As of January 1, 2010, paparazzi that commit an assault while attempting to photograph, videotape or record an individual may be liable for three times the amount of general damages caused by the assault. They will also be prohibited from profiting from the media they obtain. Similarly, publishers, such as newspapers and magazines, may be held liable for directing, inducing or soliciting such behavior.

The law taking effect was signed by California Governor Arnold Schwarzenegger in October 2009 and will amend California Civil Code section 1708.8, which was enacted pursuant to a bill passed in 1998. Known by many people as “Stalkerazzi,” one of the main restrictions contained in the current version of section 1708.8 is the prevention of photographing, videotaping or recording of an individual engaged in a personal or familial event, during which said individual had a reasonable expectation of privacy. Section 1708.8 is not being superseded by the amendment, but just being added to. One repercussion of the inclusion of an additional punishment for publishers implicitly supporting assaults by paparazzi may be a chilling effect on speech. This chilling effect could be unconstitutional.

The First Amendment of the United States Constitution states that, “Congress shall make no law…abridging the freedom of speech, or of the press…” Contrary to popular belief, this Constitutional right to free speech has restrictions. There are certain exceptions that have been upheld by the United States Supreme Court. However, a law abridging a group’s freedom of speech, if challenged in court, must be analyzed under one of three legal standards to determine whether it is constitutional: the rational basis test, intermediate scrutiny or strict scrutiny. Content-based speech restrictions must pass strict scrutiny.

Although Stalkerazzi may not be a content-based restriction on its face, it is likely so in practice. Stalkerazzi would punish people violating the law whether celebrities are the subject of the photographs or video, or whether an unknown person is the subject. But realistically, this law will apply mostly to paparazzi-obtained, celebrity-based media. Most stalkers of non-famous people will probably not go to the extreme of viciously chasing someone’s vehicle to get a photograph, as paparazzi have done to unfortunate celebrities including Reese Witherspoon and Lindsay Lohan. Photographs, video and recordings of celebrities will be predominantly affected. News outlets may be hesitant to run media containing celebrity subjects for fear of being held in violation of section 1708.8. This is the potential chilling effect Stalkerazzi could have on dispensing news and information to the public.

Since Stalkerazzi is a content-based speech restriction, it must pass strict scrutiny, which means it must be the least restrictive means to accomplish the desired goal, and there must be a compelling government interest justifying the need for the restriction. If Stalkerazzi is challenged, it will have to pass this standard in court.

In addition to possibly violating First Amendment free speech protection by potentially unjustifiably restricting content-based speech, it is also possible Stalkerazzi could violate the First Amendment for other reasons, such as being overbroad or vague.

In the annals of most unlikely lawsuits comes this grand daddy; greeting-card maker, Hallmark, in a lawsuit with pseudo-celebrity, Paris Hilton. The suit revolved around a card made by Hallmark featuring what can only be described as a caricature of Hilton delivering one of her famous lines, “That’s Hot”. Seems innocuous doesn’t it? Hilton on the other hand decided it was not so innocuous and move to bring suit. On what grounds do her claims rest, you ask? It would appear, in an unlikely move of marketing and IP genius, young Ms. Hilton trademarked her phase, “That’s Hot”. In case you were wondering, yes, that is apparently legal. Most relevant to this article, she also sued for the misappropriation of her public image.

Predictably, Hallmark dragged out the usual defenses, namely, the First Amendment’s protection of free speech. Included among the usual suspects of defenses was an interesting move. A move to strike Hilton’s misappropriation claim based on California’s Anti-SLAPP laws (CCP § 425.16). The Anti-SLAPP law (found <a href=”http://casp.net/statutes/cal425.html“><u>here</u></a>) moves to prevent intimidation and the silencing of critics by use of the courts and burdensome and expensive litigation. Said simply, Anti-SLAPP is a move by the California Legislature to protect people’s freedom of speech from unnecessary litigation.

Hilton argued that (well her lawyers argued) the card itself was commercial speech and thus only allowed minimal protection. Hallmark countered saying it was free speech, satirizing Hilton. The court sided with Hallmark, further stating commercial speech is speech merely advertising or soliciting business and not, as Hilton would argue, anything connected to the product of that company.

Although Hallmark met the threshold for Anti-SLAPP protection, Hilton was still allowed to go forth with her misappropriation claim. Although Hallmark’s free speech is the source of Hilton’s suit, as long as she can sustain a legal claim she cannot be prevented from suing Hallmark on her misappropriation claim.

The court further said, “”We must conclude that Hallmark cannot employ the ‘public interest’ defense because its birthday card does not publish or report information.”

The case has now been handed down for trial.