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Name: Raef v. Appellate Division of Superior Court
Case #: B259792
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 09/30/2015

Vehicle Code section 40008 does not violate the First Amendment. Raef, a paparazzo, was charged with a number of offenses after he engaged in a high-speed pursuit of pop star Justin Bieber, including two counts of violating Vehicle Code section 40008, subdivision (a), which increases the punishment for reckless driving and other traffic offenses committed with the intent to capture an image, sound recording, or other physical impression of another person for a commercial purpose. The trial court dismissed those counts on the ground that section 40008 violates the First Amendment. The appellate division reversed and reinstated the counts. Raef petitioned for a writ of mandate in the Court of Appeal. Held: Petition denied. The First Amendment does not immunize the press from the enforcement of civil or criminal statutes of general applicability. (Branzburg v. Hayes (1972) 408 U.S. 665, 682.) The court rejected Raef’s argument that section 40008 was not a law of general applicability because it only affects persons engaged in news gathering. Taking photographs and making recordings for personal gain are not always or necessarily journalistic activities because the pictures may be taken for a private party. Additionally, the enhanced penalties in section 40008 based on the offender’s intent do not directly burden First Amendment rights because the statute punishes purposeful criminal conduct, not intent. (See Wisconsin v. Mitchell (1993) 508 U.S. 476, 487.) Further, there was no evidence the Legislature intended to censure the type of material paparazzi offer to the public. To the extent that section 40008 incidentally affects speech, the statute was narrowly tailored to address an important governmental interest and therefore satisfies intermediate scrutiny. The court also rejected Raef’s vagueness and overbreadth arguments.