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 Section 1708.8 is not being superseded by the amendment, but just being added to.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.

California Civil Code §§ 1746-1746.5 states that “[a] person may not sell or rent a video game that has been labeled as a violent video game to a minor,” and carries a civil penalty of up to $1000.  The Act also imposes a labeling requirement that all “violent video games” imported into or distributed in California be “labeled with a solid white ‘18’ outlined in black,” which shall appear on the front face of the game’s package and be “no less than 2 inches by 2 inches” in size.

In 2005, before the Act took effect, the plaintiffs filed suit for declaratory relief on the grounds that the Act violated the First and Fourteenth Amendments, and the District Court granted a preliminary injunction.  In 2007 the court granted plaintiffs’ motion for summary judgment invalidating the Act under strict scrutiny.  Most recently in February 2009, the United States Court of Appeals for the Ninth Circuit affirmed the District Court’s grant of summary judgment finding the Act to be invalid, lacking the support of a compelling state interest and not narrowly tailored to the stated interest of the legislature.  The labeling requirement was similarly struck down as constitutionally invalid compelled speech.

Severability

The State conceded on appeal that the definition of “violent video game” provided by the Act is unconstitutional because “it does not provide an exception for material that might have some redeeming value to minors,” but argued the continued validity of the Act based on a severability clause.  The court agreed with the State and held that the invalid definition could be stricken as grammatically and functionally separable.

Level of Scrutiny

Content-based regulations are presumptively invalid and subject to strict scrutiny.  If less restrictive means for achieving a state’s compelling interest are available, they must be used.  While the State did not argue with the classification of the Act as content based, it argued that under the circumstances the court should apply the Ginsberg[1] “variable obscenity” or “obscenity as to minors” standard.

The Supreme Court has stated that “minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.”[2] The court in the present case declined to expand the Ginsberg standard to regulations concerning violence.  The Ginsberg Court’s own limiting language restricted its holding to cases involving sexually explicit material, which it held to be a sub-category of obscenity rather than a new category of non-protected material.  Obscenity jurisprudence deals almost exclusively with sexually explicit material and has not previously been expanded to violent materials.

Ultimately the court held that the proper standard of review was strict scrutiny and called upon the State to justify the Act with its compelling state interest(s).

Compelling Interest

The stated compelling interests of the State in passing the Act were (1) preventing violent, aggressive, and antisocial behavior; and (2) preventing psychological or neurological harm to minors who play violent video games.  The State later confined its interest to the well-being of the players; however, it was still unable to present persuasive authority showing a causal connection between violent video games and the harm contemplated in passing the Act.  The studies cited by the State to support its argument showed only corollary relationships at best and admitted to their own insufficient sample size.  Several of the studies were not even conducted for the proposition for which they were offered by the State.  Based on a lack of support the Court deemed that the Act did not serve the interest provided by the State.

Narrowly Tailored

Even if the Act were shown to be motivated by a compelling State interest it would still be required to be proven to be narrowly tailored and the least restrictive means of effecting the State’s purpose.  The Court did not believe the Act was narrowly tailored to the State’s interest and cited the possibility of less restrictive programs, namely expansions of the current voluntary industry rating system and increased educations of players and their parents.

Labeling Requirement

While the Court has upheld commercially compelled speech where the state required inclusion of “purely factual and uncontroversial information”[3] in advertising, the ruling that the Act was constitutionally invalid negated the argument that the contents of the label were purely factual information.

[2] Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975).

[3] Zanderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985)