Indecent Exposure? Proposed "Steven Tyler Act" May Protect Celebrities from Photographers, Reporters
BY MALIA ZIMMERMAN - Steven Tyler hasn’t been shy about bearing his body on the golden sandy beaches of Maui where he recently purchased a $4.8 million home. Photographers often catch the 64-year-old rock star at the edge of Maui’s rolling surf in nothing but a teeny-weeny bikini bottom – and some shelled jewelry.
Celebrity magazines are not always kind to the lead singer of the legendary rock band Aerosmith, who just gave up his gig as an American Idol judge.
A recent report includes him in a photo series of “Celebrity beach bodies we never wanted to see.” The Daily Mail commented on a photo noting “certain things are starting to go on the slide” and adding “The ageing rocker and Dude (Looks Like A Lady) singer stripped down to reveal his 'man boobs' - otherwise known as 'moobs'.” The international media even captured him on a Maui nudist beach – no, not naked, but in what editors called “fancy feminine trousers.”
The commentary may be harsh, but do Tyler and the dozens of other celebrities who live on Maui - including Oprah Winfrey, Willy Nelson, Kelsey Grammar, Helen Hunt, Carlos Santana, Randy Travis, Roseanne Barr and Woody Harrelson - deserve special protection from reporters and photographers? What about the hundreds of celebrities, such as Britney Spears, or the government dignitaries, who visit?
Some Hawaii lawmakers believe public figures do deserve added protection. State Senator Kalani English, a Democrat from Maui, introduced the “Steven Tyler Act,” which makes it a civil tort to invade the privacy of celebrities.
The bill, which he wants to enact to “encourage celebrities to visit and reside in our State by creating a civil cause of action for the constructive invasion of privacy,” can be used to prosecute a reporter or photographer “if the person captures or intends to capture, in a manner that is offensive to a reasonable person, through any means a visual image, sound recording, or other physical impression of another person while that person is engaging in a personal or familial activity with a reasonable expectation of privacy.”
English writes in his legislation, which many of the state’s 25 Senators signed onto: “Hawaii is home to many celebrities, particularly on Maui, who are subjected to harassment from photographers and reporters seeking photographs and news stories. The privacy of these celebrities endure unwarranted invasion into their personal lives. Although their celebrity status may justify a lower expectation of privacy, the legislature finds that sometimes the paparazzi go too far to disturb the peace and tranquility afforded celebrities who escape to Hawaii for a quiet life.”
English writes: “…existing Hawai‘i statutes are silent on a civil cause of action for constructive invasion of privacy. Therefore, many celebrities are deterred from buying property or vacationing in Hawai‘i because the same paparazzi that harass them on the mainland are more likely to follow them to Hawaii.”
In an interview with Hawaii Reporter, English notes the legislation is named the "Steven Tyler Act" because Tyler was willing to come forward and represent the interests of other celebrities concerned about privacy.
English said civil fines will be limited to those who invade the private space of a public figure by photographing them in their home or hotel room without permission, but out in the open, the public figure is still fair game.
Jeff Portnoy, a Hawaii attorney who specializes in First Amendment law and represents several media outlets including Hawaii Reporter, said this proposed legislation should be defeated.
While some have questioned whether the law would be unconstitutional, Portnoy said it may not be as Hawaii has a Constitutional provision regarding privacy. But he added that the bill certainly goes against years of court precedent regarding “reasonable expectation of privacy."
"Sounds like some 'celebrity' got to some of the legislators," Portnoy said. "It needs to be defeated in its present form or expect lots of litigation."
English maintains the legislation is constitutional because there are similar laws in existence in California and New York.
However, Bethany C.K. Ace, an attorney at Damon Key Leong Kupchak Hastert, said there are clearly several questions about whether or not this bill unconstitutionally interferes with the First Amendment -- both the freedom of speech and related freedom of press.
"Laws limiting First Amendment rights must be as minimal as possible to achieve a legitimate and compelling government interest. Regardless of whether this government interest exists, SB 465 may be too broad in who could be liable and for what actions. For example, a person arguably could be equally liable under SB 465 for taking a photo of Scott Caan or an average Joe, even for his or her own personal use.
"Moreover, there are many key terms left undefined, making it hard for a person to know what would trigger liability. For example, the act gives no guidance on when a person can have a “reasonable expectation of privacy.” What if you can see into a person’s unfenced yard from a public place? Notably, California’s anti-paparazzi law is much more specific in scope and defines some of these essential terms.
"Without clarifying these terms and narrowing the scope before enactment there is a distinct concern that the act would be challenged and found to violate the First Amendment."
In tomorrow's report, Hawaii Reporter will feature an interview from Steven Tyler and hear more from the bill's author, Sen. Kalani English.
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