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 Section 1708.8 is not being superseded by the amendment, but just being added to.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