SPEAKERS CONTENTS INSERTS
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57–340
1999
PROTECTION FROM PERSONAL INTRUSION ACT AND PRIVACY PROTECTION ACT OF 1998
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
SECOND SESSION
ON
H.R. 2448 and H.R. 3224
MAY 21, 1998
Serial No. 97
Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
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Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
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JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
THOMAS E. MOONEY, SR., Chief of Staff-General Counsel
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
C O N T E N T S
HEARING DATE
May 21, 1998
OPENING STATEMENT
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Hyde, Hon. Henry J., a Representative in Congress from the State of Illinois, and chairman, Committee on the Judiciary
WITNESSES
Cochran, Barbara, President, Radio-Television News Directors Association
Fox, Michael J., Actor
Guttman, Dick, President, Guttman Associates Public Relations/Marketing
Lessig, Lawrence, Professor, Harvard Law School
Levin, Ellen, President, The Jennifer Dawn Levin Victim Memorial Fund
Lutman, David R., President, National Press Photographers Association
Masur, Richard, Actor, and President, Screen Actors Guild
McMasters, Paul K., First Amendment Ombudsman, The Freedom Forum
Reiser, Paul, Actor
Richards, Robert, Associate Professor of Journalism and Law, Penn State University, and Director, Penn State Center for the First Amendment
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Tash, Paul C., Executive Director, St. Petersburg Times, and Chairman, Freedom of Information Committee, American Society of Newspapers Editors
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Beatty, David, Director of Public Policy, National Victim Center:
Letter dated May 19, 1998, to Members of the House Judiciary Committee
Cochran, Barbara, President, Radio-Television News Directors Association: Prepared statement
Fox, Michael J., Actor: Prepared statement
Guttman, Dick, President, Guttman Associates Public Relations/Marketing: Prepared statement
Jackson Lee, Hon. Sheila, a Representative in Congress from the State of Texas: Prepared statement
Lessig, Lawrence, Professor, Harvard Law School: Prepared statement
Levin, Ellen, President, The Jennifer Dawn Levin Victim Memorial Fund: Prepared statement
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Lutman, David R., President, National Press Photographers Association: Prepared statement
Masur, Richard, Actor, and President, Screen Actors Guild: Prepared statement
McMasters, Paul K., First Amendment Ombudsman, The Freedom Forum: Prepared statement
Reiser, Paul, Actor: Prepared statement
Richards, Robert, Associate Professor of Journalism and Law, Penn State University, and Director, Penn State Center for the First Amendment: Prepared statement
Scott, Shelby, National President, American Federation of Television & Radio Artists:
Letter dated April 13, 1998, to Richard Masur, President, Screen Actors Guild
Tash, Paul C., Executive Director, St. Petersburg Times, and Chairman, Freedom of Information Committee, American Society of Newspapers Editors: Prepared statement
APPENDIX
Material submitted for the record
PROTECTION FROM PERSONAL INTRUSION ACT AND PRIVACY PROTECTION ACT OF 1998
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THURSDAY, MAY 21, 1998
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice at, 9:05 a.m., in Room 2141, Rayburn House Office Building, Hon. Henry J. Hyde (chairman of the committee) presiding.
Present: Representatives Henry J. Hyde, Bill McCollum, George W. Gekas, Howard Coble, Elton Gallegly, Bob Inglis, Bob Goodlatte, Stephen E. Buyer, Ed Bryant, Bob Barr, William L. Jenkins, Asa Hutchinson, James E. Rogan, Mary Bono, John Conyers, Barney Frank, Howard L. Berman, Robert C. Scott, Sheila Jackson Lee, Martin T. Meehan, and William D. Delahunt.
Staff present: Thomas E. Mooney, Chief of Staff—General Counsel; Jon Dudas, Staff Director—Deputy General Counsel; Diana L. Schacht, Deputy Staff Director—Chief Counsel; Daniel M. Freeman, Parliamentarian—Counsel; Sheila F. Klein, Executive Assistant to General Counsel; Samuel F. Stratman, Press Secretary; Shawn Friesen, Staff Assistant; Mitch Glazier, Chief Counsel, Subcommittee on Courts and Intellectual Property; Paul J. McNulty, Chief Counsel, Subcommittee on Crime; Julian Epstein, Minority Chief Counsel and Staff Director; Perry Apelbaum, Minority General Counsel; and Samara Ryder, Minority Counsel.
OPENING STATEMENT OF CHAIRMAN HYDE
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Mr. HYDE [presiding]. The committee will come to order.
Last year, a stunned America heard the news of Princess Diana's untimely death. Early reports lay blame for the accident that caused her death on photographers whose reckless pursuit through a Paris tunnel caused her car to careen out of control. Instantly, debate centered on the need to curb the increasingly outrageous conduct of celebrity photographers. The role of the media in the Princess's death has now been disputed, but the controversy over its conduct continues.
At issue is the proper balance between the press' ability to engage in news gathering and an individual's right to privacy and personal safety. Freedom of the press is guaranteed by the First Amendment as a fundamental cornerstone of our democracy, but it does not confer a license to engage in criminal conduct in the interest of securing news. When in the guise of getting a story, the press puts someone at risk of death or serious injury, the First Amendment is no shield.
Princess Diana's tragedy is one of the latest and most notorious examples of how the sensationalist press operates. But celebrities have been complaining of similar conduct for years. In fact, the word ''paparazzi,'' the term for the increasingly aggressive celebrity media, has made its way into common parlance. We've learned of the lengths to which reporters will go to score that photo that is just a little more sensationalist than the last one.
It's not just movie stars who find themselves hounded by the paparazzi. People like Ellen Levin, whose story you will hear this morning, also, unwittingly become the target of the invasive press. Ms. Levin's life was doubly traumatized, first, by the fact of her daughter's murder, and then, by the media-feeding frenzy that developed when it was discovered that stories about that murder would sell.
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Of course, the blame for this does not rest solely in the hands of the press. Were it not for our collective interest in the private lives of famous people, and our appetite for lurid reporting and candid photographs, the media would have no reason to seek out these stories. We high-mindedly deride the paparazzi while flipping to a television tabloid show to entertain ourselves with coverage of the so-called inside story about Frank Sinatra's death.
In fairness to the media, we must acknowledge that most reporters and photographers do not engage in paparazzi-like conduct. But for the individuals whose privacy and safety is sacrificed to those who do, this is small consolation.
Our discussion this morning will focus on how best to protect the rights of the subjects of media attention from this small minority of wayward individuals.
We really have Sonny Bono to thank for our being here today. It was Sonny who first took up this issue as his cause and who convinced me and the committee that it was a subject worth pursuing. Fortunately, for him and for us, Elton Gallegly was there to step into the void left by his death. He has modified and improved upon Sonny's idea, making it a Federal crime to persistently follow someone in order to obtain a visual or audio impression of that person.
The intent of this approach is to limit the scope of the crime, the conduct which unreasonably threatens the safety of the media target. The person who is pursued would also be given a civil right-of-action against the offending pursuer. I understand that an additional legislative proposal is being drafted which would create a Federal cause of action for technological invasion of privacy. Although not technically within the scope of this hearing, I will invite our witnesses to comment on it, should they care to.
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I look forward to a very interesting hearing, and now I turn to the ranking member, Mr. Conyers of Michigan, for an opening statement.
Mr. CONYERS. Thank you, Mr. Chairman, and good morning. ladies and gentlemen, members of the committee.
In a way this goes, to me, beyond the tragedy of the death of Princess Diana. It extends even to the privacy rights of the President of the United States. And I would ask that this not be considered just a celebrity-directed piece of legislation.
We've all unanimously decried the excesses of celebrity reporters and photographers, and the nearly totally unregulated legions of them who recklessly endanger and invade the privacy in order to profit from the tragedies, or even things that aren't tragedies, that they think are just interesting. We'll hear a lot about it today.
And I think that this covers the considerations around both the right of the press to be free and vigorous, and the First Amendment protections. But both these protections are not licenses to recklessly endanger or to steal away from us our precious privacy rights that we hold dear.
So, I have a proposal that goes beyond Sonny Bono's and Elton Gallegly's that creates Federal criminal penalties for paparazzi who in the course of interstate commerce recklessly endanger their targets, and Federal civil penalties for the invasions of the privacy that we all want to protect. The fact of the matter is that, where these existing remedies may be thought to exist at the State level, they're varied and sometimes quite differently interpreted and enforced.
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With regard to the invasions of privacy, the proposal that I would discuss with you recognizes the realities of the new information age. It recognizes that technology can invade our most deeply personal activities, that we can now have our living rooms and bedrooms invaded in the name of sensationalist journalism. So that's why I feel creating a Federal civil remedy is very, very important, because such invasions which are achieved with new technological means that Justice Brandeis could not have foreseen, which are achieved by incredibly advanced state-of-the-art equipment, require that we review and revisit the invasions in such area and how we can constitutionally provide against it.
Judge Brandeis, at the beginning of the century, articulated the legal rights that have come to be known as privacy. They're unique in jurisprudence, and it's one of our country's most precious and distinguishing legal characteristics. Today, privacy is being talked about at many levels. We have the question of encryption which create other new considerations. We have activities in telecommunications that raise, again, related serious First Amendment considerations.
So, I welcome the witnesses and look forward to a productive hearing.
Thank you, Mr. Chairman.
Mr. HYDE. I thank the gentleman.
Our first two witnesses this morning are familiar faces of the television and film industry, Paul Reiser and Michael J. Fox. They will be formally introduced by Richard Masur, the president of the Screen Actors Guild. Mr. Masur is also a talented actor and director, and he will be presenting his own testimony as part of our second panel before the committee this morning.
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Our final witness for this panel is Ellen Levin. Ms. Levin was thrust into the public eye following the highly-publicized and tragic murder of her daughter, Jennifer, in New York City in 1986. She is the founder and co-chairperson of Justice For All, a New York organization dedicated to lobbying for the legal rights of victims of violent crimes, and to promoting and supporting crime prevention and public safety bills. Ms. Levin is presently serving on the New York City Bar Association's Committee on Legal Issues Affecting Crime Victims, the National Campaign for Effective Crime Policy, and the Board of Directors for the Washington, DC-based Center for Community Interests.
The committee welcomes you and we look forward to hearing your testimony. I ask, with reluctance, that you try to keep your oral presentations to 5 minutes, so we might have time for questions, and your written statements will be made a part of the record.
The chief sponsor of this bill has asked for an opportunity to make an opening statement, and so before we get to your testimonies, I'll yield to Mr. Gallegly.
Mr. GALLEGLY. Thank you very much, Mr. Chairman. And thank you for finding the time in this committee's busy schedule for this hearing.
This morning we have the opportunity to discuss legislation that draws the line with outrageous, threatening behavior of photographers and cameramen that continue to cause injury and at times death. A new type of press, known as paparazzi, has developed a feed-the-public's hunger for candid, sensational photographs of people that are either stars or have become the center of attention due to an unfortunate circumstance in their life.
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Newspapers and magazines offer big stakes for pictures captured by the paparazzi. The juicer the picture appears, the bigger the pricetag. Photographers use various tactics including, violence to provoke stars, to capture the star's reaction on film. The prices of these candid photographs have greatly increased in recent years and have reached up to $5 million per photograph.
At the same time, the behavior of the paparazzi has become more aggressive. Paparazzi go on high-speed chases, hang from helicopters, and hide in bushes to capture photographs of a frightened star. This type of behavior has gotten out of hand.
Today, you will receive testimony from three witnesses that have been affected by the paparazzi's outrageous behavior.
Michael J. Fox will tell you about how photographers have intentionally frightened his children to provoke a distressed look from Michael that could be captured by their camera.
Paul Reiser will tell you about how he had recently been chased in his car by paparazzi trying to capture a photograph of Mr. Reiser's newborn child.
Today, we will also hear from Ellen Levin, a non-star that has become a victim of the paparazzi. Ms. Levin was viciously attacked by the press when her daughter was murdered. Today, Ms. Levin will tell you about how she had to be escorted by armed guards to and from the trial to protect her from the paparazzi, and how one photographer assaulted her pregnant daughter in an attempt to capture the Levin's nightmare on film.
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Originally, this bill was introduced by our friend, the late Sonny Bono. After his unfortunate death, I was asked by Chairman Hyde to take the lead on this effort. H.R. 3224 builds on Sonny's bill and has been carefully written to avoid constitutional problems.
The bill has a very narrow focus. The bill targets reckless and dangerous behavior that threatens or actually results in serious bodily injury or death to a victim. The bill preserves the right to photograph celebrities in public and sell the film, but cracks down on actions that would jeopardize their safety. The bill is not an attempt to regulate who the media photographs or what they do with the photographs. The bill does not give celebrities special legal status. The bill addresses only the action that the photographer takes to get a picture.
Specifically, the bill prohibits chasing or following the victim. The bill was narrowly drafted to regulate activity that is not protected by the First Amendment. H.R. 3224 protects only dangerous or reckless actions by photographers and cameramen and not speech. It only sanctions behavior that is patently dangerous, not legitimate efforts to report the news or take a photograph. This Federal law is needed.
Photographers often move from country to country and from State to State. The photographers do not work for a local newspaper or magazine, but, instead, sell their works nationally or internationally. A national response is appropriate to deal with this national problem. Furthermore, our States have a patchwork of laws in this area and some simply do not afford sufficient protection to people who are being physically threatened by the actions of paparazzi.
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H.R. 3224 protects a national solution by establishing a uniformed standard to control this type of abusive behavior. The bill merely supplements, does not preempt any right or remedy otherwise available under the law.
Today, you may hear some testimony about many bills addressing the problems of our witnesses. Many of these bills have a broader scope than H.R. 3224. Keep in mind that H.R. 3224 is a narrowly-constructed bill. It will prohibit only overly aggressive photographers and cameramen that threaten or cause injury or death when persistently chasing or following an individual. H.R. 3224 has been drafted this narrowly to avoid any constitutional problems. The proposed Federal law is needed to draw the line with the dangerous behavior of paparazzi.
I look forward to hearing from the witnesses. I thank them for being here today.
And, Mr. Chairman, I yield back the balance of my time.
Mr. HYDE. Thank you, Mr. Gallegly.
Mr. Masur.
Mr. MASUR. Thank you, Mr. Chairman, members of the committee, for inviting us here today to deliver testimony on this important subject. I would especially like to thank Representative Conyers for his commitment to this issue and Representative Gallegly for his leadership in introducing legislation and prompting this hearing to happen.
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We come here today to frame a conversation on the balance between the privacy of rights of individuals and the rights of the press under the First Amendment. First, we would like to give you some understanding of the increasingly abusive and invasive techniques adopted by some members of the media and the very real consequences these actions have on people's lives.
Mr. Chairman, I would like to introduce two members of the Screen Actors Guild, Mr. Paul Reiser and Mr. Michael J. Fox, who will speak to those human consequences. Mr. Reiser and Mr. Fox have both traveled here in the midst of extremely tight schedules, and Mr. Fox must leave immediately after the panel is complete. For that reason, with your permission, Mr. Chairman, I would like to reserve the balance of my comments and present them during the next panel.
Mr. HYDE. Very well. Mr. Fox.
STATEMENT OF MICHAEL J. FOX, ACTOR
Mr. FOX. First, Mr. Chairman, I'd like to thank you and the members of this committee for addressing this issue and giving me a chance to testify, not only on my behalf, but for my peers and for those private citizens who are first victims because of a tragedy or accident and then victims because of the dangerous and intrusive tactics of certain paparazzi. I would like to extend a personal thank you to Representative Conyers and especially Representative Gallegly for initiating this effort.
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Let me begin by saying that I feel fortunate to have my job. I know many in this country would be happy to trade places with me. Still, there is a reality that I, my loved ones, including defenseless children, and others in our position deal with on a regular basis. I'm speaking of the intrusive, harassing, and mercenary tactics of tabloid photographers. This is often conveniently written off as ''the price you pay.'' I have heard people say ''those celebrity types, that's why they get the big bucks,'' and how ''if they didn't want the attention, they shouldn't have become actors,'' as if any legal vocational choice came with a waiver of basic rights of privacy.
Personally, I work very hard to entertain an audience, and when they enjoy my work, I am deeply gratified. I am polite to those who are polite with me. I try to deflect some of the attention that comes with my celebrity toward worthwhile causes, and I also maintain a positive and cooperative relationship with legitimate media.
Beyond that, I'd like to think of my life as my own. I strongly disagree with those who would argue that some sort of Faustian bargain has been struck whereby ''public'' figures are fair game, any time, any place, including within the confines of their own homes.
Of course, this point of view is actively promoted by the major tabloids and those who work for them. The positioning of celebrities as the ''non-human other'' discourages their readers and viewers in the case of TV tabloids from perceiving us as people like themselves, with feelings and families, and from recognizing that the tactics employed by these publications are often cruel, destructive, and criminal. When something like the Princess Diana tragedy occurs, people begin to see the truth and the tabloid spinmeisters go into overdrive.
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Over the past 15 years or so, my own experiences with illegal and intrusive news-gathering methods have been too varied and numerous to list completely. Being a performer who often poses for photographs in prearranged sessions and at public events, it took me a while to understand the intensity with which candid, surreptitious, and invasive pictures were sought out. I soon found out that the more suggestive a photograph is, the angrier and more stressed or offguard the subject is, the more value that photograph has. They have chased me on foot and in my car, yelled obscene comments at my entire family, and literally staked out my home on a 24-hour basis in hopes of capturing that one photograph that will win them the bounty. They can literally invent any story they want to accompany that photograph. I'll give you a personal example of this methodology and of the damage it can cause to an individual or a family.
In 1987, while leaving a New York City film premier with my then future wife, Tracy Pollen, there was a great deal of tumult as the paparazzi jostled with security and each other to take their shots of the many media figures exiting the theater. As they pressed forward, a photograph was taken of a NYPD officer directing us to our car. Here's how that seed grew when exposed to the nuclear radiation of tabloid journalism.
A fiction was concocted in which Tracy and I were looking to police for help in dealing with death threats. At that time, I had never received a single death threat in any form. Shortly after that story was published, a disturbed young woman in southern California began to write a series, approximately 6,200 in all, of graphic and terrifying hate letters that threatened death to Tracy, to myself, and eventually our unborn child. We were frightened, panicked, and suspicious of any new contacts.
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During this period, instances of harassment by paparazzi were especially unnerving as a pursuing vehicle in and of itself is a deadly weapon and a metal camera aimed out of the window or quickly pulled from a bag or a coat can be cause for alarm. We hired a private security firm to protect us and investigate the source of the letters. This woman was eventually arrested and served jail time. I firmly believe she would not have acted had the tabloid not provided that irresponsible, fictional precedent.
There were stalking laws that protected us from her, but no deterrent or law to protect us from the aggressive paparazzi, who by chasing us and keeping us under surveillance at our homes, exacerbated our fear. They created the environment for a stalking, and benefitted from it throughout.
Another occurrence took place in 1988, when Tracy and I were married in a small inn in Vermont. We had not publicly disclosed the location and the date of the wedding, but the tabloids ferreted it out and pressed for details. We told them it was a small family gathering on private property, they were not invited, and there would be no opportunities for photographs. We weren't hypocritical about this; we did not give or sell an exclusive to anyone.
Apart from the wedding itself, the circumstances around it were a nightmare. Locals were bribed to infiltrate the ceremony with cameras. Our cars were chased. A number of helicopters recklessly jockeyed for position over our assembled families, and my wife's confused and frightened 85-year-old grandparents were isolated by photographers posing as locals and pumped for information.
They tracked us down on our island honeymoon, parked a boat within camera range of our suite, and fired away with high-powered cameras. Frustrated by the measures we undertook to ensure our rights of privacy, these photographers and so-called journalists launched an assault on our family that continues today.
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In fact, an entire documentary film was made about their pursuit of our family. In 1991, ''Blast 'em'' was released, and it provides a very rich look at the very topic addressed today. It features scene after scene of paparazzi harassing and stalking us in private and in public. The film is quite disturbing.
Though this legislation doesn't address all of the behavior documented in the movie, it at least looks at the most egregious, the terrifying chases, the technological invasions of privacy. What's most telling is the constant references to the incentive to break or bend the law in pursuit of a picture: bounties that range from hundreds to hundreds of thousands of dollars.
For years, we have spotted photographers around the edges of our personal property and trailing us in the streets and parks with high-powered lenses, taking pictures of private moments and of our children who have no concept of what it means to be a ''public figure.'' It is difficult to explain to a youngster why we must interrupt what we are doing and go inside to wait for our pursuers to leave, which sometimes does not happen.
In 1989, they tried to pose as medical personnel at the hospital where Tracy was giving birth to our son. They did the same in 1995 when our twin daughters were born. In 1990, they intruded upon my father's funeral under false pretenses, carrying cameras with which, presumably, to take pictures of his body and of my family in mourning. They also pretended to be mourners and snuck into the wake at my mother's home.
I have seen freelance photographers intentionally frighten children of celebrities, including my own, in order to provoke a distressed reaction. Such a shot can inspire a fantastic copy. As a result of early experiences like this, our 8-year-old son, Sam, is leery of cameras, dislikes having his picture taken, and even his class photo can be an uncomfortable experience.
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You don't even have to be in a photographer's sights to have your privacy violated. A reporter once entered the Records Office in our town and photographed the blueprints, including electrical and security systems, to the new home we were building. The plans were published, and clearly, could be used as a map by someone who wished us harm.
I could go on and on with further accounts of harassment, intrusion, provocation, endangerment, and trespass.
I said earlier that this activity was difficult to explain to a child, but, frankly, I know that it can be hard for anyone to grasp when they have not experienced the feeling of violation these assaults leave you with. Recent events, however, show us that anyone is vulnerable, not just those who have chosen to work in the public eye. Time and time again, we've seen ''ordinary folks,'' through one unexpected circumstance or another, burn in the white-hot glare of uninvited and relentless media scrutiny. Tabloids, TV tabloids, and even some members of the so-called ''legitimate'' media will go to any lengths and use the latest technology to obtain the pictures or soundbites that will give them advantage over their rivals in an increasingly competitive marketplace.
The laws on the books don't seem to take into consideration the incentives or the bounties for this abusive conduct. Tabloids are rich, and therefore, can withstand simple trespass in harassment cases. The courts will interpret what this Congress sets as law, hopefully, based on the hearing we are having today. It is clear that the legislation dealing with both persistent chasing and intrusion into private property with long-lens cameras is needed. I offer you my support to see this legislation enacted.
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Thank you very much.
[The prepared statement of Mr. Fox follows:]
PREPARED STATEMENT OF MICHAEL J. FOX, ACTOR
First, Mr. Chairman, let me thank you and the members of the Committee for addressing this issue and giving me the chance to testify, not only on my behalf, but for my peers and for those private citizens who are first victims because of a tragedy or accident and then victims of the dangerous and intrusive tactics of certain paparazzi. I would like to extend a personal thank you to Representative Gallegly for initiating this effort.
Let me begin by saying that I feel fortunate to have my job. I know many in this country would be happy to trade places with me. Still, there is a reality that I, my loved ones (including defenseless children), and others in our position deal with on a regular basis. I'm speaking of the intrusive, harassing and mercenary tactics of tabloid photographers. This is often conveniently written off as ''the price you pay.'' I have heard people say ''those celebrity types, that's why they get the big bucks'' and how ''if they didn't want the attention they shouldn't have become actors,'' as if any legal vocational choice came with a waiver of basic rights of privacy.
Personally, I work very hard to entertain an audience, and when they enjoy my work, I am deeply gratified. I am polite to those who are polite with me, and I try to deflect some of the attention that comes with my celebrity toward worthwhile causes. I also maintain a positive and cooperative relationship with the legitimate press. Beyond that, I'd like to think of my life as my own. I strongly disagree with those who would argue that some sort of Faustian bargain has been struck whereby ''public'' figures are fair game, any time, any place, including within the confines of their own homes.
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Of course this point of view is actively promoted by the major tabloids and those who work for them. The positioning of celebrities as the non-human ''other'' discourages their readers and viewers (in the case of TV tabloids) from perceiving us as people like themselves, with feelings and families, and from recognizing that tactics employed by these publications are often cruel, destructive and criminal. When something like the Princess Diana tragedy occurs, people begin to see the truth and the tabloid spinmeisters go into overdrive.
Over the past 15 years or so, my own experiences with illegal and intrusive news gathering methods have been too varied and numerous to list completely. Being a performer who often poses for photographs in prearranged sessions and at public events, it took me awhile to understand the intensity with which candid, surreptitious and invasive pictures were sought out. I soon found out that the more suggestive a photograph is, the angrier and more stressed the victim is, the more value it has. They have chased me on foot and in my car, yelled obscene comments at my entire family, and literally staked out my home, on a 24 hour basis, in hopes of capturing that one photograph that will win them the bounty. They can literally invent any story they want to accompany it. I'll give you a personal example of this methodology and of the damage it can cause to an individual or family.
In 1987, while leaving a New York City film premiere with my (then) future wife, Tracy Pollan, there was a great deal of tumult as the paparazzi jostled with security (and each other) to take their shots of the many media figures exiting the theater. As they pressed forward, a photograph was taken of a N.Y.P.D. officer directing us to our car. Here's how that seed grew when exposed to the nuclear radiation of tabloid ''journalism.'' A fiction was concocted in which Tracy and I look to police for help in dealing with ''death threats.'' At that time, I had never received a single death threat in any form. Shortly after the story was published a disturbed young woman in Southern California began to write a series (approx. 6,200 in all) of graphic and terrifying hate letters that threatened death to Tracy, myself, and to our unborn baby. We were frightened, panicked and suspicious of any new contacts. During this period, instances of harassment by paparazzi were especially unnerving as a pursuing vehicle is, in and of itself, a deadly weapon and a metal camera aimed out of the window or quickly pulled from a bag or coat can be cause for alarm. We hired a private security firm to protect us and investigate the source of the letters. This woman was eventually arrested and served jail time. I firmly believe she would not have acted had the tabloid not provided an irresponsible, fictional precedent.
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There were stalking laws that protected us from her, but no deterrent or law to protect us from aggressive paparazzi, who by chasing us and keeping us under surveillance at our homes, exacerbated our fear. They created the environment for a stalking, and benefitted from it throughout the incident.
Another occurrence took place in 1988 when Tracy and I were married in a small inn in Vermont. We did not publicly disclose the location and date, but the tabloids ferreted it out and pressed for details. We told them it was a small family gathering on private property, they were not invited and there would be no opportunities for photographs. We were not hypocritical about this; we did not give (or sell) an exclusive to anyone. Apart from the wedding itself, the circumstances around it were a nightmare. Locals were bribed to infiltrate the ceremony. Our cars were chased, a number of helicopters recklessly jockeyed for position directly above our assembled families, and my wife's confused and frightened 85 year old grandparents were isolated by photographers posing as locals and pumped for information. They tracked us down on our island honeymoon, parked a boat within camera range of our suite and fired away with high-powered cameras. Frustrated by the measures we undertook to ensure our rights of privacy, these photographers and so-called journalists launched an assault on our family that continues today. In fact an entire documentary film was made about their pursuit of our family. In 1991, ''Blast'em'' was released and it provides a rich look at the very topic addressed today. It features scene after scene of paparazzi harassing and stalking us in private and public. The film is quite disturbing. Though this legislation doesn't address all of the behavior documented in the movie, it at least looks at the most egregious—the terrifying chases and ''technological'' invasions of privacy. What's most telling is the constant references to the incentive to break or bend the law in pursuit of a picture: bounties that range from hundreds to hundreds-of-thousands of dollars.
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For years, we have spotted photographers around the edges of our personal property and trailing us in the streets and parks with high-powered lenses, taking pictures of private moments and of our children who have no concept of what it means to be a ''public figure.'' It is difficult to explain to a youngster why we must interrupt what we are doing and go inside to wait for our pursuers to leave—which sometimes does not happen.
In 1989, they tried to pose as medical personnel at the hospital where Tracy was giving birth to our son. They did the same in 1995 when our twin daughters were born.
In 1990, they intruded upon my father's funeral under false pretenses, carrying cameras with which, presumably, to take pictures of his body and my family in mourning. They also pretended to be mourners and snuck into the wake at my mother's home.
I have seen freelance photographers intentionally frighten children of celebrities (including my own) in order to provoke a distressed reaction. Such a shot can inspire fantastic copy. As a result of early experiences like this, our 8 year old son, Sam, is leery of cameras, dislikes having his picture taken, and even his class photo can be an uncomfortable experience.
You don't even have to be in a photographer's sights to have your privacy violated. A reporter once entered the Records Office in our town and photographed the blueprints (including electrical and security systems) to the new home we were building. The plans were published and clearly could be used as a map by someone who wished us harm.
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I could go on and on with further accounts of harassment, intrusion, provocation, endangerment and trespass.
I said earlier that this activity was difficult to explain to a child, but frankly, I know that it can be hard for anyone to grasp when they have not experienced the feeling of violation these assaults leave with you. Recent events, however, show us that anyone is vulnerable, not just those who have chosen to work in the public eye. Time and time again, we've seen ''ordinary folks,'' through one unexpected circumstance or another, burn in the white-hot glare of uninvited and relentless media scrutiny. Tabloids, TV tabloids, and even some members of the so-called ''legitimate'' media will go to any lengths and use the latest technology to obtain the pictures or soundbites that will give them advantage over their rivals in an increasingly competitive marketplace.
The laws on the books don't seem to take into consideration the incentives or bounties for this abusive conduct. Tabloids are rich and therefore can withstand simple trespass or harassment cases. The courts will interpret what this Congress sets as law, hopefully based on the hearing we are having today. It is clear that the legislation dealing with both persistent chasing and intrusion into private property with long-lens cameras is needed. I offer you my support to see this legislation enacted.
BIOGRAPHY
As worldwide audiences continue to affirm his popularity on the big screen and on television, Michael J. Fox remains an enduring and accessible talent. Possessed with the keen ability to shift effortlessly between comedy and drama, Fox has risen to international stardom with a diversified entertainment career.
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In the arena of television, Fox currently produces and stars as Deputy Mayor Michael Flaherty in the political comedy Spin City, an ABC/Dreamworks project with reunites him with Family Ties Producer Gary David Goldberg. His return to television has been met with critical and commercial success. Only in his second season, Fox has already won a golden Globe, a People's Choice Award and has been nominated for an Emmy for Best Actor.
At the box office Fox has similarly established himself as a creatively resourceful actor eager to explore every aspect of his craft. Fox has built a solid filmography beginning with his starring roles in Back to the Future and its successors Back To The Future II and Back To The Future III, and subsequently through diverse roles in The Hard Way, Life With Mikey, for Love Or Money and Greedy. In 1995, he played a White House staffer in Castle Rock's The American President, directed by Rob Reiner. he recently starred in Universal Pictures' The Frighteners, a paranormal thriller directed by Peter Jackson.
Fox is well known to television audiences for his portrayal of 'Alex P. Keaton' on the hit NBC series Family Ties, where he won three Emmy Awards and a golden Globe. Fox has also extended his talents into the realm of directing. He helmed a memorable episode of the HBO series Tales from the Crypt starring Terri Garr, Bruno Kirby and himself in a guest role.
Born Michael Andrew Fox in Edmonton Alberta, he adopted the ''J'' as an homage to legendary character actor Michael J. Pollard. Moving several times during his childhood, fox and his four siblings settled in Burnaby, a suburb of Vancouver. Like most Canadians he expressed a great love for hockey; though early aspirations suggested a career as a professional hockey player, his attention turned to acting in his teenage years. At the age of fifteen, Fox made his professional debut in the CBC situation comedy Leo and Me, signaling his career direction toward physical humor.
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Venturing to Los Angeles at the age of eighteen, Fox struggled through a series of bit parts and a short-lived series, Palmerstown USA, before produce Gary David Goldberg secured his future with his new series, Family ties. As the money-obsessed Alex P. Keaton, born to parents of the Woodstock Generation, Fox quickly rose to prominence during the show's seven seasons.
Maried to actress Tracey Pollan, he lives in New York City with their three children, Sam Aquinnah, and Schuyler.
Perhaps a writer for Gentlemen's Quarterly summed it up best when he noted: ''Nobody dislikes Michael J. Fox. Women find him adorable, men feel unthreatened, kids are enchanted.''
Mr. HYDE. Thank you very much, Mr. Fox.
Ms. Levin.
STATEMENT OF ELLEN LEVIN, PRESIDENT, THE JENNIFER DAWN LEVIN VICTIM MEMORIAL FUND
Ms. LEVIN. Good morning, Mr. Chairman and committee members. Today is a very special day for me. Being here is an important day, but also mostly because today, May 21, is my daughter, Jennifer's birthday. And with that in mind, I'd like to go back in time and tell you what happened to me and my family at the worst time of my life.
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It was a hot and steamy August afternoon in New York City, and the year was 1986, when I had my first encounter with a media-feeding frenzy that I could never have imagined nor could I have been prepared for. I had been told 1 hour earlier the my youngest daughter, Jennifer, was found dead in Central Park. I was in complete denial as the car was bringing me downtown to my ex-husband's loft where the family had met and gathered to give support. The ride down was a nightmare, with me insisting that there was some terrible mistake, that it couldn't be my Jennifer.
Then over the car radio I heard an announcer saying that the body that was found behind the Metropolitan Museum has definitely been identified as that of Jennifer Levin. My denial quickly turned to shock.
What awaited my arrival when we got downtown was hoards of people, photographers, cameramen, reporters, all running to my car shouting, ''There's the mother. There's Jennifer's mother.'' Behind them ran the police, and behind them were the curiosity seekers. I had to be pulled from the car. I was frozen with fear, and while escorted through the pushing mob, cameras and microphones were shoved into my face. I cried, ''What's wrong with you people? My daughter is dead.'' Imagine, at the worst time, the most vulnerable time in your life, being surrounded by hundreds of strangers wanting pictures or a comment. For what purpose? Just pure exploitation.
Finally, safely upstairs, I was to learn that Jen had been murdered, strangled, and no one knew yet who did it. I fell further into shock while the buzzer on the apartment rang non-stop with the media begging entrance and the phone ringing constantly. The press camped outside and grilled everyone who came to visit us to lend support, and asked what their relationship was to us, what they were to Jen. They had absolutely no privacy at all. It was chaotic and we were unable to be consoled as the pressure from the media heightened.
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Then, at about 2 or 3 a.m., the buzzer rang for the last time because it was finally disconnected. A press person wanted to know what we thought of Robert Chamber's confession. We hadn't even known that the police had got their man, and we were totally shocked to learn that he blamed Jennifer for her own death.
Chambers made up a story that changed several times throughout his questioning, but the final version was one that was made for media headlines. ''She was having her way with me. She wanted kinky sex. She was trying to rape me. I was only protecting myself.'' Well, the police didn't believe him, nor the D.A., but the media loved this story, and in one form or another, it managed to stay a lead item for almost 2 years. Not only had we lost our precious girl, but her reputation was being dragged through the mud by her murderer and the press. We also found out at that time that the defense attorney fed headlines to the press, a common practice, and we were helpless to do anything about it.
Right after the confession, the circus atmosphere increased. The media dubbed it, ''The preppy murder case.'' Now, urgent attention was being paid to my daughter's sexual behavior, with reporters scurrying to find any jerk they could from all of her friends. Simple remarks by many of her friends, all 18-years-old, were misquoted to make her seem like a party girl, sending them into guilt and further depression.
This case was being tried in the court of public opinion, thanks to the media's coverage. As for the family, the media camped outside both my apartment and my ex-husband's, prohibiting us easy access without intrusive and invasive harassment. I changed my phone number three times over the course of the next 2 years. Once, my oldest daughter, Danielle, upon exiting the apartment, found someone going through the trash can. From that point on, my ex-husband brought his garbage out to Montauk twice a week away from prying eyes.
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And on television, a tape of my daughter's body lying under a tree in Central Park covered with a yellow crime sheet was shown over and over and over again. One night shortly after the murder, a new tabloid television show premiered. It was called ''A Current Affair,'' and their first show was a re-enactment of the crime, based on Chambers' confession. I watched, horrified, as two actors pawed at each other. The male suggested that they go into the park. Losing all sense of sanity, I ran to my terrace on the 29th floor screaming for Jen not to go with him. It was the closest I ever came to suicide. I stopped watching television, disconnected my cable, and became a recluse for many months.
When the trial started almost 2 years later, the media circus picked up again. This time, my family was escorted in and out of the courtroom in a circle of armed guards protecting us from the press. Even on the way to and from the ladies' room, myself and Danielle, who was pregnant at the time, needed protection. Before the guards realized this, Danielle was pushed by a photographer and almost fell down in their fury to get a snapshot of her. That was the last day my daughter came to court.
To this day, I have a dread of crowds from my experiences during those terrible years. I believe that there is a fine line of ethics in journalism, and in our case, those lines of ethics were crossed over and over again as to be erased. Same with other innocent victims of crime. One must remember when dealing with people like us, we did not ask for notoriety. We were thrust into the public eye by a tragic event, and unfortunately, the situation's only getting worse, as can be told by the recent trials we've been watching on television. I don't need to mention them.
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There must be a balance between the people's right to know and a person's right to privacy. Personal privacy protections have been supported by crime victim advocates across this country. All people need to be treated with the respect and the dignity that they deserve. I thank the committee for addressing this very important issue.
[The prepared statement of Ms. Levin follows:]
PREPARED STATEMENT OF ELLEN LEVIN, PRESIDENT, THE JENNIFER DAWN LEVIN VICTIM MEMORIAL FUND
It was a hot and steamy August afternoon in New York City, the year 1986, when I had my first encounter with a media feeding frenzy, the likes of which I could never have imagined nor prepared. I had been told one hour earlier that my youngest daughter, Jennifer, was found dead in Central Park. I was in complete denial as a car brought me downtown to my ex-husband's loft where family and friends had gathered. The ride down was a nightmare, with me insisting that there was some mistake, it couldn't be MY Jennifer. Then over the car radio I heard ''The body found behind the Metropolitan Museum this morning has now been identified as Jennifer Levin. . .'' My denial quickly turned to shock.
What awaited my arrival was a hoard of people, photographers, cameramen, reporters, all running toward my car shouting ''There she is! That's Jennifer's mother!'' Behind them ran the police in an effort to protect me, behind the police were the curiosity seekers. I had to be pulled from the car. I was frozen with fear and while escorted through the pushing mob, cameras and microphones were stuck directly into my face. I cried, ''WHAT'S WRONG WITH YOU PEOPLE! MY DAUGHTER IS DEAD!'' Imagine at the most vulnerable time in my life being surrounded by hundreds of strangers wanting a picture, a comment.
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Finally safely upstairs, I was to learn that Jen had been murdered, strangled, and no one knew yet who did it! I fell further into shock while the buzzer to the apartment rang non-stop with the media begging entrance and the phone ringing constantly. The press camped outside and grilled everyone who came to grieve with us as to their relation to us or Jen. It was chaotic and we were unable to be consoled as the pressure from the media heightened.
Then at 2 or 3 a.m. the buzzer rang for the last time (it was finally disconnected), a press person wanted to know what we thought of Robert Chambers' confession! We hadn't known the police got their man, and we were totally shocked to learn he blamed Jennifer for her own death.
Chambers made up a story that he changed several times throughout the questioning, but the final version was the one made for the media headlines. ''She was having her way with me.'' ''She wanted kinky sex.'' ''She was trying to rape me. I was only protecting myself.'' Well, the police didn't believe him, nor the DA, but the media LOVED this story and in one form or another, it managed to stay a lead item for almost two years! Not only had we lost our precious girl but her reputation was being dragged through the mud by her murderer and the press (we also found out the defense attorney fed headlines to them, a common practice) and we were helpless to do anything about it!
Right after the confession, the ''circus'' atmosphere increased. Now urgent attention was being paid to my daughter's sexual behavior with reporters scurrying to find any dirt they could from all her friends. Simple remarks by her many friends (all eighteen) were misquoted to make her seem like a ''party girl'' sending them into guilt and further depression.
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As for the family, the media camped outside both my apartment and my ex husband's, prohibiting us from easy access without intrusive and invasive harassment. I changed my phone number three times over the course of the next two years! Once, my oldest daughter Danielle, upon exiting the apartment, found someone going through the trash can. From that point on, my ex brought his garbage out to Montauk twice a week away from prying eyes! And on television, a tape of my daughter's body lying under a tree in Central Park, covered with a yellow crime sheet was shown over and over again. One night, shortly after the murder a new tabloid television show premiered. It was called ''A Current Affair'' and their first show was a re-enactment of the crime, based on Chambers' confession. I watched, horrified, as two actors pawed each other on screen until the male suggested they go to the park. Losing all sense of sanity, I ran to my terrace on the 29th floor screaming for Jen not to go with him. It was the closest I ever came to suicide. I stopped watching television, disconnected my cable and became a recluse for many months.
When the trial started (almost two years later), the media circus picked up again. This time my family was escorted in and out of the courtroom by a circle of armed guards protecting us from the press. Even on the way to and from the ladies room, myself and Danielle (who was pregnant) needed protection. Before the guards realized they were needed, Danielle was pushed by a photographer and almost fell down in their fury to get a shot of us. That was the last day my daughter came to court.
To this day, I have a dread of crowds from my experiences during those terrible years. I believe there is a fine line of ethics in journalism and in our case and those of other innocent victims of crime, it is crossed so often, it is almost erased. One must remember when dealing with people like us, we did not ask for notoriety, we were thrust into the public eye by a traumatic event. There must be a balance between the people's right to know versus a person's right to privacy.
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I thank the Committee for addressing this very important issue.
BIOGRAPHY
Ellen Levin became a victims' rights advocate following the highly publicized 1986 murder of her daughter, Jennifer, By Robert Chambers and the subsequent injustices suffered at the hands of the media and the court.
She is the founder and co-chairperson of Justice For All, a New York State Political Action Committee dedicated to balancing the scales of justice by lobbying for legal rights for the victims of violent crimes and promoting and supporting crime prevention and public safety bills.
Ms. Levin and her group have been influential in the passage of the Rape Shield Extension Bill, Cameras in the Courtroom Bill, The Stalking Bill, the son of Sam Bill, the Sentence Allocution Bill, the Parole Allocution bill and the Victims' Manner of Dress Bill and New York's version of the Megan's Law.
Ellen Levin is presently serving on the New York City Bar Association's Committee on legal Issues Affecting Crime Victims, The National Campaign for Effective Crime policy and is a faculty member of Jersey City State College's Institute for Trauma Studies.
In 1995, Ms. Levin was appointed President of The Jennifer Dawn Levin Victim Memorial Fund, which was established to aid indigent victims of violent crimes by awarding small grants to individuals who are in need of financial support.
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She has written and/or been the subject of many journalistic pieces both in print and television, pertaining to crime, surviving homicide and most regularly, victims and the media. She is also a recognized national public speaker on these issues and continues to actively lobby on a local, State and Federal level to afford Crime victims legal standing in our courts and to promote crime prevention and public safety laws.
Recently, Ellen has been appointed to serve on a victims advisory panel by Dennis Vacco, New York's Attorney General and the board of Center for Community Interest, a Washington based legal organization.
Mr. HYDE. Thank you, Ms. Levin, for that very powerful statement.
Mr. Reiser.
STATEMENT OF PAUL REISER, ACTOR
Mr. REISER. Thank you. Mr. Chairman, members of the committee, I want to thank you for the opportunity to speak before you today on behalf of the proposed legislation. I especially want to thank Chairman Hyde, Representative Gallegly, and Representative Conyers for helping to organize this hearing today.
I'm sure that there are many in the American public, and perhaps even those among you here in this room, who feel that the last thing this Congress needs to do is enact a law to help big fancy celebrities enjoy their fancy lives in their big fancy homes. And while I can understand that sentiment, I have travelled here today to tell you in all sincerity that that is not our intention.
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Rather, we need to protect all civilians, famous and not famous, from the invasive and very often dangerous tactics of some, not all, but some photographers and news gatherers.
My experience with these invasions of privacy started a few years ago with the birth of my son. When my wife went into labor several weeks prematurely, someone at the hospital apparently decided that this was newsworthy and passed the information on to the press. Within hours, we were told that the hospital began receiving calls from impostors posing as relatives and concerned friends, trying to unearth juicy tidbits about our infant's condition, and that several intruders were spotted in the halls outside and around the intensive care unit of the hospital with cameras, trying to steal a picture of our son.
Now I know that the security within this particular hospital is not the focus of the conversation here today. Nevertheless, I share this story because it symbolizes for me a larger problem. The reason these people were trying to get a picture of my son or, more likely, a picture of me emotionally distraught over the bed of my hospitalized son, is not because they care one way or the other about either of us, but simply and obviously because there is a market for this. They stand to be paid for these invasions of privacy. And the more invasive, the more intimate, the more valuable their trophy.
What I could not have anticipated was how this initial violation would turn out to be merely the starting point for what became an active campaign to follow up on this very private matter. Because my son was born prematurely, the tabloids decided to concoct a melodramatic soap opera, inventing health problems for my son that did not exist, making up tearful conversations and chest-beating confessions between my wife and myself that never happened.
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Now, again while I realize that bad writing is not yet a punishable crime in this country, I do want to demonstrate for you how these events snowball into dangerous territories. Simply because our son had, against our wishes, become a news item, he was suddenly photoworthy. And our lives changed. Cars began to follow us on our daily errands. Strangers with video cameras camped outside our home. One resourceful photographer gained access to a house down the street from us and with a telescopic lens was able to get a photo of my son in the privacy of our backyard. Someone pretending to be our pediatrician called up family members and extracted details of our son's medical records, which were then subsequently printed in the tabloids.
What I would like to explain is that, even in the absence of these kinds of specific offenses, the state of constant vigilance required has a real cost. Valuable energy that should have been focused solely on the care of my son has instead been spent second-guessing and double-checking the credentials of everyone with access to my son, including his doctors.
As recently as 2 weeks ago, I was advised not to accompany my son to a routine doctor checkup because paparazzi were spotted in the lobby of the medical office. Instead, the doctor, my wife, and myself were forced to play a cat-and-mouse game, surreptitiously scheduling another appointment to avoid any further invasion of our privacy. This is, I believe, an unreasonable price to pay.
Somewhere along the way, a line has been crossed. The code of civility and common decency we all aspire to seems to be vanishing. We live in a climate now in which people's lives are regularly served up as mass entertainment, and the acquisition of this entertainment has become a perverse sport.
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Ramming an actor's car as he picks up his children from school in the hopes of getting a sensational video is not, I believe, acceptable news gathering. Staking out a celebrity's vacation getaway and shooting through their bedroom window with high-powered photo lenses cannot be considered journalism.
I would never come before you and argue that celebrities are entitled to more rights and privileges than others. But, certainly, they shouldn't have fewer. I would hope that all law-abiding citizens are entitled to the same degree of security and protection under the law.
If a non-celebrity were walking through an airport with their family, and strangers jumped out of doorways, thrusting video cameras and bright lights in their face, blocking their path, calling out their names, being verbally abusive and physically threatening, trying to provoke a hostile response, so that their film would be that much more valuable, I would think this person would be justified in feeling harassed, violated, and their safety endangered.
I realize that it's not possible to legislate civility and manners. But I do believe that the time has come to take the first step in that direction and send forth the message that there is still a distinction to be made between public and private; that even in the pursuit of news or human interest stories, there is a point where harassment, trespassing, and physical endangerment are not only unacceptable, but should be punishable by law.
I know that many in this room may wonder about the symbiotic relationship between celebrities and the press. And I believe that the distinction can be easily made. If I am before the press to promote my TV show or attend a public event, whether it's a contractual obligation or not, the relationship is consensual. When they chase my family and me in an airport, or even worse, on a highway, or when they sit in a tree and keep us under surveillance in order to photograph us inside our home, that is not consensual. I can't imagine that any reasonable person in this room would disagree that this conduct is dangerous and intrusive.
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Despite how certain tabloids and other media organizations talk about us as objects, we are, indeed, human, with real day-to-day problems and issues faced by parents and families across the country. No one, celebrity or not, should be stripped of their basic privacy rights.
It is my sincere hope that you will enact legislation that both addresses this egregious conduct and protects anyone who may fall victim to such tactics. I offer you my whole-hearted support toward that goal. Thank you.
[The prepared statement of Mr. Reiser follows:]
PREPARED STATEMENT OF PAUL REISER, ACTOR
Mr. Chairman, members of the committee, I thank you for the opportunity to speak before you today on behalf of the proposed legislation. I especially want to thank Congressman Gallegly for initiating this effort in the House.
I'm sure there are many in the American public, and perhaps even those among you here in this room who feel that the last thing this Congress needs to do is enact a law to help fancy celebrities enjoy their fancy lives in their big fancy homes. And while I can understand that sentiment, I have traveled here today to tell you in all sincerity that that is not our intention.
Rather, we need to protect all civilians—famous and not famous, from the invasive and very often dangerous tactics of some—not all—but some photographers and news gatherers.
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My experience with these invasions of privacy started a few years ago with the birth of my son. When my wife went into labor several weeks prematurely, someone at the hospital apparently decided this was newsworthy and passed the information on to the press. Within hours, we were told that the hospital began receiving calls from impostors posing as relatives and concerned friends, trying to unearth juicy tidbits about our infant's condition, and that several intruders were spotted in the halls outside and around the intensive care unit with cameras, trying to steal a picture of our newborn child.
I know the security within this particular hospital is not the focus of the conversation we're having here today, nevertheless, I share this story because it symbolizes for me a larger problem: The reason these people were trying to get a picture of my son—or more likely, a picture of me emotionally distraught over the bed of my hospitalized son—is not because they care one way or the other about either of us, but simply and obviously because there is a market for this. They stand to be paid for these invasions of privacy. And the more invasive and intimate, the more valuable their trophy.
What I couldn't have anticipated was how this initial violation would turn out to be merely the starting point for what became an active campaign to follow up on this very private matter.
Because my son was born prematurely, the tabloids decided to concoct a melodramatic soap opera, inventing health problems for my son that did not exist, making up tearful conversations and chest-beating confessions between my wife and myself that never happened.
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Now, again, while I realize that bad writing is not yet a punishable crime in this country, I want to demonstrate for you how these events snowball into dangerous territories.
Simply because our son had—against our wishes—become a news item, he was, suddenly, photo worthy. And our lives changed.
Cars began to follow us on our daily errands.
Strangers with video cameras camped outside our home.
One resourceful photographer gained access to a house down the street from us and with a telescopic lens was able to get a photo of my son in the privacy of our backyard.
Someone pretending to be our pediatrician called up family members and extracted details of our son's medical records, which were subsequently printed in the tabloids.
What I would like to explain is that even in the absence of these kinds of specific offenses, the state of constant vigilance required has a real cost.
Valuable energy that should have been focused solely on the care of my son has instead been spent second guessing and double checking the credentials of everyone with access to my son, including doctors. As recently as two weeks ago, I was advised not to accompany my son to a routine doctor's check-up because paparazzi were spotted in the lobby of the medical office. Instead, the doctor, my wife and myself, were forced to play a cat and mouse game, surreptitiously scheduling another appointment to avoid any further invasion of our privacy. This is, I believe, an unreasonable price to pay.
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Somewhere along the way, a line has been crossed. The code of civility and common decency we all aspire to seems to be vanishing. We live in a climate in which people's lives are regularly served up as mass entertainment, and the acquisition of this entertainment has become a perverse sport.
Ramming an actor's car as he picks up his children from school in the hopes of getting a sensational video is not—I believe—acceptable news gathering.
Staking out a celebrities' vacation get-away and shooting through their bedroom window with high powered photo lenses cannot be considered journalism.
I would never come before you and argue that celebrities are entitled to more rights and privileges than others. But certainly they shouldn't have fewer. I would hope that all law-abiding citizens are entitled to the same degree of security and protection under the law.
If a non-celebrity were walking through an airport with their family, and strangers jumped out of doorways, thrusting video cameras and bright lights in their face, blocking their path, calling out their names, being verbally abusive and physically threatening, trying to provoke a hostile response so that their film would be that much more valuable, this person would be justified in feeling harassed, violated and their safety endangered.
I realize it's not possible to legislate civility and manners. But I do believe that the time has come to take the first step in that direction and send forth the message that there is still a distinction to be made between public and private. That even in the pursuit of news or human interest stories, there is a point where harassment, trespassing and physical endangerment are not only unacceptable but should be punishable by law.
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I know that many in this room wonder about the symbiotic relationship between celebrities and the press. You see, when I am before the press to promote my TV show or attend a movie premiere, whether it's a contractual obligation or not, the relationship is consensual. When they chase my family and me in an airport, or even worse, on a highway, or when they sit in a tree and keep us under surveillance in order to photograph us inside our home—that is not consensual. I can't imagine that any reasonable person in this room would disagree that this conduct is dangerous and intrusive.
Despite how certain tabloids and other media organizations talk about us as objects, we are human, with real day to day problems and issues faced by parents and families across the country. No one, celebrity or not, should be stripped of their basic privacy rights.
It is my sincere hope that you will enact legislation that both addresses this egregious conduct and protects anyone who may fall victim to such tactics. I offer you my whole hearted support towards that goal. Thank you.
BIOGRAPHY
Paul Reiser, a seasoned stand-up comedian and actor, continues to add to his list of accomplishments, whether they be on stage, screen, or television. In addition to starring in the critically acclaimed NBC series Mad About You, which has garnered him Emmy nominations, Golden Globe nominations, American Comedy Award nominations and Screen Actors Guild nominations for Best Actor in a Comedy Series. His success also includes the 1994 publishing of the book Couolehood, which sold over two million copies and reached the number one spot on the New York Times bestseller list. Babyhood is the follow-up to Couplehood and features Paul's trademark humorous take on the adventures of being a firsttime father.
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Mad About You, which stars Reiser and Helen Hunt, earned twenty-five Emmy nominations, including Best Actor, Best Actress and Best Comedy. For the past five years, the show has also received top honors from Viewers for Quality Television in the categories of Best Comedy Series, Best Actor, and Best Actress. Reiser created the series with Danny Jacobsen and serves as producer.
In 1994, Reiser starred opposite Randy Quaid and Matthew Modine in 20th Century Fox's Bye Bye Love, which was produced by Gary David Goldberg and Brad Hall, and directed by Sam Weisman. Billed as a romantic comedy, the film follows the lives of three divorced men who have very different viewpoints on life.
In addition to stand-up and television, Reiser has charmed audiences with his performances in such feature films as Barry Levinson's Diner, The Marrying Man, opposite Alex Baldwin and Kim Bassinger, Beverly Hills Cop and Beverly Hills Cop II as Eddie Murphy's sidekick, Aliens, opposite Sigourney Weaver, and Crazy People with Dudley Moore.
Born and raised in New York City, Reiser spent his free time at the Greenwich Village comedy clubs watching George Carlin, Robert Klein, David Steinberg, and other top comedians perform. While in college at the State University of New York at Binghamton, he majored in music (piano and composition), a passion that later inspired him to co-write the theme song to Mad About You with veteran producer Don Was. During his summers, he performed at the local New York comedy clubs Catch a Rising Star, The Comic Strip, and The Improv.
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Upon graduation from college, Reiser was already on the comedy circuit. His big break came when he landed the role of Modell in Barry Levinson's ''Diner.'' Accompanying a friend to the auditions, he unexpectedly was asked to read for Levinson and got the part. He continued to perform in nightclubs across the country while quickly becoming a success in film and television.
Reiser's television credits also include three seasons on My Two Dads. He has written, produced and starred in his own HBO special, Paul Reiser: Out on a Whim, and his own Showtime special, Paul Reiser: 3 1/2 Blocks From Home.
Reiser also continues to perform on stage and works closely with the National Multiple Sclerosis Society.
He resides in Los Angeles.
Mr. HYDE. Thank you, Mr. Reiser.
We will now entertain questions, but the Chair would just like to admonish the members that we have a very large panel succeeding this one and so restraint is much appreciated today.
The gentleman from Michigan, Mr. Conyers.
Mr. CONYERS. Well, I want to thank the witnesses for their statements. I think they're quite thoughtful and I think I'll reserve any questions I have for later or maybe pass them altogether. Thank you very much.
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Mr. HYDE. Thank you, Mr. Conyers.
The gentleman from Pennsylvania, Mr. Gekas.
Mr. GEKAS. I thank the Chair. As a matter of curiosity, I'd like to know if Mr. Fox and Mr. Reiser and Ms. Levin were accompanied to this chamber by hoards of photographers? Were you trailed up to this chamber, to this room? Or were you able to get here without incident?
Mr. FOX. No, not a problem.
Mr. GEKAS. The second thought that struck me was that, in the case of Ms. Levin, when you first responded to the shocking news and traveled to the site, you say you were, in effect, trapped in the car. Were there any photographs taken there, thereafter published of that incident of you being in a car trying to emerge?
Ms. LEVIN. It's interesting that you brought that up because actually I never saw anything until a few years ago, and there is a reason for it, obviously. There wasn't any pictures of me being trapped in the car, but there's a picture of me being led from the car, being supported on either side where I screamed to the press, ''What's wrong with you people. My daughter is dead.'' They had that on tape for many years and never showed it until a couple of years ago when a special investigation was going on into the case. That's the only footage on that time that I remember. I wasn't really too coherent, actually.
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Mr. GEKAS. By whom were you escorted? Was it a law enforcement officer or——
Ms. LEVIN. I had the driver of the car, who was a co-worker of mine, who took me downtown, and I believe a policeman had come to my aid.
Mr. GEKAS. Were there any law enforcement people in that immediate vicinity?
Ms. LEVIN. Oh, yes. There were many of them. The problem was that the press reacted to seeing the car first before the police did, and they went running with their cameras and their microphones and the police running behind them. I'm trying to curtail——
Mr. GEKAS. The reason I ask this, I know you were consumed by the shock of what had happened to your daughter, but would you have been able to be in a position to identify which photographers were doing what? Or what news media?
Ms. LEVIN. No, all I saw was cameras and flashbulbs and microphones and people screaming in my face. And it was just a general feeding frenzy.
Mr. GEKAS. So, if the law enforcement people were not able to push them aside, or to make an aisle——
Ms. LEVIN. Not immediately, no. Which was the most frightening moment because I felt like I was being attacked.
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Mr. GEKAS. And this happened in New York?
Ms. LEVIN. Yes.
Mr. GEKAS. The first incident, Mr. Fox, that you related also happened in New York?
Mr. FOX. That specific incident. What I was illustrating by that incident was not so much the circumstance of that incident as much as to illustrate why a picture of distress is valuable. That was me having an interaction with the policeman, and I looked distressed because I was looking for my car. So that has value. Then, further, if they create a situation of distress, actually endanger you, put you in a position where you're fleeing, where you're protecting a child, where you're reacting to confusion that they've manufactured, that that picture has value.
Mr. GEKAS. Yes, I understand. The reason—I'm not picking on New York; it's just that I happen to believe that some of the harassment and false imprisonment and other kinds of laws that are in place in New York would have covered your two situations, the ones we just—if they amounted to harassment and false imprisonment or the other areas of the law that pertains to those incidents. Do you disagree with that?
Mr. FOX. If I could speak to that, sir—I don't disagree with that. But in the course of my testimony, I hadn't done the math, but I believe five States are involved and, coincidentally, two countries, which has no relevance here, but there's no boundary recognized in terms of where they'll go and who they'll pursue and where.
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Mr. GEKAS. Yes. You understand that part of our duty is to sift through whether a Federal umbrella law should be applied or whether we believe that the State laws that do function, function well and that's part of what this hearing is about.
The incident that you related, Mr. Reiser, about the birth of a child, and so forth, was that in California?
Mr. REISER. No, that was in Los Angeles.
Mr. GEKAS. Yes. I also would state that California has a panoply of laws that would probably cover the potentials of damage and injury that could have occurred from your situation. So, I'd like you to keep that in mind as we wrestle with this problem.
Mr. HYDE. The gentleman's time has expired.
Mr. GEKAS. I thank the chairman.
Mr. HYDE. You're welcome.
The gentleman from Massachusetts, Mr. Frank.
Mr. FRANK. Thank You, Mr. Chairman. I'm tempted to save time and not ask questions and just wait for them to be followed to the airport by the press and then they'll write what they think and we won't have to ask them anything.
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Mr. HYDE. You are going to overcome that temptation. [Laughter.]
Mr. FRANK. Well, I think I try to overcome one temptation a week, and this is probably the only one that I'm going to handle this week.
The question I have, because Mr. Gekas has an important issue we have to deal with, and that is the State versus Federal. And we're told that there were some State laws involved in this. I want to differentiate. Obviously, the physical harassment ought to be dealt with by State law, trespassing, et cetera.
It does seem to me there was an issue that I don't know if State law adequately deals with, and that is the thing I think is the biggest threat to people, which is enhanced listening. You can pull the blind, but you can't plug-up a listening device that's remote, and I think that's an important one and my guess is that's one that's inconsistently covered.
But leaving that one aside, that problem of eavesdropping, where you are talking about the kind of physical harassment many of you have had, we do have this question inadequately stated. Let me ask you, have any of you ever brought lawsuits? Have you ever tried to sue some of these people who have been so disrespectful of your rights or were you advised by lawyers that there was no chance? Because I think that the people who disagree with you are going to concede, perhaps only for these purposes, but they concede that some of the behavior is unattractive.
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Although, I will predict that we will have people who will come before us today in opposition to this bill who will cite judicial decisions restricting photographers and the reason why we don't need the law, and in fact, were opposed to those decisions when they were issued, but temporarily before them for purposes of beating the law.
Let me ask those of you who have been victimized, because you clearly have been, did you think about suing or were you advised by somebody that existing State laws in California and New York were just inappropriate? Mr. Reiser?
Mr. REISER. No, I never have attempted to bring suit. Sadly, and part of what I want to speak to here today is that it has become so commonplace that it is often considered a course of business, that you allow your privacy invaded, you're harassed or hassled. It's hard to, usually in the mix of these moments, it's hard to isolate and identify exactly who it is that is causing you——
Mr. FRANK. That's reasonable. When you've got a mob confronting you, you don't take names.
Ms. LEVIN. In our particular case, we did talk about it with our lawyer, but we were more concerned with the emotional abuse that we were suffering from the media's constant misreporting of the headlines, quoting the killer's version of the story.
Mr. FRANK. Okay. But you understand as much as I am sure you are correcting—you know that there is absolutely nothing we can do about that?
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Ms. LEVIN. No. Well, I do.
Mr. FRANK. Completely and totally wrong and deeply imbedded in the First Amendment, it's one of the most widely-exercised and deeply-protected rights in America and nothing we can do about it.
Ms. LEVIN. Absolutely, I agree. And that was our legal advice, so we never did anything more about it.
Mr. FOX. On the issue of litigation, I've litigated. I had successful litigation in terms of misrepresentation in an area where it was clear that they thought it was clear, because they ultimately settled, that we could prove malice and we could prove premeditation in a systematic effort to go after us. That's, again, not what were dealing with today. We're talking specifically about the collection of this stuff, the hunting and not the cooking.
The thing that's difficult to convey is that there are two separate relationships. Certainly all these photographers here today and many that we deal with are professionals and have families and lives and are just doing their jobs——
Mr. FRANK. Most.
Mr. FOX. We respect that. In fact, there is one gentleman who's here I saw has a little funny character on top of his camera, which I thought was very thoughtful. But it's those instantaneous events that happen that are very difficult to document. It's very hard to isolate someone. It's very hard to litigate. You know, it's getting into a car with your family and someone sticking an umbrella in the car, so that you cannot close that door. You cannot carry on with your life and you cannot get to a place where your privacy is protected. Like blocking your car and pulling vehicles in your driveway so you can't leave, things like that.
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Mr. FRANK. That's an important point of this issue. Again, we will determine that some of that stuff is illegal, but we have previously dealt with the situation where something was illegal at one level, but we pass the laws anyway. Privacy is one of these examples, because we wanted to send a message to prosecutors that a law that is not being enforced very much ought to get more enforced that this has risen to that level. So, I think that that's part of what we're talking about, is tell societal judgment, saying no, this is not just the cost of doing business. You ought to get involved in it.
And then, I think even then, when we get into the electronically-enhanced invasion which can take place now without the physical and could ultimately be the most damaging, because it's really quite violative of the family privacy, that's something that I think we will have to work on.
Thank you, Mr. Chairman.
Mr. HYDE. I thank the gentleman. The gentleman from North Carolina, Mr. Coble.
Mr. COBLE. Thank you, Mr. Chairman.
There was a clever exchange between the chairman and the gentleman from Massachusetts. It should not surprise you all when I say that we on the Judiciary Committee very much enjoy the ''Henry and Barney Show.''
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Good to have you all with us. I said to some of you yesterday, there needs to be some sort of balance struck here. Now advocates for the freedom of speech would declare that there should be no prohibition at all. Those individuals at the other end of that spectrum would say, well, there should be absolute prohibition. There's got to be some middle ground.
Have there been times when you all communicated to the paparazzi that you expect privacy and asked them to leave you alone, and have they resisted? Has that ever occurred to you?
Mr. FOX. They would laugh. They would absolutely laugh. They would welcome the fact that you would have to come and confront them to communicate that message, and while you were communicating that message, they would be gloating you, baiting you, spitting at you, insulting you, and taking your picture.
Mr. MASUR. Mr. Coble, If I may, I just want to clarify—with your permission, Mr. Chairman—the behavior we're talking about is probably behavior that, even in the press scrutiny that you all live, you don't experience. People, they may challenge you with questions, and they may badger you with questions, but you don't experience people insulting you, insulting the people you're with, verbally abusing you, spitting at you, physically harassing you, with the object of creating the most dangerous and shocked expression possible, so that they can then capture that image.
That's what we're addressing here and I think that's why Michael is saying they'd laugh at you, because you're playing right into their hands the minute you say, ''Could you please...?'' The shot is going to be of you doing this which is a very ''take it, guys,'' a very usable shot; you know, that kind of pleading look. And then they'll put a wonderful headline over it and say, you know Reiser is distressed about, you know, about something else.
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Mr. COBLE. So that request usually falls upon deaf ears, I take it then?
Mr. REISER. Yes.
Mr. FOX. Yes.
Mr. COBLE. Let me think aloud for a minute and put a two-part question to you all. The bill that's proposed requires that the individual be followed or chased, have a reasonable expectation of privacy, and have taken reasonable steps to ensure that privacy. Now, can you all offer some sort of insight as to what types of situations would create this reasonable expectation and what reasonable steps you should take to manifest your protection of that privacy?
Mr. FOX. I can think of one instance of that.
Mr. COBLE. Mr. Fox, could you pull that microphone a little closer to you?
Mr. FOX. I'm sorry. If I could proceed with a brief idea that I'd like to reinforce, which is we're not here, or at least I speak for myself, to list or air a list of personal grievances that I want redressed, for it's not that personal. It's not a situation of being a hysterical Greta Garbo who wants ''what I want, when I want it, how I want it.''
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I expect to have my photograph taken and am professional and I understand that. But what I would say is that my child, my children, my grieving family, in the case of my father's funeral, professionals that work with my family, be comfortable in knowing that they can go back to their lives and not be affected or harassed or interfered with based on their contact with me and my career of choice. So that would be what I would say.
If I'm taking my child to school and putting him in the car, I feel that, or I have a reasonable expectation that, people will not interfere with the path my child is taking from my apartment to that vehicle to go to his school. That's, I would think, a reasonable expectation of privacy.
Again, it's very simple to say, ''Did you have your picture taken?'' Listen, I don't mind, frankly. It's those specific dangerous acts that accompany photography and it's that baiting and that interference with the course of the daily lives of people around me that I find most uncomfortable and unacceptable.
Mr. COBLE. Mr. Chairman, I think the red light is about to illuminate, so I will yield back my time.
Mr. HYDE. The gentleman is very perceptive.
The gentleman from Virginia, Mr. Scott.
Mr. SCOTT. Mr. Chairman, I heard your admonition about asking questions to this panel, and I also noticed that you set an example by not asking any questions yourself. I want to renew that example and just thank the panel for their testimony and reserve questions for the next panel.
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Mr. HYDE. I wish you a long life, sir. [Laughter.]
Mr. Gallegly.
Mr. GALLEGLY. Thank you very much, Mr. Chairman. And I too, would like to have a long life, so, I would respect the Chair's earlier request.
But I do want to give a particular thanks to those that appeared here today, particularly to you, Ms. Levin. I know this continues to be a difficult task that you are doing for the sake of others that, hopefully, will not have to endure what you have gone through. I know you believe in this cause.
If I might just ask a just a couple of short questions, Mr. Chairman?
Ms. Levin, at any time during this terrible part of your life, was there any time you or your daughter, Danielle, felt any physical threats or physical harm to either one of you?
Ms. LEVIN. There were a couple of times when—the incident that I talked about in the courthouse. What we found in the courthouse, which was really quite amazing to me to this day was, we were not allowed to show any emotion in the courtroom during the trial. And if we were going to be emotional, we were asked to leave and go to the ladies' room, which happened, unfortunately, quite often, but understandably.
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As my daughter and I would get up to leave and leave the courtroom to go to the ladies' room, we would be followed en mass by all the photographers that were waiting out there, and before we realized—this happened at least two or 3 days in a row—before we realized it, the frenzy was building because they realized we were coming out often and we were not protected.
One of the photographers, in an effort to get a picture of my daughter, knocked into her and almost sent her sprawling across the floor, and she just managed to grab onto the wall and balance herself and we ran into the ladies' room. And from that point on, we had to be escorted by the guards every time we went back.
Mr. GALLEGLY. She was an expectant mother at the time as well?
Ms. LEVIN. Yes, she was pregnant. She was 5 months pregnant.
Another thing that always amazed me, and I have never found the answer to that, they must have 500,000 feet of me going back and forth to the ladies' room. I don't know what they ever needed it for or what they ever did with it. But it was amazing. You know, this was a big event, my coming out and having to go to the ladies' room.
Mr. GALLEGLY. Thank you very much, Ms. Levin.
Mr. Fox, Mr. Reiser, we have been working on putting this hearing on, as you know, for several months now. And one of the things that I have heard from some folks in your profession, that there was some degree of reluctance to come before this committee out of fear of retribution. Have you heard this yourself? People actually afraid to come and testify the fact that they may find their problems exacerbated in dealing with the paparazzi? Mr. Reiser?
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Mr. REISER. I think people have said that. I think the reality is the people who offend these regulations and these considerations that we're talking about are likely to do them anyway, regardless of who appears and who doesn't.
I think it's important to begin to address.
Mr. GALLEGLY. Have either of you actually been concerned about a physical threat to you or your family or loved ones or friends that might be with you?
Mr. FOX. Absolutely. It's a cliche' that people are aware of.
Mr. GALLEGLY. Mr. Fox, could you maybe pull that microphone up?
Mr. FOX. Oh, I'm sorry. It's a cliche', for example, when people talk about we've all heard of celebrity weddings with helicopters circling above. And it's a cliche' when you say, all the helicopters are hanging around. It almost seems romantic and kind of daring. I would tell you, you have 65 of the people you love most in the world, your parents, your family, and above them are five helicopters jockeying for position for the most opportune photograph. That's frightening, and that's scary to have vehicles chased and cars trying to get in front of your vehicle, so that they'll force you off the road, so that you'll have to get out and say, ''Why are you blocking my vehicle?'' So that they can get a picture of you upset in front of your vehicle. That, I would say to you, is dangerous.
Mr. GALLEGLY. One of the comments that you made and we've heard a lot about, why do we need this legislation? We saw in the case of Arnold Schwarzenegger and Maria Schriver that they had their day in court and were protected in California. And we've heard about New York and we've heard about California, but can either of you give a quick example of any time that you have seen this as a problem outside the State of California or New York?
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Mr. FOX. Certainly, in Vermont when we were married.
Mr. GALLEGLY. Not anywhere necessarily in particular. But do you really believe that this is a situation that is not limited to California or New York? It could happen at any time or any place if they want to get the picture?
Mr. FOX. Certainly not. Absolutely, sir.
Mr. REISER. The world's a very small place at this point.
Mr. GALLEGLY. I see the red light is on, Mr. Chairman. Thank you very much. And I do want to thank these witnesses for their time and effort.
Mr. FOX. Thank you.
Mr. REISER. Thank you.
Mr. GALLEGLY. I yield back.
Mr. HYDE. I thank the gentleman. We have a vote and I'm loath to keep this panel much longer.
Ms. Jackson Lee, if you have some questions, I'll yield to you, and then perhaps, by unanimous consent, Marty, you would waive questions, so we could let this panel and the rest of you—I hate to do that.
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Asa's looking very troubled. Did you have some imperative question?
Mr. HUTCHINSON. I'm very peaceful.
Mr. HYDE. You're peaceful, right. I'm a lousy profiler. All right.
Ms. Jackson Lee.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman. And let me thank our late colleague, Mr. Bono, for his vision and leadership; Mr. Gallegly and Mr. Conyers who have been persistent in these issues.
Might I say that I appreciate very much your presence, and I would just simply like to say that the First Amendment, which provides the freedom of the press, does not deny freedom and the right to associate with who you desire to associate. And I know this will be a controversial approach that we are now looking at with this legislation because we, as Americans, pride and protect the First Amendment. But it is rare that we acknowledge that in that same provision that we can associate as we desire with family members, at weddings, during times of mourning, and tragic circumstances.
So, I hope that we will keep that in mind as we proceed. I want to offer to you that there is no tragedy or wrongness in meeting publicity or getting one's message out. Frankly, we in public life have to communicate to our constituents, and we're sometimes taken to task, because it is said, well, you want us to communicate your message.
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But when you're at the soccer field with your 12-year-old, and you get into a parent-child sort of relationship, and we photograph as someone, Representative or Governor So-and-So, then that is not something you're happy with. I would say that is correct, because you're in a private situation.
Mr. Chairman, I'd ask that my complete statement be put in the record.
Mr. HYDE. Without objection, so ordered.
[The prepared statement of Ms. Jackson Lee follows:]
PREPARED STATEMENT OF HON. SHEILA JACKSON LEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
First of all, Mr. Chairman, I want to thank you for holding these hearings on an issue that is at the heart of this Congress' efforts to protect the rights of the individual: the issue of personal privacy. The ''right to privacy in one's person'' which is the product of a number of rights (particularly the Fourth, Ninth and Fourteenth Amendments) clearly enumerated in the United States Constitution, is too often taken for granted by society's well-meaning ''information seekers''.
In today's rapidly moving ''information now'' culture, people, incorrectly I might add, seem to presume that they have the right to harass individuals (if necessary) in the pursuit of information they deem to be of public interest. Ultimately, it really does not matter whether the individual whose privacy has been intruded upon is a star of stage, screen, song or print, or a non-celebrity that works diligently every day to keep the fires of hearth and home burning, our understanding of the right of privacy and the brilliant Constitution its protections are grounded upon, is not a respecter of persons.
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Let's not be fooled by the celebrity representatives on this panel, everyone needs these protections, and everyone should want these protections, because you never know when you and your family may be caught in the eye of a media tempest. As one of our witnesses today, Ms. Ellen Levin, will illuminate for us, not everyone harassed by over-aggressive media representatives, freelance paparazzi or sophisticated stalkers are celebrities. Sometimes their victims are so-called ''regular'' people like you and I. I mean, who could dispute the assertion that today's media, for lack of a better word, is obsessed with the reporting of the private tragedies of our friends, neighbors, and fellow citizens for the simple reason that these shocking events boost television ratings and sell newspapers. But what about the people caught the middle of these incredible stories, what about them and their families, what about their pain? What will we do for them?
Finally, we can begin to answers these questions with confidence; finally, we have taken the first and most important steps toward achieving a solution to this problem. H.R. 2448, The Protection From Personal Intrusion Act, authored by the distinguished late member of this Committee, Congressman Sonny Bono, and H.R. 3224, The Privacy Protection Act of 1998, introduced by Congressman Gallegly, are two decisive legislative initiatives in favor of personal privacy. The complexity of this issue, of course, lies in how the First Amendment rights of the press and related media personnel would be affected by statutory restrictions on their behavior. But as the Supreme Court held in Cohen v. Cowles Media Co. (1991), no reporter or photographer has a First Amendment right to break the law under the guise of ''newsgathering''.
H.R. 2448 would make it a crime to persistently physically follow or chase a person, where that person has a reasonable expectation of privacy, in order to capture a visual image, sound recording, or other physical impression of the person. H.R. 3224, on the other hand, would criminalize similar forms of conduct, but incorporate certain refinements to the language in H.R. 2448. In H.R. 3224, the person being pursued must have a reasonable fear that death or bodily injury will result from the fact that they are being followed. However, it is important to note that neither of these bills will prohibit the publication or broadcast of material obtained in a manner they deem to be unlawful; in sum, these bills are only interested in regulating the conduct of intrusive information gatherer.
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In closing, I want to thank the witnesses that have come to testify before us this morning, and I hope that we can continue to work together in the future to protect the right of privacy of all Americans. Thank you.
Ms. JACKSON LEE. Let me briefly then say that, with those parameters, let me cite as an example, I think, where you can find a distortion of who you are through the press and I'd like to ask some questions around that line.
Many of us had the pleasure of being in Africa, but also saw the President in Africa. The very first photo that you might have seen was the Ghanian photo where a very distressed picture of the President came across the news wires with a throng of Africans seemingly attacking. In fact, he was not distressed for his own safety, as it might have looked in the media. When phone calls came into me and the media said, ''Did you see the President? He was frightened of those black Africans,'' he was, in fact, concerned that people down near him were being trampled.
But the signal from the press was to incite African-Americans to think that our President might have been frightened. So that means that there are circumstances where you might be moved to look a certain way, and I want to ask you, Mr. Fox, Ms. Levin, Mr. Reiser, very quickly: Part of the problem of what we're trying to do here is making sure we can identify. So throngs of people, Ms. Levin, obviously is tragic, may not be able to identify, but, Mr. Fox, would you have been able to identify the person with the umbrella? You said there was an incident of an umbrella and the circumstance with the child. Are these people close enough for you to have been able to identify them?
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Mr. FOX. Potentially, again, it's getting people to perceive that as an objectionable act and a crime. But, I may have been able to in any given instance. Sometimes, certainly, there are two to three people working together and it's difficult.
Ms. JACKSON LEE. Ms. Levin, an incidence is when you did open the door. Did you open the door on some of those occasions? Not the time when you went to your husband's law office, but on the times that they may have come to your own private residence, did you have a chance to see any of these people?
Ms. LEVIN. No, it's interesting that the people that I did notice, especially during the trial, because that's when I became angry, and anger is a great motivator, were the ones that backed-off. And they were the ones that, in the end, I gave my private interview to. They were the ones who treated us with sensitivity. The other ones all kind of got lumped together as insensitive and really were in violation of our privacy.
Ms. JACKSON LEE. So, we need to be concerned about that as the legislation's drafted, so that it does not require sort of a personalized identification, but the behavior becomes offensive.
Mr. Reiser, do you want to comment?
Mr. REISER. I just wanted to point out that, while my experience, very often, certainly in the case of invasion of privacy, when you're having people take photos, you don't see the people. I don't know until weeks later, when I see it in a picture, wow, somebody was on the roof of the house next to me. Somebody was walking by our yard.
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But also, the times have changed, so now that anybody who has a video camera, everybody's a freelancer. So it's not even that you can—even if you were able to identify somebody, you might not be able to say this is the employer of this newspaper. There's not an accountability. There's an environment, and this is part of what I wanted to help address here, that there is an environment now, where, as I said, people's lives and personal lives and private lives become sport. And everybody is encouraged to sort of get into this hunting game, and the first thing that gets trampled is these very personal, private lives that, I would argue, we're all entitled to maintain.
Mr. HYDE. The gentlelady——
Ms. JACKSON LEE. Thank you very much.
Mr. HYDE. I thank the gentlelady.
The vote on the floor is approval of the journal. I propose, as long as there is such interest, to work through the vote.
Mr. Goodlatte, the gentleman from Virginia.
Mr. GOODLATTE. Thank you, Mr. Chairman.
I want to thank this panel for their participation in this testimony regarding this legislation because it affects you so directly, and to ask if—I noted that in Mr. Fox's statement, and perhaps some of the others could address this as well, that there was some concern expressed about areas of this legislation that did not address what affected you. I wondered if you might comment on that. Perhaps, Mr. Reiser?
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Mr. REISER. I think the areas have been addressed. And I think, as I just mentioned, I think the first thing to look at is of the mentality and the climate that exists in which people's lives are thrown onto this public arena, and things stem from that.
The example that I gave, had there not been this first photograph stolen of my son and myself, I don't think these subsequent stories would have evolved. Same as Michael was explaining—that the first picture generates more interest and then more attention and more danger and more need for surveillance.
Mr. MASUR. Also, if I may, well, first of all, let me apologize; Mr. Fox had to make a plane, and I'm sorry; it was nothing to do with your question, I assure you.
Mr. GOODLATTE. No, no. I'm sure it wasn't, either.
Mr. MASUR. The other thing is, when you say this legislation, we have two pieces of legislation that have been introduced and a draft that Mr. Conyers has circulated, and yet, Mr. Conyers' legislation addresses almost all of what we're talking about. Mr. Bono's and Mr. Gallegly's does not. They're solely concerned with the harassment section and don't deal with the technological invasion of privacy and the trespass issues.
So, when Paul said, yes, it addresses, I think he was referring to Mr. Conyers' legislation which does address the full scope of what we're talking about.
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Mr. GOODLATTE. Thank you.
Thank you, Mr. Chairman.
Mr. HYDE. Thank you, sir.
Mr. Buyer, the gentleman from Indiana.
Mr. BUYER. Thank you, Mr. Chairman.
Mr. Reiser, you intrigue me because we're talking about the marketplace. And that's what's so bothersome here, when you mentioned about the lack of civility or the question of why is this going on, obviously, there is a demand, an appetite out there by people for this stuff. And that appetite's being fed and it's also changing our society.
So, I applaud you for stepping into the breach, all of you for doing that. At a certain point, you've got to bring the pendulum back.
Let me throw out an analogy here. We, as a society, are also struggling with the drug war. There is an appetite; there is a demand out there, and we're trying to attack the drugs at every way, but what we also do is not only go after the users and those that sell the drugs, but, in fact, it's the kingpins. This legislation doesn't even begin to address those of whom that are setting the bounties for those photos. I think that's what's most bothersome.
So, they go out there and they set the bounty at $100,000 for the photos of which you're talking about or $500,000 pricetag. I'm intrigued, why you wouldn't be discussing here today, going after those individuals that actually set the bounty and for them to also be included in the legislation for either criminal or civil penalties, because they're the ones that are generating this ludicrous behavior.
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Mr. MASUR. I think, if I may, in an attempt to stay as clear of the First Amendment as we could, we did not want to impact in any way anything downstream from the act, anything from the moment the picture was taken or the recording was made, downstream, we don't want to——
Mr. BUYER. What about upstream?
Mr. MASUR. If I may, I think your point is very well-taken. I think it is a deficiency even in the version that Mr. Conyers is circulating, and I think we would very much like to address that deficiency from the point of view of saying that someone who actively incites the act to occur, could be brought in as a co-respondent under the tort. And that is something that I think we do have to do under the criminal statutes.
As I understand it, there already exists precedent for bringing someone in as an accessory before the fact, but that doesn't apply to civil statutes. So, I would think we would have to address that in the language ultimately.
Mr. BUYER. We have, under our employment laws, the master-servant relationships here, and that's exactly what this is. I know we've been classifying them as independent contractors out there, but there are definitely some quid pro quo. Would you welcome such modifications to go after that?
Mr. MASUR. Yes.
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Ms. LEVIN. Yes.
Mr. REISER. Absolutely. I would also like to add a comment on your comment. You said there's a marketplace and there's people who are curious and who are demanding or at least certainly tolerating or intrigued by invasions of privacy.
As one of your colleagues earlier, Representative Frank, said, sometimes the important thing is to send a message. And I believe that it is important to send a message even beyond just the people who are creating the infractions, but even the public to say, take a look at what you're doing; that when you casually walk by a newsstand, that when you casually go, ''huh, look at that,'' so-and-so's kid is in the hospital, that's a person who might have preferred that you not steal that picture, who might not have wanted that camera jammed into their car or their wedding photographed. And I think this is where it is impossible to legislate, but certainly, I think that message can be sent to the public that what you're involved in, what these pictures represent is an invasion of people's lives and a violation.
Mr. BUYER. Thank you, Mr. Chairman. Thank you.
Mr. HYDE. The gentleman from Georgia, Mr. Barr.
Mr. BARR. Thank you, Mr. Chairman.
The legislation that we had before today, both H.R. 3224 and 2448, are on the one hand, very, very broad as well as very specific which places them, I think, in a category of very problematic legislation in terms of trying to really define equal protection and due process. What behavior is covered, what isn't? What does it mean to physically follow? But then, again, it doesn't reach a lot of other activity that might be equally problematic.
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So, I'm not at all comfortable with the language that we have here, although it does raise, I think, a very interesting proposition.
One of the problems that we try to come to grips with here in the Congress on behalf of our constituents is to try to keep in proper balance the Federal society in which we live. We're not a national government society. Or at least, we're not intended to be, while in many respects we've become that, unfortunately.
But one of the things that we try to do here and as a former Federal prosecutor I tried to do this as well, to ensure that those activities that truly are Federal offenses in which there is truly a national interest, a unique interest on the part of the people of the United States, generally, as opposed to the people of a locality or State, and for which there is clear authority in the Constitution, become the subject matter of Federal laws. We try, or at least I try, to guard against that becoming the ''tail that wags the dog.'' And the primary responsibility for the enforcement of laws to protect our citizens, other than those that have to do with our borders, for example, should fall, first and foremost, to our State authorities, State criminal laws, and State civil laws.
We're talking here about making it a Federal criminal offense with the full weight of the Department of Justice and the U.S. penal system coming to bare on an individual that might harass somebody else. I know that the both of you here—sorry that Mr. Fox left—have given very careful to this and the eloquence of your testimony reflects that, but if you could please, just comment—and I know you're not lawyers—on why given the system of government that we have, given that the primary responsibility for enforcement of the laws protecting our citizens has been and should be under our system of government, State and local laws and enforcement, why is this, all of a sudden catapulted into a Federal offense?
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And would it not be at least better to really at least, first, exhaust all reasonable efforts to have the problem addressed by State legislators? Maybe they're doing this, I don't know. Maybe you all have been involved in that, but I'd really be interested in, while it's certainly important to bring this to the attention of the American people through this forum and that's an important part of what we do here, is it really something that we want to do to say that it is the Federal Government that now ought to be going out and policing whether individuals are harassed?
I would also caution those who support this legislation, because of its specificity, you may be opening a Pandora's box to just cause the activity to move into another area that may be even more difficult to prosecute, given the specificity of these laws. But if you could, please, just comment on the federalism aspect?
Mr. MASUR. Well, you didn't address it to me, Mr. Barr. If you're comfortable with my giving a very short response, the only thing I was going to say is, I think the next panel, we will be addressing that at some length.
Mr. BARR. I suspected that as much, because I saw that in the testimony, but I really would like to hear this panel, if you could just give me your thoughts on that.
Ms. LEVIN. Personally, I work on a State level with laws with my group, Justice For All. We're a lobby group and it's very difficult to pass laws in every State, I'm sure. I know that this particular problem is a patchwork across the country.
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In my case in particular, it wasn't a matter of traveling from State to State. We did have laws to protect us, but I didn't know about them and nobody told me about them. So, I was at a disadvantage when this happened to us, but for people like Paul and Michael, and other celebrities that travel from State to State, they may be safe in one State and not in another. And by the time the laws do get passed in the various States that don't have them, serious consequences could happen by that time. I think that we need a Federal law.
Mr. REISER. The only thing I would add to that, certainly, the laws do vary from State to State. And the interest does not and this act could happen. I spend most of my time in Los Angeles, but the truth is that these things could happen anywhere; and, also, because, my understanding of it, they are sold to magazines and journals that are interstate and even out of the country that are beyond the scope of a State problem.
Mr. HYDE. The gentleman's time has expired.
The gentleman from Massachusetts, Mr. Meehan.
Mr. MEEHAN. Thank you, Mr. Chairman.
Mr. Reiser, I know that the topic of today's hearing and the focus are on two bills that deal with the aggressive pursuit of celebrities and even non-celebrities by certain elements of the media. Nonetheless, I would suspect that many celebrities have experienced discomfort or harassment and fear at the hands of some of their fans, and not just crazed individuals, like the individual that Mr. Fox mentioned, but well-intentioned fans who simply don't know where to draw the line in terms of respecting celebrities' privacy.
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I was wondering whether or not you believe that the laws on the books already are doing a good job from deterring fans from aggressively pursuing celebrities and whether new Federal legislation might be necessary at all to address that problem?
Mr. REISER. You know, I've never had a problem with behavior of a fan. And I think Michael addressed that as well; that most people—and I think this is true with most of the population—most people are civil and law-abiding and know the difference between right and wrong. So if somebody comes over politely or even if somebody is rude, I'm not asking for legislation to say, ''This guy was rude to me in line at the supermarket.'' We're talking about something different.
As I said before, this is something that has a huge market and a huge appetite that is being fed. And as I said before, it's not at all all members of the press, by a long-shot. We're talking about a small percentage, but a growing number and a growing acceptability of behavior. And, that's what I think we're here to address—as you said, to rebalance the pendulum.
Mr. MEEHAN. Sometimes celebrities use the media to project images about their personal lives that maybe aren't all that accurate. In fact, there are rumors that politicians may do that from time to time.
Mr. REISER. I'm not aware of that.
Mr. MEEHAN. I'm not aware of it, either. [Laughter.]
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I've been told it does happen.
Mr. REISER. There you go.
Mr. MEEHAN. I have two questions on this topic, though. First, is it ever in the public interest to learn some things that maybe aren't so rosy about a celebrity? In other words, if one image is projected intentionally by a celebrity and the truth is something different, is it ever in the public interest to know? And secondly, if it is in the public's interest to learn these things, how far should the press be able to go in terms of seeking out the truth, considering that the truth is probably something that the celebrity would want to conceal?
And I've heard the excellent testimony today and recognize the fact that the instances mentioned are clearly examples of where it's well beyond the line. But, I'm wondering if there ever is a public-interest story——
Mr. REISER. You know, I think, certainly there is a gray area. And the purpose of the process will be to fine-tune it and define the gray areas. Is it in the public interest to find out juicy tidbits about people? Absolutely. Are they entitled to satiate that interest? And I don't know that they always are. I think we could sit here and design different scenarios. I think if somebody who was being paid a lot and being adored and revered and turned out to be a criminal or turned out to be, however you would define an abusive person or—you know, I think that is different. That falls in one category and on the other side is someone's simple privacy.
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I think a line can be easily drawn. I think, without even a lot of elaborate legislation, I think people know the difference. I've heard this argument before. Somebody used Madonna as an example. They said, wow, she uses the press, and she always wants to project her images, and suddenly she has a baby and she doesn't want us to see her nursing her child. And why is that hard to understand? There is a consensual element, when you allow yourself, when you invite, and there should be an area which is private, and is not consensual. To me, the simple thing is if you're never sure, ask.
Mr. MEEHAN. What about in those instances where celebrities take a proactive position with public relations, or whatever, to portray that their personal life is a certain way. For example, I think it was the 1988 presidential race, people said, well, why the heck were they following Gary Hart? And the press said, well, look, he challenged us to do it; he presented a certain picture that we knew wasn't accurate. I'm talking about, what about those instances where celebrities are going forward with a certain perspective on their personal lives that isn't accurate?
Mr. MASUR. I think this cuts a couple of ways. One is, are we talking about the public interest or what the public is interested in? Those are not necessarily the same things.
Mr. MEEHAN. Right.
Mr. MASUR. And No. 2, when you're talking Gary Hart, you're talking about somebody who stands up and says, way before those incidents took place, said, ''I want your support. I want your respect. I want your authority to act in your interests and I want the money that the government will pay me which is your money.'' We're not doing that. These people here are not doing that.
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A performer is not saying, ''I want your support. I want your respect. I want your authority to act in your interest.'' They're saying, ''I want you to watch my movie.'' That's quite a different thing. And if someone portrays herself as a great mom, and then something comes up where she's not a great mom, unless she's out making a statement on behalf of being a terrific mom on behalf of some group where she puts herself in the position of being a public person, other than being an actress, unless she does that, why is there——
Mr. MEEHAN. What if she does that?
Mr. MASUR. Well, then, I think that's much more of a fair game issue. But, again, we can't legislate in that area, because then we're into the content and we all know we're not going to get anywhere doing that. But I appreciate the question.
Mr. HYDE. The gentleman's time has expired.
The gentlelady from California, Mrs. Bono.
Mrs. BONO. Thank you, Mr. Chairman.
I actually don't have many questions because I've seen on a firsthand basis most of what they're talking about. I understand from a number of experiences myself. Normally, I'm not on this side of the camera. I'm usually the one who is being hit by the cameras as they're trampling by me to get the pictures of Sonny in the past. Certainly, when Sonny and Cher were even in the same city together, it could generate some extra excitement. I have a very good deal of understanding this panel.
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My only question is to what extent in your private life, do you feel when you're in your own home with the shades drawn, the blinds down, whatever, that reasonable extent of privacy even beyond that—do you feel your private and personal life has changed because of the fear of the cameras invading that?
Mr. REISER. I think it's never not a consideration. I don't know that I walk around, you know, in a state of panic but I'm never not aware, you know, if you are—or even in traveling, you know, because the technology exists to get in anywhere and because of the interest, and because anybody can have access to that and anybody can be paid to go summon up some photos or some information or some soundbites. It's never not an issue, and as I said before, you know, in a very unpleasant scenario, when dealing with my son and being in the hospital, that I was forced to divert attention to deal with these other things that, hopefully, if this behavior was not encouraged, there would be less pressure to have to deal with it. Life could be spent more pleasantly.
Mrs. BONO. Thank you. I have no other questions.
Mr. HYDE. Thank you, Mrs. Bono.
The gentleman from Massachusetts, Mr. Delahunt.
Mr. DELAHUNT. Yes. Thank you, Mr. Chairman.
My colleague from Massachusetts, Mr. Frank, earlier talked about his—articulated a concern about eavesdropping. And I think it's important to understand that there is a Federal eavesdropping statute with criminal sanctions, so that if anyone has their privacy invaded because of communications that are intercepted electronically, there is an existing statute.
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You know, I think many of us on this panel would clearly empathize and do sympathize. I presume all of us have had opponents who have expended large amounts of money to denigrate, not just our records, but our character. So, there's a certain rapport that already exists. I think it's important to note there is a distinction, obviously, between celebrities and the paparazzi and the fact that—in the case of Ms. Levin, it was—you're really a victim of crime.
What I'd be interested in is, what kind of assistance and support did you receive from the prosecutor's office in terms of dealing with the media?
Ms. LEVIN. The prosecutor's office was very helpful, actually, because it—when traversing with the prosecutor at the time, he arranged for us to be escorted to and from the court room. It was she that arranged for the guards to be around us. We took special elevators. We met every morning in her office, so that we could all go down en mass; otherwise, we would be attacked walking into the building on the street. We came in the private entrance. All of this was, you know, very well-orchestrated by her and we really appreciated that because——
Mr. DELAHUNT. Was there followup after the case was concluded?
Ms. LEVIN. Not really, not from the prosecutor's office. We really were pretty much on our own, and to address that question, and Ms. Bono had also made a point of it—you know, I became very paranoid. My whole family was paranoid. You have people going through your trash. You have people camped outside, and I was seeking counseling at the time and I said to my doctor, you know, I walk around constantly paranoid. And he says, no, paranoia is a false feeling of being in danger.
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Mr. DELAHUNT. This is real.
Ms. LEVIN. This is a real feeling, and it was horrible to be in the position of losing a child, to be terribly wounded from the tragedy, and then to have to feel that I was being stalked or haunted or——
Mr. DELAHUNT. In your case and in those that are similarly situated, I would respectfully suggest that working in alliances among victims' rights groups is a way to explore solutions. There is much legislation, including constitutional amendments, that comes before this particular panel to deal with that. And this is clearly a concern, from the perspective of the families.
I am a former prosecutor myself, and maybe, for example, discussions with the National District Attorneys Association, the National Association of Attorneys General, might lead to an improvement in terms of establishing boundaries between the public trial, public right to know and the victims of crimes.
Ms. LEVIN. We have done that in my State. As a matter of fact, I've helped to pass that—13 pieces of legislation——
Mr. DELAHUNT. Great.
Ms. LEVIN [continuing]. To give victims rights. And one of them that we passed was to improve the situation in the courtroom, because many times victims of crimes were standing outside in the corridor with the criminal.
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Mr. DELAHUNT. I'm talking about that specifically, and I know that's happened. In fact, as a prosecutor, I had many dealings with Ms. Fairstein, who is really an outstanding, terrific person——
Ms. LEVIN. Terrific lady.
Mr. DELAHUNT [continuing]. Terrific prosecutor, but the point that I'm making is that prosecutors deal continually with media outlets. And I, unfortunately, had similar cases that were so high-profile in nature that they offer a comparison for me. I would call in the media and ask them to respect the family and—I can say it now—subtly there was a message sent that, if that was not the case, I was going to be around for a while and maybe they wouldn't have the kind of access that they wanted.
Ms. LEVIN. Right, I think Linda did do that, actually. You know, I remember she handled it well.
Mr. DELAHUNT. Great.
Ms. LEVIN. But, it didn't do much to put them at bay.
Mr. DELAHUNT. Can I ask just one question, Mr. Reiser? You know, with the competition today among media, and I think it's an expanding problem, I really think that we go through rhythms in our society in the conflict between the right to know and the right of privacy. And I suspect that here in Congress, we are going to be hearing more and more about the right of privacy. There's major legislation dealing with medical information, for example. I would encourage celebrities to seek recourse in the courts as well as file legislation, because, you know, the vicissitudes of the American jurisprudence system are such that sometimes certain rights take precedence over other rights. And I think lawsuits, particularly lawsuits against the tabloids, and even in many cases the mainstream media, are a very effective tool, because in the end, it's all about the bottom line. It's about cash, and if it starts costing them money, then they are going to change their practices. I mean, you know, Jerry Springer is on the way out.
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Thank you.
Mr. HYDE. I thank the gentleman.
The gentleman from Tennessee, Mr. Jenkins.
Mr. JENKINS. Thank you, Mr. Chairman.
If the offer of long life is still outstanding, I'd like to accept that, but I would like to commend these witnesses. I think we've heard really human stories from real human beings, and these stories are worthy of our attention and support.
Mr. HYDE. A brief commendation is always welcome. Thank you.
Well, I think we've finished the questions for this panel. You've made a great contribution. Really, you're a very brave lady, Ms. Levin, coming forward with this genuinely tragic story. And, Mr. Reiser, you've shown great courage and you've added a lot to this hearing. And Mr. Fox, it's been very productive, and we will take full cognizance of what you've told us.
Ms. LEVIN. Thank you.
Mr. REISER. Thank you.
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Mr. HYDE. Thank you.
Our second panel consists of Paul McMasters, who is the First Amendment Ombudsman for the Freedom Forum, a non-partisan foundation dedicated to free press and free speech. Prior to his current position, Mr. McMasters was a daily journalist for 23 years, and was also former president of the National Society of Professional Journalists.
Following Mr. McMasters, the committee will hear from David Lutman. Mr. Lutman is president of the National Press Photographers Associations, a 10,000-member professional photojournalism organization consisting of newspaper, magazine, television, and freelance news photographers. He's worked for a variety of clients, including the Associated Press, U.S.A. Today, and The New York Times.
Prior to his election as NPPA president, Mr. Lutman served the organization in a number of capacities, including national vice president, national secretary, and national government media relations Chair.
Our third witness is Richard Masur, who is the president of the Screen Actors' Guild. Mr. Masur has been a familiar face for over 20 years as both an actor and director. He had starring roles in numerous television series such as ''One Day at a Time,'' ''Picket Fences,'' and ''Rhoda,'' and he's appeared in over 35 featured films. Mr. Masur was nominated for an Academy Award for Best Live Action Short Film and also for the prestigious Director's Guild of America Award. In addition to his current position, he sits on the board of directors of the Hollywood Policy Center and the Creative Coalition.
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The panel's fourth witness is Mr. Paul Tash. He serves as executive editor of The St. Petersburg Times in Florida, and also chairman of the Freedom of Information Committee for the American Society of Newspaper Editors.
After Mr. Tash, the committee will hear from Barbara Cochran, who has been president of the Radio-Television News Directors Association since April 1997. Ms. Cochran's career in journalism expands over 30 years in Washington. Her experience includes serving as vice president of news and Washington bureau chief for CBS News, executive producer of NBC's Meet the Press, vice president of News for National Public Radio, and managing editor of The Washington Star.
Our next witness is Dick Guttman, the president of the Los Angeles-based public relations firm of Guttman Associates. He formerly served as partner and chief executive officer of Guttman and Penn Public Relations Company. In addition to his work in public relations, Mr. Guttman has authored and co-authored numerous theatrical and television motion pictures. His work for the Last Elephant earned him the Genesis Award and a Cable Ace Award nomination for Best Motion Picture.
Following Mr. Guttman, the committee will hear from Professor Robert Richards, associate professor of law and journalism at the Dickinson School of Law of Penn State University. Professor Richards also serves as the director of the Penn State Center for the First Amendment.
And our final witness today is Professor Larry Lessig of the Harvard Law School. Professor Lessig is a graduate of the Yale Law School and served as a clerk for Justice Richard Posner of the Seventh Circuit and Justice Antonine Scalia on the Supreme Court. Before joining the faculty at Harvard, Professor Lessig was a professor of law at the University of Chicago.
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I would like to request that you limit your testimony to 5 minutes each and assure you that your written statements will be entered into the record and will be read and studied carefully in their entirety. We thank you in advance very much for your testimony.
And so, Mr. McMasters.
STATEMENT OF PAUL K. MCMASTERS, FIRST AMENDMENT OMBUDSMAN, THE FREEDOM FORUM
Mr. MCMASTERS. Thank you, Mr. Chairman.
I would like to thank the first panel for the eloquence and the courage with which they presented their case and wish to assure the members of the committee, I am not here to defend any of the practices as they outlined. However, I would like to direct the attention of the members of the committee to something that has gotten short-shrift thus far. That is what happens with mainstream journalism and what it tries to do in serving the public interest.
News photography has the capacity to chill our senses, inflame our passions, awaken us to the need for action, connect us to our own communities, to inform us, and to entertain us. It is possible for good writers to tell credible stories from a distance, but photographers must be there, must have access to the people and events that make the news. Their ability to tell a graphic story is compromised, however, if they are forced to second-guess themselves in the fleeting moment when the news comes into focus in their lenses. It is an instant too easily lost if reflexes are dulled by the threat of civil suits and prosecution under ambiguous laws.
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Which brings us to H.R. 3224 and H.R. 2448. In attempting to curb the so-called excesses of the paparazzi, this legislation instead would unduly restrict and punish protected news-gathering practices of mainstream news organizations. Just as importantly, it would curb the First Amendment rights of the public to news and images that have not been screened or edited by the law, directly or indirectly.
These bills would unnecessarily broaden the category of those largely immune from news gathering. They would unwisely add problematic new categories of criminal and civil actions, as well as new penalties against journalists who ran afoul of these restrictions while exercising their legitimate First Amendment rights. And finally, they would unconstitutionally expand restrictions on news gathering. For those reasons and more, enacting a new Federal law regulating the news media would be unnecessary, unwise, and unconstitutional.
The proposed Federal legislation is unnecessary because State and local jurisdictions already have laws dealing with invasion of privacy, intrusion upon seclusion, trespass, harassment, and other problems taken up in these Federal proposals. There is simply no need to require by Federal fiat what State and local laws already cover. There simply is no need to create another layer of regulation over one that already exists.
The proposed laws are not needed because the courts have demonstrated their willingness to mete out harsh punishment for true violations of the law, because celebrities themselves frequently have proved both creative and effective in dealing with media they consider overly intrusive, and because the news media does respond when egregious incidents occur. In reality, in fact, it is the media who inform us of transgressions by photographers, and media leaders most often are the first to condemn these actions.
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The proposed laws are unwise because virtually anyone can invoke the authority of Federal courts to distort, delay, or deny legitimate news-gathering activities. Judges and publicists would determine when, where, and under what circumstances photographs could be made. Of course, this is to turn the First Amendment on its head. These laws, if enacted, would flood our already overburdened Federal court system with unsubstantiated claims as well as legitimate claims. The ambiguity of a number of terms in these laws will launch a legion of lawyers in pursuit of what exactly those terms can be made to mean. Such laws encourage a troubling sort of elitism, the idea that the people do not know what they like or need, that tabloid readers are too unlearned, coarse, or brutish to have their tastes attended to, or that paparazzi don't have the same claim to First Amendment rights as other photographers.
The press serves as a surrogate for the public. It is the public's eyes and ears. It provides the information that provides the informed citizenry that provides a viable democracy. When a vague and ambiguous law interferes with the public's right to see, hear, and be touched by the news, they are robbed of their ability to make their own judgments about what they consider news. It must be an individual's choice whether to prefer ''responsible'' photographs or paparazzi photos. The First Amendment exists precisely to allow citizens to form and assert the values they wish to live by.
In addition to being unnecessary and unwise, these proposals are unconstitutional. As written, they are overbroad and vague. A criminal statute must clearly define offenses to give fair notice of illegal activities and prevent police from acting in an arbitrary or discriminatory manner. The proposed bills do not have an intent requirement, thus criminalizing inadvertent conduct. In other words, photographers could be prosecuted for merely showing up. These proposals would unconstitutionally expand the zone of privacy for public figures, although courts traditionally have declined to go there—and for good reason. The more public a figure, the more newsworthy.
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We recognize the difficulty of making the case for an abstract public good in the face of the compelling and specifics stories that we've heard here this morning, but the case must be made. The paramount principle of the First Amendment is that it protects speech and press from the power of government, the will of the majority, or the passion of the moment.
We urge the sponsors of this legislation and the members of this committee to keep in mind that the courts have been quite able under existing laws to provide civil remedies, equitable relief, and criminal penalties when news-gatherers do violate State or local law.
We urge you to keep in mind that while the focus of these deliberations is on the plight of Hollywood stars, the fact is that this legislation goes far beyond what is needed for their protection and creates a situation that allows public figures to dictate the way they are portrayed to the public.
Finally, Mr. Chairman, the First Amendment is a constitutional contract between the Government and the people. It is not a movie script. When Hollywood calls for a rewrite, we respectfully urge you to remember that the first six words of the First Amendment counsel the utmost restraint when it comes to making laws that restrict freedom of speech and the press. We trust that you will honor that constitutional mandate by rejecting these proposals.
Thank you for this opportunity to make these points.
[The prepared statement of Mr. McMasters follows:]
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PREPARED STATEMENT OF PAUL K. MCMASTERS, FIRST AMENDMENT OMBUDSMAN, THE FREEDOM FORUM
Chairman Hyde. Members of the Committee. I would like to thank you for inviting me to share a First Amendment perspective on H.R. 3224, ''The Privacy Protection Act of 1998.'' I worked in daily journalism as a reporter and editor for more than thirty years, have served as national president of the Society of Professional Journalists and presently serve on the freedom-of-information committees of both the American Society of Newspaper Editors and the Society of Professional Journalists. For the past few years I have worked exclusively on free press, freedom of information, and other First Amendment issues at The Freedom Forum, a financially independent, non-partisan foundation dedicated to free press, free speech and free spirit. As First Amendment Ombudsman at The Freedom Forum, I write, lecture, and serve as a resource for the public and the press. The Freedom Forum does not take positions on legislative proposals but allows me to appear before congressional committees and government commissions to speak on free speech and free press issues.
Visual images quicken the pulse of news. Still and video photographs burn their way into our minds and hearts. Who can forget the picture of the Oklahoma City firefighter clutching the tiny child injured in the Murrah Building bombing? Young John Kennedy saluting his slain father as the caisson passed by? The courageous student stopping the tank in Tiananmen Square? Joe Rosenthal's picture of U.S. Marines raising the flag on Iwo Jima? This is the sort of journalism that transforms public opinion and public policy. John Paul Filo's photo of a young woman kneeling over the body of a student killed at Kent State appeared on front pages around the nation on May 5, 1970. Huynh Cong Ut's video clip of an unclothed and badly burned girl running from the napalm blast in South Vietnam transfixed viewers of the evening news on June 8, 1972. Both played significant roles in galvanizing anti-war sentiment in this nation. In 1992, President Bush ordered U.S. troops to Somalia to distribute food after pictures of starving children moved the American public. A year later, the public outrage over pictures of a U.S. Army Ranger's body dragged through the streets of Mogadishu pushed President Clinton to order withdrawal of our troops.
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News photography has the capacity to chill our senses, inflame our passions, awaken us to the need for action, connect us to our own communities, to inform us, and to entertain us. It is possible for good writers to tell credible stories from a distance, but photographers must be there, must have access to the people and events that make the news. Their ability to tell a graphic story is compromised, however, if they are forced to second-guess themselves in the fleeting moment when news comes into focus in their lenses. It is an instant too easily lost if reflexes are dulled by the threat of civil suits and prosecution under ambiguous laws.
Which brings us to H.R. 3224, ''The Privacy Protection Act of 1998.'' The stated purpose of the Act is to punish still and video photographers who harass or invade the privacy of celebrities. That is an understandable undertaking, given the nature of some of the highly publicized incidents involving public figures. And it may well be that this legislation would curb the so-called excesses of the ''paparazzi.'' What is more certain, however, is that this legislation would unduly restrict and punish protected newsgathering practices of mainstream news organizations. Just as importantly, it would curb the First Amendment rights of the public to news and images that have not been screened or edited by the law, directly or indirectly.
To give you some general sense of how grave the concern about this proposed legislation is, the following news organizations—representing radio, television, newspapers, and magazines—have endorsed this testimony:
American Society of Newspaper Editors
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Magazine Publishers of America
Newspaper Association of America
National Newspaper Association
National Press Photographers Association
Radio-Television News Directors Association
Reporters Committee for Freedom of the Press
Society of Professional Journalists
The fact that H.R. 3224 carves out an exception for editors and publishers does not ameliorate that concern. Editors and publishers routinely support their photographers financially and otherwise when they are called into court. Editors and publishers lose good pictures for their publications when photographers fear to do their best. And at a smaller newspaper, an editor or publisher may well be a photographer, also.
Our reading of H.R. 3224 is that it would unnecessarily broaden the category of those largely immune from news gathering. It would unwisely add problematic new categories of criminal and civil actions as well as new penalties against journalists who ran afoul of these restrictions while exercising their rights under the First Amendment. And finally, it would unconstitutionally expand restrictions on newsgathering. For those reasons and more, enacting a new federal law regulating the news media would be unnecessary, unwise, and unconstitutional.
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A federal law is unnecessary
The Privacy Protection Act is unnecessary because state and local jurisdictions already have laws dealing with invasion of privacy, intrusion upon seclusion, trespass, harassment, and other problems taken up in the federal legislation. In this particular instance, concerns of free speech as well as federalism counsel due deference to the states. There is simply no need to require—by federal fiat—what state and local laws already cover. There simply is no need to create another layer of regulation over one that already exists.
The proposed law is not needed because the courts have demonstrated their willingness to mete out harsh punishment for true violations of the law. For example, in 1973, a judge ordered free-lance photographer Ron Galella to stay 25 feet from Jacqueline Kennedy Onassis and 30 feet from her children after a period of harassing coverage.(see footnote 1) In 1996, a trial judge imposed similar restrictions on an Inside Edition camera crew that had staked out a family in pursuit of a story. Earlier this year, two British photographers were convicted in a California court and sentenced to jail terms for their attempts to photograph actor Arnold Schwarzenegger and his wife Maria Shriver.
Further, a federal law is unnecessary because celebrities themselves frequently have proved both creative and effective in dealing with media they consider overly intrusive. Actor George Clooney, for example, led a boycott of tabloid TV shows for what he considered intrusive and unfair coverage. He was joined by his colleagues on the cast of ER, as well as other stars, including Whoopi Goldberg, Rosie O'Donnell, and Steven Spielberg. As a result of the boycott, the shows changed their rules about what would be accepted and aired.
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Finally, H.R. 3224 is unnecessary because the news media do respond when egregious incidents occur. A recent example is the agreement of five networks last month to pool their camera crews to reduce the media crush around key figures in Special Prosecutor Ken Starr's investigation. In reality, it is the media who inform us of transgressions by photographers, and media leaders most often are the first to condemn their actions.
The proposed law is unwise
H.R. 3224 is unwise because it allows anyone from public figures to ordinary citizens to dictate the terms of coverage when they are subject to news reporting. Under this law, virtually anyone—from celebrities to criminals—could invoke the authority of federal courts to distort, delay, and deny legitimate newsgathering activities.(see footnote 2) Judges and publicists would determine when, where and under what circumstances photographs could be made. Of course, this is to turn the First Amendment on its head. Mr. Lutman and Mr. Tash present testimony that demonstrates in more detail how this law would interfere with newsgathering techniques used to get vital information to the public.
Further, this proposal would be unwise because it would flood our already-overburdened federal court system with unsubstantiated claims. Think of it: Almost anyone who objected to having his or her photograph taken could yell ''Paparazzi!'' and then file charges in federal court. Given the ambiguity of its provisions, H.R. 3224 invites burdensome litigation. Such terms as ''personal intrusion,'' ''commercial purposes,'' ''intended to be sold,'' ''consideration,'' ''reasonable expectation of privacy,'' and ''follows or chases'' will launch a legion of lawyers in pursuit of what exactly they can be made to mean. Most of these cases will have to be tried in court because they are fact-based claims, pitting one party's words against the other's. The resulting protracted and costly litigation is clearly at odds with free-speech and free-press principles. The stakes are high enough with civil cases, but even higher when a news photographer is facing a prison sentence.
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The proposed law also is unwise because it might stay the hand of an ordinary citizen capturing a newsworthy event, such as George Holliday's videotape of the police beating of Rodney King or Abraham Zapruder's amateur footage of the assassination of President John F. Kennedy.
Such a law would be unwise because it encourages a troubling sort of elitism, the idea that ''the people'' do not know what they like or need, that tabloid readers are too unlearned, coarse, or brutish to have their tastes attended to, or that paparazzi don't have the same claim to First Amendment rights as other photographers.
It is unwise because it fails to recognize the public's interest in getting news and news images unrestricted by federal law. The press serves as a surrogate for the public. It is the public's eyes and ears. It provides the information that provides the informed citizenry that provides a viable democracy. When a vague and ambiguous law interferes with the public's right to see, hear and be touched by the news, they are robbed of their ability to make their own judgments about what they consider ''news.'' It must be an individual's choice whether to prefer ''responsible'' photographs or ''paparazzi'' photos. The First Amendment exists precisely to allow American citizens to form and assert the values they wish to live by.
This proposed legislation is unconstitutional
In addition to H.R. 3224 being unnecessary and unwise, it would be unconstitutional. Professor Richards will treat this subject in more detail, but we would nonetheless like to touch on just a few of the more troubling constitutional concerns.
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The Privacy Protection Act as written is overbroad and vague. A criminal statute must clearly define offenses to give fair notice of illegal activities and prevent police from acting in an arbitrary or discriminatory manner. The proposed bill does not have an intent requirement, thus criminalizing inadvertent conduct. That makes photographers vulnerable to prosecution even though they did not know that their conduct was prohibited and even though they may not have intended to cause harm. In other words, photographers could be subject to punishment for merely showing up.
The courts traditionally have insisted on a far stricter standard with respect to vagueness when laws touch upon First Amendment rights. A law that requires one to guess at when and where the line of illegality is crossed inevitably will cause the public and press to steer away from protected free-speech activity than is necessary. Because the U.S. Supreme Court has required regulation to be more specific when touching upon these fundamental rights, police, prosecutors, and the courts cannot be allowed to make ad hoc and subjective decisions about when the law has been violated.
H.R. 3224 violates this principle, for example, by punishing ''persistent following'' that constitutes a ''personal intrusion.'' The ambiguity of these terms puts at risk veteran reporters or photographers whose job it is to record newsworthy occurrences in a single industry or on ''beats'' because they might seem to be engaged in persistent following simply by being on assignment where public figures often appear. Under such circumstances, making a sound or photographic recording could constitute a ''personal intrusion'' depending entirely on the subject's personal view of whether he or she desires publicity at the time. Yet being out in plain view long has been regarded as carrying no reasonable expectation of privacy and thus lacks sufficient grounds for asserting a violation of the law.
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Further, this proposal degrades the definition and concept of newsgathering. It attempts to distinguish ''paparazzi'' journalism and ''responsible'' journalism. How, consistent with the First Amendment, can it create such a hierarchy of journalistic rights? We are not told. The Supreme Court, however, in Regan v. Time, Inc. (1984) did reject such hierarchical categorizations when it comes to evaluating non-obscene photographs under the First Amendment. This is a prime example of impermissible content-based discrimination. The committee will recall that in the Regan ruling, the government's determination of publishability of photographs based on whether they were ''newsworthy or educational'' constituted content-based discrimination in violation of the First Amendment.
Not only does the First Amendment not make a distinction between ''paparazzi'' journalism and ''responsible'' journalism, the Court found in Winter v. New York (1948) that pulp dime-magazines containing tales of bloodletting, violence, and sex had no discernible value but nonetheless received the same First Amendment protections as the ''best of literature.''
Neither does the First Amendment distinguish between commercial and non-commercial press. Certainly, the nation's newspapers are not given out for free but are sold as a commercial enterprise. So, too, are television and radio news operations, and newsmagazines commercial enterprises. Their reporters and photographers are not volunteers but are paid for their professional work. Under H.R. 3224, they are all engaged in a commercial enterprise and subject to the legislation. But this has never been the understanding of the First Amendment. The free circular, handed out by volunteers, receives the same—no more and no less—protection as the publication of a major newspaper chain.
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This proposed law is unconstitutional because it would expand the zone of privacy for public figures, although courts traditionally have declined to do. And for good reason, the more public a figure the more newsworthy. This is particularly true of Hollywood celebrities, as pointed out by Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press:(see footnote 3) ''Actors fight to preserve their carefully cultivated personas, using them to promote not only themselves but their favorite causes, ranging from more tax dollars for AIDS research, financial assistance for farmers or circus elephants, or challenging Germany's policy on the legal status of the Church of Scientology. Several of them . . . have been elected to public office on the strength of a Hollywood image. . . . In short, these folks are influential.''
All of this raises a constitutional dilemma: Whether there is a compelling governmental interest that is sufficient to override the First Amendment principles at stake. We don't believe there is.
We recognize the difficulty of making the case for an abstract public good in the face of compelling and specific stories about the quest for personal privacy by good people caught in the public spotlight. But the case must be made. A paramount principle of the First Amendment is that is protects speech and the press from the power of government, the will of the majority, or the passion of the moment.
In sum, this proposed legislation is neither needed nor wise, and it does not hold up to constitutional scrutiny. We urge the sponsors of this legislation and the members of this committee to keep in mind that the courts have been quite able under existing laws to provide civil remedies, equitable relief, and criminal penalties when newsgatherers violate state or local law.
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We urge you to keep in mind that while the focus of these deliberations is on the plight of Hollywood stars, the fact is that this legislation goes far beyond what is needed for their protection and creates a situation that allows public figures to dictate the way they are portrayed to the public. What's more, this proposal substitutes the uninformed and self-interested opinion of newsmakers, prosecutors, and the courts for the informed editorial judgment of editors and news directors.
The First Amendment is a constitutional contract between the government and the people; it is not a movie script. When Hollywood calls for rewrite, we respectfully urge you to remember that the first six words of the First Amendment counsel the utmost restraint when it comes to making laws that restrict freedom of speech and the press. We trust that you will honor that constitutional mandate by voting against H.R. 3224.
Thank you, Mr. Chairman, for this opportunity to make these points.
STATEMENTS OF INTEREST
The AMERICAN SOCIETY OF NEWSPAPER EDITORS is a nationwide, professional organization of more than 850 members who hold positions as directing editors of daily newspapers throughout the United States and Canada. The purposes of the Society. which was founded over 50 years ago, include the ongoing responsibility to improve the manner in which the journalism profession carries out its responsibilities in providing an unfettered and effective press in the service of the American people. ASNE is committed to the proposition that, pursuant to the First Amendment, the press has an obligation to provide the citizenry of this country with complete and accurate reports of the affairs of government—be they executive, legislative, or judicial.
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The MAGAZINE PUBLISHERS OF AMERICA, Inc. (MPA) is the national trade association for the consumer-interest magazine industry. Founded in 1919. MPA includes in its present membership approximately 200 companies which publish over 800 magazines sold at newsstands and by subscription throughout the nation. MPA members publish weekly, biweekly, and monthly magazines covering current news events, business, literature, religion, law, political affairs, foreign affairs, science, agriculture, industry, sports. and many other interests, avocations and pastimes of the American people.
The NEWSPAPER ASSOCIATION OF AMERICA (NAA) is a nonprofit organization representing more than 1,600 newspapers in the U.S. and Canada. Most NAA members are daily newspapers, accounting for 87 percent of the U.S. daily circulation.
The NATIONAL NEWSPAPER ASSOCIATION is the national voice of community newspapers. It was established in 1885 to promote, protect and enhance community newspapers. NNA represents nearly 4,000 community newspapers that focus primarily on local community editorial content. Its mission includes protecting the First Amendment freedoms on behalf of its members. Strong community newspapers build strong communities.
The 53-year-old NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION is the nation's oldest and largest photojournalism organization. It's 10,000-plus members consist of newspaper, magazine, television, and free-lance photojournalists, as well as editors, educators, and students.
The REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS is a voluntary, unincorporated association of print and broadcast news reporters and editors established in 1970 to defend the First Amendment and freedom of information interests of the news media. The Reporters Committee provides legal assistance to journalists as part of its legal defense work, and is uniquely aware of the detrimental effect any restriction on the right to gather news can have on a reporter's ability to disseminate information to the public. The Reporters Committee has appeared as amicus curiae in most major press freedom cases considered by the Supreme Court of the United States and in many cases before state and federal appellate courts. The Reporters Committee publishes the quarterly magazine The News Media and the Law and the bi-weekly newsletter News Media Update.
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The SOCIETY OF PROFESSIONAL JOURNALISTS (SPJ) is a voluntary, non-profit organization of approximately 13,000 members. The Society is the most broad-based organization of journalists in the United States, representing every branch and rank of print and broadcast journalism' and for more than 80 years has been dedicated to perpetuating a free press.
Mr. HYDE. Thank you, sir.
Mr. Lutman.
STATEMENT OF DAVID R. LUTMAN, PRESIDENT, NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION
Mr. LUTMAN. Mr. Chairman, distinguished members of the Judiciary Committee, my colleagues on this panel, and all others in attendance today, I'd like to thank the Chair and members of the committee for the opportunity to offer the views of the National Press Photographers Association, the country's largest and oldest national photojournalism organization.
While I deliver this testimony, I do so on behalf of our more than 10,000 members who would have to deal, day-in and day-out, with the effects of this type of legislation, were it to be enacted into law.
There has been much said about what this legislation is about. I would like to say a few words about what this legislation is not about. The debate over this legislation should not be seen, as Mr. Reiser had suggested before, in terms of journalist versus actresses and actors. The proposed bill, if enacted, would severely interfere with a vast amount of news gathering that has absolutely nothing to do with entertainers. So while I, too, enjoyed seeing and hearing from the talented entertainers today, I am concerned that their presence could distort this issue.
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The bill would potentially punish journalists covering crime and disaster scenes, investigating government and private sector corruption. It could affect a whole host of areas that have nothing to do with entertainers.
The proposed legislation is also not just about curtailing the activities of rogue photographers unconcerned about following the law. This legislation may or may not stop them. Its primary effect may be to greatly reduce the legitimate news-gathering activities of journalists who obey the law, and in doing so, greatly reduce the visual and auditory information the American public relies on to make informed citizen decisions.
The bill is also not about the tragic death of Princess Diana. While the full facts about that tragedy may still not yet be known, hopefully, we've learned that highly unusual events do not provide good basis for enacting legislation for every day situations.
Further, passing ill-advised legislation is not a sign of respect to anyone's memory, including that of the late Representative Sonny Bono. I would hope that the committee would focus, not on the extreme cases, not on the sentiment, but rather on the effect the proposed legislation would have on the vast majority of journalists who are law abiding.
As to genuine law violations, there already exists civil and criminal penalties to punish those committing offending acts; laws against trespass; laws against unlawful detention; reckless driving; intentional affliction of emotional distress; harassment; and yes, stalking. Even if State laws were inadequate, which they are not, and even if the proposed legislation was not vague and overbroad, it's enforcement would still depend on an already overburden Federal court system.
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But the proposed legislation is vague and overbroad. For example, who is to decide what constitutes reasonable fear? Is this to be applied as a national standard or a local one? Is the standard to be applied as an objective or subjective one? Journalists will have no single, consistent guidelines for behavior in their work and without such guidelines, journalists may be loathe to report community stories for fear of being sued or going to jail.
The same problem exists in attempting to discern what constitutes a reasonable expectation of privacy or what reasonable steps are to insure that privacy. The proposed legislation is also vague as to the class of persons it covers. For example, it's unclear whether this bill covers the acts of a private detective doing his job for a client. How about an artist or a cartoonist?
Under the proposed bill, journalists are accorded less rights that other citizens, as journalists face criminal and civil sanctions for engaging in the same type of conduct that other citizens can freely engage in. The proposed legislation also establishes a select group of cases where all legal fees and costs are borne by the loser of a legal case. A sort of winner-take-all philosophy, an uncertainty that will discourage journalists from following stories involving wealthy people, no matter how newsworthy that story might be.
The NPPA, while historically in the forefront of freedom of information to the public, has also in it's more than half-century of existence, shown great concern for individual privacy and rights. The NPPA advocates a strong Code of Ethics which is clear. Criminal behavior by news photographers in the pursuit of photography should not be tolerated. Our participation in opposition to this proposed legislation does not change that one bit.
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These two concepts, news gathering and individual rights, sometimes are perceived to be in conflict and there is often tension between the two. Recently, the chairman of this committee gave his view on how to resolve any such tensions and conflict, and I would like to close with Congressman Hyde's own words: ''A democracy depends on an informed electorate. If the information about how the government is being run or what the truth is about controversial issues is withheld from the public, from the people who are the ultimate governors in this representative democracy, we have a flawed democracy. It just seems to me we have a classic conflict of rights. One right is the right to privacy, the other is the right of the people to know. And in that conflict they both cannot prevail. In my judgment, the right of the people to know is absolutely indispensable.''
Thank you very much, Mr. Chairman, and the members of the committee.
[The prepared statement of Mr. Lutman follows:]
PREPARED STATEMENT OF DAVID R. LUTMAN, PRESIDENT, NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION, INC.
Mr. Chairman, distinguished members of the Judiciary Committee, my colleagues on this panel, and all others in attendance today, I would like to thank the chair and members of the committee for the opportunity to offer the views of National Press Photographers Association, the country's largest and oldest national photojournalism organization.
While I deliver this testimony, I do so on behalf of our more than 10,000 newspaper, magazine and television news photographers who would have to deal, day in and day out, with the effects of this type of legislation, were it to be enacted into law.
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The comments of our members are attached to my prepared statement provided to the committee and I urge you to read them carefully. The statements of our legal counsel, Mark P. Eissman, are incorporated into this testimony as well.
Given the rather short notice of this hearing, I would ask the chair and members of the committee to keep the record open for a period of additional time to provide more of our members an opportunity to submit written comments.
There has been much said about what this legislation is about. I would like to say a few words about what this legislation is not about.
The debate over this legislation should not be seen in terms of journalists versus actors and actresses. The proposed bill, if enacted, would severely interfere with a vast amount of news gathering that has absolutely nothing to do with entertainers. So while I too enjoyed seeing and hearing from the talented entertainers today, I am concerned that their presence could distort the issue.
The bills would potentially punish journalists covering crime and disaster scenes, investigating government and private sector corruption. It could affect a whole host of areas having nothing to do with entertainers.
The proposed legislation is also not just about curtailing the activities of rogue photographers unconcerned about the law. This legislation may or may not stop THEM. Its primary effect, however, will be to greatly reduce the legitimate news gathering activities of journalists who obey the law—and in so doing, greatly reduce the visual and auditory information the American public relies on to make informed citizen decisions.
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This bill is also not about the tragic death of Princess Diana. While the full facts about that tragedy may still not yet be known, hopefully we have learned that highly unusual events such as that, or an O.J. Simpson trial, do not provide good bases for enacting legislation for every day situations.
Further, passing ill-advised legislation is not a sign of respect to anyone's memory, including that of the late Rep. Sonny Bono.
I would hope the committee would focus, not on the extreme cases, not on sentiment, but rather on the effect the proposed legislation would have on the vast majority of journalists who are law abiding.
The proposed legislation, in effect, singles out those that gather news for a living. As to genuine law violations, there already exists civil and criminal penalties to punish those that commit (and deter those who might commit) offending acts; laws against trespass, unlawful detention, reckless driving, intentional infliction of emotional distress, harassment, and stalking laws.
In addition to the rather well-known case involving Jacqueline Onassis, courts have provided relief when the facts warrant it. Recently, a court enjoined journalists from a major network, who, in the court's view had gone too far in pursuing subjects for an on-camera interview. Earlier this year, a California state court in Santa Monica found two photographers guilty of false imprisonment and one of them guilty of reckless driving, stemming from their pursuit of Arnold Schwarzenegger and his wife Maria Shriver.
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Even if state laws were inadequate (which they are not), and even if the proposed legislation was not vague and overbroad, its enforcement would still be dependent on an already overburdened federal court system.
And make no mistake about it, the proposed legislation is vague and overbroad. For example, who is to decide what constitutes ''reasonable fear?'' Is this to be a national standard or a local one? Is the standard to be applied ''objective'' or ''subjective?'' Journalists will have no single, consistent guideline for behavior in their work.
And without such guidelines, journalists may be loathe to report important community stories for fear of being sued or going to jail. The same problems exist in attempting to discern what constitutes a ''reasonable expectation of privacy'' and what constitutes ''reasonable steps'' to insure that privacy.
The proposed legislation is also vague as to the class of persons it covers. For example, it's unclear whether this bill covers the acts of a private detective doing work for a client. How about an artist or cartoonist?
Under the proposed bill, journalists are accorded less rights than other citizens, as journalists face criminal and civil sanctions for engaging in the same type of conduct that any other citizen can freely engage in. The proposed legislation also establishes a select group of cases where all legal fees and costs are borne by the loser of a legal case—a sort of winner take all philosophy—an uncertainty that will discourage journalists from following stories involving wealthy people, no matter how newsworthy the story.
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The proposed legislation erodes the constitutional protections heretofore afforded journalistic reportage. Traditionally, news gathering by the media has not been classified as a commercial activity. The proposed legislation greatly changes that. It is a step that should not be taken.
The NPPA, while historically in the forefront of freedom of information to the public, has also, in its more than half-century of existence, shown great concern for individual privacy and rights. The NPPA advances a strong code of ethics which is clear—criminal behavior by news photographers in pursuit of photography should not be tolerated. Our participation in opposition to this proposed legislation does not change that one bit.
These two concepts, newsgathering and individual rights, sometimes are perceived to be in conflict and there is often tension between the two. Recently, the chairman of this committee gave his view of how to resolve any such tension or conflict, and I would like to close with his words.
''A democracy depends on an informed electorate. If the information about how the government is being run or what the truth is about controversial issues is withheld from the public, from the people who are the ultimate governors in this representative democracy, we have a flawed democracy. . . . It just seems to me we have here a classic conflict of rights. One right is the right to privacy, the other is the right of the people to know. And in that conflict they both cannot prevail. In my judgment the right of the people to know is absolutely indispensable.''
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Thank you very much Mr. Chairman and members of the committee.
The following organizations, among others, have joined NPPA in opposition to this proposed legislation:
The Los Angeles Press Photographers Association (not part of NPPA)
The Society of Professional Journalists
The Public Radio News Directors, Incorporated
The American Society of Newspaper Editors
The Radio-Television News Directors Association
Agence France Presse
The Newspaper Association of America
Attachments:
Curriculum Vitae & Statement of Federal Grants, Contracts or Subcontracts Comments from Members
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COMMENTS FROM NPAA MEMBERS
Please note: Some e-mail correspondence is addressed to Mr. David Handschuh. Mr. Handschuh, a staff photographer for The NY Daily News, is chair of our Government/Media Relations Committee.
From: Peter Iglinski, INTERNET:Peter—Iglinski@WSKG.pbs.org
To: David R. Lutman, 72120,40
Date: Fri, May 15, 1998, 11:55 PM
RE: Re: HousePrivacyBill
Mr. DAVID LUTMAN, President
National Press Photographers Association
Louisville, KY.
DEAR DAVID: Public Radio News Directors Incorporated (PRNDI) has serious reservations about HR 3224 and 2448.
First of all, the ambiguity of language such as ''reasonable expectation of privacy'', ''reasonable steps to ensure that privacy'', ''reasonable fear of death or bodily injury'', and ''chase'', give us pause. What constitutes ''reasonable''?
What constitutes a ''chase''? Does a chase only occur at high speed? Can it occur within legal speed limits or at a brisk walk?
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More importantly, however, news coverage should not be determined by the level of cooperation from the subject of the story. A person may expect privacy or take steps to ensure that privacy, but the person may not deserve that privacy.
An example comes immediately to mind. The Syracuse, NY newspapers, a number of years ago, did an ambitious story on city workers who were apparently falsifying records and holding down separate jobs while still on the clock for the city. The reporters followed the city employees as they entered various establishments, in direct contradiction to their city logs. One can assume the city workers expected privacy and took steps to ensure that privacy. After all, most people acting illegally believe they are doing an adequate job of covering their tracks.
Furthermore, if the subject of a legitimate news story, in trying to evade the journalist, acts irresponsibly and becomes seriously injured, should the journalist be held accountable? We think not. It is understandable that a person would want to avoid legitimate, though unpleasant, news coverage. The perceived excesses of some members of the media should not be cause to hinder the work of all journalists.
Sincerely,
| Peter Iglinski, President, |
| Public Radio News Directors Incorporated |
From: Bob Riha, Jr., RIHA
To: David Handschuh, 75023,1315
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Date: Mon, May 18, 1998, 0:14
RE: need IMMEDIATE comment/the BILL
Well . . . here's my 2-cents worth.
I believe these celeb's are fearful of a stalker type incident with NOT knowing who's behind the camera. Maybe 'bonafide journalists' should be wearing their media identification cards issued by local police/sheriff/state highway patrol agencies to eliminate this concern.
With proper identification issued to bona-fide news journalists—AND BEING PROPERLY DISPLAYED/WORN—the 'fear' these celeb's are talking about is not knowing who is legit and who isn't.
The so-called 'threat' is eliminated. Additional legislation like this is not what is needed. WHAT IS NEEDED IS A NATIONAL MEDIA ACCESS POLICY FOR USE AT EMERGENCY & DISASTER SCENES, SIMILAR TO CALIFORNIA'S PC409.5(d).
When disasters & emergencies occur, it is through the News Media that the PUBLIC IS INFORMED ABOUT WHAT TO DO OR WHAT NOT TO DO. With better media access—WITH A NATIONAL MEDIA ACCESS POLICY—The PUBLIC HAS A RIGHT TO KNOW, AND WOULD GUARANTEE THAT FREE FLOW OF INFORMATION TO THE GENERAL PUBLIC THROUGH THE MEDIA.
IF OUR TAX DOLLARS ARE BEING SPENT FOR MEDIA ACCESS LEGISLATION, WHY SHOULD A SELECT FEW 'ACTORS, SINGERS AND ENTERTAINERS BE GIVEN PRIVILEGED LEGISLATION OVER THE GENERAL PUBLIC'S RIGHT–TO–KNOW?
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Police/sheriff/ highway patrol agencies should also 'tighten up the criteria for issuing' media/press credentials in the first place. Los Angeles Police Department has not for the last several years issued 'media id' to so-called news outlets such as: Hard Copy, Inside Edition, etc.
I say, ''All police officers are not Mark Furhman's . . . all journalists are not Papparizi. Do not judge all by the stupid, insensitive, non-professional actions of a few.'' True professionals act in a professional manner. These same 'professionals' are the photographers that shoot for newspapers & magazines throughout the US and abroad and WHO ARE CALLED BY YOUR PUBLICISTS TO BE INVITED TO EVENTS, GATHERING OR other things.
IF . . . non-media id photographers stalk, etc. etc a celeb, then I guess the celeb could go after him/her on basis of 'harassment' . . . I don't know, that's mark's dept.! But if a bona-fide, new gathering journalist or photojournalist IS LAWFULLY DOING THEIR WORK—THEN LET THEM. Otherwise . . . tell your publicist to call someone else.
RIHA
Date: Sat, 16 May 1998 00:15:29–0500
From: Susan Moran/Michael Zajakowski <zaj@FLASH.NET>
Subject: Re: URGENT CALL FOR HELP
DAVID AND ALL, this bill is a definite attempt to ''kill the messenger.'' The public's right to know should be upheld and protected, whether the public wants to know about the passage of a bill, or about Michael J. Fox's new baby.
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Congress, nor any of us, should decide for people what they want to read, listen to or see, within commonly accepted moral standards. By us I mean to include all of the media choices that the public has, from the National Inquirer to the Washington Post.
Countless articles, speeches and stories have been written analyzing the media's role in Princess Diana's death, from which this kneejerk reaction seems to have come. Famous people fear for their lives in the wake of that tragedy. But they're using that excuse as an extreme example to a ridiculous conclusion.
These are rich people using their influence to change the law in their favor, and damn the consequences. But the consequences go far beyond the isolated instances the bill is written to prevent. Who could possibly benefit if this bill became law? A few ''stars,'' some corrupt individuals and, occasionally, some private citizens involved in high profile news events who suffer the temporary glare of the spotlight. This bill should never have seen the light of day.
As you say, the bill does not define the concepts of privacy, fear or persistence. That would be left up to the individual states to define. We see what Wisconsin did to abortion rights yesterday.
I say no thanks.
From: Yods1, INTERNET:Yods1@aol.com
To: David R. Lutman, 72120,40
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Date: Sun, May 17, 1998, 1:17 AM
RE: No Subject
Sender: Yods1@aol.com
For the House Judiciary Committee:
If Adolf Hitler were alive today and had good lawyers, no visual journalist would dare follow if he were to walk down Main Street USA. This law if far too broad and sacrifices the sanctity of the First Amendment for the convenience of a very few. There are other laws already enacted that can be used to enforce reasonable conduct by photojournalists and other photographers. This bill jeopardizes the livelihood of freelance photojournalists who do not chase the celebrities this law is designed to protect. For example, anyone in the process of committing a nefarious act would be protected from thorough visual documentation of their actions or image, even in public places. This law is not only bad for the press, but it is bad for the average citizen, for whom the First Amendment was written. The freedom of the press is not guaranteed to the press; it is guaranteed to the citizen.
| Dave Yoder, |
| Laguna Beach, CA |
| The Orange County Register |
From: INTERNET:gkf@juno.com
To: David Handschuh, 75023,1315
Date: Fri, May 15, 1998, 15:12
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TO WHOM IT MAY CONCERN, I am categorically and emphatically against the amendment 'Sec. 1822.Harassment'. This would severely hinder my ability as a visual journalist to report the news and the public's right to know.
| Greg Francis |
| Professional Photographer |
| Catholic Courier |
| Rochester, NY USA |
From: Mike Sherer, INTERNET:sherer@cwis.unomaha.edu
To: David R. Lutman, 72120,40
DAVID, I will mix in my comments with the bill itself . . . hope this is what you are looking for . . . mike
Michael D. Sherer, Professor; Phone: 402–554–2602;
Department of Communication; Email: sherer@cwis.unomaha.edu;
University of NE at Omaha; Fax: 402–554–3836;
Omaha, NE 68182;
This Act may be cited as the 'Privacy Protection Act of 1998'.
SEC. 2. PROTECTION FROM PERSONAL INTRUSION FOR COMMERCIAL PURPOSES.
there is a real sense of irony in the bill's title . . . i.e. the Privacy Protection Act of 1980, perhaps one of the best bills passed by Congress that provides news organizations protection from warranted searches of newsrooms by federal and state officials . . . funny how the same title with a different year tagged to it can run so counter to this fine piece of legislation (The Privacy Protection Act of 1980)
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(a) IN GENERAL- Chapter 89 of title 18, United States Code, is amended by adding at the end the following:
'Sec. 1822. Harassment
'(a) Whoever persistently follows or chases any individual in the United States for the purpose of obtaining a visual image, sound recording, or other physical impression of that or another individual, shall be punished as provided in subsection (b), if—
'(1) the image, recording, or impression was intended to be,
or was in fact, sold, published, or transmitted in interstate or foreign commerce, or the person attempted to capture such image, recording, or impression moved in interstate or foreign commerce in order to capture such image, recording, or impression.
the language here is very vague and truly overbroad . . . it goes directly to the publication/communication of information . . . which means that it flies directly in the face of the first amendment. . .
'(2) the individual has a reasonable expectation of privacy from such intrusions and has taken reasonable steps to ensure that privacy;
this concept is redundant under current privacy law . . . persons who have a reasonable expectation of privacy have for many years been successful in suing for an intrusion into their privacy . . . i.e. Ron Galella and Jackie Onassis for example (be careful with this story since it took her several suits to win, but she did) . . . also one can find cases finding in favor of those who were photographed with hidden cameras . . . so here again, this provision is redundant and clearly not needed . . . ie protection currently exists in the law as it relates to an intrusion into a person's privacy
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'(3) the individual has a reasonable fear that death or bodily injury will result from that following or chasing;
and
'(4) the obtaining of the image, recording, or other impression is for commercial purposes.
in a very real sense, all mass media is a commercial enterprise . . . there is almost no news organization that does not have a profit making element to its operation . . . however, the mere presence of a commercial interest in a newsgathering and news communication enterprise in no way diminishes the news organization's first amendment rights. . .
finally, I think it can be argued that anyone seeking redress for this kind of behavior already has adequate recourse under the concept of an intentional infliction of emotional distress . . . this is a legal concept that punishes a person for ''extremely outrageous conduct'' that causes emotional distress in a person . . . I have written about this concept in my News Photography and the Law publication . . . which is on the web in case you do not have a hard copy . . . there is some discussion of this concept . . . and clearly the intent of this statute is already covered by current legal concepts such as the emotional distress . . . keeping in mind of course that in most of these cases filed against news photographers, the pjs have won . . . but they have won because they did not engage in ''extremely outrageous conduct' . . . exactly the kind of conduct that this new law is aimed at limiting. . .
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hope this helps . . .
From: John Klein, 73124,3677
To: David Handschuh, 75023,1315
Date: Sat, May 16, 1998, 11:12
RE: Bono Bill Need IMMEDIATE comment
DAVID, if you are looking for comment:
Any such legislation restricts the freedom of the press garauteed if in the constitution. While I do not condone the actions of some in the pursuit of stories as well as photographs, it is essential to our right to know that the right to pursue news is protected. Those in the public eye must realize their actions and lives are high profile and laws can not change that.
| John Klein |
| NPPA region 5 associate director, picture desk editor of the Milwaukee |
| Journal Sentinel. |
From: David Handschuh, [75023,1315]
To: David R. Lutman, 72120,40
Date: Sat, May 16, 1998, 12:53 PM
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RE: bono bill response
. . . I'm sorry . . . but I LIVE in Branson, Mo., and there are STARS all over the place here. We have 35 theaters and 90 different shows. We have more theater seats than New York City and a population of only 3,700. . . . Of course, I don't usually ''stalk'' or ''follow'' entertainers around . . . but if I did see one of them out an about doing something interesting in the community, I'd like to think I could get a photo of them without getting sued. I don't know how this new law is defining privacy . . . but to ME, privacy is bathrooms, homes or other private property.
If there's anything I can do to help, let me know. . .
| T. Rob Brown |
| photo editor/chief photographer/main reporter |
| Branson Tri-Lakes Daily News |
| Branson, Mo. |
From: PEGGYBAIR, INTERNET:PEGGYBAIR@aol.com
To: David R. Lutman, 72120,40
Date: Sat, May 16, 1998, 12:07 PM
Regarding the bill: What defines ''for profit''? Profit to whom? These questions need to be answered. Technically, can newspapers be considered ''profit'' organizations? If so, would the bill conflict with freedom of the press because an amendment would restrict the taking of newsworthy photographs solely because newspapers would be defined in the bill as ''for profit'' organizations?
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David, clearly this amendment has good intentions: to protect people from being stalked. In any argument, it is good to concede points of good intention. People shouldn't be followed around so badly that it drives them crazy and takes away ALL of their freedoms to move about in this world. I do not do this and abhor any of my fellows who would display such obnoxious behavior. Gaining trust and access to a subject's private life is a privilege that requires responsibility, sensibility, patience and mutual trust that is nearly sacred. Photojournalists who violate this trust or ''rape'' their subjects for a story are not my friends. These are the photographers against whom this amendment speaks. However, the effect of the amendment may be too wide sweeping even for those who want to be protected.
Here are my thoughts:
1. How do you define the point at which one is being stalked? Is it after one minute of photographing, five minutes, 24 hours?
2. Where does a person's privacy begin and end? Generally, people's homes are considered private and photographer's are supposed to get permission to enter other establishments as well. Wouldn't the current trespassing laws take care of any problems here? Otherwise, my understanding of photojournalism is that we WORK VERY HARD to gain our subjects' permission AKA ''getting access''. We have no desire to invade a subject's space against their will as it does nothing to help us achieve our objectives.
3. How can you make it illegal to photograph someone when the photos have not been published? That's like making it illegal to buy a gun because someone MIGHT use it in a robbery.
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4. Aren't there current laws that protect citizens from libel, slander and defamation of character?
5. The press understands that the privacy of private citizens supersedes freedom of the press. However, citizens of public standing have lesser freedoms than private citizens and are subject to public scrutiny through the press.
6. The avenues to pursue for those who feel they are being stalked are already in place: trespassing, assault, harassment, disorderly conduct, libel, slander, defamation of character. People who want to protect themselves against unwanted photographing are already being protected, they just need to use the laws that are in place.
7. Journalists who are affiliated with the National Press Photographers Association agree to a written ethics code which serves both the public trust in journalism and the private rights of story subjects while upholding the Constitutional responsibility of informing its people of all manner of topics which bring us understanding of the world around us. We are dedicated to this task and to the defense of it.
Good luck, David.
PEGGYBAIR@AOL.com
Kansas City, MO
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Freelance photojournalist
B.A. English/Journalism Univ. of MO./KC, 1986, former staffer: The Kansas City Star, The Leavenworth Times, The St. Joseph News-Press, The Boulder Daily Camera, The Pueblo Chieftain
From: Hertzberg, INTERNET:hertz@wi.net
To: ''David R. Lutman'', David—Lutman
Date: Sat, May 16, 1998, 8:35 AM
While I agree with the disgust with much of the behavior that precipitated this bill, I think the language which must intentionally be vague is so vague as to leave all of us open to exposure. I'd love to see an end to the press feeding frenzies chasing people down the street outside, say, a courthouse, but there is probably an inherent right to carry a camera and act like a fool.
Another thing that strikes me in many of these issues is the tendency to ''throw out the baby with the bath water,'' whether it is banning cameras in court because of the OJ Simpson trial, or all the people who say to chuck NPPA because of one problem or another. We need to look at the bigger picture.
While there may have been individually egregious situations, what is the greater cost of such sweeping legislation? The Supreme Court has held in cases such as the Miranda case that there IS indeed a greater good to society in upholding certain rights. . .some people whom we know to have committed crimes may not be prosecuted because certain rights were violated. This legislation again forces the courts to consider a balancing act: is the behavior it seeks to control so egregious as to warrant the known and unknown effect of regulating such behavior?
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| Mark Hertzberg |
| hertz@wi.net |
From: ASeward100, INTERNET:ASeward100@aol.com
To: 75023,1315
Date: Fri, May 15, 1998, 19:53
This borders on a breach of the first amendment. Yes, there must be some order in our ''pursuit'' of a story but to make that a criminal act is ridiculous.
This proposal is a knee jerk reaction to the alleged events that proceeded Princess Diana's death. No American photographer with perhaps the exception of a Ron Galella would have done the same. If this bill becomes law, then the bad guy will go unexposed and the good guys will go unglorified.
From: Rob Miracle, INTERNET:rwm@MPGN.COM
To: David R. Lutman, 72120,40
Date: Fri, May 15, 1998, 6:03 PM
The couple of things I noticed on a quick read is that the bill is trying to prevent chases and stalking. The way it is written, I could still follow you or stalk you as long as I didn't take your picture for profit.
I can:
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a) stalk you for the purpose of giving you the jeebies,
b) stalk you for photos that I can go off in the closet and enjoy.
The bill ties news gathering (images, sounds) to something to prevent stalking which are not really related. If you want to stop stalking, make legislation to stop stalking, not restrict the freedom of the press.
The Press cannot go kill some one, or steal things, or deny due process, or take your guns under the blanket of the first amendment. So if stalking is illegal, then the press can't stalk. It does not need to be tied to news gathering.
I agree that photographers should not stalk people and invade their privacy. Now it gets grey if you are waiting for a person at site A and they go to site B and you go to site B. Is that necessarily evil? Who defines persistent?
Also, choosing a career as a politician, actor, actress, musician, or other person of ''celebrity'' status is a choice. They chose careers that puts them in the ''star light''. Star light is the constant flash of the SB–26.
They however have a reasonable right to their safety. They have a reasonable right to eat dinner in their home. The problem comes when they step out of their home and into the public where their adoring fans exist.
By choosing the life of a celebrity, they have given up, by definition some of their privacy.
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The one area where this is not true are the children of celebrities or other public figures, such as politicians. These offspring may or may not have chosen that life choice.
If a photographer, fan, rapist, or other person stalks, dangerously pursues someone regardless of status, they should be punished. This in no way violates the first amendment.
Just my opinion.
From: Mark C. Kulaw, INTERNET:MCK@link.freedom.com
To: David R. Lutman, 72120,40
Date: Fri, May 15, 1998, 4:06 PM
So, the bill passes and the next day I am in a pack of 50 media persons following presidential candidate Dan Quayle touring a school for the spelling impaired when suddenly all 50 of us are arrested ?
It could not be possible to selectively prosecute, leaving the decision up to the ''stalkee''. If prosecution is dependent on a complaint being made, wouldn't it be easy enough to manipulate the law into prosecuting your opposition?
That is, Danny surely would not file the complaint, but wouldn't it be an effective ploy for—lets say Al Gore—to file the complaint and have Quayle's entourage disbanded?
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Good luck. Sounds like a real kangaroo court.
From: ''Mark E. Johnson'', INTERNET:mejphoto@concentric.net
To: David R. Lutman, 72120,40
Date: Fri, May 15, 1998, 3:01 PM
One of the other questions this bill proposal leaves unanswered comes from this:
'(1) the term 'for commercial purposes' means with the expectation of financial gain or other consideration from the sale or other transfer of the visual image, sound recording, or other physical impression; and
How does this affect full time employees of a company who are not ''selling'' any particular image? There is no ''financial gain or other consideration'' involved as they will be paid regardless of what they were doing at the time the infraction may have incurred.
Curriculum Vitae for David R. Lutman, NPPA President
David R. Lutman is president of the National Press Photographers Association, a 10,000 member professional photojournalism organization consisting of newspaper, magazine,television and freelance news photographers as well as editors, educators and students.
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He was elected in July, 1997 and will conclude his term at the NPPA Annual Business Meeting, June 16–17.
Prior to being elected president, Lutman served NPPA in a variety of capacities including:
National Vice President and National Secretary
NPPA Regional Director and Associate Director
National Government/Media Relations Chair
NPPA Region 4 Freedom of Information Chair
Editor of 4SIGHT Magazine—an award-winning NPPA regional publication of news photography distributed to photojournalists in Indiana, Kentucky, Michigan and Ohio.
Founding member and past president of the NPPA state chapter, the Kentucky News Photographers Association
Lutman has been a news photographer for the past 27 years. He currently freelances in Louisville, KY, where he has lived since 1980. He has worked for a variety of clients including The (Louisville, KY) Courier-Journal, The Lexington (KY) Herald-Leader, The Associated Press, USA Today and The New York Times.
He graduated from Indiana University (Bloomington), with a Bachelor of Arts degree in 1980 (Double major, Journalism and Political Science).
Affiliations:
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National Press Photographers Association
Kentucky News Photographers Association
Society For News Design
Society of Professional Journalists
Age, 45; date of birth, Jan. 8, 1953;
Mr. Lutman has received no federal grants, contracts or subcontracts in the preceding two fiscal years.
FOR MORE INFORMATION, CONTACT:
David R. Lutman, NPPA President, (502) 459-8763, INTERNET:72120.40@Compuserve.Com
NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION, INC.
The initial hearing was 9:00 am, Thursday, May 21, 1998, 2141 Rayburn House Office Building.
Pursuant to discussions with Committee staff, I am submitting this testimony as a supplement to the testimony I gave during the May 21, 1998 hearing. As discussed, the purpose of this supplemental testimony is to address issues raised by committee members, that due to time constraints and panel size, were not able to be adequately addressed at the May 21, 1998 hearing.
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There are three such areas of supplemental testimony, as discussed. One is response to member questions concerning some portions of the testimony of Lawrence Lessig, Professor of Law, who testified at the May hearing. Second, is responsive to at least one committee member's questions concerning another example of news gathering activity that may be affected if the proposed legislation were adopted. Third, is a response to member questions concerning the current state of laws applicable to journalists' news gathering activities. On behalf of the NPPA, I would like to thank the Chairman, committee members, and staff, for the opportunity to submit this supplemental testimony and in advance, for the due consideration it will be given.
Professor Lessig's testimony raised many questions from members, as it should have. The testimony was premised on a comparison between the former Soviet Empire and American society—two countries where life could not be much different. In the scenario Professor Lessig presented in his testimony, the American news media is described as the equivalent of, and likened to, to the KGB. Professor Lessig's testimony likening America's free press to the KGB, an agency which greatly aided a totalitarian regime in suppressing anti-government activity, is utterly incongruous.
The very erosion of the freedom of the press to gather and report news that is suggested in Professor Lessig's testimony, was (and is} one of the mapr cornerstone's of oppressive governments like that of the former Soviet Union that Professor Lessig claims to denounce. This premise, which underlies his entire testimony, could not be more faulty. It is also insulting to journalists across the Untied States whose work every day in no way approximates the horrors of the KGB, and this committee should not endorse such a view.
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Professor Lessig's testimony that this committee should adopt legislation that says, ''in laymen's terms, if you could not have seen it, or recorded it, in 1868, without trespassing on someone else's land, than you can't {shouldn't) do it today using modern technologies . . .,'' is equally extreme. The role of this committee and the U.S. Congress regarding new technology is not to legislate the United States back to the common law of 1868, as Professor Lessig's testimony suggests. If that were the case, upon the emergence of the automobile, the response to the concerns of clean air advocates would have been federal legislation outlawing the car, so that ''if you did not have to breathe it in 1868,you would not have to breathe it today.''
An adherence to the constitutional principals of 1868, would leave the regulation of this area to the states as at common law, and as throughout our history, in the province of the states.
Secondly, members asked for examples of news stories which would not have been reported as they were if the proposed legislation were enacted into law.
While there are numerous such examples, I will draw on my hometown area of Louisville, Kentucky, for two such examples.
The first involves a story reported by WLKY–TV, Louisville Kentucky, and the Mayor of nearby Pioneer Village. The Mayor was convicted of misuse of state funds and avoided a sentence of possible incarceration by claiming that he was too ill to go to prison. The Mayor attempted to buttress his claim by showing up at his sentencing hearing on crutches, appearing barely able to walk. A WLKY–TV television crew, acting on a tip that the Mayor was faking, pursued and followed the Mayor around for two weeks.
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TV news crews caught the mayor carrying his crutches and walking well when he thought nobody was looking and then using his crutches and walking in an ailing manner when he was before the public.
In other words, the very pictures of the Mayor's daily life, including places where he may have been deemed to have taken reasonable steps to insure his privacy, were the story. Thus, this is a story that could not have been readily pursued if the proposed legislation were enacted into law, and if the TV station's tip was wrong, they could have easily have been deemed to have put the Mayor in reasonable fear for his safety, i.e., if the Mayor had not been faking.
The same TV station heard that a hauler was illegally dumping chemical, and only by pursuing the hauler did the TV crew catch the hauler dumping illegal chemical in an otherwise ''private'' place next to an apartment building. The station's news director said ''dogged pursuit'' of the hauler, no matter where that pursuit took them, was the only way to report the story and to try to seek out its truth or falsity. If the proposed legislation were enacted into law, the reporting of this type of story—which took reporters into non-public places and which involved vehicle pursuit—would be too risky to report given the legislation's civil and criminal penalties.
This is not too say that journalists are above the law, or free from its dictates, during news reporting. In most if not every state, it has been ruled that journalists must obey the law during news gathering. Journalists must obey traffic laws, including speed limits, the tort laws of trespass, libel, invasion of privacy, intrusion upon seclusion, assault, battery, and intimidation, as well as contract laws, to name just some. To suggest that the current state affairs is that journalists do not have to adhere to the laws that ordinary citizens do, is to ignore a substantial body of statutes and case law to the contrary.
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The testimony of those on the first panel was compelling in its description of excess. It did not, however, make a compelling case for enactment of the proposed federal legislation—laws that would pose serious problems for mainstream journalists.
We urge you to weigh the fact that not one of those testifying even attempted to invoke or use existing criminal or civil penalties. Under the current state of the law, it is hard to imagine that had such attempts been made, that they would not have been successful.
The difficulties the proposed legislation would cause those involved in legitimate news gathering is manifest. The case that existing criminal and civil penalties, if used, are inadequate, is not. Please take these matters into great consideration when action, if any, is taken as to the proposed legislation.
Again, thank you.
Respectfully submitted,
| David R. Lutman, |
| NPPA (now Past) President. |
Mr. HYDE. Thank you, sir, and I admire your selectivity.
Mr. FRANK. Mr. Chairman, did you say that publicly or was that a product of eavesdropping?
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Mr. HYDE. I probably said it both ways. [Laughter.]
The gentleman, Mr. Masur.
STATEMENT OF RICHARD MASUR, ACTOR, AND PRESIDENT, SCREEN ACTORS GUILD
Mr. MASUR. Thank you, Mr. Chairman.
Screen Actors Guild represents nearly 100,000 members in all 50 States and has been involved in issues of privacy protection since the murder of our member actress Rebecca Schaeffer in the late 1980's. For the past 2 years, we have been working closely with a bi-partisan group of local, State, and Federal officials, and constitutional scholars to explore reasonable and effective solutions to the practices of those who harass, trespass, peep, and eavesdrop in order to record the private moments and personal images of individuals in the United States.
Personal privacy has always been highly treasured in this country. Much of the history of First Amendment jurisprudence related to freedom of the press has involved our courts endeavoring to balance the explicit rights of the press against the implied, but deeply held, right to personal privacy.
In the 209 years since the First Amendment was authored, this balance has become progressively harder to achieve. Before the advent of inexpensive, lightweight telephoto lenses and long-range listening devices, one could feel relatively secure that when you were in your own home, no one could closely observe you unless they entered your property. If they did so without your knowledge or consent, you would have a cause of action against them for trespassing. We believe that Congress must now translate this traditional privacy protection into a form that takes into account these technological advances and create a new cause of action for technological invasion of privacy. This would create a tort against anyone who would invade ones' privacy by making a sound or visual recording of a personal or familial activity—I want to underscore that—only a personal or familial activity through the use of an audio or visual enhancement device for commercial purposes provided that the recording could not otherwise have been made had the enhancement device not been used without physically trespassing onto the private property.
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Yesterday, Senators Hatch and Feinstein introduced Senate Bill 2103 which would address this behavior as a companion to which Representative Conyers has circulated a draft piece of legislation which would also address such behavior. Though the concept is a new one, it is firmly grounded in traditional trespassing, entrapping, and peeping statutes. We realize that we are asking that the balance between the individuals' right to privacy and the press' right under the First Amendment be adjusted in order to accommodate current and future technologies. Since no existing State or Federal statute adequately protects against this kind of invasion, there is a clear need for this gap in personal privacy protection to be filled.
Although all States have existing trespass statutes, they are inconsistent from one jurisdiction to another. While the press has no right to break any laws in pursuit of these images, courts have regularly allowed violative acts by those protected by the First Amendment. We believe that Congress must define the need for comprehensive protections across the Nation for victims of this conduct, not a patchwork of protections where one would be safe in one's State and at risk in another.
In the age of instantaneous worldwide dissemination of words and images through the Internet, there is truly no such thing as ''local publication.'' All of this behavior clearly involves interstate commerce and, therefore, the Federal Government has the right and the responsibility to control it.
Finally, Representative Gallegly's bill, H.R. 3224, Representative Sonny Bono's bill, H.R. 2448, Mr. Conyers' draft, and Senate Bill 2103 would all protect those who are harassed by being persistently followed for the purpose of making a visual or audio recording. In a case where this harassment would cause a reasonable person to fear bodily injury, under Mr. Conyers' legislation, a cause of action would be created. If the harassment results in serious bodily injury or death, it would constitute a crime.
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It is important to note that in the vast majority of cases this harassment is intentional. The object of the exercise being to capture the most agitated, distressed, or excited image possible. The harassment actually creates the incident which is then recorded in order to increase the value of the image. This has nothing to do with reportage or the recording of events. Rather, this is a process whereby an event is first created and then recorded. Defending such behavior in the collection of news is just ingenuous at best.
Screen Actors Guild's high-profile members know that some loss of privacy is a cost of fame. Many others for whom celebrity is accidental and fleeting suffer a similar loss when the bright, public spotlight shines upon them. But no one, no matter how their notoriety came about, should be seen as consenting to reckless endangerment or trespass. These are not activities protected by the First Amendment and should not be tolerated.
One last point, absent Congress' guidance to the contrary, the courts have quite properly leaned in favor of press freedoms when deciding state-law based harassment and trespass cases. In many States there are exceptions attached to these and other statutes, including California's Anti-stocking Statute. Exemptions are often explicitly made for ''constitutionally-protected activity.'' Congress as the representative voice of the American people must decide if we are to adjust the balance between these two cherished rights. That is why it is vital that this debate on the balance between privacy and the First Amendment take place here in the Federal legislature.
In certain narrowly-defined circumstances, we want to make sure that Congress makes a statement that the individual's right to privacy should prevail over the needs of those who seek to profit from this kind of invasion and harassment.
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Thank you, Mr. Chairman.
[The prepared statement of Mr. Masur follows:]
PREPARED STATEMENT OF RICHARD MASUR, ACTOR, AND PRESIDENT, SCREEN ACTORS GUILD
FIRST PANEL
Thank you Mr. Chairman, Representative Conyers and members of the Committee for inviting us here today to deliver testimony on this important issue. I would also like to thank Representative Gallegly for his leadership in introducing legislation and prompting this hearing to happen.
We have come here to try to frame a conversation on the balance between the privacy rights of individuals and the rights of the press, under the First Amendment. First, we would like to give you some understanding of the increasingly abusive and invasive techniques adopted by some members of the media and the very real consequences these actions have on peoples lives. Mr Chairman, I would like to introduce two members of Screen Actors Guild, Mr. Paul Reiser and Mr. Michael J. Fox, who will speak to those human consequences. They have both traveled here in the midst of extremely tight schedules and must leave immediately after the panel is complete. For that reason, with your permission, Mr. Chairman, I would like to reserve the balance of my comments and present them during the next panel.
SECOND PANEL
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Thank you Mr. Chairman.
Screen Actors Guild represents nearly one hundred thousand members, in all fifty states, and has been involved in issues of privacy protection since the murder of our member, actress Rebecca Schaeffer, in the late 1980's. For the past two years, we have been working closely with a bipartisan group of local, state and federal officials and constitutional scholars to explore reasonable and effective solutions to the practices of those who harass, trespass, peep and eavesdrop in order to record the private moments and personal images of individuals in the United States.
Personal privacy has always been highly treasured in this country. Much of the history of First Amendment jurisprudence, related to freedom of the press, has involved our courts endeavoring to balance the explicit rights of the press against the implied, but deeply-held right to personal privacy.
In the two hundred nine years since the First Amendment was authored, this balance has become progressively harder to achieve. Before the advent of inexpensive, lightweight, telephoto lenses and long-range listening devices, one could feel relatively secure that, when you were in your own home, no one could closely observe you unless they entered your property. If they did so without your knowledge or consent, you would have a cause of action against them for trespassing.
We believe that Congress must now translate this traditional privacy protection into a form that takes into account these technological advances, and create a new cause of action for technological invasion of privacy or constructive trespass. This would create a tort against anyone who would invade one's privacy by making a sound or visual recording of a personal or familial activity, through the use of an audio or visual enhancement device, for commercial purposes; provided that the recording could not otherwise have been made, had the enhancement device not been used, without physically trespassing onto private property.
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Though this concept is new, it is firmly grounded in traditional trespass, eavesdropping and peeping statutes. We realize that we are asking that the balance between the individual's right to privacy and the press' rights under the First Amendment be adjusted, in order to accommodate current and future technologies. Since no existing state or federal statute adequately protects against this kind of invasion, there is a clear need for this gap in personal privacy protection to be filled.
Although all states have existing trespass statutes, they are inconsistent from one jurisdiction to another. While the press has no right to break any law in the pursuit of these images, courts have regularly allowed violative acts by those protected by the First Amendment. We believe that Congress must define the need for comprehensive protections across the nation for victims of this conduct, not a patchwork of protections where one would be safe in one state, and at risk in another. In the age of instantaneous world-wide dissemination of words and images through the Internet, there is truly no such thing as ''local publication.'' All of this behavior clearly involves interstate commerce and therefore the federal government has the right and the responsibility to control it.
Finally, the bill would protect those who are harassed by being persistently followed for the purpose of making a visual or audio recording. In a case where this harassment would cause a reasonable person to fear bodily injury, a cause of action would be created. If the harassment results in serious bodily injury, or death, it would constitute a crime. It is important to note that, in the vast majority of cases, this harassment is intentional, the object of the exercise being to capture the most agitated, distressed, or excited image possible. The harassment actually creates the incident which is then recorded, in order to increase the value of the image. This has nothing to do with reportage or the recording of events, rather, this is a process whereby an event is first created and then recorded. Defending such behavior as the collection of news is disingenuous, at best.
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Screen Actors Guild's high-profile members know that some loss of privacy is a cost of fame. Many others, whose celebrity is accidental and fleeting, suffer a similar loss when the bright public spotlight shines on them. But no one, no matter how their notoriety came about, should be seen as consenting to reckless endangerment or trespass. These are not activities protected by the First Amendment, and should not be tolerated.
One last point. Absent Congress' guidance to the contrary, the courts have, quite properly, leaned in favor of press freedoms when deciding state-law-based harassment and trespass cases. In many states, there are exceptions attached to these and other statutes, including California's anti-stalking statute. Exemptions are often explicitly made for ''constitutionally protected activity.'' Congress, as the representative voice of the American people, must decide if we are to adjust the balance between these two cherished rights. That is why it is vital that this debate on the balance between privacy and the First Amendment take place here, so that a clear national statement is made that an individuals right to privacy, in certain narrowly defined circumstances, should prevail over the needs of those who seek to profit from this kind of invasion and harassment.
Thank you.
BIOGRAPHY
Actor and Screen Actors Guild President Richard Masur is well-known to film and television audiences. He just starred in the Fox TV series Significant Others. Recent motion picture credits include a co-starring role in Forget Paris, directed by Billy Crystal, and Multiplicity with Michael Keaton, directed by Harold Ramis.
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Over his 25-year performing career, Masur has starred in more than 35 feature films, including Risky Business, My Girl, Heaven's Gate and Under Fire. He has appeared in 35 television films, three of which—Adam, Fallen Angel and When the Bough Breaks—are among the top-ten rated TV movies of all time, and received an Emmy nomination for his performance opposite Farrah Fawcett in the TV film The Burning Bed. Among his recent television credits are roles in HBO's much-heralded And The Band Played On, Hiroshima and Undue Influence, with Brian Dennehy. Masur has also starred in numerous popular TV series, including Picket Fences, Rhoda and One Day at a Time, and guest starred on countless major network TV comedy and drama series.
Masur is now serving his second term as President of the Screen Actors Guild. First elected in 1995, he was re-elected in November of 1997, receiving nearly 60% of the votes cast.
While actively maintaining his film and television career, Masur has become a notable director as well over recent years. His first project, Love Struck, a 23-minute film which he both wrote and directed, was nominated for an Academy Award for Best Live Action Short Film. His next effort, Torn Between Two Fathers, an Afterschool Special, gained him a nomination for the prestigious Directors Guild of America Award. Since then he has directed episodes of TV's The Wonder Years and Picket Fences.
In addition to being President of Screen Actors Guild, Masur is Treasurer of the Motion Picture & Television Fund Corporation, President of the Screen Actors Guild-Producers Industry Advancement & Cooperative Fund, and a member of the Board of Directors of the Artists Rights Foundation, National Film Preservation, Podesta (First Amendment Rights) Oversight Monitoring, and the Screen Actors Guild Foundation. He also serves on the Advisory Council to the California Senate Select Committee on the Entertainment Industry and the Advisory Committee on Public Interest Obligations of Digital Broadcasters, chaired by Vice President Al Gore.
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Masur is married to producer Fredda Weiss.
Mr. HYDE. Thank you, Mr. Masur.
Parenthetically, it's very interesting to me that we are considering in depth the First Amendment implications and it has such relevance to Campaign Finance Reform, another issue where the First Amendment plays a very strong role. So, it's interesting.
Mr. Tash.
STATEMENT OF PAUL C. TASH, EXECUTIVE DIRECTOR, ST. PETERSBURG TIMES, AND CHAIRMAN, FREEDOM OF INFORMATION COMMITTEE, AMERICAN SOCIETY OF NEWSPAPERS EDITORS
Mr. TASH. Chairman Hyde, members of the committee, thank you for the opportunity to testify this morning.
I am Paul Tash, the chairman of the Freedom of Information Committee for the American Society of Newspaper Editors, which vigorously opposes this bill.
We know the sponsors want to protect movie stars and other celebrities from the unblinking and voracious attention of the tabloid press and television shows. But bills like this one also would protect villains, frauds, and scoundrels against diligent photojournalists who would bring them and their activities to light.
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The sponsors may think they are aiming at the so-called paparazzi, but they will surely hit the rest of us, too. Let me give you an example from my own newspaper, the St. Petersburg Times, now the largest daily newspaper in Florida. The Times has won six Pulitzer Prizes and is consistently listed among the Nation's best newspapers. We are not, in short, a supermarket scandal sheet.
But last summer we did uncover a genuine scandal in the National Baptist Convention, which describes itself as the largest Black church in America. The president of that church, Reverend Henry Lyons, had collected millions of dollars in endorsement and sponsorship fees from corporations and other groups, and he kept most of the money for himself and his cronies.
One of those partners was Bernice Edwards, a woman from Milwaukee. Among other dealings, Reverend Lyons and Ms. Edwards own a $700,000 waterfront estate just a few miles from the house where Rev. Lyons lives with his wife. In fact, the scandal first came to light when Mrs. Lyons broke into that house and set it on fire. At the time, Reverend Lyons was leading a delegation to Nigeria. Ms. Edwards was traveling with him.
As this story was breaking, we wanted to learn as much as possible about Ms. Edwards, and we sent a reporter and a photographer to Milwaukee, her hometown. Our reporter found a paper trail of debt and deceit; four bankruptcies, dozens of court judgments against her and a Federal conviction for embezzling $60,000 in government money from a school Ms. Edwards helped start.
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But our photographer found that Ms. Edwards was camera shy. He spent 3 days outside her home in Milwaukee waiting for her to come outside so we could make her photograph. She did not oblige. On the third day, with the permission of the catering business across the street, our photographer waited on the roof of that building. Late in the afternoon, when her teenage daughter left the house with a young man, Ms. Edwards came briefly to the front door to call after them. And John Pendygraft, our photographer, took this picture.
[Photograph available in Committee files.]
Now, let me be clear. This assignment was expensive for the newspaper and dreadful for the photographer. We went to these lengths for a photo of Ms. Edwards because we owed readers more than an account of her previous actions. In short, we thought readers deserved a chance to see her for themselves.
We were aggressive, but also honorable in pursuit of the news. We didn't take shortcuts, or indulge in cheap stunts that might have gotten the photo more quickly. Our photographer spent 3 days filled with boredom, punctuated by the anxiety that any lapse in attention could take his only chance for a good shot.
But if this bill does become law, photographers on this sort of assignment would face yet another difficulty, the risk of going to jail.
Had Ms. Edwards left her house for a job, for the store, for an errand that took her through some public space, our photographer certainly would have followed to make her picture; he would not have chased her at dangerous speeds; he would not have driven recklessly; he would not have broken any of the laws that already exist to preserve personal safety and public order. Indeed, these laws have been applied to restrain some photographers and punish their excesses already.
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But this bill would create a new law that is directed specifically toward photojournalists and make them susceptible to criminal penalties based upon the reasonable expectation and fear of the person being photographed. It doesn't matter whether that person is a movie star in Malibu or a convicted embezzler in Milwaukee. It doesn't matter whether a photographer works for The St. Petersburg Times, The New York Times, or the News of the World.
This bill is unnecessary, and it reaches way beyond the ultimately narrow problem it purports to address. It might keep a few celebrity photos out of print and off the air, but it also would keep the public from getting a look at some characters who prefer to stay in the shadows.
Thank you very much.
[The prepared statement of Mr. Tash follows:]
PREPARED STATEMENT OF PAUL C. TASH, EXECUTIVE DIRECTOR, ST. PETERSBURG TIMES, AND CHAIRMAN, FREEDOM OF INFORMATION COMMITTEE, AMERICAN SOCIETY OF NEWSPAPERS EDITORS
Chairman Hyde, members of the committee, thank you for the opportunity to testify this moming.
I am Paul Tash, the chairman of the Freedom of Information Committee for the American Society of Newspaper Editors, which vigorously opposes this bill.
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We know the sponsors want to protect movie stars and other celebrities from the unblinking and voracious attention of the tabloid press. But bills like this one also would protect villains, frauds and scoundrels against diligent photojournalists who would bring them and their activities to light.
The sponsors may think they are aiming only at the so-called paparazzi, but they will surely hit the rest of us, too.
Let me give you an example from my own newspaper, the St. Petersburg Times, now the largest daily newspaper in Florida. The Times has won six Pulitzer Prizes and is consistently listed among the nation's best newspapers. We are not, in short, a supermarket scandal sheet.
But last summer, we did uncover a genuine scandal in the National Baptist Convention, which describes itself as the largest black church in America. The president of that church, Rev. Henry Lyons, had collected millions of dollars in endorsement and sponsorship fees from corporations and other groups, and he kept most of the money for himself and his cronies.
One of those partners was Bemice Edwards, a woman from Milwaukee. Among other dealings, Lyons and Ms. Edwards own a $700,000 waterfront estate, just a few miles from the house where Lyons lives with his wife. In fact, the scandal first came to light when Mrs. Lyons broke into that house and set it on fire. At the time, Rev. Lyons was leading a delegation to Nigeria; Ms. Edwards was traveling with him. (See footnote. )
As this story was breaking, we wanted to learn as much as possible about Ms. Edwards, and we sent a reporter and a photographer to Milwaukee, her hometown. Our reporter found a paper trail of debt and deceit: four bankruptcies, dozens of court judgments against her and a federal conviction for embezzling $60,000 in government money from a school Ms. Edwards helped start.
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But our photographer found that Ms. Edwards was camera shy. He spent three days outside her home in Milwaukee, waiting for her to come outside so we could make her photo. She did not oblige. On the third day, with the permission of the catering business across the street, our photographer waited on the roof of that building. Late in the aftemoon, when her teen-age daughter left the house with a young man, Ms. Edwards came briefly to the front door to call after them.
And John Pendygraft, our photographer, made this picture.
Now, let me be clear. This assignment was expensive for the newspaper and dreadful for the photographer. We went to these lengths for a photo of Ms. Edwards because it was important that our readers see her for themselves, not just read our account of what she had done in the past.
We were aggressive, but also honorable, in pursuit of the news. We didn't take short cuts, or indulge in cheap stunts that might have gotten the photo more quickly. Our photographer spent three days filled with boredom, punctuated the anxiety that any lapse in attention could take his only chance for a good shot.
But if this bill does become law, photographers on this sort of assignment would face yet another difficulty—the risk of going to jail.
Had Ms. Edwards left her house—for a job, for the store, for an errand that took her through some public space—our photographer certainly would have followed to make her picture. He would not have chased her at dangerous speeds; he would not have driven recklessly; he would not have broken any of the laws that already exist to preserve personal safety and public order. Indeed, these laws have been applied to restrain some photographers and punish their excesses already.
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This bill, however, would create a law that is directed specifically toward photojournalists, and make them susceptible to criminal penalties based upon the ''reasonable expectation (and) fear'' of the person being photographed. It doesn't matter whether that person is a movie star in Malibu or a convicted embezzler in Milwaukee. It doesn't matter whether a photographer is working for the St. Petersburg Times, the New York Times or the News of the World.
This bill is unnecessary, and it reaches way beyond the ultimately narrow problem it purports to address. It might keep a few celebrity photos out of print and off the air, but it also would keep the public from seeing some characters who prefer to stay in the shadows.
Thank you.
Footnote: Subsequent to the fire, Mrs. Lyons pleaded guilty to arson charges and was sentenced to probation. Rev. Lyons and Ms. Edwards have been charged in state court with racketeering and grand theft; those charges are pending. Meanwhile, a federal grand jury in Tampa is investigating Rev. Lyons' income tax returns and documents that bear the forged signatures of other church officials.
Mr. HYDE. Thank you, Mr. Tash.
Next, the president of the Radio-Television News Directors Association, Barbara Cochran.
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STATEMENT OF BARBARA COCHRAN, PRESIDENT, RADIO-TELEVISION NEWS DIRECTORS ASSOCIATION
Ms. COCHRAN. Thank you, Mr. Chairman and members of the committee. I'm pleased to testify on behalf of the Radio-Television News Directors Association today, and I also want to take this opportunity to thank this committee for showing so much leadership earlier this year in legislation that allows cameras into Federal courtrooms for the first time, something our association has worked very hard for over the years.
Mr. HYDE. If you would yield just for a second—what we've heard today—and we're not through yet, obviously—highlights a serious problem and we perhaps don't have the answer, but we're groping toward an answer to try to protect people from really abusive conduct. Their humanity is abused, whether they're celebrities or not. On the other hand, there are protections in our Constitution that are more important than any individual's are. So we're groping for a balance to resolve this, whether it's civil, criminal, and that sort of thing.
The testimony you've provided will help us, but we're going to study this, and chew on this, and worry about it, and revisit you, perhaps, when we get a product that can meet the demands of the Constitution and at the same time provide real protection. But whatever we do, the fact that we've had these hearings and you've come forward has focused attention on a real problem and that is to the good.
Thanks for letting me interrupt you, Ms. Cochran.
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Ms. COCHRAN. Certainly, Mr. Chairman.
The Radio-Television News Directors Association is the world's largest professional organization devoted exclusively to electronic journalism. RTNDA represents local and network news executives in radio, television, and cable news in more than 30 countries.
RTNDA is the only organization in this country that represents the decisionmakers in electronic news. Our members decide what news should be covered and how. They make assignments, select the news stories that are broadcast, and set the editorial standards for their newsrooms.
Our members are deeply aware of the problems created by some in pursuit of photographs, video, or audio. RTNDA does not condone harassing behavior. In fact, our Code of Ethics, which every member signs upon joining, says members will respect the dignity, privacy, and well-being of the people with whom they deal. And we have taken action to solve problems.
At our annual banquet earlier this year, Roone Arledge, chairman of ABC News, pointed out the distress of President Clinton's secretary when she appeared to testify at the grand jury. He proposed that the networks begin pooling coverage for stakeouts in the Independent Counsel's investigation. His plan has been adopted and seems like the one he described have not been repeated.
While our members are sensitive to complaints about how news is gathered, they are strongly convinced that the legislation before this committee would restrict and punish the most important news-gathering activities of mainstream news organizations. The proposed legislation is overbroad, unnecessary, unconstitutional, and would seriously damage the ability of journalists, including electronic journalists, to bring news stories to the American public.
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We believe this legislation is unnecessary because remedies already exist to deal with dangerous behavior, and you've heard discussion of that today. We believe the legislation is unconstitutional because it offers no clear standards, uses ambiguous terms, and threatens to punish inadvertent behavior.
For the Government to justify any regulation that would touch the fundamental First Amendment rights in the manner the proposed bills do, the government must offer a compelling interest sufficient to warrant curtailment of free speech. I submit that attempting to guard the privacy of celebrities, particularly where existing State laws offer protection, is no reason to suppress freedom of the press or to deprive the public of the right to see and hear news imagery without government intrusion.
That brings me to the most important concern of our members, the practical affect of this legislation upon the news-gathering activities of the electronic media. Particularly troubling is the legislation focus as on the equipment that journalists use. It expands the century-old definition of trespassing to include pictures and recordings of private property made with telephoto lenses and high-power microphones.
The legislation would allow the civil prosecution of electronic journalists for using such technology even if the journalists are located on public property. As a result, the bill threatens to render extinct some of the news reporting that is most consistent with the ideals engendered in our Constitution and the role of journalists in uncovering the truth. This would be especially true of investigative reports which almost always involve seeking information from reluctant or unwilling participants.
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Based on information provided by our members, here are some examples of the kinds of stories they might not have been able to tell their communities if this legislation had been in effect; an exposé of city workers who loaf on the job behind the darkened windows of their van; a judge who fails to show up for court on time in 80 percent of his cases; construction and home repair work done by companies without permits; a sex tour operator who takes men to Asia to practice pedophilia; a sheriff emerging from dialysis treatment contending he is fit to seek another term; toxic waste issuing from a drainpipe on private property but visible through a chain-link fence; an economist passing himself off as a cancer specialist and claiming to cure disease with lemon juice and distilled water.
In many of these cases the wrongdoers who were exposed might have claimed a reasonable expectation of privacy. Certainly the city workers didn't intend to do their goofing off in public, and most of these stories would have been impossible to obtain without the use of a telephoto lens.
I also want to share with this committee a letter that I received yesterday, a copy of a letter from the president of AFTRA, the American Federation of Television and Radio Artists, to another member of this panel, the president of the Screen Actors Guild. The letter recounts actions taken by the AFTRA National Broadcast Steering Committee in which the committee unanimously declared its opposition to the legislation, in spite of the fact that the Screen Actors Guild, its sister organization, had asked for their support.
The letter says: ''To a person, the journalist members of the Broadcast Steering Committee noted that the legislation as drafted would have a chilling effect on the legitimate press and its ability to gather and report the news to the American public.''
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The letter also says: ''Members of the committee cited example after example of investigative reporting, stakeouts, and other accepted and necessary practices of the legitimate media which could be stifled by the proposed legislation and make it impossible for them to do their jobs.''
Like the members of the AFTRA National Broadcast Steering Committee, the members of RTNDA appeal to you not to endanger the traditional role of the free press as a public watchdog. Thank you.
[The prepared statement of Ms. Cochran follows:]
PREPARED STATEMENT OF BARBARA S. COCHRAN, PRESIDENT, RADIO-TELEVISION NEWS DIRECTORS ASSOCIATION
SUMMARY
Barbara S. Cochran, President of the Radio-Television News Directors Association (''RTNDA''), has worked as a journalist in Washington for more than 25 years. Her testimony on behalf of RTNDA, the world's largest professional organization devoted exclusively to electronic journalism, suggests that passage of The Protection From Personal Intrusion Act or The Privacy Protection Act of 1998, in attempting to curb the excesses of the so-called ''paparazzi,'' would unduly restrict and punish the important and protected newsgathering activities of mainstream news organizations. Ms. Cochran states that RTNDA's members are cognizant of and have taken affirmative steps to alleviate the actions associated with behavior which might be considered harassment. The proposed legislation, however, fails to distinguish between unacceptable behavior by what may be considered the media's fringe and legitimate newsgathering protected by the First Amendment. Existing state laws deal adequately with the problems this legislation purports to address. Moreover, there are considerable constitutional questions raised by this legislation, including vagueness, ambiguity, and overbreadth. Its uncertain restrictions would inevitably chill free speech activities, as breaking news is easily lost where a journalist is forced to entertain doubts about the sights and sounds he or she is poised to capture. And the government offers no compelling justification for this intrusion upon the First Amendment protections afforded the press.
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RTNDA is particularly concerned about the legislation's focus upon the equipment that journalists use. It expands the definition of trespassing to include pictures and recordings of private property made with telephoto lenses and high-power microphones. As such it threatens to severely hamper investigative reporting, and to limit the number of stories the electronic media can bring to the public which warn them of danger to their well being. Because the proposed legislation would endanger the traditional role of the press as public watchdog, RTNDA urges the Committee to refrain from embarking down the slippery slope the two bills would engender.
STATEMENT
Chairman Hyde and distinguished members of the Committee: I am pleased to testify today on behalf of the Radio-Television News Directors Association regarding H.R. 2448, the Protection From Personal Intrusion Act, and H.R. 3224, The Privacy Protection Act of 1998. The Radio-Television News Directors Association (''RTNDA'') is the world's largest professional organization devoted exclusively to electronic journalism. RTNDA represents local and network news executives, educators, students and others in the radio, television and cable news business in over thirty countries.
I have worked as a journalist in Washington for more than 25 years and have held management positions in print, radio and television. I was managing editor of the Washington Star, vice president for news at National Public Radio, executive producer of Meet the Press at NBC News, and vice president and Washington bureau chief at CBS News. I became president of RTNDA one year ago.
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Since their inception, radio and television have assumed an expanding role in serving as the public's eyes and ears. The powerful audio and video imagery brought to us by the electronic media is unrivaled. On radio we heard first-hand about the crash of the Hindenberg and the World War II blitz of London. On television, we have seen the assassination of President Kennedy and the first space flight of John Glenn, the war in Vietnam and the Watergate hearings, hostages in Iran and the signing of the Camp David Accords, the Persian Gulf war and the rescue of a little girl stuck in a drain pipe.
In these and many, many more instances, electronic journalism has played its unique role by allowing the public to hear and see for themselves events unfold. We in electronic journalism are here today to ask this Committee to protect that crucial role in our democracy—the role the press plays as surrogate eyewitnesses for the public.
Any attempt to regulate those who engage in newsgathering raises compelling First Amendment concerns. The similar pieces of legislation which are the subject of this hearing are no exception. As my distinguished colleagues in journalism testifying before you today have and will underscore, in attempting to curb the excesses of the so-called ''paparazzi,'' the proposed legislation would without a doubt unduly restrict and punish the important and protected newsgathering activities of mainstream news organizations. Moreover, the proposed legislation is overbroad, unnecessary, unconstitutional, and would have a debilitating impact on the ability of reporters and videographers to bring news stories to the American public.
Generally, the proposed bills would make it a federal crime to chase someone in a way that risks bodily harm while trying to tape or photograph the person for commercial purposes. They would also change the definition of trespassing to forbid the use of a telephoto lens or a powerful listening device to get images or recordings that otherwise could be obtained only by physical trespassing. Violators would be liable for civil damages.
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Our members are cognizant of the problems created by some in pursuit of photographs or video. Immediately after the death of the Princess of Wales, several news directors told me that their crews on the street were heckled by bystanders shouting, ''You killed Diana.'' RTNDA does not condone harassing behavior. Our Code of Ethics, which every member signs upon joining, says members will ''respect the dignity, privacy and well-being of people with whom them deal.''
And we have taken action to solve problems. At our annual banquet earlier this year, Roone Arledge, chairman of ABC News, pointed out the distress of President Clinton's secretary when she appeared to testify at the grand jury. ''She was besieged by hundreds of cameramen,'' he said, ''and the picture of this poor lady fearing for her life (or at least her safety) has stayed with me.'' He proposed that the networks begin pooling coverage for stakeouts in the independent counsel's investigation. His plan has been adopted and scenes like the one he described have not been repeated.
As the Chicago Tribune so aptly said in a recent editorial, legislative efforts to curb the excesses of the so-called paparazzi ''amount to going after cockroaches with a bulldozer.'' While the sometimes aggressive behavior and use of telephoto lenses and high-power microphones to violate the inner sanctums of the rich and famous have recently been widely criticized, most notably by the very celebrities who often court the camera, the proposals at issue are greatly disproportionate to the problem Admittedly, some individuals do have to put up with some aggravation. But their number is not large. And the bills fail to distinguish between unacceptable behavior by what may be considered the media's fringe and legitimate news gathering protected by the First Amendment.
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Moreover, new federal laws of the type proposed are simply unnecessary. There is no reason state laws cannot deal adequately with the problems this legislation purports to address. Dozens of state laws exist to prosecute those whose actions violate laws banning trespassing, assault, invasion of privacy and reckless endangerment without special favor to celebrities or special sanction against the press. A long line of cases evidences the willingness of the judicial system to punish violators harshly. For example, just recently, a Santa Monica judge sent two British photographers to jail for blocking the car of Arnold Schwarzenegger and Maria Shriver as they tried to drive their son to school. Thus, the need for a federal solution is difficult to see. Federal courts are already overloaded with new crimes that once were the province of state courts.
Also troubling to RTNDA's members are the considerable constitutional questions raised by this legislation and elaborated upon by others here today. The proposed law offers no clear standards, uses ambiguous terms, and threatens to punish inadvertent behavior. Just what is ''personal intrusion'' and is it the same for every person? At what point can someone assert their right not to have their image captured? Is it when a businessman accused of shady practices holds up his hand to block the camera lens?
Because it would leave journalists guessing as to whether their course of conduct would or would not be permissible, legislation such as that before us would inevitably chill free speech activities. Breaking news is easily lost where a journalist is forced to entertain doubts about the sights and sounds he or she is poised to capture. Moreover, the proposed provisions would allow certain individuals, particularly celebrities, to manipulate the news. For the government to justify any regulation that would touch upon fundamental first amendment rights in the manner which the proposed bills do, it is incumbent upon the government to offer up a compelling government interest sufficient to warrant the curtailment of free speech. I submit that attempting to guard the privacy of celebrities, particularly where existing state laws offer adequate protection, is no reason to suppress freedom of the press and to violate the right of the public to see and hear news imagery without government intervention.
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Which brings me to perhaps the most important part of my testimony as a representative of those journalists who bring unparalleled news imagery to the American people—the practical effect of the legislation upon the newsgathering activities of the electronic media. Particularly troubling is the legislation's focus on the equipment that journalists use. It expands the century-old definition of trespassing to include pictures and recordings of private property made with telephoto lenses and high-power microphones. In so doing, the legislation would allow the civil prosecution of electronic journalists engaged capturing sights and sounds using such technology, even if they are located on public property. As a result, it threatens to render extinct some of the news reporting that is most consistent with the ideals engendered in our constitution and the role of the press in uncovering the truth.
The information that the public most values is that which warns them of danger to their well-being. That kind of information is often gathered through investigative reporting, and investigative reporting almost always involves seeking information from reluctant or unwilling participants. The danger in the bills under consideration today is the chill they would impose on investigative reporting. Here are some examples of the kinds of stories that might not be told as a result: An expose of the city workers who loaf on the job behind the darkened windows of their van. A judge who fails to show up on time for eighty percent of his cases. A story on construction and home repair work done by companies without permits. A sex tour operator who takes men to Asia to practice pedophilia. A sheriff after dialysis treatment, contending he is fit to seek another term. Toxic waste issuing from a company's drain pipe on private property behind a chain-link fence. An air crash on a military base where news personnel must wait several hours for clearances to enter the property. The scene at an abortion clinic bombing when police have cleared a large perimeter while they investigate for more bombs.
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Courts and legislatures are already free to punish those who use advanced technology to invade bedrooms when the occupants have taken reasonable steps to shield them from prying eyes and ears. Laws that prohibit shooting a backyard with a telephoto lens may protect the privacy of a starlet in a bikini, but they might also block a news crew from taping the city mayor taking bribes.
In sum, the type of restrictions on newsgathering imposed by the legislation which is the subject of this hearing are unnecessary, unconstitutional, and dangerous. Their passage would inevitably curtail legitimate journalistic efforts. The death of Princess Diana should not be used to trample on the First Amendment while further bloating the federal statute books with matters devoid of federal significance. As Thomas Jefferson so often expressed, a free unfettered press is a necessary ''evil'' to the preservation of an open, democratic society. This legislation threatens to endanger the traditional role of the free press as public watchdog. Congress should surely refrain from embarking on the dangerously slippery slope The Protection from Personal Intrusion Act and The Privacy Protection Act of 1998 would engender.
Thank you, Mr. Chairman, for the opportunity to testify on behalf of RTNDA before your committee today.
Mr. HYDE. Thank you very much, Ms. Cochran. Mr. Guttman.
STATEMENT OF DICK GUTTMAN, PRESIDENT, GUTTMAN ASSOCIATES PUBLIC RELATIONS/MARKETING
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Mr. GUTTMAN. Mr. Chairman, members of the committee, thank you for addressing this issue and for allowing me to appear before you to testify.
My comments and my concern derive from many years in the field of public relations and the entertainment industry, during which time I've represented a number of well-known artists and do at this time.
In the last several years there has been a distinct change in the relationship between the people I represent and the people who observe them professionally. Intrusive pursuit by stalkerazzi impacts the emotional, family, and career well-being of celebrities, and certainly their safety. The absolute surrender of privacy and dignity is not a trade-off for fame. It's too high a price to pay for anything, certainly for something as ephemeral as fame.
Stalkerazzi are tabloid predators who conduct guerilla warfare through acts of pursuit and provocation and not through acts of news gathering, and should not be confused. The legislative effort that you are considering would limit the license of these people to stalk with impunity and yet would not curtail press functions and press freedoms.
I don't mean to correct the use by this committee or by my fellow panelists of the word paparazzi, but, respectfully, I would like to submit that I use the term stalkerazzi as distinguished from paparazzi. Paparazzi are a legitimate part of the Hollywood publicity mill. They don't hunt down celebrities like prey to steal private moments or to provoke ugly ones.
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This legislative effort is desperately needed in order to even a badly-tilted playing field. If no legislative solution is found, celebrities and those who represent them and private citizens, who by no fault of their own become the targets of the press, will continue in a very unequal combat with the stalker press. I distinguish the stalker press from the general press, although sometimes that distinction is blurred.
Even with various State laws on stalking, we are prevented by other laws from intervening in stalkerazzi raids on privacy and security. I recently—many times—I've seen helicopters hovering over my clients' homes. I could take a mirror and reflect light into them; it would stop the photography, it would chase them off, but I would be in violation of FAA regulations. If they crashed, I would be guilty of manslaughter. So, obviously this is not an option to us, but if we endure these invasions, then we assure their habituation.
The wedding of another of my clients was made totally inaudible by the roar of overhead helicopters. If a legislative solution had already been in effect, these intruders would have known that they were in violation and could be taken to Federal court for civil action.
Another actress was being pursued in her car by a stalkerazzi vehicle. When the chasing car stepped up the provocation by banging bumpers from behind, she called the police. She asked for advice and was told that if there was substantial damage from this harassment, the one thing she could not do would be to flee because that would be leaving the scene of an accident, which is prohibited and a crime under the California Motor Vehicle Code. She was told that she would be obliged further to stop and exchange insurance information—in other words, to offer herself as a sitting duck—exactly what they wanted.
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That pursuit must be identified as harassment for commercial purposes under any proposed legislation, and should result in a cause for civil and criminal action so that a real deterrent would exist to deter this kind of behavior.
As a press agent protective of his clients, I must say that I don't think this legislative effort goes far enough. However, as a citizen protective of the Bill of Rights, and respectful of it, I think it goes exactly as far as it should. It seems to be scrupulously constitutional in its defense of First Amendment protections of freedom of the press—scrupulously so.
Even when stalkerazzi, through enactment of legislation, are faced with civil and criminal liability for acts of endangering pursuit or trespass, the products of those trespasses will not be precluded from publication or broadcast. Even in a worst case Princess Diana-type tragedy, the right of media to publish or broadcast the resulting photos, however horrible those might be, or videos or audio material, will be protected—thoroughly protected.
Hopefully, this law would foster awareness that would influence media self-evaluation and make less attractive the products of these stalkerazzi. I would love to have the word stalkerazzi come into the general discussion of this because I think it more clearly characterizes the nature of these people and of the work that they're doing.
Mr. Chairman, this hearing is very forward-looking in its acknowledgement that trespass now encompasses invasion of one's home or privacy through off-site use of technologically-enhanced recording and surveillance devices. This was articulated very well earlier this morning by Representative Conyers and also by Representative Frank.
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Francis Coppola's film, ''The Conversation,'' if any of you recall, demonstrated that any conversation is susceptible to interception. That was 25 years ago. The equipment that his surveillance expert had to cram into a van now fits into his coat pockets and probably a briefcase.
The Supreme Court acknowledged in Katz v. United States that electronic enhancements had changed the boundaries of due process. I realize that Katz concerned a very different circumstance—police search and seizure—but the Supreme Court was addressing the consideration that technology had altered the means of privacy intrusion. That's very pertinent to what we're discussing here, and that was in 1967. They hadn't seen anything yet. That was a millennium ago in terms of technology, and, for that matter, we in 1998 have not seen anything yet.
Mr. HYDE. Could you bring your remarks to a close?
Mr. GUTTMAN. Yes. And, finally, as Representative Frank pointed out, this committee can send a very powerful message to stalkerazzi, and I think that's the importance of our appearance here.
[The prepared statement of Mr. Guttman follows:]
PREPARED STATEMENT OF DICK GUTTMAN, PRESIDENT, GUTTMAN ASSOCIATES PUBLIC RELATIONS/MARKETING
First, Mr. Chairman, thank you and the members of the Committee for addressing this issue and giving me the chance to testify today about the proposed legislation.
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I have spent the last 30 years of my professional life in the field of public relations in the entertainment industry. Over the course of that time, I have represented and been responsible for press relations of literally hundreds of well-known performers. In the last several years, there has been a distinct change in the relationship between the people I represent and the people who observe them.
Intrusive pursuit by stalkerazzi impacts the emotional, family and career well-being of celebrities. It endangers their safety. None of us wishes to be hounded, and the absolute surrender of privacy and dignity is not the mandatory trade-off for fame.
Stalkerazzi are tabloid predators who conduct guerilla warfare through acts of pursuit and provocation rather than acts of news gathering. They hunt a personality's reaction under duress. This legislative effort would limit their license to stalk with impunity and yet would not curtail press freedoms.
I use the term stalkerazzi as distinguished from paparazzi. Paparazzi are a legitimate part of the Hollywood publicity mill. They don't hunt down celebrities like prey to steal private moments or to provoke ugly ones.
This legislative effort is desperately needed in order to even a badly tilted playing field. If no legislative solution is found, celebrities and those who represent them, and private citizens, who by no fault of their own become targets of the press, will continue in unequal combat with the stalker press. Even with various state laws on stalking which have been passed since 1990, we are prevented by other laws from intervening in stalkerazzi raids on privacy and security. Recently, I witnessed a helicopter hovering near the home of one of my clients, hanging up there like a virtual spy satellite. If we had reflected sunlight at it with a mirror, we could have stopped the photography and maybe chased off the helicopter. Except that would have been a violation of FAA regulations and, if the machine had crashed, a matter of manslaughter. It was not an option open to us. Yet to tolerate these invasions is to assure their habituation. Another of my client's weddings was made inaudible by the roar of overhead choppers. If a legislative solution had already been in effect, the intruders would have known that they faced civil liability in federal courts.
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In another discouraging incident, an actress was being pursued in her car by a stalkerazzi vehicle. When the chasing car stepped up the provocation by banging bumpers from behind, she called the police. She asked for advice and was told that if substantial damage resulted from the harassment, she could not flee because that would constitute leaving the scene of an accident, which is a crime under the California Vehicle Code. She was told that she would be obliged to stop and exchange insurance information . . . in other words, to offer herself as a sitting duck. That pursuit must be identified as harassment for commercial purposes under any proposed legislation and should result in a cause for civil and criminal action. So that a real deterrent would exist to this kind of behavior.
As a press agent protective of his clients, I don't think these legislative efforts go far enough. As a citizen protective of our Bill of Rights, I think it goes exactly as far as it should. It seems to be scrupulously constitutional in its defense of the First Amendment protections of freedom of the press. Even when stalkerazzi, through enactment of legislation, are faced with civil or criminal liability for their acts of endangering pursuit or of trespass, the products of those trespasses will not be precluded from publication or broadcast. Even in a worst case Princess Diana-type tragedy, the right of media to publish or broadcast the resulting photos or videos or audio material will be protected. Hopefully, this law would foster an awareness that would influence media self-evaluation and make less attractive the product of these stalkerazzi, these predatory ''agents provocateurs.''
Mr. Chairman, this hearing is very forward-looking in its acknowledgment that trespass now encompasses invasion of one's home or privacy through off-site use of technologically enhanced recording and surveillance devices. In five minutes on the Internet, my assistant down-loaded a dozen pages of tools that can be bought to invade anyone's privacy. Francis Ford Coppola's film The Conversations demonstrated that any communication is susceptible to interception. That was 25 years ago. The equipment his surveillance expert crammed into a van would now fit in his coat pockets and a briefcase. The Supreme Court acknowledged in Katz vs. The United States that electronic enhancements had changed the boundaries of due process. That was 1967 . . . they hadn't seen anything yet. Nor, for that matter, have we in 1998.
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I thank you for addressing this very important issue and urge you to move swiftly on a viable legislative remedy.
CURRICULUM VITAE
Richard A. Guttman is President and owner of Guttman Associates Public Relations/Marketing, a well-known Los Angeles public relations firm. He formerly served as partner and chief executive officer of Guttman & Pam Public Relations from 1972 to 1993. Prior to that he served as an account executive and vice president with Rogers & Cowan Public Relations.
Richard is a 1995 cum laude graduate of UCLA, a member, of Phi Eta Sigma academic honor society and a founding member of the UCLA chapter of the Delta Kappa Alpha film fraternity. He is also a founding board member of the Los Angeles Film Teachers Association.
In addition to his work in public relations, Richard has authored or coauthored many theatrical and television motion pictures, including: Passion Flower, A Touch of Scandal, Highpoint, The Back Door To Hell, The Toughest Man In The World, The Last Elephant, the latter a nominee for the CableAce Award for Best Motion Picture and winner of the Genesis Award.
He was also a partner in GAP Productions which produced On The Film Scene With Charles Champlin, for The Z Channel which was a recipient of the Cable Ace Award for Best Interview Show.
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SUMMARY
Americans have witnessed the insidious behavior of the group of commercial photographers known as the paparazzi who make the taking candid photographs of celebrities and others in the news. While those targeted by the payarazzi understandably feel their privacy is all too often invaded by this unruly group, the legislative remedies specified in H.R. 2448 and H.R. 3224 could produce a deleterious effect on the news gathering processes of mainstream media outlets. These federal penalties may sweep into the law's reach other news gathering activities not contemplated in either bill.
Moreover, the bills offer little in terms of additional protections not otherwise afforded under state laws. Criminal statutes on harassment, assault, false imprisonment, disorderly conduct, reckless endangerment, stalking, and civil penalties for invasion of privacy by intrusion cover the myriad behaviors contemplated in H.R. 2448 and H.R. 3224.
In summary, the Congress must ask itself why is it necessary to create a new federal law that singles out a particular group for punishment when very little is gained in terms of actual protections. Moreover, the remedies specified in the bills could erode the press freedom from which the public benefits in the United States.
Mr. HYDE. Thank you very much, Mr. Guttman. Next, Professor Robert Richards, associate professor of journalism and law at Penn State, and director of the Penn State Center for the First Amendment.
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Professor Richards.
STATEMENT OF ROBERT RICHARDS, ASSOCIATE PROFESSOR OF JOURNALISM AND LAW, PENN STATE UNIVERSITY, AND DIRECTOR, PENN STATE CENTER FOR THE FIRST AMENDMENT
Mr. RICHARDS. Thank you, Mr. Chairman. I want to make one slight correction to the record. In your opening remarks you identified me with Dickinson College of Law, Dickinson School of Law; that is a part of Penn State now, and we're proud of it, but I do remain on the faculty of the College of Communications, so I just wanted to correct that for the record.
Mr. HYDE. Thank you, and I regret the mistake.
Mr. RICHARDS. No problem.
Mr. Chairman, and members of this committee, let me begin by thanking you for the opportunity to testify here today. We've all been made aware here this morning of the insidious behavior of photographers who make their living by taking candid pictures of celebrities and others in the news. We've labeled this group as the paparazzi. Certainly, this committee heard the horror stories and indignities faced by those who labor in the public eye in the first panel this morning.
As we empathize with celebrities and others over the lack of civility that really is too often exhibited by this cadre of photographers, we naturally want to ameliorate that situation. At first blush, the logical way to do this is through tough legislation regulating the egregious behavior. Yet, in such an emotionally-driven area, it is useful to step back and examine whether the legislative remedy will accomplish the intended result or whether the unintended consequences of the legislation will overshadow any good that may come of it.
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As we discuss these bills, I think we have a common understanding of whom Congress intends to affect with this legislation. We've all seen examples of the paparazzi at work. Still, in an unlicensed trade or profession, the definition we apply to this group is at best amorphous. For that reason, the legislation focuses on regulating the behavior of individuals rather than the individuals themselves.
The legal scholars who have contributed their talents to the drafting of these bills also find this approach to be a way around the strictures of the First Amendment. After all, there's no First Amendment right to stalk, to chase, or to trespass. And both bills are careful not to infringe upon the right to publish, which would clearly raise some pivotal First Amendment questions.
Nonetheless, I'm reminded today of the late Justice Potter Stewart's dissent in Branzburg v. Hayes. As many of you know, that case involved journalists who were seeking a First Amendment privilege to refuse to identify confidential sources in a grand jury proceeding.
Justice Stewart wrote, and I quote: ''A corollary of the right to publish must be the right to gather news. The full flow of information to the public protected by the free press guarantee would be severely curtailed if no protection whatever were afforded to the process by which news is assembled and disseminated.''
Although these measures that we're looking at today are designed to prohibit a type of improper behavior, their language may sweep into the law's reach other news-gathering activities not contemplated in this legislation.
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For example, in the hubbub of activities surrounding a news story about a public official, camera crews from what we would consider mainstream media oftentimes have to chase after sources who are seeking to avoid the public scrutiny. If enough camera crews encircle the source, that individual may indeed momentarily fear for his or her safety.
This scenario is fairly typical in the news-gathering process. Moreover, this hot pursuit of news is certainly not limited to the paparazzi. To expose these journalists to Federal, criminal, and civil penalties for doing their jobs would have a deleterious effect, not only on the news-gathering process, but also—and I submit more importantly—on the information the American public receives.
Now I'm not suggesting that journalists are immune from the law. Indeed, as Clay Calvert, my colleague in the Pennsylvania Center for the First Amendment, recently wrote in a law review article, ''The First Amendment is not a sword to run roughshod over others, to break generally applicable laws with impunity.'' And I wholeheartedly agree with that sentiment.
But the point that should not be lost here today is that the States already have laws that are generally applicable to any individual who crosses the legal boundaries, not just commercially-motivated photographers. Criminal statutes on harassment, assault, false imprisonment, disorderly conduct, reckless endangerment, stalking, and civil penalties for invasion of privacy by intrusion cover the myriad behaviors contemplated in these bills.
What's more, the courts have enforced such laws in these situations. We've heard about the situation with Arnold Schwarzenegger, and we've also heard that the invasion of privacy by intrusion law was used successfully against the program ''Inside Edition,'' where the U.S. District Court prohibited the show's producers from, quote, ''hounding, following, intruding, frightening, terrorizing, or ambushing'' the subjects involved in the story.
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Indeed, courts are more and more willing to entertain arguments focused on the news-gathering process rather than the right of the media to publish, and therefore avoiding many First Amendment considerations. We must ask ourselves then, why is it necessary to create a new Federal law that for all intents and purposes singles out a particular group for punishment? These bills would not apply to an ordinary fan, for instance, who zealously pursues a celebrity for personal amusement, but who could be just as dangerous.
The question this committee must consider is whether the bill simply provides a placebo of additional protection, but one with some very dangerous side effects for freedom of the press. And I think Justice Stewart's admonishment in Branzburg is instructive here.
In summary, while very little is gained in terms of protecting individuals from the harmful behavior of the paparazzi, much can be lost in terms of the freedom that the press enjoys and that the public benefits from in the United States. Thank you.
[The prepared statement of Mr. Richards follows:]
PREPARED STATEMENT OF ROBERT RICHARDS, ASSOCIATE PROFESSOR OF JOURNALISM AND LAW, PENN STATE UNIVERSITY, AND DIRECTOR, PENN STATE CENTER FOR THE FIRST AMENDMENT
Mr. Chairman and members of this Committee, let me begin by thanking you for the opportunity to appear here this morning and give testimony on H.R. 2448, the ''Protection from Personal Intrusion Act'' and H.R. 3224, the ''Privacy Protection Act of 1998.''
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We all have been made aware of the insidious behavior of photographers who make their living by taking candid pictures of celebrities and others in the news. We know this group as the paparazzi. Certainly, this Committee has heard the horror stories and indignities faced by those who labor in the public eye.
As we empathize with celebrities and others over the lack of civility too often exhibited by this cadre of photographers, we naturally want to ameliorate the situation. At first blush, the logical solution is tough legislation regulating the egregious behavior. Yet, in such an emotionally driven area, it is useful to step back and examine whether the legislative remedy will accomplish the intended result or whether the unintended consequences of the legislation will overshadow any good that may come of it.
As we discuss H.R. 2448 and H.R. 3224 today, we have a common understanding of whom Congress intends to affect with this legislation. We have seen examples of the paparazzi at work. Still, in an unlicensed trade or profession, the definition we apply to this group is, at best, amorphous. For that reason, the legislation focuses on regulating the behavior of the individuals rather than the individuals themselves.
The legal scholars who have contributed their talents to the drafting of these bills also find this approach to be a way around the strictures of the First Amendment. After all, there is no First Amendment right to stalk, chase, or trespass. Both H.R. 2448 and H.R. 3224 are careful not to infringe upon the right to publish, which would clearly raise pivotal First Amendment questions.
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Nonetheless, I am reminded of the late Justice Potter Stewart's dissent in Branzburg v. Hayes. As many of you know, that case involved journalists who were seeking a First Amendment privilege to refuse to identify confidential sources in a grand jury proceeding. Justice Stewart wrote: ''A corollary of the right to publish must be the right to gather news. The full flow of information to the public protected by the free-press guarantee would be severely curtailed if no protection whatever were afforded to the process by which news is assembled and disseminated.''(see footnote 4)
Although these measures are designed to prohibit a type of improper behavior, their language may sweep into the law's reach other news gathering activities not contemplated in this legislation. For example, in the hubbub of activity surrounding a news story about a public official, camera crews from what we consider mainstream media often times have to chase after sources who are seeking to avoid the public scrutiny. If enough camera crews encircle the source, that individual may indeed momentarily fear for his or her safety. This scenario is fairly typical in the news gathering process. Moreover, this hot pursuit of news is certainly not limited to the paparazzi. To expose these journalists to federal criminal and civil penalties for doing their jobs would have a deleterious effect not only on the news gathering process but also on the information the American public receives.
Now, I am not suggesting that journalists are immune from the law. Indeed, as Clay Calvert, my colleague in the Pennsylvania Center for the First Amendment, recently wrote in a law review article: ''The First Amendment is not a sword to run roughshod over others, to break generally applicable laws with impunity.''(see footnote 5) I agree wholeheartedly with that sentiment. But the point that should not be lost here is that the states already have laws that are generally applicable to any individual who crosses the legal boundaries, not just commercially motivated photographers. Criminal statutes on harassment, assault, false imprisonment, disorderly conduct, reckless endangerment, stalking, and civil penalties for invasion of privacy by intrusion cover the myriad behaviors contemplated in H.R. 2448 and H.R. 3224.
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What is more, courts have enforced such laws in these situations. Consider, for example, two photographers who were convicted in Santa Monica, California, in February 1998 on misdemeanor false imprisonment charges for using their vehicle to block in actor Arnold Schwarzenegger and his family while they were in their car.(see footnote 6) In similar fashion, invasion of privacy by intrusion was used successfully against the television program Inside Edition where the U.S. District Court prohibited the show's producers from ''hounding, following, intruding, frightening, terrorizing or ambushing'' the subjects involved in the story.(see footnote 7)
Indeed, courts are more and more willing to entertain arguments focusing on the news gathering enterprise rather than the right of the media to publish, thus avoiding many First Amendment considerations. The lawsuits arising out of the Richard Jewell story provide another pertinent example.(see footnote 8)
We must ask ourselves then why is it necessary to create a new federal law that, for all intents and purposes, singles out a particular group for punishment? These bills would not apply, for instance, to an ordinary fan who zealously pursues a celebrity for personal amusement, but who could be just as dangerous. The question this Committee must consider is whether this bill simply provides a placebo of additional protection, but one with some dangerous side effects for freedom of the press. Justice Stewart's admonishment in Branzburg is instructive here.
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In summary, while very little is gained in terms of protecting individuals from the harmful behavior of the paparazzi, much can be lost in terms of the freedom the press enjoys (and the public benefits from) in the United States. Again, thank you for inviting me here today.
Mr. HYDE. Thank you, Professor Richards, and our final witness, Professor Larry Lessig of Harvard Law School. Professor Lessig.
STATEMENT OF LAWRENCE LESSIG, PROFESSOR, HARVARD LAW SCHOOL
Mr. LESSIG. Thank you, Mr. Chairman.
Throughout the history of the Soviet Empire, the Russian people were bugged. Originally, they were bugged by other Russians—spies and neighbors who would monitor the comings and goings of the suspicious.
But later they were bugged by bugs—technologies that made it possible to listen to conversations through walls or listen to conversations on the phone. This behavior—this bugging behavior—was common. Few places were safe. The private became that space where the monitoring technologies simply couldn't reach.
The Russian people learned to live with this invasion. They learned to put up with the insecurities that technology brought. If they had something private to say, they would go for a walk in a public park. If they didn't want a call traced, they would make it from a public phone. They learned to live with this intrusion by adjusting their life to it. They found privacy in public spaces, since private spaces had been invaded by technology.
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And who could blame them? They lived in a totalitarian regime. The State was unchallengeable. Their Congress was a tool of the party, and the party was no servant of freedom. The people put up with this Sovietized life because there was little else they could do. Technologies of monitoring and surveillance had taken privacy away, and the Soviet people had no way to resist.
The last 20 years have seen an extraordinary explosion in technologies for invading people's privacy and for a market that feeds on the product of these technologies. Parabolic microphones that permit the listening from a football field away, telephoto lenses that take pictures at a distance even greater, security cameras that watch as we move around a city, toll booths that remember when we come and when we return.
Even the Internet, born with the promise of liberation from this kind of control, is now being designed to produce monitorable and searchable data about the most intimate communications and interactions between people at a distance. E-mail, for example, that records your thoughts at one moment, becomes a permanently searchable record for employers or universities to scan at any time in the future.
Now what is striking about these changes is not really that there are changes; time works changes. What is striking is our response. For rather than resist, like the Russians, we have increasingly come to accept them. We have, like they did, learned to live differently in response to these different invasions. We are told that our E-mail can be collected and searched by our company or university, and so op-eds advise us not to put private matters into E-mail. Our credit card records become the source for direct marketers, and rather than object, we simply buy with more cash.
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We have responded to this increasing invasion as the Soviets responded to theirs. Bovine, we have accepted the reduction in private space. Passive, we have adjusted our life to these new intrusions. Accepting, we have been told that this is the way we have to live in this newly digitized age.
I find this quite bizarre. For while this increasing Sovietization of our personal and private life occurs, we live in no Soviet State. While passivity dominates, there is no reason we couldn't do things differently. We accept these invasions and these restrictions on our freedom, though there is no Soviet army to enforce them on us. We accept them—these reductions in the space of our privacy—even though we are the architects of the technologies that give effect to this reduction in privacy. And worse than accept them, sometimes we are told we have no choice but to accept them.
Technologies of monitoring and searching erode our privacy, and yet some will argue that the Constitution restricts Congress' power to respond. Technologies make it possible from a half-a-mile away to peer into one's home and watch what goes on there, or eavesdroppers to listen to the conversations in our bedroom, but we are told that the free speech clause of the First Amendment bars Congress from doing anything in response.
Congress, our Constitution is no Politburo. The free speech clause does not render us hostage to the invasions of new technologies. It does not disable you, as representatives of the people, from responding to these changes through laws that aim to re-create the privacy that technology has removed. Indeed, other values, themselves as essential to our democracy as free speech, should push you to take steps to protect the privacy and dignity that changing technologies may take away.
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The question we are addressing today is the question of how best to protect citizens from the intrusions of something called paparazzi. There are a number of means to do this that have been discussed today. I, quite frankly, don't recognize some of the laws that have been discussed; they seem different from what I've read. And nor do I recognize the Constitution being described.
But I'd like to focus on just one that seems to me the most innovative. For most of our history, most of us had a space into which others were not to pry. For most of our history, this space was protected by the law of property, by trespass laws that made it difficult or impossible for those who would invade this private space to get in.
But technologies of monitoring—telephoto lenses, parabolic microphones, and a demand of a market—now erode that protection of privacy. They remove the protections that the law of trespass originally gave. They thus render us all vulnerable to the snooping eyes of others, whether they be paparazzi press or commercial investigators.
The question, then, is how best to respond to this erosion of private spaces. And one idea has been to define a space of privacy by reference to the technologies that the common law presumed. In layman's terms, if you could not see it or record it in 1868 without trespassing on someone else's land, and if it has to do with personal or familial matters, then you can't do it today using technologies of surveillance.
Now this technique is important, and it responds in a creative way. For rather than passively accepting the erosion in legal protections that new technologies have brought about, this modifies legal protections of trespass to take account of changing technologies. The notion, as Mr. Masur said, is to translate the protections of a less technologically-advanced age into a world where technology has advanced. It is to re-create a space of privacy that changing technology would otherwise take away.
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Mr. HYDE. Professor, would it be possible to summarize, perhaps, the rest? I know you're only about half way through your——
Mr. LESSIG. Sir, I'm just about to the end.
Mr. HYDE. Oh, are you? Fine, then I——
Mr. LESSIG. Yes, sir; I mean I could go on much longer, if you'd like.
Mr. HYDE. No. [Laughter.]
Mr. LESSIG. I'm a professor.
Mr. HYDE. I must say I'm enjoying what you're saying, but——
Mr. LESSIG. Yes, sir; I will come to an end.
Mr. HYDE. That would be fine.
Mr. LESSIG. Yes. This technique—the idea of translation—is an important part of American constitutional history. It's a technique the Supreme Court has used quite often, but it's much more important for you, as Congress, to take up this technique. It's more important for you, as Congress, to take the steps to translate our constitutional values into a new age.
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There is criticism of activism by the Supreme Court, but the kind of activism of the Supreme Court responding to values that are important is just the kind of step that this Congress should take. You are not restricted by the First Amendment to do the kind of updating to new circumstances that the Supreme Court has done before, and I suggest it's your primary responsibility to be the first line of defense against changed circumstances and technology, and the market of the paparazzi is precisely that.
Thank you.
[The prepared statement of Mr. Lessig follows:]
PREPARED STATEMENT BY LAWRENCE LESSIG, PROFESSOR, HARVARD LAW SCHOOL
Throughout the history of the Soviet Empire, the Russian people were bugged. Originally, they were bugged by other Russians—spies and neighbors who would monitor the comings and goings of the suspicious. But later they were bugged by bugs—technologies that made it possible for the state to listen to conversations through walls, or listen to conversations on the phone. This bugging behavior was common; very few places were safe; the private became that space where the monitoring technologies could not reach.
The Russian people learned to live with this invasion. They learned to put up with the insecurities that technology brought. If they had something private to say, they would go for a walk in the public park; if they didn't want a call traced, they would make it from a phone in the subway. They learned to live with this intrusion, by adjusting their life to it. They found privacy in public places, since private places had been invaded by technology.
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And who could blame them. They lived in a totalitarian regime; the state was unchallengeable. Their Congress was a tool of the party, and the party was no servant of freedom. The people put up with this Sovietized life because there was little else they could do. Technologies of monitoring and surveillance took privacy away, because the Soviet people had no way to resist such technology.
* * *
The last twenty years have seen an explosion in technologies for invading peoples' privacy. Parabolic microphones that permit listening from a football field away; telephoto lenses that take pictures at a distance even greater; security cameras that watch as we move around a city; toll booths that remember when we leave or return. Even the internet, born with the promise of liberation from this kind of control, is now being designed to produce monitorable and searchable data about the most intimate communications and interaction between people at a distance. Email, for example, that records your thoughts at one moment becomes a permanently searchable record, for employers or universities to scan at any time in the future.
What is striking about these changes, however, is not really the change. What is striking is our response. For rather than resist, we, like the Russians, have increasingly come to accept them. We have, like they did, learned to live differently in response to these different invasions. We are told that our email can be collected and searched, by our company, or university, and so op-eds advise us not to put private matters into email. Our credit card records become sources for direct mail marketers, and rather than object, we simply buy more with cash. We have responded to this increasing invasion just as the Soviets responded to their increasing invasions. Bovine, we have accepted the reductions in private space; passive, we have adjusted our life to these new intrusions; accepting, we have been told to learn to live in this newly digitized, and monitored, and searchable, age.
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I find this all quite bizarre. For while this increasing Sovietization of our personal and private life occurs, we live in no Soviet state. While passivity dominates, there is no reason we couldn't do things differently. We accept these invasions, and these restrictions, on our freedom, though there is no Soviet army to enforce them upon us. We accept them—these reductions in the space of our privacy—even though we are the architects of the technologies that effect to this reduction in privacy, and the shrinkage of our private space.
And worse than accept them, sometimes we are told that we have no choice but to accept them. Technologies of monitoring and searching erode our privacy, and yet, some will argue, the constitution restrict Congress's power to respond. Technology makes it possible from half a mile away to peer into one's home, and watch what goes on there, or allows an eavesdropper to listen to the conversations in a bedroom; but we are told that the free speech clause of the first amendment bars Congress from doing anything in response.
Our constitution is no Politbureau. The free speech clause does not render us hostage to the invasions of new technologies. It does not disable you, as representatives of the people, from responding to these changes, through laws that aim to recreate the privacy that technology has removed. Indeed, other values—themselves as essential to our democracy as free speech—should push you to take steps to protect the privacy, and dignity, that changing technology may take away.
The question we are addressing today is how best to protect citizens from the intrusions of the ''paparazzi.'' There are any number of means that have been discussed; I'd like to focus on one that seems to me the most innovative.
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For most of our history, most of us had a space into which others were not to pry. For most of our history, this space was protected by the law of property—by trespass laws that made it difficult, or impossible for those who would invade this private space to get in. But emerging technologies of monitoring—telephoto lenses, and parabolic microphones, to name just two—are now eroding this protection of privacy. They are removing the protections that the law of trespass originally gave. They thus render all of us vulnerable to the snooping eyes of others, whether the paparazzi press, or commercial investigators.
The question then is, how best to respond to this erosion of private spaces? One idea—and the one that I intend to discuss here—has been to define a space of privacy by reference to the technologies that the common law presumed. In layman's terms, if you could not have seen it, or recorded it, in 1868 without trespassing on someone else's land, then you can't do it today using modern technologies of surveillance. In one draft, the proposal is outlined like this:
It shall be unlawful to capture a visual image, sound recording, or other physical impression for commercial purposes of a personal or familial activity through the use of visual or auditory enhancement devices even if no physical trespass has occurred, if such image, sound recording, or other physical impression could not have been captured without a trespass if not produced by the use of an enhancement device.
The technique here is important, and it responds in an important and creative way. Rather than passively accepting the erosion in legal protections that new technologies have brought, this idea modifies legal protections, by expanding the protection of trespass law to take account of changing technologies. The notion is to translate the protections of a less technologically advanced age, into a world where technology has advanced. It is to recreate a space of privacy that changing technology would otherwise take away. It would preserve traditional values against a changing technologies, by changing the law to protect values that these changing technologies place at risk.
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The technique of this approach—this idea of translation—is an instance of an important tradition in American constitutional law. This idea of translation—of finding a way to preserve original values in a fundamentally different context—has been embraced by jurists both on the left and the right. It is a tool of constitutional fidelity—an assurance that the context of our constitutional practice won't change its original meaning. And it is a method that we see echoed in some of the most important opinions of the United States Supreme Court.
But though I believe this practice of translation is appropriate for a court, it is far more appropriate for a legislature. The Supreme Court at times has been forced to update our constitution in light of changes in technology; it has been forced to update to protect values of privacy that it rightly find in our constitutional past. But it has been forced only because the legislature has not acted first.
Our constitutional regime place primary responsibility for keeping our constitution ''in tune with the times'' in your hands. In the hands of a Congress, that is, that can better account for the political and social costs of individual privacy than a court. To oppose activism in the Supreme Court is not to oppose the values that the Supreme Court protects. It is only to oppose that protection coming from the Supreme Court.
You are the first line of defense against the invasions of private space; your are the constitutionally designated actor in this contest to protect our privacy. And you should do so in a significant and principled way. This proposal does that. It doesn't take the invasions of technology as given; its doesn't simply accept the reduced scope of individual security that technology may yield. It instead responds to this technology, by reaffirming traditional values. It says, we will not cede control of our privacy to engineers designing our technologies. The values of privacy are constitutional. It is your role to protect them.
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Mr. HYDE. Well, I thank you. This has been utterly fascinating, and perhaps some of you can extend some sympathy to us who have to deal with so many passionate, learned views that disagree with each other, so we'll—that's our job, to wrestle with that.
Now we'll go to questions, and Mr. Coble will be first.
Mr. COBLE. Thank you, Mr. Chairman. I apologize to you and to the panel for having missed a good part of their testimony because of another hearing—another meeting I had to attend.
It's good to have you all with us, folks. As I said earlier, I think we need balance here to address the two extreme views. Some would like complete prohibition; others would like no prohibition at all.
Let me ask you this. What impact have recent technological advances—sophisticated cameras, microphones—concealed or otherwise—what impact has this advanced technological thrust had in increasing the need for Federal review of sanctions and remedies, if any?
Mr. GUTTMAN. If I may address that, I think pertains to some of my concerns. We do not all behave as we would wish others to believe us 100 percent of the time. We have needs of privacy to express emotions; we have needs of privacy to scratch our—to pick our nose—and if somebody feels that he's completely private, secluded, and someone catches him in an act like that and it ridicules him, holds him up to public disdain, then I think that he has the right to feel that he's protected.
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If you're in your own car, I feel that you have a right to assume that you have privacy. If I have a conversation with my wife in my car, unless I have the windows open and I'm shouting, I don't think that others have the right to audit that communication. And I think privacy is very, very vulnerable right now because of long focal length lenses, parabolic antennae, and other means of invading what we believe is our own secured space.
Mr. COBLE. Well, there's—Does anyone else want to respond to that?
Mr. RICHARDS. I would just like to follow up just briefly to that. The situations that he just identified are covered very carefully under already established State law principles. The laws in all 50 States regarding intrusion—invasion of privacy by intrusion—would cover the examples. Whether we're doing it electronically or listening in with our ear, the laws do cover that.
We've seen examples in the news gathering area in one case—and I'm not saying I'm in favor of the result in this case, because I'm not—but in the Food Lion case in North Carolina, where State laws were used, the news gatherers were wearing microphones and using hidden cameras. The State laws that we have in effect right now can handle those situations.
Your question, Congressman, was why do we need a Federal law for that, or is there a need for a Federal law for that? And I submit that there is not.
Mr. MASUR. And if I may, Mr. Coble, I submit quite the opposite, and one reason for that is in the Food Lion case, as in a lot of other cases as the gentleman well knows, in order to establish damages when something is broadcast on a national level, you have to prove out the case in all 50 States in order to accomplish full damages, otherwise you receive the proportional amount in many cases.
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Also, there have been many cases, which the gentleman is familiar with, I'm sure, wherein the court has held that the First Amendment privilege supersedes the right of the individual if the individual is a public figure, in many circumstances, and we are dealing here with people who are public figures, some by virtue of their jobs, others by virtue of circumstance.
Mr. COBLE. Thank you, Mr. Masur. Let me try to beat that red light before the chairman admonishes me.
Mr. MASUR. I'm sorry.
Mr. COBLE. There's currently a patchwork of different laws in different States, and as evidenced by you all there are varying schools of thought. Some believe that adequate remedy is available on the books now.
What would you say, Professor—let me put that one to you—would be the most productive role of the Federal Government in trying to bring some sort of uniformity to these measures if, indeed, it's needed?
Mr. LESSIG. Well, I agree with you, Congressman, that we face a patchwork, a patchwork of laws written from very different times. And what's unique about this law is that it is responding to a current problem with current technology with a set of more effective enforcement mechanisms than the State laws allow. Everyone knows that State trespass laws aren't effective, in part because of the legal costs of bringing those actions.
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At least the Conyers and Feinstein bill respond to that by attempting to minimize the burden on those people who would be bearing the cost, by reducing the cost of bringing such actions, by giving them some sorts of fees. So it's a modern response to an old problem, but that's exactly the appropriate response—to respond in the same way, given new circumstances.
Mr. COBLE. I thank you, and I thank the chairman.
Mr. HYDE. The gentleman from Massachusetts, Mr. Frank.
Mr. FRANK. I was interested in those who were opposing the law on the whole talking very enthusiastically about this network of State laws, and I must confess to you that I have a problem here because you talk about the proposed Federal law as having two defects: one, that it's too vague and, two, that's it's unconstitutional, and vagueness, obviously, could be a part of unconstitutionality.
I'm willing to bet you right now that the complex of State laws you have been, I think, very temporarily defending, or at least citing in a way that would lead to the inference that you were defending them, are a lot vaguer than this Federal law. And so one of the things I'm going to do is to ask you all to submit to me examples of those State laws—and in some cases, I would guess, State common law doctrines—that you support.
Mr. FRANK. And do you support—let me ask you—do you support this network of State laws?
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I do think you have one reasonable point, which is that singling out journalists is not a good idea, and to the extent that language singles out journalists—yes, I'd cover private detectives—my guess is you wouldn't be any less opposed to it if we included other people. I'm going to write a book about the arguments we all make when we don't want to support something but we don't want to really say why. You know, it's redundant, it's unnecessary, it's whatever, et cetera, but, yes, we should broaden it. You shouldn't be singled out.
But I need you to tell me, are you in favor of those State laws? You seem to be. You seem to tell us we can rely on them. And would various of you be willing to submit to us a compendium of some of the good State laws that we could then look at? Because then there is a separate question about whether it should be Federal or State. But what's your general position about the State laws?
Mr. McMasters, are there some State laws that you could guide us to that we could look at?
Mr. MCMASTERS. I don't know, but it could be very helpful in the sense that we already know that the courts have prosecuted people in violation of this successfully. We know that in the case——
Mr. FRANK. But Mr. McMasters, I understand that, and you know it; you get humbled in this business because you consistently listen to people; it doesn't show, I know, but in fact it's there. You listen to people all the time who know more than you do because you all are the experts, and we're just here.
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So, for the benefit of us schlepers who are not quite as informed as you, I understand the courts have done that. I'd be interested if you would give me your view of some of the laws which you think have been correctly applied, because there did seem to be an acknowledgement that there are problems out there, and you're telling us that there are State laws that take care of it.
Now, I have to tell you honestly, it sounds to me like some of the State laws are subject to the same defects you find here. Certainly, we all know the First Amendment has equal application against a State government or the Federal Government, so if there is a doctrine of regulation or restriction that is inapplicable constitutionally to the Federal Government, you can't do it with the State government.
So one way you might help us is to—what are the State laws that have been successfully invoked here?
Mr. MCMASTERS. I don't think that there exists any State laws that set out to do what this particular one was, and that is to address paparazzi's presence.
Mr. FRANK. Mr. McMasters, let me—please stop debating that.
Mr. MCMASTERS. There are laws for trespass——
Mr. FRANK. You have said, however—I agree that we should not single out journalism. You did hear me say that?
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Mr. MCMASTERS. And I agree that journalists——
Mr. FRANK. So my question then is, are there—you seem to talk approvingly—several of you did—of State laws that deal with what you concede to be some abuses in this area—not concede; you acknowledge there are abuses. I'd be interested in your giving me examples of the State laws that deal with these abuses, and if you don't have them right now I'd take them——
Mr. MCMASTERS. Well, I'm just trying to say that State laws on trespass, harassment, invasion of privacy, and intrusion on seclusion exist separately, not as specific laws set out to address paparazzi, and I think that journalists should be subject to laws that everybody else is subject to.
Mr. FRANK. Well, let's then talk about what the substance would be. And Ms. Cochran, you said you were upset about this attack on equipment; you mentioned long-range lenses, but what about, as I mentioned before, eavesdropping? You know, I can pull the shades, but I don't know how I would stop-off a microphone. Do you think—now, maybe it has to be done at the State level—but what would your view be of a State law that made it illegal for you to listen in to my home or anybody else's home through an invasive device, even if it didn't involve physical trespassing? What would your view be of such a law which wouldn't let anyone do it—reporters, photographers, anybody else?
Ms. COCHRAN. I think that's something that we would have to take into consideration. We work on——
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Mr. FRANK. Oh, no, no, no. Ms. Cochran, we're not going to end with that one—no.
Ms. COCHRAN. We work on—we work at——
Mr. FRANK. Please; excuse me. I don't want you to take it into consideration. I want you to tell me what you think about it.
Ms. COCHRAN. Okay. We work under restrictions all the time. We work under restrictions——
Mr. FRANK. Ms. Cochran, I'm sorry. We have a limited amount of time, and you know that's not responsive. I understand you work under restrictions. Life is hard; we all have problems. One of my restrictions is the five minute rule, and so I'm going to have to ask you to answer my question soon. The question is, a law which says you cannot eavesdrop in my home by the use of sophisticated electronic equipment, even if it involves no trespassing—would you favor or oppose such a law?
Ms. COCHRAN. I'm sure you can understand why I would not commit to something like that now, at least under these circumstances.
Mr. FRANK. I can, and I'll tell you why.
Ms. COCHRAN. What I would say, if I can finish, is that the reason that news people use those kinds of microphones is in aid of a story that they believe will serve them——
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Mr. FRANK. Ms. Cochran, please excuse me, but now you're insulting me. I understand that. I don't think you do it purely for voyeuristic purposes. And I'll tell you I do agree—I think I do know why you don't want to answer it, because I think answering it would show that your arguments have not been, frankly, truly reflective of what some of you believe.
That is, I think you think you have a right and should have the right, legally, to use sophisticated electronic equipment to eavesdrop on my home if it will help you get a story, but you believe that saying it right now would probably damage your argument against this bill. These are tactics we use all the time, so we tend to be able to spot them easily.
And I think the fact that you won't tell me that you think it should be illegal to use sophisticated electronic equipment to eavesdrop on my home so you can get a story causes me a problem. That doesn't mean I'm for the bill as is; I don't think it should single out the press, and there are some other issues here. But I am unpersuaded.
Could I ask Mr. Tash just one question? See, I read the bill over—and you took credit for that story involving the head of the Baptists, although you did gracefully acknowledge that the wife who set the fire probably was the main one who got the scoop, and you followed up, effectively.
But you said that your photographer would have been in violation of the law. I don't think so. What your photographer did was not to trespass. Your photographer had permission to be on the building across the street, and this woman opened the door of her house and was visible to the street. I do not have an expectation of privacy when I open the door. We've got that cute little commercial where the guy is running out in his jockey shorts and he picks up the paper—nobody said that his privacy was violated.
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So I would have to say, I don't think that's a good example because I don't think anything in this bill would make it illegal for you when you opened the door and stood in your doorway. You have—I mean, let me put it this way. If a cop was driving by and someone opened the door and did something blatantly illegal and the cop saw it, I don't think the exclusionary rule would apply. So, you're going to have to come up with a better example.
Mr. TASH. May I respond, Congressman? I also said in my testimony that had she left the house to go to a store or to go to a job or to go through some other public place, our photographer might have followed, and that the language of this bill is sufficiently vague that if she testified to a reasonable fear for her safety by virtue of that——
Mr. FRANK. Mr. Tash, I've got to tell you something. Your argument that if he simply followed her in a non-threatening way as she was going about her public business, your argument that this bill finds it—I've got to just tell you this. When politicians distort quite so much, your paper, I'm sure, jumps all over us, and I don't think you or anybody else honestly believes that someone just following someone on a public street, just with a camera, and takes a picture when she walks out would be in trouble.
And I certainly have to say your specific example that—were you not suggesting that the photographer was in violation by taking her picture when she opened the door?
Mr. TASH. No; I was not suggesting that.
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Mr. FRANK. Oh, then I misinterpreted that. So that picture was okay? So nothing in law stopped him from—well, but he could have taken it when she opened the door and walked out. He was there; he could have gotten her on her sidewalk there, so I don't understand what the problem was.
Mr. TASH. Because I think he would have done some things to get that picture that would have been appropriate from a journalistic standpoint, which under——
Mr. FRANK. Oh, I agree. That I agree with. They might have included——
Mr. TASH [continuing]. Which under some circumstances might not have been legal.
Mr. FRANK. Just as Ms. Cochran thinks it's appropriate—I believe she thinks—to eavesdrop in my house if it was going to give you a good story—and there are probably a couple of good stories you could get if you eavesdrop at my house——[Laughter.]
—but I hope that you don't do it.
Thank you, Mr. Chairman.
Mr. LUTMAN. Can I just say one thing, Congressman Frank?
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Mr. FRANK. Yes.
Mr. LUTMAN. I just have a question for you. Can you foresee a situation where it would be in the public interest to either record with a shotgun microphone or record with a telephoto lens information of an individual on their own private property? Can you foresee that situation?
Mr. FRANK. Mr. Chairman, I'd ask for a minute to answer the question.
Mr. HYDE. Without objection, so ordered.
Mr. FRANK. I thank you for asking me that question because here the answer is true, and that's the problem with your mindset. Just because something in one instance might be in the public interest doesn't mean that we destroy everybody's rights so we can get it.
I think there are times when it would be in the interest for the police to break into people's homes and catch some really rotten, vicious people. But I am for a rule that says they can't just do that. And there are times, frankly, when I think a good cop knows that if he broke in he'd be able to grab some guy who ought to get grabbed, but we stop them from doing it because we say, ''Gee, you've got to have some rules.''
So, yes, it is true that if you totally disregarded the privacy of all people at all times, you would occasionally get some good stories. And it is precisely the mindset which you manifest by asking me that question in that way that makes me think that some restraints have to be put in.
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Mr. LUTMAN. Well, if I could answer. The reason that I say that we favor State court action in this matter is—you know, our organization for 53 years——
Mr. FRANK. Excuse me; now you're going beyond. I'm not interested, frankly. You got a better chairman—I never let anybody talk about their organizations. We're not in a membership drive situation here.
Mr. LUTMAN. No, no——
Mr. FRANK. But I've got to ask you this question.
Mr. LUTMAN. I wanted to make one point about our standards of photojournalism. We don't condone illegal activities by photographers.
Mr. FRANK. All right, let me ask you a question, Mr. Lutman.
Mr. LUTMAN. Yes.
Mr. FRANK. When is the last time someone was expelled from your organization for violating your standards?
Mr. LUTMAN. The——
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Mr. LUTMAN. Mr. Lutman, please answer that question.
Mr. LUTMAN. I can't say that we've expelled someone.
Mr. FRANK. Has anyone ever been expelled from your organization for violating the standards?
Mr. LUTMAN. That isn't the way we approach the problem, Congressman.
Mr. FRANK. Oh, how do you—what's the remedy if someone violates your standards?
Mr. LUTMAN. The process that we use in our organization, and I think it's the standard in most organizations like ours, is we educate our members as to our standards and——
Mr. FRANK. And if they violate—excuse me; if they violate them, you take no action whatsoever, right? Or do you just sneak in and take a picture of them in the bathroom?
Mr. LUTMAN. If members were charged with violating the rules, and to date no members have——
Mr. FRANK. No member has.
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Mr. LUTMAN.—we would certainly take action.
Mr. FRANK. Okay, so you have a code of ethics about photographers which prohibits or condemns certain practices, and no photographer has ever been found to have violated it. Such a code of ethics is not very reassuring to me.
Mr. MASUR. Mr. Chairman, if I may, I just wanted to clarify one thing because the question that was asked of Congressman Frank was, Is there any reason why anyone should have to be able to take a picture of someone on their private property? And I just wanted to state what is being missed here in this entire conversation is this language is limited to personal and familial activity. If someone is committing a crime, if someone is conducting business, having a public event on private property, this act would not——
Mr. FRANK. Mr. Masur, let me break here. The point is this, and I don't want to—yes, when you recognize privacy, I acknowledge the fact that some people who are protected from my listening in on them will be saying bad things and that if we all knew them that might be better. But the price of knowing every bad thing anybody says is destroying most of our privacy most of the time, and, therefore, as a society, we have no situations where we always get it right or always get it wrong. You're always judging how much right versus how much wrong, and the notion that the fact that there are some cases when you'd like to know what some private people are saying in the privacy of their homes justifies—because that was the implicit premise—allowing it to happen all the time is what I disagree with. I can see it occasionally—you'll catch somebody.
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Mr. HYDE. The Chair is going to yield himself a couple of minutes. I have been very restrained thus far and hope to continue to be.
But I would like to ask Professor Richards whether he thinks this is constitutional or not. And this is a quote from the California statute. This is their definition of harassment: ''A knowing and willful course of conduct directed at a specific person which seriously annoys, alarms, or harasses a person and which serves no legitimate purpose.''
Would you say that's constitutional?
Mr. RICHARDS. The California provision, or our——
Mr. HYDE. Yes, California; that was what I read: California Civil Procedure Code, Section 527.6(b).
Mr. RICHARDS. It sounds constitutional on its face to me. The concern I would have with the bills before us, as Congressman Frank has pointed out, is that it singles out a particular group that's involved in news gathering activities.
And I think the way you can read this bill—the bills before us today—is that it is expansive. It covers not only the targeted group that you're looking at—the paparazzi who are annoying—but really the way the language of these bills is phrased can also cover legitimate news gathering activities. So if there are constitutional problems with the bill, we would see them a little bit later on in how they are applied or in how the final language of this bill is developed.
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Mr. HYDE. So if this bill applies generally to private detectives or anybody—just a goofy neighbor who wants to harass you—if it contains this language, then the question is, Why do we need a Federal law rather than a State law? And that is answerable rather easily by having a means to cope with the universality of travel and avoiding the patchwork. We have the same thing in tort reform and other areas where you have to comply with insurance regulations in 50 States, so that doesn't seem to me to be a formidable obstacle.
And if this is not confined just to photographers, but to the public in general, ''a knowing and willful course of conduct directed at a specific person which seriously annoys, alarms, or harasses a person and which serves no legitimate purpose''—that might cover the situation.
Mr. RICHARDS. And that sounds like the myriad laws that the States have on harassment, which do not single out a particular group.
Mr. HYDE. All right; thank you.
Mr. MASUR. If I may, Mr. Chairman. Under that law, if one of the constitutional people would like to comment, isn't it true that under the California law that also First Amendment or constitutionally-protected activities would rate as a legitimate purpose, which means the law would have no effect?
Mr. HYDE. Well, you're correct. What is a legitimate purpose and who defines that? That's going to be the crux of the serious problem here. But is following someone to the grocery store to get a picture or to try and create a situation where you'll have someone in a disadvantageous situation or an embarrassing situation, is that a legitimate purpose? Maybe we need to define legitimate purpose, which will be difficult.
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Mr. MCMASTERS. I think that part of the problem, Mr. Chairman, is that intent has to play a role in this, and also it has to rise to stricter scrutiny when a First Amendment activity is involved. That's the same First Amendment under which movies are made and protected and which Members of Congress can speak their minds, and I think there is a reason for that. Contrary to what Professor Lessig says—and I admire the scholarship and ability that he brings to this subject—but he and Mr. Masur both are saying that this legislation needs to balance the First Amendment right of free speech with the right of privacy, and there is, as you've noted, a real conflict there. But at least the right of free speech, a hallmark of our democracy, is embraced in the Constitution. The right of privacy is a tort law.
Mr. HYDE. Well, I'd hate to think the right of privacy and the First Amendment right of the people to know are irreconcilable.
Mr. MCMASTERS. Well, I would, too. I would, too. I agree with you.
Mr. LESSIG. Mr. Chairman, may I make a comment?
Mr. HYDE. Professor Lessig.
Mr. LESSIG. I actually think that your California bill is troubling, much more troubling than the statute that we have—the bill that's being considered today, or the Feinstein-Hatch bill. I think you do have a constitutional right to annoy people. I mean, that is a fundamental aspect of what the First Amendment is about.
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What's distinctive about the Feinstein-Hatch bill is that it's simply extending the common law concept of assault, which is to put someone in fear of bodily injury. That's where the line is drawn. There has never been a First Amendment exclusion from these generally-applicable laws like assault. The court in 1991 upheld the rights to enforce a contract in the context of First Amendment rights.
Mr. HYDE. So the fear of physical damage or injury is the distinguishing feature.
Mr. LESSIG. That's right, and laws which focus on that have been traditionally constitutional. Laws that extend that and talk about the right not to be annoyed by people—this is America; you have no such right. You have no right not to be annoyed. I'm annoyed all the time, and I have no complaints.
Mr. HYDE. But it's always for a legitimate purpose. [Laughter.]
The gentleman from Florida, Mr. McCollum.
Mr. MCCOLLUM. Thank you, Mr. Chairman. I'm going to be brief because I found everybody to be covering precisely what I'm interested in covering and hearing today. You've been a very good panel, and I regret the times that I've been in and out, but I've heard most of it.
Let me just ask you, Mr. Tash, where would you draw the line yourself with regard to that doorway that your photographer obviously didn't choose to cross?
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Mr. TASH. Right.
Mr. MCCOLLUM. There must be some point where you would believe that it would be inappropriate. Can you give us your own illustration of what that might be?
Mr. TASH. Absolutely, and thank you for the question. He didn't do any of the things which would be illegal under the law currently, and in fact he stayed back from even that standard. He didn't send flowers to the door, trying to elicit a response by the people inside. So I think that the laws that currently exist are designed to protect people from abusive and harassing behavior,——
Mr. MCCOLLUM. What about——
Mr. TASH [continuing]. And I believe that those are representative of appropriate standards.
Mr. MCCOLLUM. What about a situation—this apartment where Ms. Edwards was doesn't appear from your photograph to—but I don't really know the rest of it, like the example I'm going to give—but let's just assume somebody is either in the news for a reason like she was or they're a movie star or maybe a Congressman, or for whatever reason, and you have a home and you have a swimming pool and you have a fenced-in yard and you have a helicopter from the local news agency, presumably—it might be more likely one of your competitors with television doing this—flying over and choosing to take pictures in a non-public event of somebody out around their swimming pool. Do you think that would be an appropriate thing to do?
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Mr. TASH. We had that opportunity, Congressman. There's a house next door to this one with a second story, and someone offered to sell us access to that second story, which would have put us above the fence line so that we were able to shoot down into the backyard, and we chose not to do that. So, no, I think our photographer in consultation with his colleagues and editors made the right choice, and he made that choice absent any legal restrictions.
Mr. MCCOLLUM. Well, it sounds like he did, and I don't disagree with that choice. I think you've described a pattern of behavior which most of us would feel was an appropriate journalistic manner of approaching this. Unfortunately, the illustrations that have been given to us on numerous occasions indicate that the latter example I gave you all too often occurs. Maybe it isn't the helicopter, but it's that clear-cut case where somebody goes in and actually invades privacy.
And albeit, I'm not so sure that the privacy standard isn't under the Constitution; it certainly isn't explicitly there, but I'm not sure the United States Supreme Court has ever quite ruled it out of the penumbra idea that's there. We still, I think, as a Nation generally respect privacy and want to, and, so, ultimately, the issue to me about all of this legislation is one of whether or not we can or should have a Federal role in a trespass that is not physical.
And I'm curious—and maybe I should direct this one at one of the two professors over here, Lessig or Richards—but is there—are the State laws that you're aware of recognizing trespass in the non-physical sense, that would permit somebody to bring a State case for trespass for a photographer flying over and photographing somebody in the backyard, or are there no laws like that? Can one of you respond to that? Do you know?
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Mr. LESSIG. I can just say, Congressman, that this is the area where the laws are most patchy. This constructive trespass——
Mr. MCCOLLUM. Right.
Mr. LESSIG [continuing]. Is an area where there are some States that have taken steps to update their laws, but it's very infrequent. And so of the three provisions we're discussing—assault, trespass, or constructive trespass—this is the one where there is the greatest need for some new legislative action, whether at the Federal or State level, but I firmly believe there's a constitutional reason, and you have the power to do it at the Federal level.
Mr. MCCOLLUM. Well, it's the constructive trespass that seems to me to be the most egregious of these that isn't being addressed, and that's exactly what you're saying. But whether we should be doing it or not, that's a whole other story.
Well, I want to thank you again. The panel has been excellent this morning; I appreciate it. Very educational, Mr. Chairman.
Mr. HYDE. The gentlelady from Texas.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman. Mr. Chairman, I'd ask to submit three letters into the permanent record. I have one at this time, and I'll have the other two at the end of the hearing.
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Mr. HYDE. Without objection, they will be admitted and printed in the record.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman. Let me apologize, as well. I had to testify before another committee and missed some of the introductions of some of you.
Let me explore, Mr. Lessig—you are a professor of—you teach what subject?
Mr. LESSIG. I teach constitutional law and the law of cyberspace.
Ms. JACKSON LEE. Right. Let me pursue things somewhat differently.
Mr. Masur, if one of the members of the Screen Actors Guild, or in your profession—I think we made it clear in the previous panel my position that it could be any one of us. I think this is broad-based, and I sort of tend to join my colleague from Massachusetts that I have no problem with private investigators and others that may fall in the same category. I think if we can respond to the concern about a narrowly-focused group, we might do that, and I assume you would not be offended by that expansion.
Mr. MASUR. No; in fact we hope to gather up anyone who would commit this offending behavior. I want to clarify—the only reason for the commercial purposes element, or the major reason for that, is because of the Federal Government's authority over interstate commerce. In the State law that we're working on in the State of California, which would be a companion law, there is no commercial purpose element to it because there need not be.
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Ms. JACKSON LEE. And I would assume that if actor A or B were engaged in criminal activity in their private residence or any place else, you would have, certainly, the recognition of any investigative reporter or police reporter traveling with the police as they broke the door down or issued a subpoena; you would understand. Let me not put words in your mouth—would that be accepting behavior?
Mr. MASUR. Yes. Again, that's why we restricted this on the technological invasion of privacy, or constructive trespass part. We restricted this solely to personal and familial behavior, which was to exclude business, official business, commerce, or criminal behavior.
Ms. JACKSON LEE. But if, for example, two individuals who happen to be famous were caught in their own abode with the window open, kissing in the nude in their own abode, would that, in your opinion, cause an enticement and a privilege of someone to stand outside with their camera and to take the picture?
Mr. MASUR. Well, again, what we're trying to do here is, as Professor Lessig has said, is talk about an updating of the trespass concept, which is to say if you couldn't have seen that act unless you were physically on somebody's property. However, through being able to project yourself onto that property with an enhancement device, either visual or audio, you were able to capture this image, then you would be projecting yourself virtually onto the property to commit the trespass; and I honestly don't understand why the people up here who represent the photographers and the editors and the broadcast people can't grasp that as consistent.
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Ms. JACKSON LEE. But, frankly, Mr. Masur, I'm willing to—and I'm going to ask—I know Mr. Lutman you would like to answer, and I'm going to go to Professor Lessig in a minute—but, frankly, I'm willing to go a little further. I missed your opening presentations, but I would raise the question of whether or not the value of that particular picture, or electronic picture, has any redeeming social value. We haven't even discussed that.
The question is, Does a divorced princess dating an intended at a restaurant in Paris in and of itself have a redeeming social value? Now, when there is a car crash you have a police matter, you have an accident, you have a scene that may be newsworthy, but is it newsworthy that two people are dining privately? And am I enhanced as the viewer of that ultimate document?
So, you were being very kind in your response. I don't know whether or not two nude people on their premises, inside their house, legally engaging in whatever they are engaging in, has any social redeeming value for any media or anybody who would view to see it.
Let me move to Professor Lessig. I'm fascinated with your analysis, beginning with the Russian expression or the Russian tenor, if you will, of bugged—to be bugged and accepting being bugged. And I think you raise a very valid point, as we move into this world of enormous technology and ability, where we can pull up the Internet and be able to describe a complete stranger's birthdate, relatives, the last time they had a tooth pulled, et cetera, which is frightening, to be very honest with you. And we in Congress have to balance that.
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My question would be just very much to the point of the common law emphasis, the historic nature, when we wrote this language to suggest that, obviously, you would have to physically be on someone's land to be in sync with the spirit of that law. Help me be convinced about the fact of the common law extension to technology now—so you could be across the street—and how that would work. I am responsive to what you've just said. Some would say, ''Well, you're not physically on the land.''
Mr. LESSIG. Well, that's right. And in 1928 when the Supreme Court first considered the question of whether wiretapping was a violation of the Fourth Amendment, they said, ''You're not physically on the land. It's not a violation of the Fourth Amendment.'' And it took until Katz in the late 1960's before the Supreme Court got it right.
I think the idea should be to take the values that are implicit in the common law history and find a way to translate those into new circumstances. And if we find ourselves trapped by the specific, particular examples that we saw before, then we're going to lose some of those values as technology changes.
Why there should be any difference between protections given to us because of the inefficiencies of technology and protections given to us by the law, I don't see. If the technology becomes more efficient, taking away our privacy, we should be able to respond to that change through laws that would give us back something that technology has taken away.
Mr. HYDE. The gentlelady's time has expired.
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Ms. JACKSON LEE. Mr. Chairman, I ask for an additional minute for Mr. Lutman to answer the question, and Ms. Cochran.
Mr. HYDE. Without objection.
Ms. JACKSON LEE. Mr. Lutman, you wanted to respond. It looked as if you wanted to respond; maybe not. But if you would, and then I have a question for Ms. Cochran—very briefly, if you would.
Mr. LUTMAN. I would agree——
Mr. HYDE. Now, an additional minute, Ms. Jackson Lee.
Ms. JACKSON LEE. That's why I've asked him to be brief.
Mr. LUTMAN. Thank you, Mr. Chairman. I'd just like to perhaps——
Ms. JACKSON LEE. I guess women are treated differently on this committee.
Mr. LUTMAN.—I'd like to perhaps shock you and Mr. Masur by saying that I do believe that there is a right to privacy.
Mr. HYDE. Excuse me, just a moment. Did you say women are treated differently on this committee?
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Ms. JACKSON LEE. I did.
Mr. HYDE. Well, you're wrong, Ms. Jackson Lee, and your time has expired.
Ms. JACKSON LEE. Well, I would just simply say that I have understood others to have a long, extended period of time, and I really, frankly, don't like being cut off.
Mr. HYDE. Well, the way not to get it is to accuse me of treating you differently.
Ms. JACKSON LEE. Well, I know you can be offended, but I'm offended by the disparate treatment of the time. I have questions to ask. This is an important panel, and I don't appreciate being cut off in the midst of my questions, Mr. Chairman.
Mr. HYDE. And I don't appreciate you——
Ms. JACKSON LEE. And I say that as politely as I can.
Mr. HYDE.—routinely pushing the envelope on every time you're asked to question.
Ms. JACKSON LEE. I'm not pushing the envelope. I have the First Amendment rights, as everybody else does, and we're trying to protect them here, and so I think we have a right to do it. I respect you as the chairman; I need to be respected as a member.
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Mr. HYDE. Well, you can—all right; the gentlelady has a half hour. Go ahead and ask whatever you want.
Ms. JACKSON LEE. I thank you, Mr. Chairman. I won't take that.
Mr. Lutman, can you be very brief in your response?
Mr. LUTMAN. Yes. I'll say I do believe that there is a right to privacy. My concern is that this particular piece of legislation sets up a particular class for that privacy, and that's of great concern. It would suggest—I think that the gentleman is right, that we do have new technology, and that gives us a new way of looking at privacy issues because, obviously, previous law couldn't have anticipated the new technologies.
But my concern is that it would be legitimate for any citizen who is not a journalist to do some of the things that journalists are going to be penalized for here. So if the issue is, Where do we draw the line for society?—I think that's a worthy discussion for Congress to have, but if the issue is, Where do we draw the line for journalists?—I think that's an improper discussion.
Ms. JACKSON LEE. You made your point very clear of your representation. I am open to those who may violate privacy, no matter what profession they may have, so I appreciate your concern.
Ms. Cochran, I note that you seem to oppose the idea of using the high-powered technology, or that it is needed. I ask you the question of, what is the redeeming social value? Or why should we not be confined to the establishment of common law that says we all deserve a manner of privacy? Why do we take the technology and say, ''Well, you're excused.''?
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Ms. COCHRAN. In my testimony I gave some examples of the kinds of stories that might be brought into question if this law were to pass—investigative stories where there might be some issue about whether it constituted trespassing under this new definition, where it doesn't constitute trespassing under the definitions that exist.
I'd also like to mention another aspect here that's been glossed over a little bit, and that is the idea that if news gatherers are chilled at the moment of action, at the moment when something is occurring, if there is uncertainty about whether their behavior is going to be prosecutable or subject to suit, they will lose that story, and a story lost is a very significant loss for the public interest. That's what concerns me.
Ms. JACKSON LEE. I close, Mr. Chairman. I thank you for your indulgence, and simply say to you, Ms. Cochran, that I think it will be obvious when something is newsworthy or worth gathering. It will be an atmosphere of which we are all saying, ''Go after the news.'' The question becomes, What is socially redeeming in terms of someone invading one's privacy? And I respect your opinion.
I thank you, Mr. Chairman, for the extra time.
Mr. HYDE. The Chair is going to bypass the three gentleman because the gentlelady from California has another place to be, so she's asked if I might recognize her next, and I'm pleased to do that.
Ms. BONO. Thank you, Mr. Chairman. First of all, as the newest female member of this committee, I look forward to serving here with someone whom I know to be one of the most distinguished and generous Members of Congress, Chairman Hyde. I want to go ahead—and in the spirit of my late husband, I'd like to echo the chairman's earlier sentiments that we are groping here for an answer to a very difficult and complicated problem.
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My question is for Professor Lessig. In your testimony you refer to the historical and traditional protections of privacy that were based on property rights. In your view, would some of today's privacy problems be solved by Congress establishing a national right of publicity, or a copyright or trademark in a person's image or personal appearance?
Mr. LESSIG. Well, I wish I had a simple answer. The truth is that in the protection of intellectual property, we have historically had a balance between the protection—the incentives we give people to produce this material and a certain leeway that the public has access through concepts like fair use. And I must confess, I don't know that I know enough to say whether enhancing the property side of that balance would be the best way to respond to new technologies.
I've been convinced by scholars such as Pam Samuelson and Julie Cohen that there are fundamental constitutional problems raised by extending intellectual property rights. And I guess my thought is that the architecture of cyberspace will do much to protect these rights, and we should take some time to see how it will develop before legislating in this context.
Ms. BONO. All right; thank you very much. I yield back the balance of my time.
Mr. HYDE. Thank you. The next gentleman is Mr. Hutchinson from Arkansas.
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Mr. HUTCHINSON. I thank the Chair, and am very grateful for this hearing on a very, very important subject and for all the witnesses who've testified today. I just wanted to comment on a couple of items of testimony.
Mr. Masur, I was reading your testimony. I missed it in oral presentation, but in the last page you indicated that no one, no matter how their notoriety came about, should be seen as consenting to reckless endangerment or trespass, and that these activities are not protected by the First Amendment. I agree totally with that, and I think that's the direction that we should go. We should protect individuals in the public eye, who for whatever reason, whether by accident or through intention, are subjected to that type of reckless endangerment.
But I also noted in the testimony of Mr. Tash that you raise the instance of the reporter who is following a subject for a photograph and that the test was in the eye of the individual being photographed. And your concern was that the bill would create a law that was based upon the reasonable expectation and fear of the person being photographed.
And so I want to ask Mr. Masur, because I think that's a legitimate question, whether there would be a possibility of just changing the language of the statute—as it is in most criminal statute—so that the person doing the pursuing or the possible wrongdoing, whatever his intent is, and whatever the actual facts are—if there's reckless endangerment, that would be the key, rather than the subjective environment of the person being photographed.
Mr. MASUR. Well, we think, first of all, that there is an intention section to this, which is the intent to do it for commercial purposes, and because it doesn't require that the image captured or the recording made ever be published or distributed or sold, as long as the intent is—so there is an intent element to this.
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If you're asking if the intent is to endanger the person or put them in fear of endangerment, that would be something that we would be open to discussing on the harassment section vis-a-vis the privacy section and what was brought up in terms of—. First of all, my understanding is it's not the victim's opinion about whether or not they were in a reasonable fear. The reasonableness standard is a reasonable person, not the victim's decision, if I understand correctly, which means it would be in the hands of the jury or the judge to decide whether or not it meets a test of reasonableness.
Mr. HUTCHINSON. That's true.
Mr. MASUR. So I don't think it's nearly as subjective in terms of the individual feeling threatened; it's whether or not the jury and the judge think that the circumstances warrant a reasonable person to feel that way.
Mr. HUTCHINSON. I think that position merits some further discussion. Go ahead, if you want to comment on that.
Mr. TASH. If I may respond. I understand that point of view, but I don't share it. I think that under some constructions of the law, in the hands of certain kinds of adversarial relationships, either between a news subject and a journalist or between the prosecuting agency and the news organization, that that language has the potential for real trouble.
Mr. HUTCHINSON. I have many more questions, but I want to give the chairman back some time. So, I'm going to yield back at this point and express my thanks, again, for this hearing.
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Mr. HYDE. The gentleman is not being pressed. If you want to finish your time, you're certainly entitled to 5 minutes.
Mr. HUTCHINSON. I know that, but, seriously, they've been here a long time, so we can discuss this more at a later time. Thank you, Mr. Chairman.
Mr. HYDE. Very well. The gentleman from California, Mr. Rogan.
Mr. GALLEGLY. Mr. Chairman?
Mr. HYDE. Oh, I'm sorry; Mr. Gallegly.
Mr. ROGAN. I thought I could slip in front of him, Mr. Chairman, before you caught that. [Laughter.]
Mr. HYDE. When I occasionally—you fellows from California are ubiquitous. Mr. Gallegly.
Mr. GALLEGLY. Thank you very much, Mr. Chairman. First of all, I have a letter here from the National Victims Center to our committee referencing this issue, and I would ask unanimous consent that it be made a part of the record of the hearing.
Mr. HYDE. Without objection.
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[The information referred to follows:]
| National Victim Center, |
| Arlington, VA, May 19, 1998. |
Members of the House Judiciary Committee,
Committee on the Judiciary,
House of Representatives, Washington, DC.
DEAR MEMBERS OF THE HOUSE JUDICIARY COMMITTEE: On behalf of the Board of Directors and staff of the National Victim Center, we strongly urge you and your colleagues to pass legislation that will protect the personal safety and privacy rights of citizens from irresponsible members of the press.
The National Victim Center is one of the nation's largest non-profit organizations advocating for the rights and interests of all crime victims. To that end we work with more than 8,000 crime victim organizations and allied agencies across the country. We have been a leading advocate for greater media responsibility and sensitivity in the coverage of crime victims. We have also spearheaded efforts to establish and protect the privacy rights of crime victims.
While the initial impetus for a legislative response may have come from the entertainment community, this legislation should not be solely construed as protecting the privacy of celebrities. It should be understood that it would also protect the privacy of those who never sought the public spotlight, but were literally dragged into it by virtue of the fact that they became victims of violent crime. Most members of the media act responsibly in their coverage of crime victims—respecting their privacy appropriately. This issue is not about them. It is about the irresponsible minority among members of the media who callously disregard the privacy and safety of victims for no other reason than to snap the ''money shot'' they can sell for the sake of crass commercialism. Given such unconscionable conduct, is it any wonder that crime victims regularly describe their treatment by the media as a ''second victimization''?
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Indeed, such unscrupulous journalists consciously seek to compromise the privacy of victims at the very moment in their lives when they need their privacy the most. They trespass into the homes of stabbing victims to photograph them as they lie in a pool of their own blood. They physically or photographically intrude into murder victims' private funerals in order to capture the anguish on the faces of mourning family members. They even follow gunshot victims into the examination rooms of hospital emergency wards to photographically document them as they writhe in pain fighting for their lives. If there were ever a time when citizens should have the right to be free from the prying eyes of the press, it should be during these most private of moments. Yet some in the press take advantage of the victims vulnerability at such times to unilaterally strip them of their remaining privacy and dignity. Merely pointing a camera at a victim in such circumstances can inflict additional psychological harm. As one victim put it, being photographed at such private moments ''doubles the distress and triples the trauma.''
Some members of the press are even willing to go beyond the context of the crime to encroach upon everyday aspects of the victim's life, even the most mundane. Consider the case of one rape victim who was unknowingly taped by a tabloid TV show using a high-powered lens as she went about preparing her family's dinner in her own kitchen. In that same case, the media went so far as to report the titles of the books on the shelves in her 2 year old daughter's nursery—titles that could only have been seen through the windows of her daughter's room. Her daughter said she saw men peering into her room with their cameras. So even a year after such incidents, the victim and her daughter had to go to each window of their home every night, to ''scare away the monsters'' before the toddler could go to sleep. And when the same rape victim wanted to go out on one occasion, she was forced to climb into the trunk of her mother's car and put a pillow case over her daughter's head, in a desperate attempt to salvage some small measure of privacy as they drove through the press mob that had staked out their home.
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Another case in point—on February 9, 1996, a man who had made repeated threats against his co-workers over the years stormed into the Ft. Lauderdale Beach Maintenance Crew Office and shot 5 people dead and permanently injured another before killing himself. The severely wounded Lelan ''Little Joe'' Brookins woke from unconsciousness in his hospital bed to find a reporter's card left on his chest. Other survivors of the murder victims, who had come to the hospital to wish ''Little Joe'' well, found themselves running into the hospital simply to avoid the media. And when ''Little Joe'' was released from the hospital after a 32-day stay, he was greeted with a phalanx of the media outside his home, and members of the media called him virtually one minute after he opened his front door to insist he grant an interview.
Other survivors of this tragedy had similar experiences with the media. The Sunday morning following Tim Clifford's murder, the media snuck into the church congregation to get photos of his grieving family. And returning to their home they, too, were greeted by a media throng and incessant phone calls, hounding the murder victims' family members for interviews. The family had to have a 24-hour police guard just to keep the media moderately away. Yet even this 24-hour police protection, paid for at taxpayer's expense, was not enough to stop the media. Family members, while sitting in their backyard behind a 6-foot wooden fence, were disrupted when a cameraman literally fell over into their yard. The children were told by police that they should not play near windows to protect their privacy, but the media's long-range lenses still caught glimpses of the grieving children playing in the family room.
Imagine what it must be like for such crime victims. To feel that your every move is being closely watched, photographed, and recorded. That a camera could be lurking behind every tree and bush. That every car in the rear view mirror might be following you. Then consider the additional trauma this would cause to someone who had just been raped or had just lost a loved one to murder. Imagine what it would be like to relive the crime, or that intrusion of your privacy, over and over again when the pictures or tape appeared in the media. It is hard enough to live in the media fish bowl, but almost impossible to survive violent crime in one. That is why Congressional action is warranted.
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Without legislation, the only option left to crime victims interested in preserving their privacy will be to barricade themselves in their homes with all their shades drawn. It is particularly ironic that the net effect of these invasive media tactics is to make innocent victims of crime prisoners in their own homes.
In addition, there are cases where the aggressive tactics of reporters and photographers have resulted in physical injuries to victims. In one case the daughter of a murder victim suffered a dislocated shoulder after being pushed by a reporter. Everyday, victims forced to flee from the press, either on foot or in vehicles, create circumstances where the safety of both victims and their press pursuers are placed in jeopardy. Press members who display such reckless disregard should be held accountable for their negligent behavior.
Such conduct does not only affect the victim who has been targeted, it also affects future victims who will become targets. We are deeply concerned that victims who witness these egregious violations of privacy by the media may decide not to report the crime committed against them out of fear for their own privacy in the hands of the media. There is considerable evidence to support this concern. A study conducted by the National Victim Center indicated that fewer than 20 percent of rape victims report their victimization to police (National Crime Center, Rape In America, 1992). When asked why they didn't report the crime, the number one reason given was the fact that others would find out about it. Proof of this phenomena was illustrated by the dramatic drop in reports of rape in the wake of the William Kennedy Smith case. When you consider that the average rapist sexually assaults an average of seven victims during their criminal careers, the tragic implications on non-reporting becomes clear. If the first victim is intimidated into silence by fear of abusive treatment by the media, six more victims may well be victimized as a result.
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The United States Constitution guarantees citizens the right to privacy. Supreme Court Justice Brandeis penned the often quoted legal principle that, ''[The makers of our Constitution] conferred . . . the right to be left alone—[as] the most comprehensive of rights and the right most valued by civilized men.'' In the end, that is all crime victims wish for—they wish that their offenders would have left them alone; failing that, they wish the media would leave them alone. It may be too much for crime victims to ask Congress to grant their first wish, but it is within the power of Congress to grant their second wish. Passing legislation protecting the safety and privacy of victims from the aggressive tactics and probing lens of the media may rescue them both from danger and from a glaring spotlight that they never wanted, never asked for, and never deserved.
We strongly urge the House of Representatives to support legislation that addresses these critical issues of victim safety and privacy.
Thank you for your time and consideration of this important issue.
Sincerely,
| David Beatty, Director of Public Policy. |
Mr. GALLEGLY. First of all, Mr. Tash, I have great respect for your newspaper. It's certainly recognized across the nation as certainly one of our nation's finest.
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However, like Mr. Frank, I did understand you to reference the report that we were talking about earlier, that if H.R. 3224 would have been passed into law, your reporter would not have gotten the story. Am I incorrect? I think Mr. Frank asked the same question, or a similar question.
Mr. TASH. I didn't mean to leave that impression. What I meant to suggest, sir, our reporter would have done some things—our photographer; excuse me—would have done some things to get that photo quite properly, including following Ms. Edwards in a safe—and in my view—appropriate manner in order to get her photograph, had that been a part of the assignment.
Mr. GALLEGLY. So you are very familiar, then, with the actual text of H.R. 3224?
Mr. TASH. I am familiar with the text, sir.
Mr. GALLEGLY. You did give a pretty chilling effect of the legislation. Wouldn't you say that H.R. 3224 does not prohibit the publication of any material obtained in lawful ways?
Mr. TASH. Well, it changes what is the lawful way of getting the information, sir.
Mr. GALLEGLY. If H.R. 3224 were passed into law today, it would not change the ability or would not prohibit you from being able to publish the very thing that we talked about earlier, as long as you obtained it through lawful means, would it not?
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Mr. TASH. It would not prohibit us from publishing it. It would, I believe, put our photographer in some legal peril if in following Ms. Edwards in the course of getting a photograph, or any other subject, she then testified convincingly that by virtue of being followed she was placed in fear for her physical safety.
Mr. GALLEGLY. Professor Lessig, as a constitutional scholar, I know you have read H.R. 3224—I'm sure in great detail. Is it your educated opinion as a constitutional scholar—does H.R. 3224 violate the First Amendment?
Mr. LESSIG. Sir, my view is it doesn't; no.
Mr. GALLEGLY. And could you explain why you do not believe that it does not violate the First Amendment?
Mr. LESSIG. Well, I first want to refer to what I was calling the assault provision, which I think H.R. 3224 is attempting to rely on. The question is, if you're following or chasing in a way which reasonably creates the expectation that there is a fear of bodily injury, this is the traditional concept of assault, and if the reporters, as they're reporting news today, are not obeying the law as with respect to assault, they ought to be. I don't see this to be a change at all.
With respect, Congressman, I'm not sure that H.R. 3224 goes far enough. I'm a little bit uncertain about the additional qualification made in section A(2) that says that ''the individual has a reasonable expectation of privacy from such intrusions and has taken reasonable steps to ensure that privacy.'' To the extent that this is focusing on what otherwise would be an assault, I'm not sure why the victim must additionally prove that there's a reasonable expectation of privacy in any context. I would think that if it constitutes an assault, then it's an assault, and it's not that private assaults are particularly troubling and public assaults aren't. I think that your statute adequately attacks the problem, and I do think it might be a little bit of a complication to worry about that.
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Mr. GALLEGLY. I think that probably one of the things we tried to do was to maybe in some way be overly protective of a challenge——
Mr. LESSIG. Yes; I think it's narrow.
Mr. GALLEGLY [continuing]. From those on the First Amendment. Professor Richards, do you think the First Amendment protects paparazzi's aggressive and dangerous behavior, and do you think the First Amendment protects them from dangerous behavior in pursuing people and could be a threat to their well-being?
Mr. RICHARDS. I don't think the First Amendment protects anyone who engages in criminal activity. The First Amendment does not draw a distinction between the paparazzi—or should not draw a distinction between the paparazzi and what we might call the mainstream media because it's very difficult to get a definition any more as to what we mean by some of those terms, like the term legitimate media.
I think that any time an individual, whether he or she be a member of the paparazzi, a member of the mainstream media, crosses over the criminal line, then they should be prosecuted criminally. So I don't believe that there's any special protection in the First Amendment for any individual, whether it be a member of the media or outside of the media, who crosses the criminal line.
Mr. HYDE. The gentleman's time has expired.
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Mr. GALLEGLY. Mr. Chairman, I'd just like to thank you and also tell you that I do not believe it is infringing on my rights as a member of this committee to observe the red light. Thank you very much, Mr. Chairman.
Mr. HYDE. You're overly generous. Thank you. The gentleman from California, Mr. Rogan.
Mr. ROGAN. Mr. Chairman, thank you. I want to echo my colleagues' sentiment in thanking all of the members of the panel for coming and joining us today. Like several of my colleagues, please accept my apology for being late. I had three committees going on at one time and was required at a couple of votes to be taken away. I did have the opportunity to read all of your testimony, and I appreciate both the written testimony and the remarks that have been put before us today.
Mr. Tash, I want to chat with you just for a moment because I was interested in the colloquy you had with Mr. Gallegly. When you were discussing previously how this law might not have allowed your newspaper to get the photograph that was published, I was looking at the language of H.R. 3224, and it doesn't just indicate whether the victim might have had a fear. What it would require is that the victim, aside from taking the reasonable steps to protect his legitimate privacy rights, would have had a reasonable fear that death or bodily injury would result from the offending conduct.
Now much of what we do in the law is based on the ''reasonable person'' standard. We ask in law how would a reasonable person behave in certain circumstances? Do you really believe that in the main the photographers for your newspaper would be precluded from obtaining newsworthy photographs if the reasonable person standard were applied, as Mr. Gallegly's bill would do?
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Mr. TASH. No, sir; not in the main, to use your phrase. I don't believe they would be, in the main. What I'm concerned about is the isolated case somewhere which then does create a standard and a level of concern, which then does have the chilling effect that my colleagues have described on news photography, not only at my own paper, but in photojournalism generally.
Mr. ROGAN. Often we have to make all sorts of policy choices, not just in business, but also in Congress. If, in that isolated instance, a photojournalist realized that his conduct was potentially crossing the line that could cause death or bodily injury to the person they are pursuing at the moment, is it unreasonable to require that photographer to err on the side of physical safety, versus getting a photograph for the newspaper?
Mr. TASH. No, sir; not at all. And that burden and that requirement and that duty of care upon the photographer is no different than it is for many other citizens acting in proximity with other citizens.
Mr. ROGAN. Then why are you objecting to the language in Mr. Gallegly's bill?
Mr. TASH. For two reasons. One, because those standards already are enforced under the laws of trespass and harassment and assault throughout the country and, second, because this bill specifically targets photojournalists.
Mr. ROGAN. I think everybody stipulates that the real problem here isn't coming from the St. Petersburg Times, the New York Times, the Los Angeles Times, and so forth. The real problem comes from other individuals who masquerade as journalists.
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I want to go to Mr. Lutman, if I may, for a moment. Mr. Lutman, you were talking about the journalistic standards that your association has for journalists. I'm assuming that these freelance people of whom we have heard, who make a career out of assaulting the wife of a celebrity, hanging upside down from ladders on helicopters, or some other obnoxious conduct, I'm assuming that those are people not associated with the National Press Photographers Association. Is that a fair statement?
Mr. LUTMAN. I would be hesitant to make that statement. We may, in fact, have members that behave that way, but I would say that we don't welcome that behavior, and we have always stated that we do not tolerate illegal behavior on behalf of our photographers, that that behavior is totally inappropriate and unacceptable.
Mr. ROGAN. If you have the standards in place in your association, and assuming that they're rigorously enforced, there certainly is no requirement from a tabloid newspaper before they publish a photograph to check the I.D. card of the photographer and say, ''Well, gee, you're not a member of this group that exercises journalistic standards. We're not going to publish your photograph.'' Right?
Mr. LUTMAN. That's true.
Mr. ROGAN. Within a few days after Princess Diana was killed, the press reports said that there were photographers actually on the scene shooting photographs of the dying princess in the back seat of her car. The French police stepped in and seized those photographs. I heard people in the industry speculating that if any photographer got away, those photographs could sell for upwards of $1 million to a tabloid newspaper. Do you have any quarrel with that estimation?
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Mr. LUTMAN. I'm sorry, with the observation that they could sell for a lot of money?
Mr. ROGAN. With the estimate that those photographs could be worth $1 million?
Mr. LUTMAN. I would say that for a person who is probably the most popular woman in history, and the most photographed, that such a tragic event would probably bring a lot of money. That doesn't mean that we endorse the notion that it should bring that, but I think that that's a reality. I also think that Paris has some of the most tough paparazzi laws in the world, and it didn't stop any of the events that transpired in Paris.
Mr. ROGAN. I would only submit that the prospect of being able to get paid $1/2 million dollars or $1 million for a salacious photograph may preclude those who don't choose to join your organization or abide by journalistic standards preclude them from acting within the realm of decency.
Mr. LUTMAN. I would also say that there are—I'm sorry, Congressman.
Mr. HYDE. The gentleman's time has expired.
Mr. ROGAN. Thank you, Mr. Chairman.
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Mr. LUTMAN. Could I just say one brief thing?
Mr. HYDE. Yes, sir.
Mr. LUTMAN. I would just say that there are many people who are in the process of searching for bounty photographs that are not professional photojournalists at all, and my greatest concern is that in the attempt to deal with a very, very minute number of individuals in the world, of all the pictures that we ever take, we're going to be damaging the ability of legitimate news photographers to do their jobs on a day-to-day basis.
This isn't just an isolated case. I don't think that journalists are going to be able to discern what is obviously an invasion of privacy and what is not. I don't think that standard is so easy for a street photographer to comprehend, and this bill is asking street photographers to make those kinds of judgments. They're not asking anyone else to.
Mr. ROGAN. Mr. Chairman, may I ask unanimous consent for one additional minute to respond?
Mr. HYDE. Without objection.
Mr. ROGAN. I don't see that there's anybody left to object besides you, Mr. Chairman——[Laughter.]
—but thank you for the courtesy.
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Mr. HYDE. I'm very capable of being objectionable.
Mr. ROGAN. The only point that I would make is—and I think you're absolutely right—I think that for the most part we're not talking about most photojournalists. We're not talking about most circumstances, except in that very narrow window of isolated incidences, where somebody's personal safety or security or the threat of death or bodily injury is at hand. I actually want to see photographers in that circumstance hesitate for a moment and think twice about their conduct.
And if State laws throughout the country are sufficient, as Professor Richards has said, and if we stipulate that with the advent of the Internet and Cyberspace much of this has stepped into the area of interstate commerce, then I'm not sure I've heard any convincing arguments today that the Federal Government should not step in and come up with a standard. And I think that's what Mr. Gallegly's bill is attempting to do, as was the legislation from our late, beloved colleague, Mr. Bono.
Thank you, Mr. Chairman, for the indulgence, and I thank the members of the panel.
Mr. HYDE. Well, I thank you, and now Mr. Masur.
Mr. MASUR. Just one question, Mr. Chairman, if I may.
Mr. HYDE. Surely.
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Mr. MASUR. It was just a procedural question I wanted to ask. An earlier statement was read by Ms. Cochran in a personal communication from the president of AFTRA to the president of the Screen Actors Guild, who is sitting before you. That was a personal communication, and a little piece of it was read out. I would ask if it's proper that Ms. Cochran be asked to submit the entire letter for the record. Thank you.
Ms. COCHRAN. I'd be delighted to.
Mr. HYDE. She indicates she'd be delighted to, and so, without objection, the entire document will be placed in the record.
[The information referred to follows:]
| American Federation of |
| Television & Radio Artists, |
| New York, NY, April 13, 1998. |
Richard Masur,
President, Screen Actors Guild,
Los Angeles, CA.
DEAR RICHARD: I wanted to follow up on my brief report to you concerning the AFTRA National Broadcast Steering Committee (BSC) discussion of March 29th relating to the Personal Privacy Act legislation sponsored by Screen Actors Guild.
Because you may not be familiar with the BSC, you should be aware that the BSC includes journalists from ABC, CBS and NBC Networks, Network and Fox owned-and-operated stations, Westwood One news, and independent broadcasting companies such as Chronicle, McGraw Hill, LIN, etc.
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The BSC received a copy of the full packet of material supplied to us by your office, and discussed the issues thoroughly. Thank you for supplying it. The BSC members were fully sympathetic with the concerns that generated the legislation and share SAG's dismay over the inappropriate conduct of some individuals who held themselves out as members of the legitimate news media.
However, despite the laudable intent of the legislation, the members of the BSC were unanimous in their opposition to the legislation because of its effect. To a person, the journalist members of the BSC noted that the legislation as drafted would have a chilling effect on the legitimate press and its ability to gather and report the news to the American public.
Several specific points were made during the discussion:
The legislation would make the journalist on the scene criminally or civilly liable, but his/her employer would be exempted from liability. The fact is journalists are routinely ordered or instructed by their employers to take certain actions which could fall within the prescriptions of the legislation. As a result, this legislation puts the journalist in the position of choosing between disobeying a direct order and losing his/her job on the one hand, or exposing him/herself to criminal and civil liability on the other hand.
The definition of the term ''harass'' is sufficiently broad as to encompass actions which are routinely accepted in today's world as appropriate by the news media. For example, a newsperson who stands outside the Watergate until Monica Lewinsky leaves the building, and walks beside or behind her attempting to get a comment until she gets into her car, could be subject to liability under this legislation.
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This legislation could unjustly protect individuals who have a reason to hide from the legitimate press. For example, the legislation makes it illegal to capture an image through the use of a telephoto lens or from a helicopter, where a person is in engaged in a ''personal or familial activity''. What if the subject in question is a government employee collecting disability payments, who is photographed making strenuous repairs to his house or engaging in physically demanding sporting activities?
Interestingly, one BSC member had attended a continuing education seminar and luncheon for investigative reports at Columbia University the previous day. He reported that although this legislation was not an item on the official seminar agenda, it was widely discussed among the reporters present during the luncheon break. The impact of this proposed legislation was universally felt to have a chilling effect on the gathering and reporting of the news, which would be a disservice to the American public.
The members of this BSC cited example after example of investigative reporting, stakeouts, and other accepted and necessary practices of the legitimate media which could be stifled by the proposed legislation and make it impossible for them to do their jobs.
The BSC was sensitive to the fact that the concerns of SAG and its members are very real and very legitimate. Further, while the BSC recognizes the authority of the AFTRA National Board and that the Board has not yet taken a position on the legislation, the BSC was also sensitive to the fact that it would place both unions in an awkward position if AFTRA were to ultimately take an opposing approach to legislation sponsored by our sister union.
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The BSC asked me to communicate its concern, and to suggest that it would be in the best interests of our respective members, and the public, if SAG would explore with us another approach to addressing our mutual and legitimate concerns on this issue as soon as possible.
I look forward to discussing this further with you at the earliest possible opportunity.
Fraternally,
| Shelby Scott, National President. |
Mr. HYDE. I really want to thank you all for not only your saintly patience, because you've been here a long time, but for a very serious contribution to a very serious question. We will—we're just beginning to wrestle with this, but we shall. Everyone of you has helped us build a mosaic that hopefully will be a workable law balancing the First Amendment with the right of privacy. It's been great. Thank you so much.
The committee stands adjourned.
[Whereupon, at 12:40 p.m., the committee adjourned subject to the call of the Chair.]
A P P E N D I X
MAY 21, 1998
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(Footnote 1 return)
Interestingly, Martin London, who represented Mrs. Onassis in that case, wrote in an op-ed article for The New York Times on September 5, 1997: ''Yes, the paparazzi have become increasingly aggressive and technologically sophisticated. We don't need new laws to rein them in. We already have the tools to do the job.''
(Footnote 2 return)
Jane E. Kirtley, executive director of the Reporters Committee for Freedom of the Press, wrote for the Scripps Howard News Service on September 12, 1997: ''But in France, home of the most restrictive privacy statutes in the world, the rich and powerful use court orders to stop publication of just about anything they don't like, and collect hefty damages in the bargain. This lethal combination has cowed the French media to the point that investigative journalism is almost unknown there. But it still didn't prevent the crash in the Paris tunnel.''
(Footnote 3 return)
Jane Kirtley, ''The press and privacy: invasion or exploitation?'' The Plano, Texas, Star–Courier, April 5, 1998
(Footnote 4 return)
Branzburg v. Hayes, 408 U.S.665, 727 (1972) (Stewart, J., dissenting).
(Footnote 5 return)
Clay Calvert, Sifting Through the Wreckage of ABC Reportage: Little Victories, Big Defeats & Unbridled Media Arrogance, 19 Hastings Comm & Ent L. J. 795, 821 (1997).
(Footnote 6 return)
Jennifer Bowles, ''Bill to Curb Paparazzi Unveiled to Immediate Criticism,'' Associated Press (P.M. cycle), February 18, 1998.
(Footnote 7 return)
Wolfson v. Lewis, 924 F. Supp. 1413, 1435 (E.D.Pa. 1996). The case was settled before argument to the United States Court of Appeals.
(Footnote 8 return)
See Robert D. Richards, Freedom's Voice: The Perilous Present and Uncertain Future of the First Amendment, Washington, D.C.: Brassey's, Inc., 1998.