Raef v. Appellate Division of the Superior Court
193 Cal. Rptr. 3d 159
Cal. Ct. App.2015Background
- Paul Raef (a photographer) was charged with traffic offenses elevated to misdemeanors under Cal. Veh. Code § 40008(a) because the offenses were committed with intent to capture images/recordings of another person for a commercial purpose.
- The trial court sustained Raef’s demurrer and dismissed counts based on a First Amendment challenge; the superior court appellate division reversed and reinstated the charges.
- This writ proceeding presents a facial constitutional challenge to § 40008(a) under the First Amendment (federal claim only).
- § 40008 increases penalties for specified traffic offenses (interfering with driver, following too closely, reckless driving) when committed with intent to capture images/sound for commercial purposes; it applies to “any person.”
- Raef and amici argued the statute targets paparazzi/newsgatherers (singling out the press), is content- or viewpoint-based, vague, underinclusive/overbroad, and chills protected newsgathering.
- The Court concluded § 40008 is a neutral law of general application, not aimed at protected expression, is not vague or overbroad, and survives intermediate scrutiny as an incidental burden on speech.
Issues
| Issue | Raef's Argument | People/Respondent's Argument | Held |
|---|---|---|---|
| Whether § 40008 is a content-based or press-targeting regulation | § 40008 practically singles out journalists/paparazzi and thus discriminates against the press | Statute is generally applicable to any person committing predicate traffic offenses with specified intent; it does not single out the media | Held: Not a law targeting the press; facially neutral and not discriminatory against media |
| Whether § 40008 directly burdens First Amendment activity (intent to record as protected) | Enhanced penalties attach to the intent to engage in newsgathering, so statute penalizes expressive activity | The statute penalizes noncommunicative, purposeful conduct (traffic violations) motivated by a commercial purpose; intent is an aggravating element tied to conduct, not content | Held: Intent element is incidental to conduct; statute regulates behavior not speech and is permissible under Mitchell-style reasoning |
| Level of scrutiny and narrow tailoring (intermediate scrutiny) | The statute is not narrowly tailored; it is underinclusive/overbroad and less speech-restrictive alternatives exist | Traffic safety is an important interest; legislature relied on anecdotal record; statute is sufficiently tailored to address paparazzi-like pursuits without seriously burdening speech | Held: Intermediate scrutiny applies; statute survives as reasonably tailored and supported by legislative findings/evidence |
| Vagueness/Overbreadth | § 40008 is vague about required intent/duration and overbroad because it criminalizes protected newsgathering and captures innocuous conduct | Statute defines prohibited conduct by reference to predicate traffic offenses plus intent to capture images/sound for commercial purpose; mens rea and procedural protections prevent arbitrary enforcement | Held: Not unconstitutionally vague or substantially overbroad; prosecutions will address factual ambiguities and due-process safeguards apply |
Key Cases Cited
- United States v. Stevens, 559 U.S. 460 (statute facial-challenge standard)
- Branzburg v. Hayes, 408 U.S. 665 (press not immune from generally applicable laws)
- Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575 (invalidated tax singling out press)
- Simon & Schuster, Inc. v. Members of New York State Crime Victims Board, 502 U.S. 105 (content-based financial disincentives on speech)
- Wisconsin v. Mitchell, 508 U.S. 476 (penalty enhancements targeting motive tied to conduct upheld)
- R.A.V. v. City of St. Paul, 505 U.S. 377 (ordinance directed at expression invalid)
- Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622 (intermediate scrutiny for content-neutral burdens)
- Reed v. Town of Gilbert, 576 U.S. 155 (definition of content-based regulation)
- United States v. O’Brien, 391 U.S. 367 (O’Brien test for incidental burdens on speech)
- Arcara v. Cloud Books, Inc., 478 U.S. 697 (generally applicable regulation with incidental effects on speech)
- United States v. Williams, 553 U.S. 285 (vagueness/overbreadth principles)
- McCullen v. Coakley, 573 U.S. 464 (examining underinclusiveness and alternative means)