Jennifer Garner and Halle Berry testified before California’s Assembly Judiciary Committee last week in support of a bill that would draw a press-free line around celebrities’ children. SB 606 increases monetary and prison-time penalties for any conduct that “seriously alarms, annoys, torments, or terrorizes” a “child or ward,” and that “serves no legitimate purpose.” It might mean more legal recourse for families traumatized by the incessant shouts and flashbulbs that drove even Gandhi to reflect, “I believe in equality for everyone, except reporters and photographers.”
Both megawatt moms spoke passionately about their frustration with loud, invasive, hostile-seeming paparazzi, saying their kids didn’t deserve to be targeted and would grow up thinking the world was an aggressive, unkind place. “These are little innocent children who didn’t ask to be celebrities. They didn’t ask to be thrown into this game, and they don’t have the wherewithal to process what’s happening,” said Berry. Garner choked back tears as she agreed:
Literally every day there are as many as 15 cars of photographers waiting outside our home. In the course of our ordinary day—trips to school, pediatrician, ballet, or the grocery store—paparazzi swarm. Large aggressive men swarm us, causing a mob scene, yelling, jockeying for a position, crowding around the kids.
My 17-month-old baby is terrified and cries. My 4-year-old says, “Why do these men never smile? Why do they never go away? Why are they always with us?”
Yes, the testimonies, which the Cut called “harrowing,” are hard to read. No one likes imagining little children cowering in fear of strange men. But how do you solve the problem of the celebrity kid without trampling all over the First Amendment? As tabloids like US Weekly and websites like TMZ perpetuate the idea that every mundane detail of a star’s life matters, and as the rich and famous flaunt their radiant pregnancies on the red carpet, the personal lives of celebrities seem more and more to inhabit a commons we all feel comfortable hiking through. (Think, too, of the privilege! One-year-old Blue Ivy Carter is worth about $6 million in earning potential a year, while her parents are worth a combined $1 billion. Maybe she and Suri Cruise and Violet Affleck never agreed to omnipresent exposure, but the children of war and poverty didn’t sign on for their problems either. Nor do they get $80,000 diamond-encrusted Barbies for their birthdays.)
Yet the Constitution guarantees all of us an implicit right to privacy—and common-law provisions in each state make that right explicit. Perhaps, as University of Maryland professor Danielle Citron suggests, we should be asking not “Why would the press coddle stars’ babies?” but “What does society have a right to know about any one person?” It’s a question that may or may not apply differently to pop culture royals, their family members, and the hoi polloi.
Unlike libel law, privacy torts don’t distinguish between public and private individuals. These are the statutes that prevent someone from videotaping you through your bedroom window (“intrusion upon seclusion”) or selling the secret that you wet your bed in junior high to People magazine (“public disclosure of private fact”). In theory, paparazzi have no more leeway crashing Kim Kardashian’s Thanksgiving dinner than yours or mine: We can all expect to be “let alone” in our own homes. The foundation for such legal moats and drawbridges comes from an 1890 article in the Harvard Law Review—a missive in the privacy wars prompted by fears of press sensationalism after the invention of the first Kodak camera. Young authors Samuel Warren and Louis Brandeis wrote:
The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. … The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.
However, the evil media corps found a workaround. The First Amendment (freedom of the press) allows shutterbugs to collect and disseminate information in which the public has a meaningful interest. And while Joe Boring’s evening playing audiobooks for his dog is unlikely to enthrall anyone, you could argue that the ephemera of Gwyneth Paltrow’s personal life has cultural significance—at least today, in our hyperobservant celeb-obsessed age. Gwyneth is “newsworthy”; pursuing her is “newsgathering.” Click. Click. Click.
(Or, as Jamie E. Nordhaus explains in a 1999 paper: “Articles recounting details of the daily lives of celebrities generate a much higher level of interest on the part of the public than do similar stories concerning unknown people. As a result, a broad spectrum of information concerning celebrities is transferred from the protective shield of privacy into the realm of the public interest.”)
But back to the kids: Does charting the everyday doings of celebrities’ loved ones constitute a meaningful service to the public, a necessary transmission of information? It does if, say, Famous Dad is beating his child. But suppose that all we’ve learned from photos of Famous Kid leaving her tennis lesson is that she takes tennis lessons, just like thousands of Not Famous Kids everywhere. Is such data useful? Is it culturally trenchant?
The courts are mostly silent on these questions, in large part because celebrities rarely wish to attract the additional publicity that comes with filing suit. Stars sometimes bring complaints on their own behalf: In 2001, Catherine Zeta-Jones and Michael Douglas sought damages after photos of their ultraexclusive wedding turned up in Hello! magazine. (The court granted them.) And Naomi Campbell was able to nail the Daily Mirror for printing snaps of her exiting a Narcotics Anonymous meeting in 2004. (The English judge hedged that, while the Mirror had a right to reveal that Campbell was in treatment for a drug addiction, they needn’t have stooped to “covert photographs.”) But cele-babies seem to occupy a gray space as far as the law is concerned. Even if SB 606 passes, it is unlikely to prevent paparazzi from taking their picture—only from stalking and other menacing behaviors. Don’t we already have laws for that?