BILL ANALYSIS
AB 67
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Date of Hearing: April 30, 2009
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 67 (Nava) - As Amended: April 20, 2009
SUBJECT : Elections: campaign advertisements and communications.
SUMMARY : Prohibits the use of minor in a campaign ad without
the permission of the minor's parent if the minor is under 12
years of age, or without the permission of the minor if the
minor is 12 years of age or older. Specifically, this bill :
1)Prohibits a person from knowingly using the name, voice,
signature, photograph, or likeness of a minor in an
advertisement or communication for or against a candidate or a
ballot measure without prior written consent from either of
the following:
a) The parent or legal guardian of the minor, if the minor
is under 12 years of age.
b) The minor, if he or she is 12 years of age or older.
2)Provides that a violation of the provisions of this bill is
subject to a civil penalty of $10,000 for each instance in
which the advertisement or communication is published or aired
if a court of competent jurisdiction finds that the privacy
interests of the minor whose identifying information was used
in the advertisement or communication outweigh the speech
interests of the person who used the identifying information
of the minor in the advertisement or communication.
3)Defines "person" for the purposes of this bill to include a
firm, association, corporation, campaign committee or
organization.
EXISTING LAW provides that any person who knowingly uses the
name, voice, signature, photograph, or likeness of a minor for
commercial purposes without the prior consent of the minor's
parent or legal guardian is liable to the injured party or
parties in an amount equal to the greater of $750 or the actual
damages suffered, as well as any profits from the unauthorized
use that are attributable to that use. Provides that the use of
a minor's name, voice, signature, photograph, or likeness in
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connection with a political campaign does not require consent of
the minor's parents.
FISCAL EFFECT : Unknown
COMMENTS :
1)Purpose of the Bill : According to the author:
When I saw the exploitation of children by the Yes on 8
campaign, I was outraged. The use of the images of these
children without parental consent is a violation of their
right to privacy. This bill makes that right clear by
prohibiting these commercials all together.
Current law is somewhat unclear on this issue, and
political campaigns like Yes on 8 have little fear that
anyone will ever actually take them to task for such
commercials.
This bill appreciates competing Constitutional rights of
privacy for the child and First Amendment rights of the
campaign. Consequently, this bill requires the court to
weigh the privacy rights of the child against the free
speech rights of the campaign before awarding any civil
penalties.
2)First Amendment Issues : This measure could be interpreted as
a violation of the United States and California Constitutions'
guarantees to free speech. While the right to freedom of
speech is not absolute, when a law burdens core political
speech, the restrictions on speech generally must be "narrowly
tailored to serve an overriding state interest," McIntyre v.
Ohio Elections Commission (1995), 514 US 334.
In prohibiting the use of the image or likeness of minor in a
campaign ad without permission, this bill attempts to protect
the privacy interests of minors, however, in so doing, it
significantly restricts the ability of campaigns to use the
names, images, and likenesses of minors without first
obtaining written permission. This is true even if the images
of minors that are used are obtained at a public event that is
occurring in a public place.
To protect against possible First Amendment problems, this bill
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has been drafted to provide that penalties can be assessed for
a violation of the bill only if a court of competent
jurisdiction finds that the privacy interests of the minor
whose identifying information was used in the advertisement or
communication outweigh the speech interests of the person who
used the identifying information of the minor in the
advertisement or communication. While this does allow courts
to weigh the privacy interests of a child against the free
speech rights of a political campaign, it is possible that the
potential penalties under this bill - $10,000 per instance in
which an ad using the image or likeness of a minor without
permission is aired - are high enough to deter campaigns from
using images of minors without permission even under
circumstances where a court likely would find that the speech
interests of the campaign outweighed the privacy interests of
the minor. To the extent that the high penalties proposed by
this bill cause campaigns to curtail their speech even in
situations where such speech is entirely protected by the
First Amendment, then, this bill still could be interpreted as
an impermissible burden on the United States and California
Constitutions' guarantees to free speech.
3)Right of Publicity : Existing state law generally provides a
"right of publicity," whereby a person's name, voice,
signature, photograph, or likeness cannot be used for
commercial purposes without that person's consent, or in the
case of a minor, without the consent of the minor's parents.
A violation of the law is punishable by civil penalties to be
paid to the injured party, and can include payment of punitive
damages and of any profits from the unauthorized use of a
person's name, voice, signature, photograph, or likeness to
the injured party. However, California's right of publicity
laws specifically provide that a person's permission is not
required for the use of his or her name, voice, signature,
photograph, or likeness in connection with any news, public
affairs, or sports broadcast or account, or in connection with
any political campaign.
4)Technical Concerns : As currently written, this bill could be
construed to prohibit the use of a shot of a large crowd of
people in a campaign ad without the prior written consent of
every minor in the crowd. Similarly, this bill could be
construed to prevent a campaign from using news footage in a
campaign ad if that news footage contained the name, voice,
photograph, or likeness of a minor. Finally, to the extent
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that one candidate or one side on a ballot measure used a
minor's name, name, voice, signature, photograph, or likeness
in a misleading advertisement, this bill could limit the
ability of an opposing candidate or the opposing side to
respond by referring back to the original ad.
5)Double-Referral : This bill has been double-referred to the
Assembly Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file.
Opposition
None on file.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094