~by Sonya Gillen (Student Blawg)
They say justice is blind: but ideally she is not deaf. At least that is what Steven Tyler is hoping. The lead singer of Aerosmith, along with fellow rocker Mick Fleetwood of Fleetwood Mac, testified on February 8, 2013, before a Hawaii Senate hearing in support of Hawaii S.B. 465, otherwise known as The Steven Tyler Act.
The bill, written by Tyler’s entertainment attorney, Dina LaPlot, and introduced by Democratic Hawaiian State Senator Kalani English, provides for a civil cause of action for invasion of privacy in addition to the current physical invasion of privacy in the State of Hawaii. The Tyler Act was recently amended by the Hawaii Senate Judiciary and Labor Committee to strongly resemble the California Anti-Paparazzi Law (California Civil Code 1708.8). California is the first, and only state to pass anti-paparazzi legislation. The California legislation was signed into law under then Governor and former celebrity Arnold Schwarzenegger and enacted on January 1, 1999.
Proponents for the Hawaii Privacy Bill say that it will help protect vacationing celebrities from overzealous paparazzi and therefore will encourage celebrities to vacation in Hawaii. If enacted, the new law will make a person liable for civil action resulting in general, special and punitive damages equal to three times the amount of general and special damages combined if a person engages in constructive invasion of privacy. Under the act, “A person is liable for a civil action of constructive invasion of privacy if the person captures or intends to capture, in a manner that is offensive to a reasonable person, through any means a visual image, sound recording, or other physical impression of another person while that person is engaging in a personal or familial activity with a reasonable expectation of privacy.”
Fellow celebrities, such as Neil Diamond, Avril Lavigne, Brittney Spears, and Tommy Lee among others, showed their support for the bill by sending individual written statements, all with the same content, to the Hawaii State Senate. The group wrote, “Enacting SB465 would provide me and other public figures with a peace of mind that is nearly impossible to find in Hawaii because of the rampant paparazzi”.
The Hawaiian Attorney General, the ACLU of Hawaii, the Motion Picture Association of America and some local citizens oppose the legislation, saying the bill violates the First Amendment of the United States Constitution and Article 1, Section 4 of the Hawaii Constitution; is overbroad and unnecessary; and will have a chilling effect on legitimate press coverage. Laurie Temple of the Hawaii chapter of the ACLU wrote, “Current state laws regarding trespass, invasion of privacy, and harassment, e.g. can more than handle the privacy, free speech and safety concerns of Hawaii’s residents and visitors.” In their memo to address First Amendment concerns regarding the publication of the illegally obtained pictures, the Motion Picture Association citied New York Times Co. v. United States, 403 U.S. 713 (1971) which established the right of a newspaper to publish knowingly illegally stolen materials and Vartnicki et al. v. Vopper, et al., 532 U.S. 514, at 534 (2001) which held that illegally intercepted communications were protected by the First Amendment.
Tyler’s attorney, Dina LaPolt, defended the legislation and its First Amendment constitutionality, citing Time, Inc v. Hill (1967) saying, “the Supreme Court of the United States held that the action of intrusion (i.e. paparazzi constructively invading a public figure’s privacy) does not itself raise First Amendment concerns because it does not involve speech or other expression.”
The legislation easily passed the Senate, but is now encountering problems in the House of Representatives, who are essentially telling Tyler to “Dream On”. (Sorry, you knew there had to be at least one silly Aerosmith pun in a blog that focuses on Steven Tyler) Rep. Angus McKelvey who is the head of the Hawaiian Consumer Protection Committee is quoted as telling a representative from the Associated Press, “There is zero support for that legislation in the House of Representatives”. The bill seems to be stalling in committee. Commenting on the likelihood of the House committee leaders putting in a joint request to the Speaker of the House to move the bill forward, McKelvey commented, “There is a better chance of people flapping their arms and flying from Lanai to Maui.” (Well, there probably will be no backstage passes in his future)
Although it is currently stalled, the legislation may not be officially dead. It may be the “Same Old Song and Dance”(Ugh, sorry again) for the legislation in the future. When the Senate Judiciary and Labor Committee revised the original version of the bill, they changed the effective date from July 1, 2013 to July 1, 2050 to allow time for further discussion on the bill. “I was very surprised we got out of the Senate on the first run,” LaPolt said. “If it had passed through the House, I would have been shocked.” For Tyler and LaPolt, at least the publicity generated by the legislation has no doubt been a “Sweet Emotion”. (not sorry on that one!)