Legal Corner: AAN Tells Hawaii to 'Dream On' Before Passing 'Steven Tyler Act'

february 12, 2013  02:45 pm
Celebrities. They're just like us, right? Well, except when it comes to special the special privileges and benefits they enjoy on regular basis. Hawaii Senate Bill 465 is one such example.

Hawaii SB 465 is officially known as the "Steven Tyler Act." Yes, Senators from Hawaii have introduced legislation named — and bending over backwards for — the lead singer of Aerosmith (and former judge on "American Idol"). You probably won't like this bill nearly as much as Steve and his friends and fellow celebrities do. You see Steven Tyler just bought a home on Maui, and the state of Hawaii is extending the welcome mat by giving him special protection from photographers.

Claiming that many celebrities are deterred from buying property in or visiting Hawaii. With the explicit goal of "encourage[ing] celebrities to visit and reside in our State by creating a civil cause of action for the constructive invasion of privacy," the drafters of SB 465 have created a cause of action for "constructive invasion of privacy" where a person "captures or intends to capture, in a manner that is offensive to a reasonable person, through any means a visual image, sound recording, or other physical impression of another person while that person is engaging in a personal or familial activity with a reasonable expectation of privacy."

The possible defendants include not only the photographer but any other person who "directs, solicits, induces, or causes another person" to violate the law (that means you, editors and publishers), regardless of whether an employer-employee relationship exists (so don't hide behind your freelancers) and anyone who retransmits or republishes the photo (so it extends well beyond the islands to the mainland). While the law is based on similar state laws — California, for instance, passed relatively similar legislation a few years ago — Hawaii, at this point, has not created similar exceptions that protect legitimate newsgathering.

Despite its significant over-breadth — which has been pointed out by not only the Motion Picture Association of America, but also several major journalism organizations, including AAN (PDF) — the bill appears to be moving forward.

A hearing was held on February 8 in the Hawaii Senate Committee on Judiciary and Labor, where it apparently received the support of two-thirds of the members of that Committee. That may or may not have been the result of support expressed for the bill by several of Mr. Tyler's fellow celebrities: in addition to attending the hearing himself, Tyler's fellow musician Mick Fleetwood (of Fleetwood Mac) also testified; carbon copy statements in support of SB 465 were submitted by celebs ranging from Britney Spears to the Osborne family to Tommy Lee of Motley Crue and some of his hair metal brethren. Links to all testimony can be found here (PDF) and here (PDF).

But here's the thing — and it's the crux of AAN's opposition — we don't necessarily disagree with their ultimate claim that they are put in danger every day by paparazzi who will go to any length to get a story. As the celebrity stock statement notes, "Hawaii is a beautiful state known worldwide as a peaceful oasis far removed from the nonstop activity on the mainland. This tranquility is being violated by paparazzi who use high tech equipment or engage in high-speed car chases to capture celebrities' most private moments from unprecedented distances and sell those images or recordings for exorbitant sums of money." However, this bill goes way beyond protecting the physical safety of a celebrity or their true privacy inside their personal homes; as currently written, SB 465 could extend to situations where truly newsworthy events are occurring in plain sight, in public spaces. The bill as written would literally prevent a reporter from taking pictures of illegal, even dangerously illegal, activity in certain situations.

We understand that Senators are amenable to limiting language and that some groups have already submitted such language. We hope they do the right thing and protect the limited amount of legitimate privacy rights that should be enjoyed by all persons (not just celebrities) while affording maximum protection for the constitutional rights afforded by the First Amendment.
Kevin M. Goldberg is an attorney with Fletcher, Heald & Hildreth and serves as AAN's legal counsel.

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