Malibu Paparazzi Document Files Include Five Draft Ordinances

• Mayor Had Said No Measures Were Being Drafted Days Before Copies Were Submitted

BY ANNE SOBLE

Despite repeated assertions by the mayor that no new laws to restrict local paparazzi activities were being drafted, the texts of five ordinances that do just that are included in a one-foot-thick stack of documents compiled for her by faculty and staff at the Pepperdine School of Law.
The ordinances were provided for Mayor Pamela Conley Ulich, acting as an individual, ostensibly without the city direction. However, a questionable city council consensus vote at its spring quarterly goal-setting meeting—that was reworded but never revoked—raises issues of culpability for her actions.
At that meeting, Conley Ulich specifically said that her efforts would focus on drafting an anti-paparazzi ordinance with the free advice of Pepperdine Law School Dean Kenneth Starr. Starr, however, headed overseas shortly thereafter, and the task was assigned to other faculty members.
The mayor also said at that time she had enlisted the Southern California offices of the American Civil Liberties Union in her cause, but the ACLU indicated it would not participate in an effort that a spokesperson said would likely fail because of First Amendment free press and speech protections, and indicated there are sufficient laws on the books to address trespass, unsafe driving and other illegal behavior cited by Conley Ulich.
All summer, the exact nature of Conley Ulich’s anti-paparazzi project remained muddy. Even law school faculty, taking part in an Aug. 1 public meeting called by Conley Ulich after a freelance reporter threatened litigation over the until-then secret deliberations on paparazzi regulation, said that they thought that their efforts were a city project.
On Aug. 1, Conley Ulich repeated what she had told the press on numerous occasions—that no draft ordinances existed and none were planned. Yet, just three working days later, on Aug. 7, five proposed measures were submitted to her by Pepperdine.
The stack of documents is available for public review at City Hall, but that had not been told to Conley Ulich’s council colleagues, according to the comments and questions at Monday night’s city council meeting.
Most of the materials are First Amendment and Constitutional Law boilerplate, including journal articles and case law that was compiled by the law school’s research librarian.
As for the ordinances, all five are footnoted on each page as “provided for general informational purposes only [and] not intended to be, or substituted for legal advice.”
Yet “free legal advice” was part of the pitch Conley Ulich gave the city council in April when she sought their approval to pursue the paparazzi project.
In addition, the footnoted proviso states there are “no representations as to the accuracy of the information provided herein,” and there is a disclaimer of “all liability for actions taken or not taken on the basis of such information.”
The white paper accompanying the ordinances states that Conley Ulich requested them, although she is now trying to squelch critics by saying a new law may not even be needed.
The white paper notes that among ways the city might try to skirt First Amendment protections is to argue that the paparazzi do not gather “news.” However, there is no definition of what news is.
A legal case is made for differentiating between restrictions on content versus those of “time, place and manner,” an approach that has allowed some court-sanctioned restrictions on press behavior.
Acknowledging “it is difficult to say with any certainty which analysis a court would apply to the proposed ordinances, there is a sense that the Malibu draft ordinances’ emphasis on “the privacy and security of school children” might resonate with the current high court.
Ordinance One focuses on privacy and security concerns of celebrities and their children at local schools, creating photography-free zones, apparently without recognizing that all children should be entitled to the same protections. And also without acknowledging the proviso that currently exists in the Malibu Municipal Code that exempts news coverage by the media from comparable restrictions.
The proposed ordinance could especially impede the work of freelancers, such as Hans Laetz, the journalist who threatened the legal action that led to Conley Ulich calling the Aug. 1 public meeting.
The proposed media constraints also appear to create a double-tiered legal system for celebrities. City of Los Angeles Police Chief William Bratton, who regards the paparazzi regulation projects as a “waste of time,” has said he finds these kinds of proposed laws offensive because “celebrities have no more rights than the rest of us.”
Ordinance Two has further restrictions, prohibiting access to drop-off and pick-up areas, which could prohibit the photographing of dangerous driving and parking conditions at Malibu High School, or elementary schools where vehicles create logjams. Ordinance Three is a variation on this.
Ordinances Four and Five address possible harassment and physical and emotional harm from being photographed by paparazzi, with Five the most restrictive as it could ban all newspaper photographers from school grounds.
The controversial Morse v. Frederick ruling by the U.S. Supreme Court—the “Bong Hits 4 Jesus” case— in 2007 is viewed by the Pepperdine legal team as a reason the proposed ordinances might be upheld by the U.S. Supreme Court.
Dean Starr argued the Morse case that underlies the white paper’s stance that the court “has traditionally evinced a strong concern, even where competing interests are at stake, with maintaining a school environment that minimized undue disruptions to the educational function of those institutions.”
However, the ACLU and media interest organizations, as well as most major law enforcement officials, contend that enough laws are on the books to address issues of dangerous driving, trespass, and all forms of harassment.
During the public aspect of the paparazzi regulation project, Conley Ulich floated several proposals for special celebrity protections, including a separate 911 line to report paparazzi intrusions, and the placement of cameras throughout the commercial centers of Malibu to catch errant paparazzi on film.
After criticism and questionable news coverage from coast-to-coast, the mayor now appears to be modifying her stance and saying that an ordinance may not be required if the community does not want one.
Regarding Laetz’s original challenge of Conley Ulich’s efforts, he had indicated in August that his First Amendment concerns were satisfied with the availability of what was supposed to be “research” by the Pepperdine team.
After looking at the documents this week, Laetz told the Malibu Surfside News, “This is just what we were afraid of. The City of Malibu has now gone to the most conservative law school in the country, and asked them in secret meetings to come up with a draconian ordinance to ban newsgathering at or near schools. And Ken Starr’s faculty delivered.”
Laetz, who freelances for The News and a number of other media outlets in the region, added, “[These ordinances were crafted] without the public being allowed to watch the public’s business being done. It doesn’t matter that the ordinances are only proposals, or that they were drafted at the request of a committee of one council member, Ms. Conley Ulich. California’s open meetings laws require government agencies to conduct law-drafting exercises in public. This committee of one violated the law and continues to violate the law.”
The freelancer continued, “Judge Starr is already aiding and abetting the City of Malibu to openly flaunt the state’s open meeting laws. Now, he and his staff have drafted proposed city laws that would drastically restrict the news gathering that I do on a daily basis.
“Judge Starr successfully convinced a slim majority of the Supreme Court that freedom of speech should be restricted in the interest of maintaining a distraction-free school environment, in the infamous “Bong Hits” case. Now, his colleagues would take that one step further and ban news reporters from schools and public streets near schools.”
Laetz said he had decided not to pursue legal action against the city after Conley Ulich publicly said at the Aug. 1 meeting that her “committee” was only engaged in research.
Laetz added, “That appears not to have been the case, as we see that the committee also drafted potential ordinances for the City of Malibu, at the request of the city council, through the power it gave by consensus to the mayor.”
He concluded, “I don’t want to sue the city, but this needs to be reevaluated.”
In what she calls her Mayor’s Update, Conley Ulich said this week, “I am trying to determine whether people in our small town concur with L.A. Police Chief Bratton that exploring the paparazzi issues further is a “waste of time,” or with the ACLU that current laws are adequate.”
Conley Ulich has scheduled a meeting at Malibu City Hall on Monday, Sept. 29, from 4-5 p.m. “to hear from the public at large” on the matter. She said that comments can also be mailed to her at City Hall.