Ilya Shapiro and I published an Op-Ed in USA Today discussing the constitutional implications of the Steven Tyler Act, which creates liability for photographing people in public. Here is an excerpt.
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.
There are several significant constitutional defects.
Protecting privacy in public is a laudable goal. Indeed, we’re all affected by the sweet emotion of seeing celebrities harassed by the paparazzi (think of Princess Diana). The Steven Tyler Act, however, misses a very important thing — that privacy and the First Amendment can coexist.
Hawaii shouldn’t walk this way. Instead it should promote the right of privacy that our society should strive for, while ensuring the freedom of speech. Let’s not be jaded by the social costs of freedom. Anything else is just crazy.