Led by actress Halle Berry, celebrity parents scored a major victory last week against tabloid photographers when California Governor Jerry Brown signed into law a bill that increases penalties for “harassment” of children due to their parents’ jobs. To drive home the message of the new legislation, the bill amended the current law’s definition of harassment to explicitly include photographing or recording a child without parental consent. However, the everyday SoCal tourist should not fear prison time for snapping a shot of famous progeny, as “harassment” under the new law only includes unwanted photographs taken by “following the child or guardian’s activities” or “by laying in wait.”

Paparazzi "laying in wait"

So where is the legal divide? While most individuals cannot sympathize with celebrities making millions of dollars off of the free, albeit inconvenient, paparazzi-supplied publicity, even non-parents see the harm that can result to a child from being continuously stalked by strangers. As Halle Berry testified before the California legislature in June, she recounted instances of her six-year-old daughter, Nahla, breaking into tears after being ambushed by photographers, crying, “Are they going to kill us?” Surely children should not have to live in fear that “the men” are looking for them.

However, news publishing organizations believe that the California legislature is playing a dangerous game by restricting the First Amendment rights of photographers and ultimately interfering with legitimate news gathering. While the “monster’s bill” does not create any new offenses, it greatly enhances the penalties for photographers found guilty of harassing celebrity children – increasing maximum jail time under the law from six months to one year, and raising the maximum fine for first time offenses from $1,000 to $10,000. Yet bill opponents, including the Motion Picture Association of America and the California Newspaper Publishers Association, do not expect the new measures to have the impact on child safety that supporters desire. Experts have postulated that such heightened penalties may deter legitimate news gatherers who fear judicial censure, while there will always be a steady supply of “hungry” photographers willing to fill the shoes of their reprimanded predecessors.

Ultimately, the law is only as good as its defense in court. As there are clear First Amendment objections [Full disclosure: the First Amendment Center is affiliated with Vanderbilt University. --Ed.] to restrictions on news gathering by the press, the law is sure to be challenged as photographers are hailed into court. While pictures of Suri Cruise’s breakfast may not invoke the policy considerations embedded in the First Amendment by our nation’s forefathers, it is a core axiom of U.S. jurisprudence that the quality of speech bears no relation to its First Amendment protection. Will mainstream America ever discover what Seraphina Affleck wears to her first day of school? A California court will have to decide.

Kate Haywood

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