Malibu Paparazzi Document Files Include
Five Draft Ordinances
• Mayor Had Said No Measures Were
Being Drafted Days Before Copies Were Submitted
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.
