BY ROBERT THOMAS – This post has nothing to do with our usual menu of takings, property, and other issues. But we just had to point out to you two articles which feature comments by our Damon Key colleague Bethany Ace, adding her thoughts about the “Steven Tyler Act” (yes, that Steven Tyler), a bill now pending in the Hawaii Legislature.
The Act purports to protect celebrities from being offended by invasive photographers by creating a new tort called — get this — “constructive invasion of privacy.” For some lighthearted reading on this Friday, check out the recitals:
The legislature finds that Hawai‘i 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 Hawai‘i for a quiet life.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 Hawai‘i. However, a few celebrities are not discouraged from visiting or residing in our beautiful State. For example, Steven Tyler, the lead singer of Aerosmith for over forty years, former “American Idol” judge, and world-renowned celebrity has recently purchased a home on Maui. He will now be sharing his time between Boston, Los Angeles, and his new home on Maui. In honor of Steven Tyler’s contribution to the arts in Hawai‘i and throughout the world, this Act shall be known as the Steven Tyler Act.
The purpose of this Act is to encourage celebrities to visit and reside in our State by creating a civil cause of action for the constructive invasion of privacy.
Seriously. We never knew the solution to our state’s economic woes was to lure celebrities to here by creating for them an environment free from “offense.” Sort of the same strategy that lured noted Russian actor Gerard Depardieu from France. Brilliant.
In “Indecent Exposure? Proposed “Steven Tyler Act” May Protect Celebrities from Photographers, Reporters,” Hawaii Reporter quotes Bethany on the obvious First Amendment issues in the Act:
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 “Paparazzi in Hawaii? Dream On,” Honolulu Civil Beat reports:
Ace, the First Amendment attorney, said the bill’s vague language could affect more than just paparazzi.”Two things strike me as areas of concern with respect to the scope of the First Amendment,” she said. “The preamble to the bill specifically mentions celebrities but nothing is said about limiting the act to celebrities and paparazzi. Could being liable for taking photos of celebrities also apply to just some random person? Courts are not tolerant of vague statutes that can inhibit speech. When does someone have an expectation to the right to privacy? California has a similar anti-paparazzi law with more specific definitions of key terms.”
You just can’t make this stuff up, can you? Reality beats fiction every time.