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Hawaii Should Walk Away from Steven Tyler Act

February 16, 2013 in Economics

By Josh Blackman, Ilya Shapiro

Josh Blackman and Ilya Shapiro

In a brazen giveaway to celebrities who like to like to vacation on its pristine beaches, Hawaii is about to bid a sorry aloha to the First Amendment.

The 50th state is poised to pass the “Steven Tyler Act.” The bill, named after — indeed, written by — the Aerosmith frontman, could punish anyone who takes a photograph of a celebrity in public. That includes a tourist who takes out her iPhone to snap a pic of a rock star or, perhaps, the Obama family.

The law would prohibit recording someone “in a manner that is offensive to a reasonable person,” while that person is “engaging in a personal or familial activity.” The Steven Tyler Act not only departs from a century’s worth of privacy laws, but does so at a huge cost to the First Amendment’s guarantee of the freedom of speech.

The Steven Tyler Act misses a very important thing — that privacy and the First Amendment can coexist.”

There are several significant constitutional defects.

First, the bill offers no exceptions for newsworthy content. It simply assumes that if a person is “engaging in a personal or familial activity with a reasonable expectation of privacy,” any recording would be illegal. Newspapers covering matters of public affairs (that may be personal or familial) could be snared by this statute. Citizen journalists reporting from the field, or even perceptive tourists, will be at risk of litigation.

Second, the proposed statute is intentionally vague. It offers no guidance of what “personal or familial activity” means. Courts may construe this statute too broadly, limiting the ability of the press to report the news.

Third, courts would have the authority not only to stop the initial publication of a photograph, but to issue orders against future reproductions of the same photograph. This type of authority is called “prior restraint,” which is highly suspect in First Amendment jurisprudence and allowed only in certain exceedingly rare cases with uniquely compelling interests.

Prior restraints will rarely survive scrutiny even when national security concerns are raised. Perhaps most famously, in 1971 the Supreme Court found that the government couldn’t stop the New York Times from publishing the Pentagon Papers, which contained classified information about war strategy in Vietnam. Surely blocking publication of awkward photos of Britney Spears or Tommy Lee — other supporters of this bill — isn’t more compelling than blocking the release of sensitive materials regarding …read more
Source: OP-EDS

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