking a
child's photograph without consent harassment per se; it merely
says that harassing conduct might include attempts to photograph
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the child without consent, so long as it is done in manner that
meets all of the other elements of the offense. More
substantively, therefore, the bill would increase the criminal
penalties for child harassment and permit a parent or guardian
to bring a civil action as well. The bill is supported by
several law enforcement groups, the Screen Actors Guild-American
Federation of Television and Radio Artists, and several
individuals. It is opposed, largely on First Amendment grounds,
by the Motion Picture Association of America and several
associations representing press photographers and news-gathering
organizations. The bill has not received any negative floor or
committee votes. The analysis reflects minor amendments that
the author will formally take in the Appropriations Committee,
should the bill move out of this Committee.
SUMMARY : Clarifies that misdemeanor harassment of a child
because of the employment of the child's parent or guardian
could include attempting to record the child's image or voice if
done in a harassing manner; increases criminal penalties and
subjects a person who commits misdemeanor harassment to civil
liability. Specifically, this bill :
1)Defines "harasses" to mean knowing and willful conduct
directed at a specific child or ward that seriously alarms,
annoys, torments, or terrorizes the child or ward and that
serves no legitimate purpose, including, but not limited to,
that conduct occurring during the course of any actual or
attempted recording of the child's or ward's image or voice
without the express consent of the child's or ward's parent or
legal guardian, by following the child's or the ward's
activities or by lying in wait. The conduct must be such that
would cause a reasonable child to suffer substantial emotional
distress, and actually cause the victim to suffer substantial
emotional distress.
2)Increases the maximum fine for harassing a child because of
the employment of the child's parent or guardian from $1000 to
$10,000, and increases maximum imprisonment for an offense
from six months to one year in a county jail. Provides that a
second conviction will require a fine not exceeding $20,000
and imprisonment in a county jail for a period of not less
than five days but not exceeding one year. A third or
subsequent conviction would require a fine not exceeding
$30,000 and imprisonment in county jail for a period of not
less than 30 days but not exceeding one year.
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3)Permits the parent or guardian to bring a civil action against
a person who violates the child harassment statute. Specifies
that remedies shall be limited to one or more of the
following: actual damages, punitive damages, reasonable
attorney's fees and costs, and disgorgement of any
compensation received by the individual who recorded the
child's image or voice in violation of this section from the
sale, license or dissemination of such recording.
EXISTING LAW :
1)Provides that any person who intentionally harasses the child
or ward of another person because of that person's employment
is guilty of a misdemeanor, which is generally punishable by
imprisonment in county jail not exceeding six months, or by
fine not exceeding $1,000, or both. A second conviction of
the crime is punishable by mandatory imprisonment in a county
jail for not less than five days. A third or subsequent
conviction of the crime is punishable by mandatory
imprisonment in a county jail for not less than 30 days.
(Penal Code Sections 19 and 11414.)
2)Provides that a person is liable for constructive invasion of
privacy if that person attempts to capture, in a manner that
is offensive to a reasonable person, any visual image, sound
recording, or other physical impression of the plaintiff
engaging in a personal or familial activity under
circumstances, as specified. (Civil Code Section 1708.8.)
3)Provides that a person who violates specified "reckless
driving" statutes while attempting to capture any type of
visual image, sound recording, or other physical impression of
another person for a commercial purpose, is guilty of a
misdemeanor and not an infraction and shall be punished by
imprisonment in county jail for not more than six months and
by a fine of not more than $2,500. (Vehicle Code Section
40008.)
COMMENTS : In the past few years, this Committee has heard
several bills attempting, in one way or another, to curb the
behavior of overly aggressive paparazzi who seek to profit from
the public's seemingly inexhaustible fascination with celebrity.
Past bills have attempted to amend existing statutes that
prohibit stalking, invasion of privacy, and reckless driving in
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order to expressly apply those statutes (and their penalties) to
efforts to photograph or otherwise record a person's image or
voice. One problem with these past bills is that they sought to
single out a type of behavior (aggressively attempting to
photograph a person without consent) that was arguably already
covered under the general terms of existing law. That is, if
one engages in stalking, as defined by the statute, then one
commits the crime of stalking whether or not one is also trying
to take a photograph; if one engages in reckless driving, as
defined, an offense has been committed, regardless of whether
one engaged in the reckless driving while in pursuit of a
photograph or for any other reason. While this bill is similar
to those past efforts, it seeks to strike a careful balance and
strengthen existing law.
Existing law already makes it a misdemeanor to harass a child
because of the occupation of the child's parent or guardian;
this bill would amend the definition of "harasses" to clarify
that such harassment might include conduct engaged in while
attempting to record a child's image or voice without the
consent or the parent or guardian. More significantly, the bill
increases the criminal penalties for harassing a child and
permits the parent or guardian of a harassed child to bring a
civil action against the harasser.
Because the bill apparently seeks only to curb the behavior of
the person attempting to capture the image or voice of the child
and not necessarily the publication of the result, it specifies
that the act of transmitting, publishing, or broadcasting the
image or voice of the child does not constitute a violation.
Enhanced Criminal Penalties : Under existing law a person who
harasses a child because of the employment of the child's parent
or guardian is guilty of a misdemeanor, punishable by up to six
months in county jail, or a fine not to exceed $1,000, or both.
For a second offense, the guilty party faces a mandatory period
of imprisonment in county jail of not less than five days and,
for a third or subsequent offense, a mandatory period of
imprisonment in county jail of not less than 30 days. (The
existing child harassment statute does not specify a dollar
amount for the fine; however, Penal Code Section 19 provides
that, unless a statute indicates otherwise, a person guilty of a
misdemeanor is punishable by up to six months in county jail or
a fine of $1,000, or both.) This bill would increase the
maximum fine for a first offense from $1,000 to $10,000, and the
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maximum jail time for a first offense from six months to one
year. For a second offense, a guilty party under this bill
would face a fine of up to $20,000 and mandatory jail time of
not less than five days but not exceeding one year. For a third
or subsequent offense, the guilty party would face a fine of up
to $30,000 and mandatory jail time of not less than 30 days but
not exceeding one year.
New Civil Cause of Action : In addition to enhanced criminal
penalties, this bill would also permit the parent or guardian of
an aggrieved child to bring a civil cause of action on behalf of
the child against a violator of the child harassment statute.
In such a civil action, the plaintiff will be entitled actual
damages, disgorgement of any profits received by the violator
from the sale of the photograph or recording, punitive damages,
and attorney's fees and costs. Presumably, because the bill
only requires a "violation" and not a "conviction" of the
statute before a civil action may be brought, the "violation"
would need to be proved in the civil proceeding.
Contrary to Claims By Opponents, The Bill Makes Little or No
Change to the Underlying Offense : Although the bill creates
enhanced criminal penalties and a new civil cause of action, it
arguably makes no change as to what constitutes an underlying
offense. To begin with, the bill does not - as some of the
opposition letters suggest - make it misdemeanor harassment to
simply take a photograph of a child without the consent of the
parent or guardian, either by following the child or by lying in
wait. Indeed, the bill arguably purposely does not make any
substantive change to the existing offense at all; it simply
appropriately specifies that harassing a child might include
attempts to photograph a child - but only if it is done in a
manner that meets all of the elements of harassment as set forth
in the existing statute.
That is, under this bill, taking a photograph of a child without
consent of the parent or guardian, even by following the child
or lying in wait, is not per se harassment. The photographer's
conduct must still be targeted at a specific child, and more
important, it still must amount to conduct that "seriously
alarms, annoys, torments, or terrorizes" the child. Moreover,
the conduct must still be such that it would cause a reasonable
child to suffer substantial emotional distress, and actually
cause the targeted child to suffer substantial emotional
distress. If a photographer's conduct rose to this level, it
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would presumably already constitute a violation under existing
law. It does not matter, under existing law or under this bill,
whether the conduct consists of attempting to take a photograph,
waving a sign, shouting obscenities, or making a scary face.
Presumably, the purpose of adding the language regarding
attempts to capture the child's image or voice is intended to
clarify that such attempts could constitute harassment and
thereby put photographers on helpful notice of this fact.
Conduct Must be "Directed at a Specific Child: " The reach of
the bill is appropriately limited by the requirement, under both
existing law and this bill, that the conduct be "directed at a
specific child" and that child must be targeted "because of" the
employment of the child's parent or guardian.
The "Group" Problem : Opponents of this bill have suggested
that, because these situations often involve more than one
photographer attempting to capture a photograph, it is not clear
how criminal and civil liability will be assessed. For example,
a child may be distressed or alarmed by the sheer number of
photographers on the scene, even though only a few of the
photographers may be acting in an aggressive, intimidating, or
aggressive manner. Would all of the photographers be
potentially liable if it were the sheer number of photographers
that caused the distress? Is there some critical mass at which
photographers should know that they should leave the scene?
Will only the more responsible photographers be the ones that
leave the scene? Opponents raise legitimate concerns, though it
could be argued that this "group" nature of the paparazzi
activity could cut the other way too: that is, if the child is
distressed by the sheer number of photographers, it will be
difficult for the plaintiff to single out the conduct of any one
(or even a few) that caused the distress. Ultimately, such
questions will appropriately be determined on a case-by-case
basis by the courts if and when prosecutions or civil actions
are brought forward. And it is likely the mere presence of this
clarification of law may have a very helpful deterrence effect
on this type of harmful activity.
Law Enforcement Support : Although much of the attention in
prior hearings of this bill has focused on the issue of
paparazzi harassing the children of celebrities, the author and
many of the law enforcement groups writing in support of this
bill suggest that this measure is also needed to protect the
families of law enforcement personnel. These supporters argue
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that law enforcement employees and their families, no less than
reproductive health care workers and their families, can become
targets of harassment carried out by persons with real or
imagined grievances against the law enforcement community. This
bill would significantly increase the criminal penalties for
harassing children of law enforcement personnel and it would
permit the parent or guardian of the harassed child to bring a
civil action for damages.
Potential First Amendment Issue : A number of newsgathering
organizations argue that, by singling out journalistic activity,
this bill may violate the First Amendment. These opponents
contend that inserting ambiguous language about attempting to
photograph a child will have a chilling effect on legitimate
journalists without greatly affecting the behavior of bad
actors. Opponents point out that terms like "annoys or alarms"
or "no legitimate purpose" are highly subjective. While such
terms are commonly used in statute, opponents cite case law for
the proposition that statutes implicating protected speech are
held to "stricter standards of permissible vagueness." (Quoting
Winters v. New York (1948) 333 U.S. 507.) In other words,
general language that may be appropriate in a general criminal
statute might be deemed too vague in a statute that potentially
infringed upon protected speech. In addition, opponents
generally contend that singling out journalistic activity is
unnecessary, given that many existing statutes already prohibit
conduct that rises to the level of harassment.
In response to the First Amendment concerns raised by the
opponents, Professor Erwin Chemerinsky, Dean and Distinguished
Professor of constitutional law at U.C. Irvine, rejects the
claim that this bill is constitutionally vague. Nor does he see
any other substantial First Amendment issues, largely because
the bill targets only harassing conduct, not constitutionally
protected expression. Professor Chemerinsky concludes that
"there is simply no First Amendment right to harass others."
However, the opponents do not contend that there is a First
Amendment right to harass others. Rather, the opponents contend
that a statute is constitutionally suspect if it "singles out"
the activities of the press from among any number of other
activities that might also constitute an offense. (See e.g.
Minneapolis Star & Tribune v. Minnesota Commissioner of Revenue
(1983) 460 U.S. 575, holding that while government has the power
to regulate the press in a variety of ways, a statute that
"singles out the press" may be suspect.) Opponents would agree,
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therefore, that there is no First Amendment right to harass a
child. There is also no First Amendment right to drive
recklessly; yet a Los Angeles Superior Court judge recently
declared that a 2010 statute that created heightened penalties
for a person who drives recklessly in the course of attempting
to obtain a photograph for commercial purposes violated the
First Amendment. The plaintiff in that case did not deny that
he could be convicted for reckless driving; he did, however,
challenge receiving a heightened penalty just because he did so
in the course of attempting to take a photograph. The judge
agreed. The 2010 legislation, like this bill, sought to target
overly aggressive conduct on the part of the paparazzi. To be
sure, unlike the 2010 measure, this bill does not create
enhanced penalties for attempting to take a photograph; all
offenders will be subject to the bill's heightened penalties.
This bill simply states that attempting to obtain a photograph
could rise to the level of harassment. Although the superior
court ruling is on appeal and may well be overturned, it
nonetheless supports the proposition that a statute that singles
out journalistic activity might generate closer scrutiny by the
courts. In addition, the fact that the bill targets "conduct"
as opposed to expressive activity does not necessarily mean that
the First Amendment is not implicated. The courts have
recognized that conduct that is a necessary component of "news
gathering" is also protected by the First Amendment. (Branzberg
v. Hayes (1972) 408 U.S. 665, 707.)
In the final analysis, whether or not this bill infringes upon
the First Amendment will be decided by a court, assuming it is
ever challenged. Although opponents are correct that any
statute that singles out journalistic activity is suspect, the
inserted language in the definition of "harasses" does not
single out journalistic activity as a per se offense or subject
it to heightened punishment; it merely lists a form of
journalistic activity as an example of the kinds of conduct that
could rise to the level of harassment. Whether the language in
the bill is unconstitutionally vague or over broad as applied to
journalistic activity is uncertain, though it should be noted
that the language that the opponents object to is already in
existing law.
ARGUMENTS IN SUPPORT : According to the author, by "increasing
fines and providing for civil liability, SB 606 will have a
deterrent effect upon those who would consider tormenting the
most vulnerable and defenseless members of our society in a
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manner that would cause them to suffer substantial emotional
distress." The author notes that while the existing law was
enacted in response to increased harassment faced by the
children of health care workers, "there are many other
categories of workers whose children are subject to retaliatory
attacks because of the nature of their work." The author argues
that this bill will act as a strong deterrent to those who would
harass children because of the occupation of their parents or
guardians.
Former Assembly Member Tom Umberg, who authored the original
bill prohibiting the harassment of children due to the
occupation of their parents, sees this bill as a logical
extension of the earlier legislation, since children of many
other occupations - including law enforcement officers,
psychologists or psychiatrists, or others engaged in
high-profile or controversial occupations - could also be
vulnerable. Assembly Member Umberg sites the Christopher Dornan
case as a "textbook example" of the kinds of dangers that
families can face. The California Medical Association, the
California Psychological Association, the California
Organization of Women, and several law enforcement groups
support this bill for substantially the same reasons as those
set forth by the author and former Assembly Member Umberg.
The Screen Actors Guild-American Federation of Television and
Radio Artists (SAG-AFTRA) supports this bill because it will
protect its members "and any members of the public who may be
affected by the dangerous actions of out of control members of
the paparazzi." SAG-AFTRA adds that this bill is "appropriately
balanced and limited in that it exempts legitimate activities,
including transmission, publishing, and broadcasting."
Two law professors, Gary Williams of Loyola of Los Angeles and
Erwin Chemerinsky of UC Irvine, opine, contrary to the arguments
made by opponents, that the provisions of this bill do not raise
any substantial First Amendment issues as there is, in the words
of Professor Chemerinsky, "simply no First Amendment right to
harass others."
ARGUMENTS IN OPPOSITION : The Motion Picture Association of
America (MPAA) opposes this bill unless amended. MPAA in
particular opposes the provisions in the bill that would enhance
criminal penalties and establish civil liability for
"photographing, or attempting to photograph a child, without a
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parent's consent, because of the parent's occupation." MPAA
believes that this provision of the bill implicates the First
Amendment, as it "reaches activity which may occur on public
property or public spaces, such as streets, sidewalks, parks,
beaches, as well as restaurants, shopping malls, etc. In
addition, a parent may assert there is no 'legitimate interest'
in a photo of his or her child, and will have a right or private
action to attempt to vindicate that position." MPAA claims that
the bill could have unintended consequences: for example, "a
person taking pictures of his or her child at a sporting event,
or musical performance could run afoul of the bill's provisions
by capturing other children in the photo." [ Staff Note : This is
not likely, and it would only be so if the person were targeting
the other child because of the occupation of the other child's
parent and if the picture were taken in a manner that caused a
reasonable child substantial emotional distress.] MPAA suggests,
as an alternative, that the bill should simply provide enhanced
penalties for those who commit assault, battery, false
imprisonment, or trespass accompanied by taking or attempting to
take a photograph, as was done in AB 2479, which was enacted in
2010 and added enhanced penalties to the reckless driving
statute. MPAA believes that such an approach would provide a
deterrent; but by focusing on the offensive conduct, instead of
the effort to capture an image, it would not raise the same
First Amendment issues.
The California Newspaper Publishers Association (CNPA) opposes
this bill because, it believes, "the increased penalties and
liabilities . . . improperly abridge First Amendment protected
newsgathering activity that occurs in public places where a
person normally has no reasonable expectation of privacy." CNPA
also fears that "the bill as it pertains to photography and
recording is overly broad, vague, and infringes upon legitimate
and protected forms of speech and expression." CNPA notes that
existing law - which it says it also staunchly opposed - created
liability for photographers who committed a "constructive"
invasion of privacy in the process of attempting to take a
photograph or capture a voice recording. According to CNPA, to
its knowledge, no plaintiff has successfully sued under the
existing law, and it fears that this measure "will do nothing
more than sanction nuisance lawsuits by disgruntled subjects of
news photographs." CNPA believes that the enhanced penalties and
civil liabilities will do nothing to deter the extreme and
dangerous conduct of the paparazzi but will only chill free
speech that is protected by the First Amendment.
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The National Press Photographers Association (NPPA) and the
California Broadcasters Association (CBA) oppose this bill for
many of the same reasons articulated by CNPA. However, NPPA
notes that existing law already appropriately punishes a person
who engages in harassment against a child because of the
occupation of the child's parent or guardian, but that this bill
raises First Amendment concerns by singling out attempts to take
a photograph - an activity commonly done for valid newsgathering
or expressive activities, especially if the attempt to take the
photograph is in a public place where there is no reasonable
expectation of privacy. While NPPA generally agrees with the
arguments made by the other opponents to this bill, it expressly
rejects the proposed MPAA amendment to follow the example of AB
2479 by imposing enhanced penalties where the unlawful conduct
is accompanied by an attempt to take a photograph. According to
NPPA, such an approach would still single out constitutionally
protected activity for special treatment, and NPPA further notes
that AB 2479 was recently struck down as unconstitutional by a
Los Angeles Superior Court judge precisely because it provided
an enhanced penalty for reckless driving only where the reckless
driver was attempting to take a photograph, as opposed to any
other reason that someone might engage in reckless driving.
PROPOSED AUTHOR AMENDMENTS TO BE TAKEN IN APPROPRIATIONS
COMMITTEE : The author wishes to take the amendments listed
below. However, for timing reasons, these amendments will
formally be taken in the Assembly Appropriations Committee,
which will hear this bill should it move out of this Committee.
- On page 3, line 4, delete "written" and insert: express
- On page 3 delete subdivision (d), lines 19-25, and
insert:
( d) Upon a violation of this section, the parent or legal
guardian of an aggrieved child or ward, may bring a civil action
against the violator on behalf of the child or ward. The
remedies in such civil action shall be limited to one or more of
the following: actual damages, punitive damages, reasonable
attorney's fees, and costs, and disgorgement of any compensation
received by the individual who recorded the child's image or
voice in violation of this section from the sale, license or
dissemination of such recording.
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REGISTERED SUPPORT / OPPOSITION :
Support
California Medical Association
California National Organization of Women
California Police Chiefs Association
California Psychological Association
California State Sheriffs' Association
City of Los Angeles
Crime Victims United of California
Los Angeles County District Attorney's Office
Los Angeles Sheriff's Department
Screen Actors Guild/American Federation of Television and Radio
Artists (SAG-AFTRA)
State Coalition of Probation Organizations
Several Individuals and two law professors
Opposition
California Broadcasters Association
California Newspaper Publishers Association
Motion Picture Association of America
National Press Photographers Association
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334