BILL ANALYSIS �
AB 1256
Page 1
Date of Hearing: January 14, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 1256 (Bloom) - As Amended: January 6, 2014
As Proposed to be Amended
SUBJECT : civil law: privacy: entry and exit of facilities
KEY ISSUES :
1)Should it be unlawful for a person to obstruct, intimidate, or
otherwise Interfere with another person who is attempting to
enter or exit a school, medical facility, or lodging, and
should a person who engages in such conduct be subject to
civil liability?
2)Should AN existing statute creating civil liability for
"constructive invasion of privacy" be recast so as to
enumerate the kinds of activities that constitute protected
forms of private, personal, and familial activity?
SYNOPSIS
AB 1256 is one of two bills before this Committee that seeks to
curtail the sometimes aggressive conduct of the paparazzi.
Several similar bills have come before this Committee in recent
years, most of which have tried in one way or another to draw a
line between the inappropriate behavior of the most aggressive
paparazzi, on the one hand, and reasonable and legitimate
newsgathering efforts, on the other. This bill would make two
changes to existing law. First, existing law makes a person who
attempts to capture a visual image or sound recording of another
person with the use of an enhanced visual or audio device liable
for "constructive" invasion of privacy, so long as all of the
following are also true: the attempt was made in a manner that
is offensive to a reasonable person; the image or recording
could not have been obtained without a physical trespass in the
absence of the enhanced device; and the plaintiff was engaged in
a "personal and familial activity," as defined. This bill
amends this statute by changing "personal and familial activity"
to "private, personal and familial activity," and then
enumerating examples of what constitutes private, personal, and
familial activity. Second, and more substantively, this bill
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would prohibit, and subject to civil liability, any attempt to
obstruct, intimidate, or otherwise interfere with a person who
is attempting to enter or exit a school, medical facility, or
lodging, as defined. The author and sponsor contend that this
bill is needed to protect not only celebrities, but members of
the public more generally, when paparazzi block access points to
vital facilities. Opponents, representing newspaper publishers
and photographers, contend that the bill's broad language will
have a chilling effect on the First Amendment rights of
legitimate newsgatherers. The summary below reflects proposed
author's amendments. Because this bill is subject to a fiscal
deadline, the amendments will be formally taken in the Assembly
Appropriations Committee, should it move out of this Committee.
SUMMARY : Makes it unlawful for a person to physically obstruct,
intimidate, or otherwise interfere with any person who is
attempting to enter or exit a "facility," as defined, and
revises existing law provisions relating to the constructive
invasion of privacy. Specifically, this bill :
1)Makes it unlawful for any person, except a parent or guardian
acting toward his or her minor child, to commit any of the
following acts:
a) By force, threat of force, or physical obstruction that
is a crime of violence, to intentionally injure,
intimidate, or interfere with, or attempt to injure,
intimidate, or interfere with, any person attempting to
enter or exit a facility.
b) By nonviolent physical obstruction, to intentionally
injure, intimidate, interfere with, or attempt to injure,
intimidate, or interfere with, any person attempting to
enter or exit a facility.
2)Permits any person aggrieved by a violation of the above to
bring a civil action for compensatory and punitive damages,
injunctive relief, and attorney's fees and costs. Permits
plaintiff to elect specified statutory damages. Permits the
state Attorney General, a district attorney, or a city
attorney to bring an action to enjoin a violation, for
compensatory damages on behalf of an aggrieved person, or for
the imposition of specified civil penalties.
3)Defines "facility" to mean any public or private school
grounds, as described, any health facility, as described, or
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any lodging, including a private residence, hotel, temporary
lodging facility, inn, motel, bed and breakfast, or any other
location that provides permanent or temporary lodging to
persons.
4)Specifies that nothing in the provisions above shall be
construed to impair any constitutionally protected activity,
including, but not limited to, speech, protest, or assembly.
5)Revises and recasts an existing statute so as to clarify that
a person is liable for constructive invasion of privacy for
attempting to capture, in a manner that is offensive to a
reasonable person, any type of visual image, sounding
recording, or other physical impression of another person
engaging in a private, personal, and familial activity, as
specified. Defines "private, personal, and familial activity"
for these purposes to include the following:
a) Intimate details of the plaintiff's personal life under
circumstances in which the plaintiff has a reasonable
expectation of privacy.
b) Interaction with the plaintiff's family or significant
others under circumstances in which the plaintiff has a
reasonable expectation of privacy.
c) Where minors are present at a private or public school
and the defendant has been convicted of disrupting school
activities, as specified.
d) Any activity that occurs on a residential property under
circumstances in which the plaintiff has a reasonable
expectation of privacy.
e) Other aspects of the plaintiff's private affairs or
concerns under circumstances in which the plaintiff has a
reasonable expectation of privacy.
EXISTING LAW :
1)Makes a person liable for "physical invasion of privacy" for
knowingly entering onto the land of another person or
otherwise committing a trespass in order to physically invade
the privacy of another person with the intent to capture any
type of visual image, sound recording, or other physical
impression of that person engaging in a personal or familial
activity, and the physical invasion occurs in a manner that is
offensive to a reasonable person. (Civil Code Section 1708.8
(a).)
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2)Makes a person liable for "constructive invasion of privacy"
for attempting to capture, in a manner highly offensive to a
reasonable person, any type of visual image, sound recording,
or other physical impression of another person engaged in a
personal or familial activity under circumstances in which the
plaintiff had a reasonable expectation of privacy, through the
use of a visual or auditory enhancing device, regardless of
whether there was a physical trespass, if the image or
recording could not have been achieved without a trespass
unless the visual or auditory enhancing device was used.
(Civil Code Section 1708.8 (b).)
3)Provides that a person who commits an assault with the intent
to capture any type of visual image, sound recording, or other
physical impression of the plaintiff is subject to the same
treble damages as is a person who commits a physical or
constructive invasion of privacy. (Civil Code Section 1708.8
(c)-(f).)
4)Makes it unlawful for a person to come into any school
building or upon school grounds, without lawful business
thereon, if the person's presence or act interferes with the
peaceful conduct of activities of the school or disrupts the
school or its pupils, and the person remains on school grounds
after being asked to leave, or otherwise engages in a pattern
of conduct that creates a disruption, as specified. (Penal
Code Section 626.8.)
5)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 one year, or by fine
not exceeding $10,000, or both fine and imprisonment.
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. (Penal
Code Sections 19 and 11414.)
6)Prohibits, under the California Free Access to Clinic and
Church Entrances Act, any person from engaging in any of the
following:
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a) By force, threat of force, or physical obstruction that
is a crime of violence, intentionally injures, intimidates,
interferes with, or attempts to injure, intimidate, or
interfere with, any person or entity because that person or
entity is a reproductive health services client, provider,
or assistant, or in order to intimidate any person or
entity, or any class of persons or entities, from becoming
or remaining a reproductive health services client,
provider, or assistant.
b) By force, threat of force, or physical obstruction that
is a crime of violence, intentionally injures, intimidates,
interferes with, or attempts to injure, intimidate, or
interfere with any person lawfully exercising or seeking to
exercise the First Amendment right of religious freedom at
a place of religious worship.
c) By nonviolent physical obstruction, intentionally
injures, intimidates, or interferes with, or attempts to
injure, intimidate, or interfere with, any person or entity
because that person or entity is a reproductive health
services client, provider, or assistant, or in order to
intimidate any person or entity, or any class of persons or
entities, from becoming or remaining a reproductive health
services client, provider, or assistant.
d) By nonviolent physical obstruction, intentionally
injures, intimidates, or interferes with, or attempts to
injure, intimidate, or interfere with, any person lawfully
exercising or seeking to exercise the First Amendment right
of religious freedom at a place of religious worship.
(Penal Code Section 423 et seq.)
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
COMMENTS : This bill, sponsored by the Paparazzi Reform
Initiative, seeks to curtail the sometimes aggressive conduct of
the paparazzi. Several similar bills have come before this
Committee in recent years. These bills usually pit the privacy
rights of celebrities against the interests of news
organizations in reporting upon, and the public's interest in
reading about, the goings-on of the rich, the famous, the
infamous, and others who are simply more interesting than the
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rest of us. Recent legislation on this issue has typically
attempted to shoehorn the conduct of the paparazzi - attempting
to capture a person's image without that person's consent and in
a highly aggressive manner - into existing laws that prohibit
harassment, stalking, or physical and constructive invasions of
privacy.
This bill would make two changes to existing law. First,
existing law makes a person who attempts capture a visual image
or sound recording of another person with the use of an enhanced
visual or audio device liable for "constructive" invasion of
privacy, so long as the person did so in a manner that was
offensive to a reasonable person, the image or recording could
not have obtained without a trespass in the absence of the
enhanced device, and the plaintiff was engaged in a "personal
and familial activity," as defined. This bill would amend this
statute by changing "personal and familial activity" to
"private, personal and familial activity," and then providing
examples of what constitutes private, personal, and familial
activity. Second, and more substantively, this bill would
prohibit, and subject to civil liability, attempts to obstruct,
intimidate, or otherwise interfere with another person who is
attempting to enter or exit a school, medical facility, or
lodging, as defined. This latter provision in the bill draws
almost word-for-word from an existing statute that makes it
unlawful for a person to obstruct, intimidate, or otherwise
interfere with a person attempting to exit or enter a
reproductive health facility. The author and sponsor contend
that this bill is needed to protect not only celebrities, but
members of the public more generally, when paparazzi block
access points to vital facilities.
Relatively Modest Amendments to "Invasion of Privacy" Statute:
Although opponents contend that this bill greatly expands
existing liability and uses vague and unconstitutional language,
the provisions are arguably much more modest and restrained when
viewed in light of existing law, and some of the language that
opponents object to is already in existing law. First,
opponents point to the bill's definition of "private, personal,
and familial activity" to suggest that the bill will make liable
almost any effort to capture a photograph of another person
without consent. While it is true that the definition of
"private, personal, and familial activity" is broadly defined,
it must be recalled that this is only a definition of the kinds
of activity that are subject to the statutory tort of invasion
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of property. Neither under this bill, nor under existing law,
does a person become liable for constructive invasion of privacy
simply by photographing a person engaged in a private, personal
or familial activity; to be liable the person taking the
photograph would also have to meet the elements that constitute
the tort in the substantive provisions of the bill.
Specifically, a person is only liable for constructive invasion
of privacy if that person attempts to capture an image of
another person engaged in private, personal, or familial
activity (1) in a manner that was offensive to a reasonable
person; (2) under circumstances where the plaintiff has a
reasonable expectation of privacy; and (3) using an enhanced
visual or audio device that allows the person to capture an
image that could not have been captured without a trespass in
the absence the enhanced device. These are significant hurdles
indeed, and the provisions of this bill do nothing to lower
them. This bill's amendments to the invasion of privacy statute
merely enumerate kinds of activity that may constitute "private,
personal, and familial activity."
Prohibition on Obstructing Ingress and Egress to a "Facility:"
Of greater substance is the proposed new section of the bill
that seeks to prohibit, and subject to liability, any attempts
to prevent another person from entering or exiting a "facility,"
which the bill defines as a private or public school, a medical
facility, or a lodging, which includes both a private residence
as well as a motel, hotel, or inn that provides temporary
lodging. In addition to declaring that such attempts at
obstruction and interference are unlawful, the bill also permits
any person who is aggrieved by the conduct to bring an action
for injunctive relief, compensatory or punitive damages, or, at
the plaintiff's option, prescribed statutory damages. In
addition, the state Attorney General, a district attorney, or a
city attorney could bring an action for injunctive relief or for
civil penalties of up to $25,000, depending upon the number of
repeat violations.
Although this provision constitutes a substantial change to
existing law, it is not unprecedented or unlimited. The
language of this provision is drawn almost word-for-word from
the California Free Access to Clinic and Church Entrances Act,
which prohibits a person from physically obstructing,
intimidating, or otherwise interfering with a person who is
attempting to enter or exit a reproductive health clinic. Laws
that attempt to create a "buffer zone" around facilities that
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are otherwise open to the public have generally been strictly
scrutinized by the courts, both in California and elsewhere.
Court cases striking down or upholding buffer zones have been
highly fact-specific. (See e.g. Madsen v. Women's Health Clinic
(1994) 512 U.S. 753.) The U.S. Supreme Court is expected to
hear oral arguments this term in the case of McCullen v.
Coakley, which involves a First Amendment challenge to a
Massachusetts law establishing a buffer zone around reproductive
health care centers. [See
http://www.oyez.org/cases/2010-2019/2013/2013_12_1168; the Oyez
website indicates that oral arguments are scheduled for January
15, 2014.] This bill does not create a buffer zone, per se, but
instead prohibits conduct that amounts to physical obstruction,
intimidation, or other attempts to restrict a person's freedom
of movement. Moreover, as proposed to be amended, this bill
seeks to avoid potential constitutional pitfalls by expressly
stating that nothing in the bill shall be construed to impair
any constitutionally protected activity, including, but not
limited to, speech, protest, or assembly.
Finally, California's Free Access to Clinic and Church Entrances
Act - which the language of this bill closely tracks - has been
the law since 2001and has not, to the Committee's knowledge,
been questioned by the courts. The 1994 federal law upon which
the California law is modeled - the Freedom of Access to Clinic
Entrances (FACE) Act - has been challenged, but several federal
circuit courts have upheld FACE and the U.S. Supreme Court has
refused to hear appeals, suggesting perhaps that it agrees with
the holdings of the circuit courts. (See e.g. Norton v.
Ashcroft, 298 F.3d 547 (6th Cir. 2002) (upholding FACE and
citing other circuits upholding); U.S. v. Bird, 401 F.3d 633
(5th Cir. 2005) (same).
ARGUMENTS IN SUPPORT : According to Paparazzi Reform Initiative
(PRI) AB 1256 is a "common sense and narrow approach" that will
provide "vital protections to, among others, medical patients,
parents, and children." PRI claims that there has been "an
alarming increase" in the number of "disruptive paparazzi
intrusions" - including incidents which involved the children of
celebrities. In addition, PRI claims, paparazzi attempts to
obtain photographs of celebrities at hospitals and clinics have
endangered the health and safety of the public more generally.
For example, PRI cites incidents in which hordes of
photographers surrounding hospitals during stays by Britney
Spears and Michael Jackson obstructed hospital entrances and
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blocked ambulance exit lanes. According to PRI, "[ambulance]
delays of nearly 15 minutes were reported while hospital workers
pleaded with the mob to move aside so the ambulances could
leave."
This bill, according to PRI, "accomplishes two very narrow and
modest goals." First, the bill will clarify what constitutes
protected "personal and family activity." Second, PRI contends
that the new code section proposed by this bill - Civil Code
Section 1708.9 - will "deter blockades surrounding the entrances
of important facilities." PRI argues that this measure will
"not affect speech; it only delineates where it is impermissible
to station oneself."
ARGUMENTS IN OPPOSITION : The California Newspaper Publishers
Association (CNPA) opposes this bill, suggesting that it will
"move the law from an ostensible invasion of privacy tort to an
image control tool, allowing celebrities to control the
dissemination of unplanned and potentially unflattering images
through the threat of litigation." As for the first section of
the bill - which recasts the constructive invasion of property
statute by identifying what constitutes a "private, personal,
and familial activity" - CNPA claims that the bill's "vague" and
"expansive" language could potentially create "extreme tort
liability even when plaintiffs are engaged in the most mundane,
routine, or trivial activities, occurring almost anyplace. The
bill would create extreme tort liability for taking pictures of
anyone - not just the rich and famous - in public places like
restaurants, hotels and schools." CNPA also objects to the
creation of the new section prohibiting obstruction or
interference with persons attempting to enter or exit certain
facilities, as it appears to create "a floating bubble around
subjects of news." CNPA is concerned that, as currently
drafted, the bill will allow disgruntled news subjects to bring
lawsuits while doing nothing to stop the dangerous conduct of
the paparazzi.
CNPA's larger objection, however, is that this bill is yet
another attempt to expand upon the anti-paparazzi law that was
passed thirteen years ago in an effort to subject photographers
to liability for "constructive" trespass if they infringed upon
someone's reasonable expectations of privacy in an offensive
manner. CNPA opposed the original legislation as a violation of
the First Amendment, and thus it understandably continues to
oppose efforts to expand it.
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The National Newspaper Photographers Association (NNPA), like
CNPA, argues that this bill, however well-intended in its effort
to stop the worst paparazzi conduct, will have a chilling effect
on the First Amendment rights of legitimate newsgatherers. NNPA
believes that existing law already provides sufficient remedies
for invasion of privacy, trespass, and other kinds of
objectionable conduct, but NNPA contends that this bill, by
focusing as it does on attempts to take photographs, fails to
distinguish between valid newsgathering and the objectionable
acts of the paparazzi.
PROPOSED AUTHOR'S AMENDMENTS : In order to address concerns
raised by the Motion Picture Association of America (MPAA), the
author has agreed to take a number of amendments. These
amendments will, apparently, remove MPAA's opposition. Because
this is a fiscal bill that must be heard by the Appropriations
Committee by the fiscal deadline, these amendments will formally
be taken in Appropriations Committee, assuming the measure moves
out of this Committee. These amendments are already reflected
in the bill summary of this analysis.
- On page 6, lines 31-32 delete "or other activities or
locations in which a plaintiff has a reasonable expectation
of privacy."
- On page 8, line 31, insert: (e) This section shall not
be construed to impair any constitutionally protected
activity, including, but not limited to, speech, protest,
or assembly.
- On page 8, lines 9-10, delete "facility, on its own
behalf, or an authorized representative or owner of a
facility" and insert: person
- On page 8, line 22, delete "facilities" and insert:
persons or entities
- [ NOTE : The last two amendments listed above effectively
restore text that was amended on January 6, 2014, except
that the addition of the remedy "for injunctive relief"
(page 8, line 12) will be retained. Changing "facility"
back to "person" will not prevent a facility from bringing
an action, as the facility, or a facility owner, would also
be a legal "person;" however, changing "facility" back to
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"person" will allow a person who uses the facility and is
subject to the prohibited conduct to have a remedy as
well.]
Recent Related Legislation: SB 606 (De Leon) increased the
penalties for the intentional harassment of a child or ward of
another person because of that person's employment and it
specified that conduct occurring during the attempt to capture a
child's image or voice may constitute harassment if specified
conditions occur. (Chapter 348, Statutes of 2013.)
AB 2479 (Bass) provided that a person who commits "false
imprisonment" with the intent to capture any type of visual
image, sound recording, or other physical impression of a
plaintiff is subject to liability under the civil invasion of
privacy statute and, as such, liable for damages and remedies
available pursuant to that statute. This bill also amended the
Vehicle Code to create heightened penalties for persons who
engaged in unlawful forms of reckless driving while attempting
to capture a visual image of another person. (Chapter 685,
Statutes of 2010.)
AB 524 (Bass) amended the "invasion of privacy" statute (Civil
Code Section 1708.8) so that a person who sells, transmits,
publishes, or broadcasts an image, recording, or physical
impression of someone engaged in a personal or familial activity
violates the state's "invasion of privacy" statute. Previously,
the statute had only applied to the person who wrongfully
obtained the image, recording, or physical impression, but not
necessarily the entity that sold or published the image,
recording, or impression. (Chapter 499, Statutes of 2009.)
REGISTERED SUPPORT / OPPOSITION :
Support
Paparazzi Reform Initiative (sponsor)
One individual
Opposition
California Newspaper Publishers Association
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Motion Picture Association of America (to pre-amended version)
National Press Photographers Association
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334