At the SWSW festival Friday, an overexcited fan snapped a photo of Jake Gyllenhaal as he relieved himself at a urinal. While some report that a minor scuffle ensued, Gyllenhaal’s rep says, “There was no scuffle, it was an excited fan who tried to take his picture in the restroom. He asked the guy to please delete it and he did! No drama.” While many celebs would be understandably upset, Jake took it in stride.
“I think it’s an appropriate space to keep privacy,” the actor joked to Entertainment Weekly at the panel Saturday. “I hope that people wouldn’t disagree with me on that.”
Do celebrities give up their personal privacy by virtue of their vocation? By the looks of most magazines on your supermarket’s checkout aisle, the answer appears to be no. While we decry the paparazzi for being vapid bottom-feeders, we easily drop $3.49 for an issue of US Weekly because there’s a picture of Angelina Jolie in Central Park’s petting zoo with her children or of Matthew McConaughey walking his dog barefoot in Malibu. Clearly, there is a market for candid celebrity photos, so the paparazzi are not the only ones to blame.
There is a balance between the First Amendment rights to freedom of the press and an individual’s less-defined right to privacy or, as stated so eloquently by the Supreme Court’s Justice Louis Brandeis, right to be left alone. With the advent of individual personal publishing, a lá blogs and social media, anyone with a camera could enter the game.
Traditionally, there has been some legal protection of the celebrity from the photographic press. For instance, when Ronald Galella. a photographer, became continually overaggressive with her and her
children, Jackie Onassis Kennedy sought and obtained an injunction under theories of harassment, intentional infliction of emotional distress, assault and battery, commercial exploitation of her personality, and invasion of privacy. Finding that Galella had “insinuated himself into the very fabric of Mrs. Onassis’ life,” the court enjoined him from coming within fifty yards of Jackie Onassis and within seventy-five yards of her children. In 1998, two photographers were convicted of false imprisonment for following and blocking a car driven by Arnold Schwarzenegger in which his wife and at least one of his children were passengers. In the wake of this incident, the 1997 death of Princess Diana–purportedly due to overaggressive paparazzi driving her car off the road–and four failed attempts of Congress to pass federal anti-paparazzi legislation, California made its own law. In the nation’s first anti-paparazzi statute, California created tort liability for “physical” and “constructive” invasions of privacy through photographing, videotaping, or recording a person engaging in a “personal or familial activity.”
Photographers and other members of the press clearly do not have special protection from the application of our general laws prohibiting assault and battery, false imprisonment, stalking, and trespass. However, our government is also limited from restricting the First Amendment activities of individuals or the press without a compelling governmental interest. As far as I know, no court has found such an interest in specifically preventing photographers from taking pictures of celebrities. Nevertheless, how would such a law be applied? How can legislation be drafted clearly enough to be understood by a citizen photographer to avoid criminal liability? Some anti-paparazzi legislation uses the term, “persistently follows.” What does that even mean? How much following would be deemed sufficiently “persistent”? In any event, isn’t it the job of the investigative reporter to stay on the trail and follow a story?
Are we then to limit the law to the subject? Should we only protect celebrities? That seems to be an odd, and probably unconstitutional vague, line in the sand. Who is a celebrity? Tom Cruise? Paris Hilton? Snooki? Hey, I am known for the Battle at Kruger. Am I celebrity? I don’t think so, but how would we define those lines? In light of our freedom of the press, I don’t think it is something we should even consider.
While the specifics of a photographer’s rights and limits may be the subject a future post, allow me to to finish this article by forwarding you to an interesting product: the Photographers Rights Gray Card Set.