If a New Jersey legislator has her way, people who take pictures or film minors without parental consent could land in prison for up to five years — a legislative proposal that a SPLC lawyer says would be unconstitutional.
Assembly Bill 521, sponsored by Republican state Assemblywoman Holly Schepisi, would make it illegal to photograph, film or record children “under circumstances in which a reasonable parent or guardian would not expect his child to be the subject of such reproduction,” according to the bill.
Those found in violation of the bill could be charged with a third-degree crime, which carries the possibility of three-to-five years in prison, a fine of up to $15,000 or both. The bill would supplement the current New Jersey “video voyeurism” statute that prohibits the invasion of privacy through unauthorized photos or video of sexual conduct or people revealing their “intimate parts.”
Student Press Law Center Attorney Advocate Adam Goldstein said Assembly Bill 521 would prohibit an “unquestionably lawful” activity that is protected by the First Amendment — taking photos in a public space.
“There’s no way a federal court could look at this and find it constitutional,” he said. “You can’t suspend civil rights because somebody made you creeped out.”
The Student Press Law Center spoke to Schepisi about the motive behind the bill and its possible implications. The following conversation has been edited for clarity and brevity.
SPLC: Where did you come up with the idea for this bill? What was the inspiration behind it?
Holly Schepisi: I actually had received a call from a constituent, who had asked me to sponsor the legislation stemming from a series of incidences at one of their children’s sporting events where somebody had been taking photos of the kids, but had not been a parent or somebody involved. And they found it to be beyond creepy — they felt it to be something disturbing and potentially being used for purposes that were not in the best interest of the children. So they asked if I’d be willing to help sponsor the bill.
SPLC: What impact do you think this bill would have on newspapers, which often include pictures of kids within their stories?
HS: It’s one of the concerns that has been brought to my attention. How do you separate out legitimate First Amendment-type of issues that allow local papers and the like to continue to do that? I mean, I know most papers regardless, if they are going to be utilizing minors in their photos, oftentimes will ask parental permission and will get parents to sign off on stuff for that. So that’s one way that we could deal with it. Or if somebody has a press pass or something, we could have an exclusion with respect to legitimate press being able to continue to report and take photos of everything else.
But it’s really trying to limit the couple of people out there that do not have the best of intentions in taking photos of children, particularly in the day and age of the Internet.
SPLC: What would you say to somebody who says that this bill’s reach is too broad?
HS: Well, if there were specific language concerns that somebody had, if somebody is not wed to language — I work with people on pretty much every bill that I’ve ever sponsored and there are always ways to tweak and make things better. So if there are specific concerns or suggestions that somebody has that are based upon something that makes sense, would I entertain it? Absolutely.
SPLC: How would you suggest people determine when is a “reasonable” time to take photos of children?
HS: If you are a parent at a sporting event, and there are other parents there taking pictures of kids, it is pretty commonplace. You know when that is a normal occurrence.
If you see somebody tucked in the bushes with a wide-lens camera who isn’t affiliated with any kids at a park, and is taking pictures of your 3- and 4 year-old, then that’s something that I think — from any sort of objective perspective — is a bit inappropriate. And unless somebody has an explanation as to why they were doing that, I don’t think that on any reasonable basis somebody would look at that and go, “Yeah, that’s a good thing happening right now.”
SPLC: The bill says that somebody taking pictures of a child would have to get the consent of a parent or guardian. At a sporting event, does that mean that somebody would have to get permission slips from every parent?
HS: Generally, for any of those sort of stuff, parents generally do sign [a waiver] as to what is permitted for the use of their children’s photos and everything else. So a lot of this stuff, for schools, for everything, you already have those sort of permission slips that are being put together.
SPLC: Do you think three-to-five years in prison would be a proportional punishment for taking a photo of a child without the express permission of a parent of guardian?
HS: I think it would depend upon the situation. I think that’s kind of a guideline … If that’s something we could lessen for first-time offenders, absolutely. Now if somebody gets caught five, six, seven times, do they deserve three-to-five years in prison? Obviously they are doing something nefarious with this stuff. Absolutely.
SPLC: What would be your response be to somebody who says it’s their right to take photos in a public space?
HS: I would say, just get the parental consent and make sure that the guardian or the parents who are watching the child are aware and OK with what you are doing.
SPLC: How effective do you think this bill, if put into law, will be in stopping the person in the bushes from taking photos of children?
HS: Well I think if it passes and if people are aware of it, you know, it will give somebody pause before doing it.
SPLC: How confident are you that this bill will be able to make it through the state legislature?
HS: Well, being in the minority, we have no control over what gets posted, so with respect to whether or not it will definitely get through or not, there are thousands of bills each session that do get proposed and only a handful of those actually ever make it fully through. So objectively I can’t say definitely one way or another.
SPLC staff writer Ryan Tarinelli can be reached by email or at (202) 974-6318.