SERVICE ON ATTORNEY GENERAL REQUIRED BY CAL. RULES OF COURT, RULES 8.29(C) AND 8.212(C). S _ __ IN THE SUPREME COURT OF CALIFORNIA PAULRAEF, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, APPELLATE DIVISION, Respondent, THE PEOPLE, Real Party in Interest. AFTER A DECISION BY THE COURT OF APPEAL, SECOND APPELLATE DISTRICT, DIVISION FOUR CASE No. B259792 PETITION FOR REVIEW HORVITZ & LEVY LLP EISNER GORIN BARRY R. LEVY (BAR No. 53977) JEREMY B. ROSEN (BARNo. 1924 73) *MARK A. KRESSEL (BAR No. 254933) 15760 VENTURA BOULEVARD, 18TH FLOOR ENCINO, CALIFORNIA 91436-3000 (818) 995-0800 • FAX: (818) 995-3157 blevy@horvitzlevy .com jrosen@horvitzlevy.com mkressel@horvitzlevy.com LLP DMITRY GORIN (BAR No. 178353) ALAN EISNER (BAR No. 127119) 14401 SYLVAN STREET, SUITE 112 VAN NUYS, CALIFORNIA 91401 (818) 781-1570 • FAX: (818) 781-5033 dg@keglawyers.com alan@egattorneys.com ATTORNEYS FOR PETITIONER PAULRAEF TABLE OF CONTENTS Page TABLE OF AUTHORITIES ........................................................... iii ISSUE PRESENTED ....................................................................... 1 INTRODUCTION: WHY REVIEW SHOULD BE GRANTED ...... 2 STATEMENT OF THE CASE ......................................................... 5 A. Raef is the first individual charged with driving recklessly with the intent to gather news under newly enacted section 40008 ....................................... 5 B. Raef demurs to the complaint on the ground that section 40008 is facially unconstitutional. .................. 7 C. The trial court strikes down the statute but the superior court appellate division reinstates it ........... 8 D. This Court grants Raefs petition for review and orders the Court of Appeal to issue an order to show cause .................................................................. 10 E. The Court of Appeal publishes an opinion holding section 40008 does not violate the First Amendment because it applies broadly to anyone engaging in journalistic or expressive activity and the Legislature could "reasonably" believe that all reckless driving becomes inherently more dangerous whenever the driver had intent to take someone's picture ....................................................... 11 LEGAL ARGUMENT ..................................................................... 14 I. REVIEW IS NECESSARY TO DECIDE WHETHER CALIFORNIA'S FIRST ANTI-PAPARAZZI DRIVING STATUTE UNCONSTITUTIONALLY IMPOSES HEIGHTENED CRIMINAL PENALTIES FOR RECKLESS DRIVING MERELY BECAUSE THE DRIVER INTENDS TO ENGAGE IN FIRST AMENDMENT ACTIVITY .................................................. 14 1 II. A. Section 40008 targets newsgathering, a core First Amendment activity, and is the subject of intense public interest ............................................................. 14 B. Review is necessary to secure state-wide uniformity of decision ................................................ 18 C. This case presents the best vehicle for this Court to address this First Amendment challenge ............. 19 REVIEW IS NECESSARY BECAUSE THE COURT OF APPEAL'S OPINION CONFLICTS WITH GOVERNING PRECEDENT AND THWARTS THE FIRST AMENDMENT'S PROTECTIONS ......................... 21 A. The Court of Appeal's opinion eviscerates the First Amendment ....................................................... 21 B. The required First Amendment analysis raises important issues this Court should decide regarding the Legislature's power to criminalize journalistic or expressive activity ............................. 25 CONCLUSION ............................................................................... 33 CERTIFICATE OF WORD COUNT ............................................. 34 11 TABLE OF AUTHORITIES Page(s) Cases Arkansas Writers' Project, Inc. v. Ragland (1987) 481 U.S. 221 ....................................................... 16, 26, 28 Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234 ................................................................... 22 Branzburg v. Hayes (1972) 408 U.S. 665 ................................................................... 26 Brown v. Entertainment Merchants Ass'n (2011) 564 U.S._ [131 S.Ct. 2729] .......................................... 15 Citizens United v. Federal Election Com'n (2010) 558 U.S. 310 ................................................................... 27 City of Houston, Tex. v. Hill (1987) 482 U.S. 451 ........................................... 15, 21, 22, 24, 31 Dennis v. United States (1951) 341 U.S. 494 ................................................................... 24 DVD Copy Control Assn., Inc. v. Bunner (2003) 31 Cal.4th 864 ................................................................ 15 Erznoznik v. City of Jacksonville (1975) 422 U.S. 205 ................................................................... 29 Federal Election Com'n v. Wisconsin Right to Life, Inc. (2007) 551 U.S. 449 ................................................................... 23 First Nat. Bank of Boston v. Bellotti (1978) 435 U.S. 765 ................................................................... 27 Frisby v. Schultz (1988) 487 U.S. 474 ............................................................. 23, 29 Gerawan Farming, Inc. v. Lyons (2000) 24 Cal. 4th 468 ................................................................ 16 111 Grosjean v. American Press Co. (1936) 297 U.S. 233 ................................................................... 16 Keenan v. Superior Court (2002) 27 Cal.4th 413 .......................................................... 22, 28 Kolender v. Lawson (1983) 461 U.S. 352 ................................................................... 32 Los Angeles Alliance for Survival v. City of Los Angeles (2000) 22 Cal. 4th 352 ................................................................ 29 McCullen v. Coakley (2014) 573 U.S._ [134 S.Ct. 2518] .......................................... 29 Meyer v. Grant (1988) 486 U.S. 414 ................................................................... 27 Minneapolis Star and Tribune Co. v. Minnesota Com 'r of Revenue (1983) 460 U.S. 575 ....................................................... 16, 26, 29 National Ass'n for Advancement of Colored People v. Button (1963) 371 U.S. 415, 434 ................................... 22, 24, 32 New York Times Co. v. Sullivan (1964) 376 U.S. 254 ................................................................... 21 People v. Glaze (1980) 27 Cal.3d 841 ............................................... 23, 25, 30, 31 People v. Stanistreet (2002) 29 Cal. 4th 497 ................................................................ 15 Reed et al. v. Town of Gilbert, Ariz. (2015) 576 U.S._ [135 S.Ct. 2218] ........................................ 25 Snyder v. Phelps (2011) 562 U.S. 443 ................................................................... 24 Susan B. Anthony List v. Driehaus (2014) 513 U.S._ [134 S.Ct. 2334] .......................................... 24 The Florida Star v. B.J.F. (1989) 491 U.S. 524 ............................................................. 22, 26 IV Time, Inc. v. Hill (1967) 385 U.S. 374 ............................................................. 24, 25 Turner Broadcasting System, Inc. v. F. C. C. (1994) 512 U.S. 622 ................................................................... 27 U.S. v. Stevens (2010) 559 U.S. 460 ....................................................... 21, 23, 31 Valle Del Sol Inc. v. Whiting (9th Cir. 2013) 709 F.3d 808 ..................................................... 29 Virginia v. American Booksellers Ass'n, Inc. (1988) 484 U.S. 383 ................................................................... 24 Ward v. Rock Against Racism (1989) 491 U.S. 781 ................................................................... 29 Weaver v. Jordan (1966) 64 Cal.2d 235 ................................................................. 16 Constitutions United States Constitution, 1st Amend .................................passim Cal. Constitution, art. I, § 2, subd. (a) ...................................... 7, 16 Statutes Civil Code, § 1798.3, subd. (j) .......................................................... 7 Vehicle Code § 21701 ..................................................................................... 2, 6 § 21703 ..................................................................................... 2, 6 § 21955 ....................................................................................... 22 § 23103 ..................................................................................... 2, 6 § 23103(a) .................................................................................... 6 § 28000(a) .................................................................................... 6 § 40008 ............................................................................... .passim Rules of Court Cal. Rules of Court rule 8.500(b)(l) .................................................................... 14, 18 rule 8.504(b)(3) .......................................................................... 14 v Miscellaneous Anthony McCartney, Court upholds California law intended to curtail reckless driving by paparazzi chasing stars (Sept. 30, 2015) U.S. News & World Report .................................................. 17 Eriq Gardner, California Law Punishing Paparazzi for High-Speed Celebrity Chases Is Upheld (Sept. 30, 2015) The Hollywood Reporter ............................................................ 18 Kurt Orzek, Bieber-Chasing Photog Gets Calif. Driving Law Fight Revived (Jan. 22, 2015) Law360 ................................................ 17 Matthew Blake, State high court calls for review of anti-paparazzi statute (Jan. 26, 2015) Daily J. https://www.dailyjournal.com/subscriber/SubMain. cfm ?shCenFileName=SEARCH&shNewsType=Se arch&sel Option =Search&Newsld =7#section=tab3. cfm%3Fseloption%3DNEWS%26pubdate%3D0110 1/2000%26shNewsType%3DSEARCH%26Newsld %3D939424%26sdivld%3Dtab3 ............................................... 17 Vl IN THE SUPREME COURT OF CALIFORNIA PAUL RAEF, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, APPELLATE DIVISION, Respondent, THE PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest. PETITION FOR REVIEW ISSUE PRESENTED Does California's new anti-paparazzi driving statute on its face violate the free speech clauses of the United States and California constitutions by identifying certain generally applicable reckless driving offenses and providing that if an individual commits one of those offenses with the intent to photograph or record another person for a commercial purpose, that individual is subject to significantly enhanced criminal penalties including up to six months' imprisonment? After this Court granted Raefs prior petition for review and transferred the case (case no. 8222744), the Court of Appeal held 1 "no" in a published opinion creating conflict with long-standing First Amendment law on the following additional subissues: a) Can the Legislature impose enhanced criminal penalties on generally applicable infractions, including up to six months in jail, purely for intending to engage in First Amendment activity? b) Can the Legislature attempt to address a discrete problem by enacting a statute that imposes enhanced criminal penalties on a broad range of protected expressive activity that reaches far beyond the source of that problem? c) Can judges delegate their responsibility to determine the constitutionality oflaws burdening First Amendment activity to the discretion of prosecutors or the decisions of lay juries? INTRODUCTION: WHY REVIEW SHOULD BE GRANTED This is the test case to determine the constitutionality of Vehicle Code section 40008, 1 a new statute aimed at criminalizing the efforts of paparazzi journalists in public spaces. Section 40008 is a first-of-its-kind penal statute in California, and if allowed to stand, may become a model for similar statutes across the country. Section 40008 identifies three Vehicle Code prohibitions on reckless driving applicable to the general public (sections 21701, 21703 and 23103), and imposes enhanced penalties solely on a person who violates those sections with the intent to gather news for Further statutory references are to the Vehicle Code unless otherwise indicated. 1 2 commercial purposes. Thus, for example, under section 21703, a person driving too closely behind another car could receive up to a $100 fine, while a photojournalist driving in the exact same manner could receive up to a $2500 fine and six months in jail under section 40008. Accordingly, under section 40008 criminal punishment is dramatically enhanced merely because the prohibited act is committed for a constitutionally protected purpose. Raefs writ petition to the Court of Appeal presented complex issues with important ramifications regarding the Legislature's power to impose criminal penalties for engaging in First Amendment activity. The ramifications are particularly far reaching, as section 40008 undisputedly applies not just to "credentialed" or "professional" journalists, but rather to anyone who may fortuitously find themselves in a position to capture valuable images or sound recordings of another newsworthy person-in order words, to any of us with a mobile phone. The Court of Appeal here originally issued a summary denial of the petition. This Court agreed with Raef that the statute presents questions of statewide importance and granted Raefs petition for review and directed the Court of Appeal to address the merits. The resulting published opinion upheld the statute, and in doing so generated a First Amendment analysis that conflicts with prior precedent, turns the First Amendment on its head, and leaves the protection of First Amendment freedoms-the most delicate and prized in free society-up to the unbounded power of the Legislature, circumscribed at most by the discretion of criminal prosecutors and the sensibilities of lay juries. 3 As explained below, the Court of Appeal failed to apply the rigorous analysis required by United States and California Supreme Court precedent and published a discussion with little resemblance to prior First Amendment jurisprudence. This opinion will confuse practitioners and jurists attempting to reconcile it with prior precedent. Perhaps more importantly, however, by failing to follow the analysis required to protect First Amendment freedoms, the Court of Appeal reached results that violate the fundamental principles underlying the First Amendment. First, the Court of Appeal held that the Legislature can impose enhanced penalties purely for engaging in First Amendment activity. Second, the Court of Appeal held that the Legislature can impose enhanced penalties on a broad range of protected expressive activity, far beyond the source of the problem sought to be remedied, so long as the Legislature has identified a problem and the statute would address that problem. In other words, because section 40008 would curtail the efforts of paparazzi, the court found the statute constitutional even though it would undisputedly also curtail the efforts of anyone engaging in journalistic or expressive activity who happens to do so while driving recklessly. Finally, the Court of Appeal reasoned that even if section 40008 could enhance criminal penalties on First Amendment activities far beyond those of professional paparazzi that concerned the Legislature, the court would entrust prosecutors deciding how to charge up the indictment, or worse yet, trial juries, with the discretion to decide how to apply the law constitutionally. The notion that prosecutors acting on behalf of the government or lay 4 juries can decide whether a statute is constitutional is unheard of in First Amendment jurisprudence. The constitution has long been interpreted in the opposite manner: the potential chilling effect of a statute that implicates First Amendment activities is so dangerous to a free society that courts must determine the statute's constitutionality, and may do so before enforcement. No precedent holds that persons engaging in First Amendment activity must forego a plea bargain and subject themselves to the whims of a lay jury before finding out whether a statute targeting First Amendment activity applies to them. In sum, the Court of Appeal's opinion upheld a dangerous statute with even more dangerous implications for future statutes, and this Court should grant review-again-to address the important First Amendment issues presented. STATEMENT OF THE CASE A. Raef is the first individual charged with driving recklessly with the intent to gather news under newly enacted section 40008. On September 30, 2010, the Legislature enacted section 40008, which created additional penalties for drivers who commit certain generally applicable reckless driving offenses while they 5 have the intent to capture a visual image or sound recording for a commercial purpose. 2 Mter an incident in which, according to the press, Justin Bieber was pulled over on the 101 Freeway for speeding in his Fisker and blamed a paparazzo for his actions (vol. 1, exh. 2, p. 3 3), defendant Raef was charged in a four-count misdemeanor complaint. Count 1 was driving in willful and wanton disregard for the safety of others with the intent to capture a visual image for a commercial purpose. (§ 40008, subd. (a).) Count 2 was driving while following another vehicle more closely than was reasonable and prudent in light of the speed, traffic, and condition of the roadway with the intent to capture a visual image for a commercial purpose. (Ibid.) Count 3 was driving in willful and wanton disregard for the safety of others. (§ 23103, subd. (a).) Count 4 was refusing to comply with a lawful order of a peace officer. (Id. § 28000, subd. (a).) (See vol. 1, exh. 6, pp. 21-23; vol. 1, exh. 7, p. 25.) 2 Section 40008, subdivision (a) states: "Notwithstanding any other provision of law, except as otherwise provided in subdivision (c), any person who violates Section 21701, 21703, or 23103, with the intent to capture any type of visual image, sound recording, or other physical impression of another person for a commercial purpose, is guilty of a misdemeanor and not an infraction and shall be punished by imprisonment in a county jail for not more than six months and by a fine of not more than two thousand five hundred dollars ($2,500)." 3 Record citations are to the exhibits Raef originally filed in support of his writ petition in the Court of Appeal, with pages numbered 1 to 372, and Raefs supplemental exhibits, filed after this Court transferred the case back, numbered from SE001 to SE789. 6 According to media reports, Raef is the first person to be charged under this statute. (Vol. 1, exh. 2, p. 7.) B. Raef demurs to the complaint on the ground that section 40008 is facially unconstitutional. Raef filed a demurrer to counts 1 and 2 of the complaint, on the ground that section 40008 violates the First Amendment to the United States Constitution and article I, section 2, subdivision (a) of the California Constitution. (Vol. 1, exh. 8, pp. 29-45.) First, Raef argued that on its face, section 40008 specifies three other Vehicle Code sections of general application that prohibit reckless driving by any driver and then singles out for enhanced criminal penalties only those drivers who are also engaged in the process of the First Amendment protected activity of newsgathering for commercial purposes. (Vol. 1, exh. 8, pp. 33-38.) Second, Raef argued section 40008 is a content-based restriction of the press which is subject to strict scrutiny because the statute differentiates between commercial and noncommercial newsgathering, unconstitutionally imposing enhanced penalties on only the former. (Vol. 1, exh. 8, pp. 38-42.) Raef similarly contended section 40008's requirement that the defendant have the intent to take photographs for a "commercial purpose" creates an unconstitutional content-based distinction that may exempt "the gathering . . . of newsworthy facts," but penalizes gathering of supposedly nonnewsworthy facts. (Civ. Code,§ 1798.3, subd. (j).) Finally, Raef argued that the statute was unconstitutionally vague and overbroad on its face because its language does not limit 7 its scope to persons driving recklessly with intent to conduct commercial newsgathering or photography while driving and thus includes persons driving recklessly for the purpose of news gathering or other photography at their destination. 01ol. 1, exh. 8, pp. 42-45.) The state could thus seek section 40008's heightened penalties, for example, for persons who drive recklessly while rushing to photograph a forest fire or wedding. C. The trial court strikes down the statute but the superior court appellate division reinstates it. The trial court sustained Raef s demurrer and dismissed counts 1 and 2 of the complaint, finding: (1) section 40008 targets First Amendment protected activity; (2) the statute is contentneutral, and therefore intermediate scrutiny applies to determine whether the statute is a valid time, place, or manner restriction on protected speech; and (3) the statute fails the intermediate scrutiny test because the statute is not narrowly tailored-it is broad enough to impose enhanced criminal penalties that the Legislature intended solely for paparazzi on others such as newspersons racing to cover political rallies or natural disasters, wedding photographers, music directors, and real estate brokers. (Vol. 1, exh. 7,pp. 27-28;vol. 1,exh.9,pp.96-115, 119;vol. 1, exh. 10,pp. 129-130.) 8 The People filed a petition for writ of mandate in the appellate division and a request for an immediate stay. 4 (Case no. BS140861); vol. 1, exh. 13, p. 139; vol. 2, exh. 17, pp. 183-228.) The appellate division issued a notice of intent to issue a peremptory writ in the first instance (suggestive Palma notice). (Vol. 1, exh. 3, pp. 13-14.) The trial court indicated that it would hold firm to its earlier decision. (Vol. 1, exh. 5, p. 18; see vol. 1, exh. 4, pp. 15-16.) An amicus brief was filed in support of Raef on behalf of the Reporters Committee for Freedom of the Press, the National Press Photographers Association, the Association of Alternative Newsmedia, the Associated Press Media Editors, the California Broadcasters Association, the California Newspaper Publishers Association, the E.W. Scripps Company, and the Society of Professional Journalists. (Vol. 2, exh. 21, pp. 326-333.) The appellate division issued an opinion finding section 40008 constitutional and granting the People's writ petition. (Vol. 2, exh. 22, p. 336.) The appellate division agreed with the trial court that the statute implicated the First Amendment, and that the statute was content neutral. (Vol. 2, exh. 22, p. 340; see vol. 1, exh. 9, p. 119.) The court rejected, however, Raefs arguments and the trial court's rulings that the statute does not satisfy the intermediate scrutiny test applied to content-neutral statutes and is overbroad. (Vol. 1, exh. 9, p. 119; vol. 2, exh. 18, pp. 258-262, 265-267; vol. 2, exh. 22, p. 342-345.) As it did at every prior step of the case, the 4 The People also filed an appeal, which was mooted by the writ proceedings. (See Superior Court, Appellate Division, Case No. BR050611; vol. 1, exh. 12, p. 137; typed opn. 3 & fn. 4.) 9 national press published articles about the appellate division's ruling. (Vol. 2, exh. 24, pp. 355-368; see vol. 1, exhs. 2, 11.) On October 31, 2014, Raef filed a petition for writ of mandamus in the Court of Appeal, seeking review of the appellate division's decision. Again, the California and national press associations filed an amicus letter urging the Court of Appeal to take the case. (Case no. B259792, 11/3/2014 AC Letter 3-5.) The People did not argue in its answer to the petition that the case did not raise an important question of law requiring statewide uniformity of decision. (See Prelim. Opp. to PWM 5-15.) On November 12, 2014 the Court of Appeal summarily denied Raefs writ petition. (Case no. B259792, 11/12/14 Order.) D. This Court grants Raef's petition for review and orders the Court of Appeal to issue an order to show cause. Raef filed a petition for review of the Court of Appeal's summary denial, asking this Court to grant review and hear the merits or to transfer the case back to the Court of Appeal to decide them in the first instance. (Case no. 8222744, 11/25/14 PFR 27.) The next day, this Court requested that the Office of the City Attorney of Los Angeles and the Attorney General's Office in Los Angeles file an answer addressing all issues raised in Raef s petition for review bearing on the Court of Appeal's summary denial of Raefs writ petition. (Case no. 82227 44, 11/26/14 Order.) The People complied, arguing that the appellate division's opinion was well reasoned. (Case no. 8222744, 12/12/14 APFR 10-26.) The People did not argue that the constitutionality of section 40008 does 10 not present important First Amendment issues. (Ibid.) The California and national press associations filed an amicus letter in support of Raefs petition for review. (Case no. 82227 44, 12/12/14 AC Letter.) On January 16, 2015, this Court granted Raefs unopposed emergency request to stay trial proceedings pending consideration of Raefs petition. (Case no. 82227 44, 1116/15 Order.) On January 21, 2015, this Court unanimously granted Raefs petition for review, and transferred the matter to the Court of Appeal with directions to vacate its order denying mandate and to issue an order to show cause to be heard before that court. (Case no. 8222744, 1121115 Order.) E. The Court of Appeal publishes an opinion holding section 40008 does not violate the First Amendment because it applies broadly to anyone engaging in journalistic or expressive activity and the Legislature could "reasonably" believe that all reckless driving becomes inherently more dangerous when ever the driver had intent to take someone's picture. The Court of Appeal issued an order to show cause and stayed trial proceedings. (Case no. B259792, 2/11/15 Order.) Amicus briefs supporting Raef were filed by the California and national press associations, and by the Pennsylvania Center for the First Amendment and the Marion B. Brechner First Amendment Project. On September 30, 2015, the Court of Appeal denied Raefs writ petition and upheld the statute in a published opinion. (Typed 11 opn. 1.) The Court of Appeal found the statute did not target the press because it "targets 'any person' who commits an enumerated traffic offense with the intent to capture the image, sound, or physical impression of 'another person' for a commercial purpose." (Typed opn. 6.) The court relied on an analysis of an anti-stalking statute by Professor Chemerinsky, without acknowledging that the anti-stalking statute protects privacy in the home whereas section 40008 targets First Amendment activity on public streets, and that Chemerinsky's analysis predated technological advancements that have enabled anyone to be capable of gathering newsworthy images and recordings in public. (Typed opn. 6.) As the amici explained, this technology has fundamentally advanced the public's ability to record and disseminate news, such as evidence of police misconduct observed by happenstance, and a corresponding increase in the use of broadly worded criminal statutes to chill the activities of those gathering that news. (Press Associations ACB in support ofPWM 2, 6-14.) The Court of Appeal found section 40008 did not target First Amendment activity because the intent to engage in expressive activity "is subject to section 40008 not because of the 'communicative impact' of the intended activity, but because of the 'special harms' produced by the conduct it motivates." (Typed opn. 15.) The court analogized driving recklessly while gathering news to committing a hate crime. (Typed opn. 12-15.) Although the court found section 40008 did not actually implicate First Amendment concerns, it conducted a brief intermediate scrutiny analysis, holding the statute would satisfy intermediate scrutiny. The court held the Legislature could 12 "reasonabl[y]" infer that all traffic violations committed by anyone gathering images of others for personal gain "pose greater danger and are more blameworthy than those committed by drivers not engaged in such pursuits." (Typed opn. 22.) The court rejected Raefs argument that the Legislature's interest in traffic safety could be achieved without burdening newsgathering or other expressive activity simply by enhancing the penalties for specific reckless driving acts that are more dangerous, by relying on enforcement of existing laws that penalized those offenses (such as assault with a deadly weapon), or by passing recidivist statutes (such as are used for repeat drunk drivers). (Typed opn. 23; see Reply to Return to PWM 12, 27, 56.) Although addressing Raefs argument in the context of an intermediate scrutiny analysis, which assumes the statute does implicate the First Amendment, the Court of Appeal refused to consider whether such alternative solutions were less burdensome on speech by relying on its prior holding that section 40008 does not implicate the First Amendment. (Typed opn. 23.) Despite having previously found that the statute targets anyone driving recklessly while intending to engage in First Amendment activity (typed opn. 6), the Court of Appeal held that section 40008 is not unconstitutionally overbroad (typed opn. 25-26). The court also found that the statute is not unconstitutionally vague, reasoning someone driving recklessly in order to cover a press conference or emergency workers battling to end a forest fire would not have the statutory intent to capture an Image or recording "of another person." (§ 40008; typed opn. 27.) 13 Finally, the court rejected Raefs and the amici's concerns that section 40008 is so vague and overbroad as to permit arbitrary police enforcement intended to harass disfavored persons gathering newsworthy information, holding "[these] concerns 'can be adequately dealt with in the course of prosecution of individual cases on their individual facts.' " (Typed opn. 27.) The court reasoned that "the driver will have a right to a jury trial." 5 (Ibid.) LEGAL ARGUMENT I. REVIEW IS NECESSARY TO DECIDE WHETHER CALIFORNIA'S FIRST ANTI-PAPARAZZI DRIVING STATUTE UNCONSTITUTIONALLY HEIGHTENED RECKLESS DRIVER CRIMINAL DRIVING INTENDS PENALTIES MERELY TO IMPOSES BECAUSE ENGAGE IN FOR THE FIRST AMENDMENT ACTIVITY. A. Section 40008 targets newsgathering, a core First Amendment activity, and is the subject of intense public interest. This Court should grant review "to settle an important question of law." (Cal. Rules of Court, rule 8.500(b)(l).) It is paradigmatic that review by this Court is appropriate for cases in 5 Raef did not seek rehearing. 8.504(b)(3).) 14 (See Cal. Rules of Court, rule which a statute imposing misdemeanor criminal penalties is claimed to infringe on an important constitutional right. (See, e.g., People v. Stanistreet (2002) 29 Cal.4th 497, 501-502 [First Amendment challenge to misdemeanor statute prohibiting knowingly filing false allegation of misconduct against peace officer]; cf. City of Houston, Tex. v. Hill (1987) 482 U.S. 451, 455 & fn. 3 (Hill) [U.S. Supreme Court hearing First Amendment challenge to misdemeanor statute prohibiting verbally interrupting police in execution of duty].) Not only does this case present a challenge to the constitutionality of a misdemeanor criminal statute, but it is a statute the very creation of which was predicated on a legislative intrusion into recognized First Amendment rights. The legislative history of section 40008 indicates that the statute was "primarily an effort to curb the often aggressive tactics used by paparazzi to capture images and recordings of celebrities and their families in order to satiate a public that clamors for the intimate details of the lives of Hollywood stars." (Vol. 1, exh. 8, pp. 48, 49.) News of celebrities and those who gather it are equally deserving of First Amendment protection as any other type of news and newsgatherers. (See DVD Copy Control Assn., Inc. v. Bunner (2003) 31 Cal.4th 864, 876 ["' "[A]ll ideas having even the slightest redeeming social importance," ... have the full protection of the First Amendment' "]; see also Brown v. Entertainment Merchants Ass'n (2011) 564 U.S._ [131 S.Ct. 2729, 2733] ["The Free Speech Clause exists principally to protect discourse on public matters, but we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try"].) 15 Furthermore, an attempt by the state to single out one type of news over another for penalty is just as pernicious as an attempt by the state to oppress or regulate the press as a whole. (Arkansas Writers' Project, Inc. v. Ragland (1987) 481 U.S. 221, 228 (Arkansas Writers' Project) ["[S]elective taxation of the press-either singling out the press as a whole or targeting individual members of the press-poses a particular danger of abuse by the State"]; Minneapolis Star and Tribune Co. v. Minnesota Com'r of Revenue (1983) 460 U.S. 575, 592 (Minneapolis Star) ["no interest" can justify a tax that "singles out a few members of the press"].) This case thus raises the important constitutional question whether section 40008's imposition of enhanced criminal penalties on those who violate other reckless driving statutes of general application while engaging in newsgathering violates the First Amendment to the United States Constitution and article I, section 2, subdivision (a) of the California Constitution. A claim that a statute infringes upon the constitutional right to freedom of the press "presents a question of the utmost gravity and importance; for, if well made, it goes to the heart of the natural right of the members of an organized society, united for their common good, to impart and acquire information about their common interests." (Grosjean v. American Press Co. (1936) 297 U.S. 233, 243.) "'[T]he preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment . . . gives these liberties a sanctity and a sanction not permitting dubious intrusions.'" (Weaver v. Jordan (1966) 64 Cal.2d 235, 244; see also Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 491 ["[A]rticle I's free speech clause and its right to freedom of speech 16 are not only as broad and as great as the First Amendment's, they are even 'broader' and 'greater'"].) The significance of this constitutional challenge to section 40008 has generated significant press coverage. (See vol. 1, exh. 11, pp. 131-136.) This case is so important to the general public that both the appellate division's mere issuance of a suggestive Palma notice, and the trial court's mere statement that it would not reconsider its order each generated news articles in multiple publications including the Los Angeles Times and the Washington Post. (Vol. 1, exh. 2, pp. 2-10 ["Court urges charges be reinstated for paparazzo in Bieber chase"].) The appellate division's issuance of its order granting the People's writ petition received intense national press coverage (vol. 2, exh. 24, pp. 355-368), as did this Court's prior grant and transfer order (Matthew Blake, State high court calls for review of anti-paparazzi statute (Jan. 26, 2015) Daily J. [as of Nov. 4, 2015] (subscription required); Kurt Orzek, Bieber-Chasing Photog Gets Calif. Driving Law Fight Revived (Jan. 22, 2015) Law360 [as of Nov. 4, 2015] (subscription required)). Most recently, the national press decried the Court of Appeal's subsequent opinion upholding the statute. (Anthony McCartney, Court upholds California law intended to curtail reckless driving by paparazzi chasing stars (Sept. 30, 2015) U.S. News & World Report [as of Nov. 4, 2015] (observing the People 17 stated that "documentary filmmakers in pursuit of a comment from a reluctant subject" could be charged under the law); Eriq Gardner, California Law Punishing Paparazzi for High-Speed Celebrity Chases Is Upheld (Sept. 30, 2015) The Hollywood Reporter [as of Nov. 4, 2015] (complaining "California appeals court shrugs off the concern" that "overzealous police might exploit California's anti-paparazzi law to do more than punish paparazzi").) The importance of this case is also illustrated by the filing of amicus briefs on the merits by California and national press associations and the Pennsylvania Center for the First Amendment and the Marion B. Brechner First Amendment Project. Given the important constitutional question posed by this appeal and the public's heightened interest in the outcome, this Court should grant review. B. Review is necessary to secure state-wide uniformity of decision. This Court should grant review "[w]hen necessary to secure uniformity of decision." (Cal. Rules of Court, rule 8.500(b)(1).) Section 40008 applies statewide, yet only a single district of the Court of Appeal has ruled on the statute, leaving its applicability in doubt in other districts. Thus far, the many judicial officers who have considered the statute have reached different conclusions about the statute based on divergent analyses. The trial court found the statute unconstitutional while the appellate division and Court of Appeal disagreed. On the other hand, both the trial court 18 and the appellate division agreed that section 40008 burdens First Amendment activity (vol. 1, exh. 9, p. 97, 119; vol. 2, exh. 22, pp. 340-341), while the Court of Appeal found "section 40008 does not target the intent to engage in a First Amendment activity or the communicative aspects of any such activity." (Typed opn. 19.) Furthermore, this Court has already indicated its agreement that this case presents important questions when it granted Raefs prior petition for review. (Case no. 8222744, 1121115 Order.) Moreover, as discussed below, the Court of Appeal's opinion upends First Amendment jurisprudence in a manner that will sow confusion across the state, as courts are confronted with new statutes that further seek to target persons engaged in expressive or journalistic activity for enhanced criminal penalties. The fact that the judicial officers who have so far analyzed the statute disagree over even the proper analysis of the statute's validity shows that this cases presents a high risk of nonuniform application of the First Amendment to this or similar criminal state laws in future cases. C. This case presents the best vehicle for this Court to address this First Amendment challenge. This Court should also grant rev1ew because this case perfectly presents this important issue for resolution. First, this is the first prosecution under this statute, which was only passed in 2010 and has yet to be tested. (Vol. 1, exh. 2, p. 7.) As the amici have noted, journalists in California and nationwide demand guidance on whether the anti-paparazzi driving statute is 19 constitutional, and other jurisdictions may be considering passing similar statutes. (Vol. 2, exh. 21, pp. 328-332; Press Associations ACE in support of PWM 3-6.) There could be no more appropriate case in which to consider this issue than the first prosecution under the statute. Second, the issue is squarely presented here. The original merits order under review is the trial court's grant of a demurrer to the complaint, so the factual record is narrow and clear. The parties thoroughly briefed the issue before the trial court, appellate division, and Court of Appeal. Amici, numerous California and national press associations, as well as two First Amendment think tanks, filed richly detailed amicus briefs with important information on the statute's broad impact and potential chilling effect on journalists. Finally, the Court should grant review now because this is a First Amendment challenge to a statute that imposes misdemeanor criminal penalties on persons intending to take photographs and other images for commercial purposes. Many of the types of defendants in these cases, such as freelance photographers, may not have the resources to mount a robust defense, particularly where such defense would cost significantly more than the $2500 fine a conviction under the statute could require. Here, however, Raefhas secured the services of appellate counsel prepared to take all measures to defend on appeal the trial court's grant ofhis demurrer finding section 40008 unconstitutional. Tellingly, even the People never argued that this case does not raise an important issue of statewide concern when opposing Raefs writ petition or prior petition for review. (See Prelim. Opp. to PWM 5-15; case no. S222744, APFR 9-28.) This Court should not 20 let Raefface charges that could send him to jail for up to six months without receiving an opinion from the state's highest court addressing his constitutional challenge to this first-of-its-kind statute. Under the Court of Appeal's opinion below, a journalist faces a $2500 fine and six months in jail for allegedly committing the same misconduct that for anyone else would entail only a $100 fine simply because he was at the time engaged in the act of newsgathering. This situation merits this Court's review. II. REVIEW IS NECESSARY BECAUSE THE COURT OF APPEAL'S OPINION CONFLICTS WITH GOVERNING PRECEDENT AND THWARTS THE FIRST AMENDMENT'S PROTECTIONS. A. The Court of Appeal's opinion eviscerates the First Amendment. The purpose of the First Amendment is to protect free expression-particularly unpopular expression-from government power or the passions of individuals weilding that power under color oflaw. (See, e.g., U.S. v. Stevens (2010) 559 U.S. 460, 468 (Stevens) ["[T]he First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content"]; Hill, supra, 482 U.S. at p. 465 ["we have repeatedly invalidated laws that provide the police with unfettered discretion to arrest individuals for words or conduct that annoy or offend them"]; New York Times Co. v. Sullivan (1964) 376 U.S. 254, 269-270 [First Amendment protects against " 'the occasional 21 tyrannies of governing majorities'"].) The Court of Appeal's opinion here reaches several holdings that completely defeat this purpose. First, the Court of Appeal held that the Legislature can impose enhanced penalties purely for acting with the intent to engage in First Amendment activity, so long as the Legislature ties the enhanced penalties to the commission of an underlying infraction. (See typed opn. 2.) If the First Amendment means anything, it means the exact opposite: the government may not impose criminal penalties solely for expressive or journalistic activity. (E.g., Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234, 245-246; Hill, supra, 482 U.S. at pp. 465-467; National Ass'n for Advancement of Colored People v. Button (1963) 371 U.S. 415, 434 (Button)); see also The Florida Star v. B.J.F. (1989) 491 U.S. 524, 542 (Florida Star) (cone. opn. of Scalia, J.) ["a prohibition that society is prepared to impose upon the press but not upon itself' violates the First Amendment].) Furthermore, contrary to the Court of Appeal's opinion here, "[t]he prospect of crime ... by itself does not justify laws suppressing protected speech." (Ashcroft, at p. 245245; see Keenan v. Superior Court (2002) 27 Cal.4th 413, 441 (Keenan) (cone. opn. of Brown, J.) ["Deterring crime is a compelling state interest, deterring speech is not"].) Under the Court of Appeal's opinion, the Legislature has unfettered power to target First Amendment activity for enhanced criminal penalties by expediently tying the penalty to some generally applicable criminal provision. For example, the Legislature could pass a law that jaywalking(§ 21955) with the intent to attend a parade or protest is punishable by a year in jail. 22 Second, the Court of Appeal held that in order to address an identified problem, the Legislature may pass a sweeping restriction on expressive activity that regulates far more than the activity causing that problem. (See typed opn. 19, 22.) This violates the fundamental principle that the government cannot justify First Amendment restrictions merely by showing they would further some government interest. (People v. Glaze (1980) 27 Cal.3d 841, 848 (Glaze) ["[i]fmerely stating a laudable purpose were sufficient to justify a restriction on free expression," the government could impose sweeping speech activity bans].) This holding also directly conflicts with the principle that a statute burdening speech must target "no more than the exact source of the 'evil' it seeks to remedy." (Frisby v. Schultz (1988) 487 U.S. 474, 485 (Frisby); Stevens, supra, 559 U.S. at p. 473 [law violates First Amendment if a substantial number of its applications are unconstitutional]' see also Federal Election Com'n v. Wisconsin Right to Life, Inc. (2007) 551 U.S. 449, 475 (plur. opn. of Roberts, J.) [it " 'turns the First Amendment upside down' " to claim that " 'protected speech may be banned as a means to ban unprotected speech'"].) Finally, the Court of Appeal here held that any remaining questions regarding the statute's constitutionality can be resolved on a case-by-case basis by prosecutors deciding whether to prosecute under section 40008 and juries deciding whether to convict. (Typed opn. 24, 27 .) The notion that prosecutors should decide on a caseby-case basis how to apply a statute that burdens expressive activity is anathema to First Amendment jurisprudence. (See Stevens, supra, 559 U.S. at p. 480 ["[T]he First Amendment protects against the Government; it does not leave us at the mercy of 23 noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly"]; Hill, supra, 482 U.S. at p. 465-467 [statute violates First Amendment if it provides law enforcement with unfettered discretion whether to enforce the law].) Equally intolerable is leaving that decision to criminal trial juries. (Cf., e.g., Snyder v. Phelps (2011) 562 U.S. 443, 458 [permitting jury to impose tort liability based on outrageousness of speech has " 'an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression,'" which is intolerable under First Amendment]; Time, Inc. v. Hill (1967) 385 U.S. 374 (Time, Inc.) (cone. opn. of Douglas, J.) ["A trial is a chancy thing, no matter what safeguards are provided. To let a jury on this record return a verdict or not as it chooses is to let First Amendment rights ride on capricious or whimsical circumstances, for emotions and prejudices often do carry the day."].) In fact, the constitution has long been interpreted in the opposite manner. Courts, not juries, must decide First Amendment claims. (Dennis v. United States (1951) 341 U.S. 494, 513 (plur. opn. of Vinson, J.).) And the potential chilling effect of statutes that implicate First Amendment activities is so dangerous to a free society that courts frequently determine the statute's constitutionality before it is enforced. (E.g., Susan B. Anthony List v. Driehaus (2014) 513 U.S. _ [134 S.Ct. 2334, 2342-2344] [permitting pre-enforcement review of First Amendment statutory challenge]; Virginia v. American Booksellers Ass'n, Inc. (1988) 484 U.S. 383, 392-393 [same]; Button, supra, 371 U.S. at pp. 432-433 24 [where First Amendment freedoms are concerned "[t]he threat of sanctions may deter their exercise almost as potently as the actual application of sanctions"].) No precedent holds that persons engaging in First Amendment activity must wait to see if the prosecutor charges them under the statute, forgo a plea deal, and wait to see if the jury convicts to learn whether a statute targeting First Amendment activity applies to them. (C.f., Time, Inc., supra, 385 U.S. at p. 389 [negligence standard for defamation "would place on the press the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it to verify accuracy" of its publications].) B. The required First Amendment analysis raises important issues this Court should decide regarding the Legislature's power to criminalize journalistic or expressive activity. This Court and the United States Supreme Court have developed a rigorous, ordered first Amendment analysis designed to safeguard First Amendment freedoms. Town of Gilbert, Ariz. (2015) 576 U.S. _ (See, e.g., Reed et al. v. [135 S.Ct. 2218, 2226- 2232]; Glaze, supra, 27 Cal.3d at pp. 845-849.) Raef argued that under all of the proper First Amendment tests, section 40008 is unconstitutional. (See Reply to Return to PWM 19-57.) This Court should grant review to address the important issues raised under these tests, which the Court of Appeal's analysis obscures or avoids. First, the court must decide whether section 40008 targets the press or others engaged in expressive activity for enhanced criminal 25 penalties that do not apply to people committing the same misconduct without a First Amendment intent. Laws that single out the press or certain elements of it for special treatment pose a particular danger of abuse by the state, and therefore are subject to the most rigorous First Amendment scrutiny. (Arkansas Writers' Project, supra, 481 U.S. at pp. 228, 231; Florida Star, supra, 491 U.S. at pp. 526, 540 [statute prohibiting publication of crime victim's name "in an 'instrument of mass communication' " was unconstitutional because it targeted publication of information by the press but not others]; Minneapolis Star, supra, 460 U.S. at pp. 577-578, 581, 592-593 [state may subject newspapers to generally applicable tax but may not create a special tax applicable only to newspapers].) Permitting a state "not only to single out the press but also to tailor the [regulation] so that it singles out a few members of the press presents such a potential for abuse" that almost no state interest can justify the scheme. (Id. at p. 592; see also Branzburg v. Hayes (1972) 408 U.S. 665, 681 ["[W]ithout some protection for seeking out the news, freedom of the press could be eviscerated"].) There is no dispute here that the Legislature passed section 40008 to target paparazzi. (§ 40008; vol. 2, supp. exh. 2, pp. SE269, SE273, SE278-SE310.) The Court of Appeal held section 40008 does not target persons gathering news because its text includes any person who drives recklessly while intending to gather images or recordings of others. (Typed opn. 6.) This is circular reasoning, as the statutory language is obviously written to describe in broad terms persons 26 engaged in gathering newsworthy images or recordings. 6 The fact that the statute covers anyone engaging in certain expressive activity only increases the statute's perniciousness, it does not excuse it. The Court must also determine whether the law is a contentor speaker-based speech restriction, in which case strict scrutiny also applies. A regulation is content-based if the regulation by its terms singles out particular content for differential treatment or, even if neutral on its face, has the purpose of regulating speech because of the message it conveys. (Turner Broadcasting System, Inc. v. F.C.C. (1994) 512 U.S. 622, 642-646; Meyer v. Grant (1988) 486 U.S. 414, 426-428 [state may not interfere with speaker's decision to pay for publication of content]; First Nat. Bank of Boston v. Bellotti (1978) 435 U.S. 765, 785-786 [state may not give speaker with one point of view preference over another]; see also Citizens United v. Federal Election Com'n (2010) 558 U.S. 310, 340 ["Speech restrictions based on the identity of the speaker are all too often simply a means to control content"].) 6 The court believed it found one circumstance where the law would apply to someone who is not gathering news-a private detective hired by a spouse to document suspected adulterous behavior-which proved the law does not target newsgatherers. (Typed opn. 6-7, 9.) However, documenting adulterous activity for another person, even if not of import to the general public, is still expressive activity, much like hiring an artist to paint a portrait of one's child. There is no constitutional justification for empowering the Legislature to impose enhanced criminal penalties on this more intimate First Amendment activity either, particularly as it presents none of the concerns-e.g., paparazzi intentionally ramming into celebrities' cars-that animated the Legislature to pass section 40008. 27 Here it is undisputed the Legislature's purpose was to discriminate against gathering celebrity images as opposed to other types of news, and to discriminate against paparazzi, a disfavored type of newsgatherer. (Vol. 2, supp. exh. 2, pp. SE268-SE269, SE273, SE278-SE310.) The Court of Appeal here refused to face this reality by narrowly parsing through the legislative history (1618), despite the fact that the People admitted the very purpose of section 40008 is to single out the paparazzi for enhanced penalties based on perceptions about the way they drive and the societal value of their news. (Return to PWM 1 [section 40008 targets driving in pursuit of "that 'money shot'"]; 32-33, 38). If section 40008 is subject to strict scrutiny, this Court must decide whether the "regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end." (Arkansas Writers' Project, supra, 481 U.S. at p. 231.) A statute cannot be narrowly drawn if it is "both overinclusive and underinclusive" of the problem it seeks to remedy. (Id. at p. 232; Keenan, supra, 27 Cal.4th at p. 417.) The People admit the Legislature had very specific types of dangerous paparazzi driving in mind when it passed the statute: intentional crashes, caravans and swarms to box in a celebrity vehicle, and high speed chases on the wrong side of the road. (Return to PWM 32-33, 38; see vol. 2, supp. exh. 2, pp. SE260-SE261, SE268-SE269, SE278, SE279, SE290, SE304.) Section 40008 is overinclusive because it would impose the same heightened penalty whether a paparazzo purposefully crashed into a celebrity's car or a paparazzo merely tailgated another driver in a manner indistinguishable from any other tailgater. Similarly, the statute is underinclusive: it would 28 Impose a heightened penalty on a paparazzo who purposefully crashed into a celebrity's car but would not impose any additional penalty on, for example: a crazed fan who crashed into a celebrity's car in order to create an encounter, or a roadway bully or enraged lover who intentionally crashed into a victim's car to prevent escape. (See Erznoznik v. City of Jacksonville (1975) 422 U.S. 205, 214-215.) Moreover, there are obvious alternative means available to remedy the problems that concerned the Legislature. (See e.g., Minneapolis Star, supra, 460 U.S. at pp. 586-587; Valle Del Sol Inc. v. Whiting (9th Cir. 2013) 709 F.3d 808; see also McCullen v. Coakley (2014) 573 U.S. _ [134 S.Ct. 2518, 2537-2539] [applying intermediate scrutiny].) If the problem lies in particular acts of reckless driving such as intentional crashes, the Legislature could create special penalties for those acts. If the problem is a lack of deterrence, the Legislature could increase the penalties for the predicate offenses applicable to all drivers, or it could create increased penalties for all recidivists. Because the Court of Appeal here held that section 40008 does not target the press or discriminate based on content or speaker, it did not even consider these alternatives. (Typed opn. 23.) If section 40008 is not subject to strict scrutiny, this Court must decide whether the law is subject to intermediate scrutiny, i.e., whether a content-neutral speech regulation advances a substantial government interest, is "narrowly tailored" to target and eliminate "no more than the exact source of the 'evil' it seeks to remedy," and leaves open ample alternative channels for communication. (Frisby, supra, 487 U.S. at p. 485; Ward v. Rock Against Racism (1989) 491 U.S. 781, 791, 796, 804; Los Angeles 29 Alliance for Survival v. City of Los Angeles (2000) 22 Cal.4th 352, 364.) Section 40008 is intended to curb the supposedly outrageously aggressive driving of paparazzi, such as intentionally ramming their cars into celebrities or boxing them in, but as the People conceded, section 40008 will also penalize anyone else who happens to drive recklessly-even minimally so-with intent to gather commercial photographs or recordings. (Vol. 2, supp. exh. 9, pp. SE390-SE394, SE410-SE411, SE417-SE418, SE423-SE424, SE427.) The Court of Appeal found the statute was narrowly tailored because the record supports an inference that traffic violations committed by paparazzi or others gathering celebrity images "pose greater danger and are more blameworthy than those committed by drivers not engaged in such pursuits." (Typed opn. 22.) This reflects a fundamental failure of application of the intermediate scrutiny. Surely the Court of Appeal did not believe that every paparazzi always drives with greater danger and in a more blameworthy manner. Some days, recklessly driving paparazzi drive only as recklessly as anyone else. Thus, the court improperly upheld the statute because in some applications it would function as intended (i.e., it would punish more dangerous driving), when it should have asked whether it frequently would malfunction, penalizing (or threatening to penalize) drivers who have not driven more recklessly than other reckless drivers, punishing them only for their First Amendment activity. This Court must also decide whether the statute is overbroad. A statute is overbroad if it punishes both constitutionally protected speech and speech which may validly be prohibited. (Glaze, supra, 27 Cal.3d at p. 848.) Here, the government assumed that because 30 anecdotally some paparazzi have previously crashed into celebrities' cars or tried to box them in, it is necessary to impose enhanced penalties on anyone who drives recklessly with intent to take photographs for commercial purposes, regardless of the identity of the newsgatherer or the type of reckless driving committed. (Vol. 2, supp. exh. 6, pp. SE260-SE261, SE268-SE269, SE278, SE279, SE290, SE304, SE323; vol. 2, supp. exh. 9, pp. SE390-SE391, SE393-SE394, SE410-SE411, SE417-SE418, SE423-SE424, SE427.) The Court of Appeal got the overbreadth analysis completely backwards, reasoning "there is no reason why section 40008 should not apply to any driver who follows too closely, swarms in, or drives . recklessly with the requisite intent and purpose, whether or not the driver is a celebrity photographer." (Typed opn. 25-26.) The question the court should have asked was not whether the type of highly dangerous conduct the Legislature sought to address merits enhanced penalties, but whether the Legislature can accomplish its goal using a statute that also imposes its enhanced penalties on the run-of-the-mill reckless driving that the Legislature did not seek to address, merely because that driver intended to engage in First Amendment activity. (See Glaze, supra, 27 Cal. 3d at p. 848-849; see also Stevens, supra, 559 U.S. at p. 473 ["[A] law may be invalidated as overbroad if 'a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep"]; Hill, supra, 482 U.S. at p. 459 ["[Criminal laws] that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application"].) In other words, the question the Court of Appeal failed to ask, which this Court should answer, is: can the 31 Legislature use the intent to engage in First Amendment activity as a proxy for increased culpability? Finally, this Court must decide whether the statute is unconstitutionally vague. "[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." (Kolender v. Lawson (1983) 461 U.S. 352, 357.) Because the "standards of permissible statutory vagueness are strict in the area of free expression" section 40008's vagueness merits serious consideration. (Button, supra, 371 U.S. at p. 432.) Rather than meaningfully addressing the concerns voiced by Raef and the amici, the Court of Appeal concl usorily rejected them, holding that any lingering ambiguities could be resolved by juries after trial. (Typed opn. 26-27.) As discussed above, putting First Amendment decisions in the hands of criminal trial juries abdicates the court's constitutional responsibility and creates a maximal chilling effect on expressive activity. 32 CONCLUSION For the reasons explained above, this court should grant Raefs petition for review. November 6, 2015 HORVITZ & LEVY LLP BARRY R. LEVY JEREMY B. ROSEN MARK A. KRESSEL EISNER GORIN LLP DMITRY GORIN ALAN EISNER By: (1/Lrt ( Mark A. Kressel Attorneys for Petitioner PAULRAEF 33 CERTIFICATE OF WORD COUNT (Cal. Rules of Court, rule 8.504(d)(l).) The text of this petition consists o£7,990 words as counted by the Microsoft Word version 2010 word processing program used to generate the petition. Dated: November 6, 2015 Mark A. Kres~.el 34 Filed 9/30/15 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR PAULRAEF, Petitioner, B259792 (Los Angeles County Super. Ct. No. 2VY03020) v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, APPELLATE DIVISION, Respondent; THE PEOPLE, Real Party in Interest. ORIGINAL PROCEEDINGS in mandate. Thomas Rubinson, Judge. Petition denied. Horvitz & Levy, Barry R. Levy, Jeremy B. Rosen, and Mark A. Kressel; Eisner Gorin, Dmitry Gorin and Brad Kaiserman for Petitioner. Scott & Cyan Banister First Amendment Clinic, UCLA School of Law, and Eugene Volokh, for Pennsylvania Center for the First Amendment and the Marion B. Brechner First Amendment Project as Amici Curiae on behalf of Petitioner. Jassy Vick Carolan, Jean-Paul Jassy and Kevin L. Vick for Reporters Committee for Freedom of the Press, Associated Press Media Editors and Associated Press Photo Managers, Association of Alternative Newsmedia, California Broadcasters Association, California Newspaper Publishers Association, E.W. Scripps Company, and National Press Photographers Association as Amici Curiae on behalf of Petitioner. No appearance for Respondent. Michael N. Feuer, City Attorney, Debbie Lew, Assistant City Attorney, Katharine H. Mackenzie, Deputy City Attorney, for Real Party in Interest. Paul Raefwas charged with two violations of Vehicle Code, section 40008, subdivision (a), 1 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 sustained Raef s demurrer and dismissed the charges on the ground that the statute was unconstitutional. The Appellate Division of the Los Angeles County Superior Court reversed. Raef petitioned for a writ of mandate, and on direction by the California Supreme Court, we issued an order to show cause. We conclude that section 40008 does not violate the First Amendment of the United States Constitution. It is a law of general application that does not target speech or single out the press for special treatment and is neither vague nor overbroad. The petition is denied. 1 Unless otherwise indicated, statutory references are to the Vehicle Code, and references to section 40008 are to subdivision (a) of that section. 2 PROCEDURAL SUMMARY In 2012, Raefwas charged with driving in willful and wanton disregard for the safety of others (count 1) and following another vehicle too closely (count 2), both with the intent to capture a visual image of another person for a commercial purpose. (§ 40008, subd. (a).) He also was charged with driving in willful and wanton disregard for the safety of others (§ 23103, subd. (a), count 3), and refusing to comply with a lawful order of a peace officer(§ 2800, count 4). 2 He demurred to counts 1 and 2 on the ground that section 40008 violates the First Amendment of the United States Constitution (hereafter, First Amendment) and article 1, section 2(a) of the California Constitution. 3 The trial court sustained the demurrer to counts 1 and 2, ruling that section 40008, although content-neutral, targeted First Amendment activity and failed intermediate scrutiny because it was overinclusive. The People appealed to the superior court appellate division and filed a petition for writ of mandate and a stay. (Case Nos. BS140861 & BR 050611l The appellate division granted the People's petition and directed the trial court to reinstate counts 1 and 2. This court originally denied Raef's petition to transfer the case or, alternatively, for writ of mandate. Raefpetitioned for review to the California Supreme Court. (Case No. S222744.) The Supreme Court granted the petition and directed this court to issue an order to show cause. We issued the order as directed. Trial court proceedings have been stayed. 2 According to news reports included in the record, Raef was charged for his alleged high-speed pursuit of pop star Justin Bieber and failure to stop when police attempted to pull him over. (See e.g. Winton, Court Urges Charges Be Reinstated for Paparazzo in Bieber Chase, L.A. Times (Feb. 3, 2013) [as ofFeb. 4, 2013].) 3 Raefhas not advanced a separate analysis under the state Constitution. 4 The People represent the appeal in case No. BR050611 is moot and dismissal is pending. 3 DISCUSSION I Raef and amici contend the increased penalties in section 40008 are directed specifically at celebrity photographers or "paparazzi,'' 5 and unduly infringe on the freedom of "news gatherers" in general, in violation of the First Amendment. 6 In contrast, the People maintain that section 40008 is a neutral law of general application that regulates traffic conduct and implicates the First Amendment only incidentally, if at all. It is important to recognize at the outset that this writ proceeding arises out of an order sustaining a demurrer. It is thus the facial validity of the statute, not its particular application, that is at issue. To succeed in a typical facial challenge, Raef must show that "'no set of circumstances exists under which [section 40008] would be valid' [citation], or that the statute lacks any 'plainly legitimate sweep' [citation]." (United States v. Stevens (2010) 559 U.S. 460, 472.) The interpretation and constitutionality of a statute present issues of law, which we review de novo. (Finberg v. Manset (20 14) 223 Cal.App.4th 529, 532.) To determine the Legislature's intent and the law's purpose, "'[w]e begin with the plain language of the statute, affording the words of the provision their ordinary and usual meaning and viewing them in their statutory context, because the language employed in the Legislature's enactment generally is the most reliable indicator of legislative intent.' [Citations.] The plain meaning controls if there is no ambiguity in the statutory language. [Citation.]" (People v. Cornett (2012) 53 Ca1.4th 1261, 1265.) To be ambiguous, the statutory language must be "susceptible to more than one reasonable 5 A "paparazzo" is "a free-lance photographer who aggressively pursues celebrities for the purpose of taking candid photographs." (Webster's lOth Collegiate Diet. (1995) p. 840.) 6 The First Amendment prohibits any law "abridging the freedom of speech, or of the press." It applies to the states through the due process clause of the Fourteenth Amendment. (Grosjean v. American Press Co., Inc. (1936) 297 U.S. 233, 244.) 4 interpretation." (Hoechst Celanese Corp. v. Franchise Tax Bd. (2001) 25 Ca1.4th 508, 519.) A. The Statutory Language Section 40008 provides in relevant part that "any person who violates Section 21701, 21 703, or 23103, with the intent to capture any type of visual image, sound recording, or other physical impression of another person for a commercial purpose, is guilty of a misdemeanor and not an infraction and shall be punished by imprisonment in a county jail for not more than six months and by a fine of not more than two thousand five hundred dollars ($2,500)." (§ 40008, subd. (a).) 7 Of the traffic violations referenced in the predicate statutes, interfering with the driver's control of a vehicle (§ 21701) and tailgating(§ 21703) are infractions, and reckless driving(§ 23103) is a misdemeanor. 8 (§ 40000.15.) If any of the three statutes is violated with the requisite intent for a commercial purpose, section 40008 allows the violation to be charged as a misdemeanor and imposes increased penalties. 7 Section 40008, subdivision (b) doubles the penalties if the traffic violations endanger children. 8 The predicate statutes read as follows: "No person shall wilfully interfere with the driver of a vehicle or with the mechanism thereof in such manner as to affect the driver's control of the vehicle." (§ 21701 [allowing exceptions only for driving instruction and road test].) Section 21703 provides: "The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon, and the condition of, the roadway." Section 23103 provides: "(a) A person who drives a vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving. [tj (b) A person who drives a vehicle in an offstreet parking facility, as defined in subdivision (c) of Section 12500, in willful or wanton disregard for the safety of persons or property is guilty of reckless driving. [tj (c) Except as otherwise provided in Section 40008, persons convicted of the offense of reckless driving shall be punished by imprisonment in a county jail for not less than five days nor more than 90 days or by a fine of not less than one hundred forty-five dollars ($145) nor more than one thousand dollars ($1,000), or by both that fine and imprisonment, except as provided in Section 23104 or 23105." 5 On its face, section 40008 is not limited to paparazzi chasing celebrities or reporters gathering news. Instead, the statute targets "any person" who commits an enumerated traffic offense with the intent to capture the image, sound, or physical impression of "another person" for a commercial purpose. As Professor Erwin Chemerinsky explained in relation to another statute (Civ. Code, § 1708.8, which, too, forms part of what is popularly known as "California's anti-paparazzi legislation" 9 and uses almost identical language), a law so broadly formulated "applies to anyone-press or curious on-looker or stalking fan-who obtains images in the proscribed manner with the hope of selling them." (Chemerinsky, Balancing the Rights ofPrivacy and the Press: A Reply to Professor Smolla (1999) 67 Geo. Wash. L.Rev. 1152, 1155.) The law's broad formulation also applies without limitation "whenever the acts are done with the hope of generating a profit, whether the money is gained by selling the photos to the press or to fan clubs or to an obsessed stalker." (!d. at p. 1158.) 10 It may reach even a private 9 Civil Code section 1708.8 originally was enacted in 1998 to create liability for physical and constructive invasion of privacy when "[a] person" either trespasses "in order to capture any type of visual image, sound recording, or other physical impression of the plaintiff' under specified circumstances, or "attempts to capture ... any type of visual image, sound recording, or other physical impression of the plaintiff' in specified circumstances and manner. (Civ. Code,§ 1708.8, subds. (a) & (b).) Where "the invasion of privacy was committed for a commercial purpose," the defendant is "subject to disgorgement ... of any proceeds or other consideration obtained as a result of the violation .... " (!d., § 1708.8, subd. (d).) "[F]or a commercial purpose" means "with the expectation of a sale, financial gain, or other consideration." (!d., § 1708.8, subd. (k).) A First Amendment challenge to Civil Code section 1708.8 was rejected in Turnbull v. American Broadcasting Companies ((C.D.Cal., Aug. 19, 2004, No. CV 03-3554 SJO) 2004 WL 2924590, at *21 ). Assembly Bill No. 2479, which added section 40008 to the Vehicle Code in 2010, also amended Civil Code section 1708.8, subdivision (c) to add "false imprisonment committed with the intent to capture any type of visual image, sound recording, or other physical impression of the plaintiff' as yet another basis for civil liability. (Stats. 2010, ch. 685, § 1; see generally Locke & Murrhee, Is Driving With The Intent To Gather News A Crime? The Chilling Effects Of California's Anti-Paparazzi Legislation (2011) 31 Loy. L.A. Ent. L.Rev. 83, 87-90.) 10 In 1997, Professor Chemerinsky advised a special Senate committee that "[n]o law directed just at paparazzi is likely to withstand constitutional scrutiny. There never 6 detective hired by a spouse to document suspected adulterous behavior. (Smolla, Privacy and the First Amendment Right to Gather News (1999) 67 Geo. Wash. L.Rev. 1097, 1111.) There is no reason to interpret section 40008 as having a narrower scope of application than Civil Code section 1708.8. (Cf. Walker v. Superior Court (1988) 47 Cal. 3d 112, 132 ["[i]denticallanguage appearing in separate provisions dealing with the same subject matter should be accorded the same interpretation"].) A person may violate section 40008 where the prohibited conduct is done with the intent to photograph or record any other person for the purpose of selling or transferring the image or recording for some valuable consideration to an unspecified end user to put to unrestricted use. Nothing in the statutory language suggests the Legislature intended to target the gathering of newsworthy material to be delivered to the general public via some medium of mass communication. As written, section 40008 applies without limitation, whether the intended image or recording is of a celebrity or someone with no claim to fame, whether it qualifies as news or is a matter of purely private interest, and whether it will be sold to the mass media or put to purely private use. 1. Special Treatment of the Press 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; see also Cohen v. Cowles Media Co. (1991) 501 U.S. 663, 669 ["[G]enerally applicable laws do not offend the First Amendment simply because their enforcement ... has incidental effects on [the] ability to gather and report the news"].) Raef contends section 40008 is not a law of general applicability because, "as a practical matter," the higher penalty for traffic offenses committed while gathering images for a commercial purpose will fall "exclusively on persons engaged in news gathering-whether in a can be a clear line distinguishing the aggressive investigative reporter from the paparazzi." He then became involved in refining the original bill that enacted Civil Code Section 1708.8. (Chemerinsky, supra, 67 Geo. Wash. L.Rev. at pp. 1153-1154.) 7 professional or amateur capacity." That, he contends, violates the principle that the press may not be singled out for special treatment. Laws which single out the press, or certain members of it, for special treatment are subject to heightened scrutiny because they pose "a particular danger of abuse by the State." (Arkansas Writers' Project, Inc. v. Ragland (1987) 481 U.S. 221, 228.) That principle derives from cases invalidating taxation laws which facially, or as structured, discriminated against the press, or certain members of the press. (See id. at pp. 229-230 [sales tax was imposed on limited number of publishers]; Minneapolis Star & Tribune Co. v. Minnesota Comm 'r ofRevenue (1983) 460 U.S. 575, 577-578 [use tax imposed on "the cost of paper and ink products consumed in the production of a publication" fell upon small number of newspapers]; Grosjean v. American Press Co., Inc., supra, 297 U.S. at p. 241 [license tax based on weekly circulation fell upon 13 of 133 newspapers].) 11 Raef incorrectly reads Minneapolis Star & Tribune Co. v. Minnesota Comm 'r of Revenue, supra, 460 U.S. 575, as invalidating a generally applicable use tax law that "as a practical matter" burdened the press. As the court in that case explained, the Minnesota use tax on the cost of paper and ink products consumed in the production of publications was a "special tax," "without parallel" in the state's tax scheme. (Id. at p. 582.) The tax on its face applied only to publications, and evidence before the court showed that after the enactment of a $100,000 exemption, only the largest publications had to pay the tax. (Id. at pp. 591-592.) In contrast, section 40008 applies generally to persons committing traffic offenses with the intent to gather certain types of audio-visual material for personal gain, regardless of the ultimate use of the gathered material. It does not impose 11 More recently, the principle has been restated as applying to laws that "discriminate among media, or among different speakers within a single medium." (Turner Broadcasting System, Inc. v. FCC (1994) 512 U.S. 622, 659 [content-neutral requirement that cable operators carry local stations was subject to intermediate scrutiny].) 8 a direct penalty on the publication of material gathered in violation of traffic laws, nor is there evidence that its enforcement has imposed an actual burden on the media. Raef asks us to assume that only journalists can commit the three enumerated traffic offenses with the requisite intent and purpose, or to consider anyone who falls within the purview of the statute to be a journalist. We decline to go that far. In the 1970's, the United States Supreme Court declined to create a "newsman's privilege" to laws of general applicability for fear that it would run into a definitional problem since virtually any author could claim to be "contributing to the flow of information to the public." (Branzburg v. Hayes, supra, 408 U.S. at p. 705.) More recently, the First Circuit Court of Appeals observed that "changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper." (Glik v. Cunniffe (1st Cir. 2011) 655 F.3d 78, 84.) Such an expansive view of journalism may be necessary to protect the right to film public officials performing their duties in a public space, so as to preserve "the stock of public information." (!d. at p. 82.) But taking photographs and making recordings for personal gain are not always or necessarily journalistic activities. If they were, a private detective who takes a person's photograph to sell to a client, or a blackmailer who does so to extort money would have to be characterized as a journalist. Amici Pennsylvania Center for the First Amendment and the Marion B. Brechner First Amendment Project argue, by way of analogy to Simon & Schuster, Inc. v. Members ofNew York State Crime Victims Board (1991) 502 U.S. 105 (Simon & Schuster), that section 40008 singles out contributors to the press, and therefore the press itself. That case invalidated New York's "Son of Sam" law, which required a criminal, and anyone who contracted with the criminal, to deposit income "from works describing his crime" in an escrow account for the benefit of the criminal's victims and creditors. (!d. at p. 108.) 9 Amici rely on the court's reasoning that "[a]ny 'entity' that enters into such a contract becomes by definition a medium of communication, if it was not one already." (Id. at p. 117.) Amici reason further that if one side of such a contract is a medium of communication, then the other side must be "a contributor to a medium of communication," and therefore any law that singles out such a person "singles out media of communication." Amici would like us to extend the court's reasoning not only beyond the facts of the "Son of Sam" case, but also beyond the court's actual conclusion. The "Son of Sam" law reached contracts for "the reenactment of such crime, by way of a movie, book, magazine article, tape recording, phonograph record, radio or television presentation, live entertainment of any kind ... from the expression of such accused or convicted person's thoughts, feelings, opinions or emotions regarding such crime"-in short, for "works describing [the] crime." (Simon & Schuster, supra, 502 U.S. at pp. 108,109.) It imposed a direct financial burden not only on the criminal who sold the crime story, but also on the publisher that bought it. (Id. at p. 109.) In contrast, section 40008 is not limited to cases where the intended image or recording is to be used in a work to be made available to the general public through a communication medium; nor does the statute impose a direct penalty on any media outlet that buys material gathered in violation of traffic laws. Moreover, the characterization of the entity contracting with the criminal as a communication medium was ultimately found to be irrelevant because the "Son of Sam" law imposed "content-based financial disincentives on speech," regardless of the identity of the speaker. (Simon & Schuster, supra, 502 U.S. at p. 117.) In other words, the law violated the right to free speech, regardless of whether it also levied a special tax on the press. We conclude that, on its face, section 40008 does not target or discriminate against the news media. We next consider whether its intent element burdens speech rights generally. 2. Laws Burdening Speech Activity InAmerican Civil Liberties Union of Illinois v. Alvarez (7th Cir. 2012) 679 F.3d 10 583 (Alvarez), cited by Raef, the court reasoned that "[a]udio and audiovisual recording are communication technologies, and as such, they enable speech." (!d. at p. 597.) Some commentators have proposed that the use of such technologies is an expressive activity because the final product is inherently expressive. (See Kreimer, Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record (20 11) 159 U.Pa. L.Rev. 335, 372-373, 390-391 ["captured images" are protected speech because they are inherently expressive, and "image capture" is expressive activity].) Others have been reluctant to go that far, arguing instead for greater protection for information gathering. (See McDonald, The First Amendment and the Free Flow of Information: Towards a Realistic Right to Gather Information in the Information Age (2004) 65 Ohio St. L.J. 249, 270, 354 [recognizing that use of cameras, audio and video recorders, in itself, cannot be characterized as "expressive activity," but arguing for broader right to gather information under free press clause].) The court in Alvarez, supra, 679 F.3d 583 drew on both these approaches to conclude that an eavesdropping statute criminalizing all non-consensual audio recording implicated the First Amendment because it "necessarily limits the information that might later be published or broadcast-whether to the general public or to a single family member or friend-and thus burdens First Amendment rights. If ... the eavesdropping statute does not implicate the First Amendment ... , the State could effectively control or suppress speech by the simple expedient of restricting an early step in the speech process rather than the end result." (!d. at p. 597.) Under First Amendment jurisprudence, '"enforcement of a generally applicable law may or may not be subject to heightened scrutiny under the First Amendment.' [Citations.] When the expressive element of an expressive activity triggers the application of a general law, First Amendment interests are in play. On the other hand, when 'speech' and 'nonspeech' elements are combined, and the 'nonspeech' element (e.g., prostitution) triggers the legal sanction, the incidental effect on speech rights will not normally raise First Amendment concerns. [Citation.]" (Alvarez, supra, 679 F.3d at p. 602; compare Barnes v. Glen Theatre, Inc. (1991) 501 U.S. 560, 569 [public-indecency 11 statute was subject to intermediate scrutiny when applied to expressive conduct, such as nude dancing] withArcara v. Cloud Books, Inc. (1986) 478 U.S. 697, 707 [public health regulation was not subject to First Amendment scrutiny when applied against bookstore where prostitution took place]). Based on these principles, the eavesdropping statute in Alvarez was found to burden First Amendment rights directly, by "specifically target[ing] a communication technology [because] the use of an audio recorder-a medium of expression-triggers criminal liability. The law's legal sanction is directly leveled against the expressive element of an expressive activity." (Alvarez, at pp. 602-603.) Raef agrees that sections 21701, 21703, and 23103 are general traffic laws directed at all persons who interfere with the operation of a vehicle, tailgate, or drive recklessly, but argues that section 40008 is not because its enhanced penalties apply only to drivers who commit those offenses with the intent to engage in news gathering. He argues further that the statute is a content-based regulation of speech because it "discriminates on its face between commercial newsgathering and noncommercial news gathering, and between commercial news gathering and all other forms of expressive activity." In essence, Raef argues that the enhanced penalties of section 40008 attach to and therefore directly burden the intent to engage in a First Amendment activity. Assuming that the intent to take a photograph or make a recording of another person generally is entitled to First Amendment protection as a speech-producing activity, we are not persuaded that section 40008 punishes that intent per se or that the commercial purpose requirement imposes a content-based restriction on speech. a. Enhanced Punishment for Purposeful Conduct The People argue that section 40008 is a penalty enhancement statute that increases the punishment for the underlying offenses if they are committed with the specified intent, but the intent element does not raise First Amendment concerns because the enhanced penalties it triggers are nevertheless directed at the prohibited conduct, not at any First Amendment activity. They rely on the reasoning in Wisconsin v. Mitchell 12 (1993) 508 U.S. 476 (Mitchell), where the United States Supreme Court rejected a First Amendment challenge to a penalty-enhancement statute aimed at bias-motivated crimes. The defendant in Mitchell challenged a statute that increased the penalty for an aggravated battery of a victim intentionally selected based on a discriminatory motive; he claimed the increased penalty violated the First Amendment "by punishing offenders' bigoted beliefs" or "discriminatory motive, or reason, for acting." (Mitchell, supra, 508 U.S. at pp. 485, 487.) The court recognized that although biased speech and beliefs may be socially unacceptable and morally reprehensible, they do receive First Amendment protection, and laws targeting them may violate the rule against content-based censorship of unpopular speech. (Mitchell, supra, 508 U.S. at pp. 486-487; see also R.A. V. v. City of St. Paul, Minn. (1992) 505 U.S. 377, 396 ["Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire]"); Dawson v. Delaware (1992) 503 U.S. 159, 167 [abstract beliefs of member of white supremacist prison gang were entitled to protection under First Amendment].) Nevertheless, the court reasoned that motive is a relevant sentencing factor and a legitimate reason to set higher penalties for bias-motivated crimes. (Mitchell, supra, 508 U.S. at p. 486.) 12 Bias-motivated discriminatory conduct already is prohibited under antidiscrimination laws, and bias-motivated crime "inflicts greater individual and societal harm," such as emotional distress to the victim, community unrest, and retaliatory crime. (!d. at pp. 487-488.) The court concluded that the penalty-enhancing statute was aimed at the defendant's conduct and not at any protected expression of his beliefs. (!d. at p. 487.) It distinguished R.A. V. v. City of St. Paul, Minn., supra, 505 U.S. 377, where an ordinance prohibiting '"messages of "bias-motivated" hatred' ... was explicitly directed at expression (i.e., 'speech' or 'messages') .... " (Mitchell, at p. 487, quoting R.A. V. v. 12 Although the court analogized discriminatory bias to a sentencing factor (Mitchell, supra, 508 U.S. at p. 486), it later clarified that the biased purpose of a hatecrime enhancement statute is an essential element of the charged offense. (Apprendi v. New Jersey (2000) 530 U.S. 466, 495-496.) 13 City ofSt. Paul, Minn., at p. 392; see also In re MS. (1995) 10 Ca1.4th 698, 725 [following Mitchell to uphold Pen. Code,§ 422.7, which raises bias-motivated misdemeanor to felony; People v. Linberg (2008) 45 Cal.4th 1, 37 [upholding Pen. Code, § 190.2, which enhances penalty for bias-motivated murder].) Under Mitchell's reasoning, the First Amendment is not implicated when a belief or expression, which may be protected in other circumstances, is closely related to and motivates illegal conduct that causes special individual and societal harm. (Mitchell, supra, 508 U.S. at p. 487.) As one commentator observed, "[t]he impact on speech is, by reasonable calculation, incidental since speech considerations can only come into play after an underlying crime has been committed. In such a situation, there is reduced danger of censorship or other manipulation of ideas because the object of official regulation is behavior, not speech." (Eberle, Cross Burning, Hate Speech, and Free Speech in America (2004) 36 Ariz. St. L.J. 953, 975.) Mitchell, supra, 508 U.S. 476 is not entirely on point because section 40008 is not an antidiscrimination or hate crime statute. Nor is the intent to photograph or record a person in public considered reprehensible, so as to raise a facial concern about censorship of unpopular speech. Moreover, the commercial purpose requirement of section 40008 provides an independent basis for the increased penalties, separate from the intent to engage in a First Amendment activity. Nevertheless, like the court in Mitchell, we are persuaded that the enhanced penalties in section 40008 cannot reasonably be severed from the conduct to which they attach. As section 40008, subdivision (c) makes clear, the statute punishes an "act or omission," not intent. Driving is not an expressive activity, and driving in violation of traffic laws is not an accepted news or information gathering technique entitled to any special protection. (Cf. Nicholson v. McClatchy Newspapers (1986) 177 Cal.App.3d 509, 519-520 [government "may not impose criminal or civil liability upon the press for obtaining and publishing newsworthy information through routine reporting techniques," such as asking questions].) Raefproceeds on the incorrect assumption that, as written, section 40008 does not differentiate the traffic offenses subject to its increased penalties 14 from those subject to the predicate statutes, and as a result imposes an additional penalty on the intent to engage in a protected activity. But it is well established that the more purposeful the criminal conduct, the more serious the offense and the more severe the punishment. (See Mitchell, supra, 508 U.S. at p. 485, quoting Tison v. Arizona (1987) 481 U.S. 137, 156.) The increased penalties of section 40008 attach to purposeful traffic violations that target particular individuals for personal gain. Assuming the intent to take a photograph or make a recording is an intent to engage in an expressive, or potentially expressive, activity, that intent is subject to section 40008 not because of the "communicative impact" of the intended activity, but because of the "special harms" produced by the conduct it motivates. (Roberts v. United States Jaycees (1984) 468 U.S. 609, 628 ["potentially expressive activities that produce special harms distinct from their communicative impact ... are entitled to no constitutional protection"].) As the People point out, the conduct which section 40008 targets is not garden-variety tailgating, reckless driving, or interference with the driver's control of a vehicle. It involves "relentless" pursuits of targeted individuals on public streets, as well as corralling and deliberately colliding with their vehicles. Such goal-oriented conduct hounds the targeted individuals, causing them to react defensively and escalating the danger to the violators, the targeted individuals, and the public. Because the predicate statutes do not require that the traffic offenses be committed with a specific intent and for a particular purpose, it cannot be said that the conduct they punish is indistinguishable from that subject to section 40008. b. Commercial Purpose Raef s argument that the commercial purpose requirement renders section 40008 a content-based regulation of speech also is flawed. "Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed." (Reed v. Town of Gilbert (2015) 576 U.S._, 135 S.Ct. 2218, 2227 (Reed).) Raef analogizes the commercial purpose of section 40008 to the distinction between commercial, noncommercial and labor activities in shopping mall cases. In such cases, the mall rules define the type of allowed, prohibited, or restricted 15 expressive activity by reference to its content, and the First Amendment is implicated when the rules discriminate among the activities they define. (See Best Friends Animal Society v. Macerich Westside Pavilion Property LLC (2011) 193 Cal.App.4th 168, 172 [rules distinguished between noncommercial expressive activity "such as political and religious speech, the request for signatures on petitions, the registration of voters and the dissemination of noncommercial leaflets or flyers," and qualified labor activity]; see also Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 474-475 [rules allowed strangers to talk about mall related matters but not to engage in noncommercial expressive activity, such as speaking about religion].) There is no justification for equating "commercial purpose," as used in section 40008, to "commercial expressive activity," as defined in shopping mall rules. As defined in the related statute, Civil Code section 1708.8, subdivision (k), "commercial purpose" means "the expectation of a sale, financial gain, or other consideration." In the context of section 40008, the phrase adds personal, most probably pecuniary, gain as a motive to commit the traffic offense, without limiting the content of any intended final product. As we explained, purposeful conduct may be subject to increased punishment, and the desire to enrich oneself at all costs is a legitimate aggravating factor. (See Mitchell, supra, 508 U.S. at p. 485 [noting that in many states "commission of a murder, or other capital offense, for pecuniary gain is a separate aggravating circumstance"]; see also e.g. 8 U.S. C. § 1324(a)(l)(B)(i) [enhancing penalty for bringing in or harboring aliens "for private financial gain and commercial advantage"].) B. Legislative History Raef argues that the legislative history of section 40008 makes clear the statute was intended to target paparazzi gathering celebrity images while driving. He argues further that " [t]he Legislature's undisputed purpose was to discriminate against gathering celebrity images as compared to other presumably more legitimate news," making the statute constitutionally suspect. Established rules of statutory construction dictate that "[a]lthough legislative history often can help interpret an ambiguous statute, it cannot change the plain meaning 16 of clear language." (In re Steele (2004) 32 Cal.4th 682, 694.) In the First Amendment context, the United States Supreme Court has similarly held that an alleged illicit legislative motive may not vary clear statutory language so as to render a statute unconstitutional. (United States v. O'Brien (1968) 391 U.S. 367 (O'Brien).) In O'Brien, the facial challenge to a federal statute prohibiting the knowing destruction or mutilation of Selective Service certificates, or draft cards, was based on Congress's alleged motive to suppress anti-war protest. (Id. at pp. 382-383.) The court explained that an otherwise constitutional statute cannot be invalidated based on an allegedly illicit legislative motive. (Id. at p. 383.) The question rather is whether "the inevitable effect of a statute on its face may render it unconstitutional." (Id. at p. 384.) The court concluded the statute had "no such inevitable unconstitutional effect, since the destruction of Selective Service ,certificates is in no respect inevitably or necessarily expressive." (Ibid.) The court nevertheless reviewed the statute's legislative history. (O'Brien, supra, 391 U.S. at pp. 385-386.) It noted that while two legislative reports showed "a concern with the 'defiant' destruction of so-called 'draft cards' and with 'open' encouragement to others to destroy their cards, both reports also indicate[ d] that this concern stemmed from an apprehension that unrestrained destruction of cards would disrupt the smooth functioning of the Selective Service System." (Ibid.) The legislative history thus confirmed that Congress's purpose was to protect its system for raising armies, not to suppress anti-war protest. (Id. at pp. 381, 386.) Raef also relies on the principle, repeated most recently in Reed, supra, 135 S.Ct. 2218, that strict scrutiny applies not only to laws that are content based on their face, but also to laws "that were adopted by the government 'because of disagreement with the message [the speech] conveys.'" (Id. at p. 2227, citing Ward v. Rock Against Racism (1989)491 U.S. 781,791 (Ward).) BecausethesignordinanceatissueinReedwas content based on its face, the court had no reason to examine the government's justification for enacting it. (Reed, at p. 2227.) Nevertheless, in earlier cases, the court has made clear that "[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or 17 messages but not others." (Ward, at p. 791.) The court also has rejected the "the contention that a statute is 'viewpoint based' simply because its enactment was motivated by the conduct of the partisans on one side of a debate .... " (Hill v. Colorado (2000) 530 U.S. 703, 724-725 [statute creating buffer zones outside clinics was content-neutral despite being enacted to end harassment by abortion opponents].) Raef represents that the legislative history of section 40008 "expresses disdain for paparazzi's subject material and audience," citing to pages in the record containing letters by supporters of Assembly Bill No. 2479, which added section 40008, newspaper articles, and legislative analyses summarizing the views of the bill's author. As explained in Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, many items contained in a bill history file, such as media articles and the views of interested persons, are not cognizable evidence of the Legislature's intent. (Id. at p. 37-39.) In any event, Raef does not point to specific examples of the disapproval of paparazzi's subject matter allegedly contained in many of these materials. Raef quotes a small portion of the summary of the bill author's statement included in an analysis prepared for the Assembly's concurrence in the Senate amendment that added what would eventually become section 40008. The full summary reads as follows: "According to the author, this bill is intended to curb the reckless and dangerous lengths that paparazzi will sometimes go [to] in order to capture the image of celebrities. Of particular concern is the practice of surrounding a celebrity or the celebrity's vehicle in a manner that does not permit an avenue of escape. In addition, paparazzi have allegedly engaged in dangerous and high-speed chases on the public highways in their effort to capture photographs. The author contends that this kind of behavior is especially a problem in Los Angeles, with its high concentration of stars and celebrities." (Cone. in Sen. Amendments, analysis of Assem. Bill No. 2479 (2009-2010 Reg. Sess.) as amended Aug. 20, 2010, p. 3.) Raef also quotes an incomplete portion of a comment on the intent of the bill, which reads in full: "[T]his bill is primarily an effort to curb the often aggressive tactics used by paparazzi to capture images and recordings of celebrities and their families in 18 order to satiate a public that clamors for the intimate details of the lives of Hollywood stars." (Cone. in Sen. Amendments, analysis of Assem. Bill No. 2479 (2009-2010 Reg. Sess.) as amended Aug. 20, 2010, p. 2.) Raeffocuses on the latter portion of the comment, which appears to be a restatement of the position of paparazzi defenders, who blamed the problem on the public interest in "the most mundane details of the celebrities' lives." (Senate Rules Committee, Office of Senate Floor Analyses, report on Ass em. Bill No. 2479 (2009-2010 Reg. Sess.) as amended June 1, 2010, p. 4.) The first portion of the comment, however, makes clear that the bill's intent was to curb the paparazzi's "aggressive tactics." We see no evidence that the Legislature's purpose in passing the Senate amendment of Assembly Bill No. 2479 was to censor the type of material paparazzi offer to the public; to the contrary, the legislative history confirms that the Legislature was primarily concerned with regulating the paparazzi's conduct. Furthermore, the fact that the immediate problem before the Legislature was the conduct of a particular group of "speakers" does not mean that section 40008, as written, may not be enforced against others who come within its scope. (Cf. Hill v. Colorado, supra, 530 U.S. at pp. 724-725 [by its terms, statute enacted to end harassment outside clinics by abortion opponents applies to "all demonstrators whether or not the demonstration concerns abortion, and whether they oppose or support the woman who has made an abortion decision"].) In sum, we conclude that section 40008 does not target the intent to engage in a First Amendment activity or the communicative aspects of any such activity; it is aimed at the special problems caused by the aggressive, purposeful violation of traffic laws while targeting particular individuals for personal gain. Since the legal sanction is triggered by the noncommunicative aspects of the violator's conduct, any incidental effect on speech does not necessarily raise First Amendment concerns. (Mitchell, supra, 508 U.S. at p. 487; Arcara v. Cloud Books, Inc., supra, 478 U.S. at p. 707; see generally Alvarez, supra, 679 F.3d at p. 602.) C. Incidental Effect on Speech 19 To the extent section 40008 incidentally affects speech by increasing the penalties for conduct motivated in part by the intent to engage in speech-producing activity, it is subject at most to an intermediate level of scrutiny. (Turner Broadcasting System, Inc. v. FCC, supra, 512 U.S. at p. 662.) When '"speech' and 'non-speech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms." (O'Brien, supra, 391 U.S. at p. 376.) A content-neutral regulation that has an incidental effect on speech satisfies the First Amendment if it "furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." (Id. at p. 377.) "To satisfy this standard, a regulation need not be the least speech-restrictive means of advancing the [g]ovemment's interests. 'Rather, the requirement of narrow tailoring is satisfied "so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation."' [Citation.] Narrow tailoring in this context requires, in other words, that the means chosen do not 'burden substantially more speech than is necessary to further the government's legitimate interests.' [Citation.]" (Turner Broadcasting System, Inc. v. F. C. C., supra, 512 U.S. at p. 662.) So long as the legislative decision is supported by substantial evidence, it is entitled to deference, "lest we infringe on traditional legislative authority to make predictive judgments .... " (Turner Broadcasting System, Inc. v. F. C. C. (1997) 520 U.S. 180, 196.) 1. Evidence of Harm Raef does not dispute the importance of the government's interest in traffic safety, but he argues that the evidence before the Legislature regarding the scope and seriousness of the paparazzi problem was insufficient because it was based solely on anecdotes about specific instances of outrageous behavior. He reads United States v. Playboy Entertainment Group, Inc. (2000) 529 U.S. 803 (Playboy) as requiring "empirical 20 evidence" in all cases. In Playboy, a federal statute required cable operators to fully scramble or block sexually explicit channels, or to limit them to certain times. (Id. at p. 808.) The legislative record was "near barren," and at trial the government relied on anecdotal evidence of a handful of complaints about "signal bleed," through which the content of a scrambled program with sexual content could be seen or heard by children. (Id. at pp. 820-822.) The court rejected the government's estimate that children in millions of homes were potentially exposed to signal bleed because the estimate was without adequate empirical support. (Ibid.) It concluded that the government could not justify "a nationwide daytime speech ban" with a handful of anecdotes and "supposition." (Id. at pp. 822-823.) The court in Playboy, supra, 529 U.S. 803, did not hold that every problem requires a field study, or that no problem may be supported anecdotally. Rather, it concluded the obvious-that the Government's estimate of affected households was speculative because a problem affecting millions of households could not statistically be supported by just a few complaints. (Id. at p. 822.) Other cases suggest that surveys, anecdotes, history, and common sense may sufficiently support a legislative finding of harm, depending on the circumstances. (See Florida Bar v. Went For It, Inc. (1995) 515 U.S. 618, 628 [state bar ban on direct-mail solicitation within 30 days after accidents was supported by survey results and anecdotal record, despite lack of background information about survey procedure]; Edenfield v. Fane (1993) 507 U.S. 761, 771 [record was insufficient because it included no study or anecdotal evidence of dangers of in-person solicitation by accountants]; Burson v. Freeman (1992) 504 U.S. 191, 211 [buffer zones around polling places were justified by history, consensus, and "simple common sense"]; Ward, supra, 491 U.S. at pp. 785-786 [city guidelines controlling sound at bandshell events were prompted by complaints about excessive noise and crowd dissatisfaction at concerts].) Raef also relies on cases holding that the government cannot invent a problem based on no evidence at all or based on a faulty generalization. (McCullen v. Coakley (2014) 573 U.S._, 134 S.Ct. 2518,2539 (McCullen) [state law creating 35-foot buffer 21 zones around all abortion clinics was not justified by congestion in front of one clinic on Saturday mornings]; Edwards v. City of Coeur d'Alene (9th Cir. 2001) 262 F.3d 856, 865 [ordinance banning sign handles was adopted after court ruling in favor of protestor and without any evidence they posed danger to public safety].) The court in Edwards v. City of Coeur d'Alene suggested that the lack of empirical evidence would be less problematic if the law's impact on speech were negligible. (!d. at p. 865.) Raef does not dispute that the legislative record contains evidence, albeit anecdotal, supporting the Legislature's concern over a pattern of paparazzi committing traffic violations in pursuit of celebrities, including tailgating, speeding, running red lights, driving on the wrong side of a street, and crashing into vehicles. It cannot fairly be said that the Legislature invented a problem based on little or no evidence. Raef claims, however, that the record fails to show traffic violations by paparazzi are more injurious than those by other drivers, or that "news gatherers" in general drive more dangerously than other drivers. The record supports a reasonable inference that traffic violations committed by paparazzi, or anyone engaging in paparazzi-like pursuits of images of others for personal gain, pose greater danger and are more blameworthy than those committed by drivers not engaged in such pursuits. For example, it is reasonable to conclude that, unlike garden-variety tailgating, which is an infraction requiring no particular mental state, tailgating for the purpose of photographing an individual is not committed through inadvertence or inattention, is unlikely to be momentary and corrected by the tailgater, and may not be avoided by moving out of the tailgater's way. Both anecdotal evidence and common sense support the conclusion that the purposeful pursuit of an individual on public roads by one or more drivers results in several drivers driving recklessly and increases exponentially the danger to everyone on the road. The fact that the violators in these examples are motivated by a desire for personal enrichment makes such conduct more calculated and unseemly, and less random than simple inattention, or the sudden onset of road rage. 2. Narrow Tailoring 22 Raef incorrectly argues that section 40008 is underinclusive because it does not enhance the penalties for "a crazed fan who crashed into a celebrity's car in order to create an encounter, or a roadway bully or enraged lover who intentionally crashed into a victim's car to prevent escape." A law is underinclusive under the First Amendment if it abridges "too little speech." (Williams-Yulee v. Florida Bar (2015) 575 U.S._, 135 S.Ct. 1656, 1668.) Raefs examples do not involve speech, nor do they involve the same confluence of conduct, intent, and commercial purpose that section 40008 identifies as particularly dangerous or culpable. Moreover, "the First Amendment imposes no freestanding 'underinclusiveness limitation.' [Citation.] ... A [s]tate need not address all aspects of a problem in one fell swoop; policymakers may focus on their most pressing concerns." (Ibid.) Raef also argues that section 40008 is not narrowly tailored because the government's interest in traffic safety could be achieved as effectively by increasing the penalties for all traffic offenders, creating recidivist statutes, enhancing the penalties for specific reckless driving acts, and charging offenders under existing criminal laws. (See e.g. Pen. Code,§ 245, subd. (a)(l) [assault with a deadly weapon].) Because the record before us does not show that section 40008 imposes a serious burden: on speech activity, we agree with the People that our consideration of such alternatives would constitute impermissible second-guessing of the Legislature. As the court explained in Ward, supra, 491 U.S. 781, "[g]overnment may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. [Citation.] So long as the means chosen are not substantially broader than necessary to achieve the government's interest, however, the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative. 'The validity of [time, place, or manner] regulations does not turn on a judge's agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests' or the degree to which those interests should be promoted. [Citations.]" (Id. at pp. 799-800.) 23 Raef does not believe any deference is in order, based on McCullen, supra, 134 S.Ct. 2518. But the record in that case showed that the fixed 35-foot buffer zone around abortion clinics imposed "serious burdens on ... speech" by "closing a substantial portion of a traditional public forum [streets and sidewalks] to all speakers." (!d. at pp. 2535, 2541.) Because ofthat, the court considered less restrictive alternatives adopted by other states and the federal government in the abortion context, as well as other existing laws. (!d. at pp. 2537-2539.) Unlike the law in McCullen, section 40008 does not close off a public forum because it does not generally prohibit taking photographs of others on public roads. Nor is there any evidence in the record that enforcement of section 40008 actually imposes any serious burden on speech or press rights. The effectiveness and viability of the alternatives Raef proposes are not a foregone conclusion. Because the increased penalties in section 40008 are directed at the traffic violators' profit motive, which is not present in traffic violations subject to the predicate statutes, increasing the penalties for all traffic violations can hardly be justified. Raefhas not identified existing laws that would as effectively regulate the variety of traffic violations, short of actual crashes, that can be committed in paparazzi-like pursuits. The legislature need not predict all the ways in which the statute may be violated, nor can all possible violations be subsumed in the category of reckless driving. We conclude that section 40008 is sufficiently narrowly tailored to address the particular problem the Legislature sought to alleviate without unnecessarily or seriously burdening speech or press rights. To the extent that it elevates some traffic offenses from infractions to misdemeanors, it entitles the violator to significant procedural protections, such as the right to a jury trial. (Cal. Const., art. I, § 16; see Turner v. Louisana (1965) 379 U.S. 466, 472--473 ["In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the 'evidence developed' against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel"].) 24 II Raef also argues that section 40008 is constitutionally void for vagueness and overbreadth. Under the First Amendment, a statute is unconstitutionally overbroad if it "punishes a 'substantial' amount of protected free speech, 'judged in relation to the [statute's] plainly legitimate sweep[.]'" (Virginia v. Hicks (2003) 539 U.S. 113, 118119.) Overruling a statute based on overbreadth is a drastic measure, only necessary where "the threat of enforcement of an overbroad [statute] may deter or 'chill' constitutionally protected speech-especially when the overbroad statute imposes criminal sanctions." (ld. at p. 119) The overbreadth doctrine may not be used to block application of a statute "to constitutionally unprotected speech, or especially to constitutionally unprotected conduct." (Ibid.) Raef compares section 40008 to the ordinance in People v. Glaze ( 1980) 27 Cal. 3d 841, where all picture arcades were ordered closed during certain early morning hours because masturbation had taken place at some of them. (Id. at p. 849.) He argues that like the ordinance in People v. Glaze, section 40008 is based on the faulty assumption that just because some paparazzi have surrounded or crashed into celebrities' cars, or have engaged in high-speed chases with celebrities on the wrong side of the road, it is necessary to impose enhanced penalties on the "journalist, photographer, videographer or sound engineer" who drives recklessly, "whether intentionally crashing into a celebrity or merely tailgating"; he also suggests that the statute "sweeps in basic reckless driving that previously merited only a minor infraction." People v. Glaze, supra, 27 Cal.3d 841 is distinguishable. In that case, there was no reason to limit the hours of arcades where no masturbation had occurred. (!d. at p. 849.) In contrast, here, Raef appears to suggest that the traffic offenses enumerated in section 40008 change in kind when committed by someone other than a paparazzo, even if they are committed with the requisite intent and purpose. But there is no reason why section 40008 should not apply to any driver who follows too closely, swarms in, or 25 drives recklessly with the requisite intent and purpose, whether or not the driver is a celebrity photographer. As we have explained, under the predicate statutes, tailgating is an infraction that does not require proof of a mental state, whereas reckless driving already is a misdemeanor. (See§§ 21703,23103, 40000.15.) Therefore, it is inaccurate to characterize reckless driving as an infraction under the predicate statutes or to equate tailgating with reckless driving under section 40008. The increased penalties for tailgating in section 40008 are justified not because tailgating is a type of reckless driving, but because the tailgating that falls within the purview of section 40008 is committed intentionally for a commercial purpose. Raef also argues that section 40008 is void for vagueness because it does not describe the prohibited conduct or specify the temporal scope of the required intent. Ordinarily, a person who engages in conduct "'that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others,"' but that requirement has been relaxed in the First Amendment context, allowing the person to argue "that a statute is overbroad because it is unclear whether it regulates a substantial amount of protected speech. [Citations.]" (United States v. Williams (2008) 553 U.S. 285, 304.) Yet '"perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.' [Citation.]" (Ibid.) A statute is vague not because "it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved," but because of "the indeterminacy of precisely what that fact is." (!d. at p. 306.) Statutes that have been struck down as void for vagueness "tied criminal culpability to whether the defendant's conduct was 'annoying' or 'indecent'-wholly subjective judgments without statutory definitions, narrowing context, or settled legal meanings." (Ibid.) But whether someone had the required intent "is a true-or-false determination, not a subjective judgment. ... " (Ibid.) The conduct subject to section 40008 is described with reference to the predicate statutes and the intent element. The hypothetical scenarios Raef proposes strain the statutory language because they read into section 40008 intent different from the one 26 actually included in the statute. The intent to make it on time to the airport, a press conference, or the scene of a disaster cannot reasonably be substituted for the intent to capture an image, sound recording, or physical impression of another person. The hypotheticals proposed by amici Pennsylvania Center for the First Amendment and the Marion B. Brechner First Amendment Project are flawed for the same reason. They suggest that section 40008 may apply even in situations of inadvertent tailgating or rushing to report on a forest fire. Section 40008, by its terms, applies to traffic violations committed with the intent to photograph another person, not to those committed inadvertently or with the intent to photograph a burning forest. To the extent that Raef and amici are concerned about "the possibility of overzealousness on the part of the arresting officer and not vagueness in the criminal statute," their concerns "can be adequately dealt with in the course of prosecution of individual cases on their individual facts." (People v. Superior Court (Caswell) (1988) 46 Cal. 3d 3 81, 397, 39 8.) Raef and amici do not dispute that a person who tailgates, drives recklessly, or interferes with the operation of a vehicle will be stopped for a traffic violation, not for engaging in a speech activity. As we have discussed, if the traffic violation is charged as a misdemeanor under section 40008, the driver will have a right to a jury trial. (Cal. Const., art. I, § 16.) Any uncertainty about the driver's intent will be "addressed ... by the requirement of proof beyond a reasonable doubt." (United States v. Williams, supra, 553 U.S. at p. 306.) Hypothetical concerns over potential misuse of the statute to unfairly target the press do not justify invalidating it on its face. Section 40008 is neither vague nor overbroad and does not violate the First Amendment. DISPOSITION The petition is denied. CERTIFIED FOR PUBLICATION 27 EPSTEIN,P.J. We concur: WILLHITE, J. COLLINS, J. 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 15760 Ventura Boulevard, 18th Floor, Encino, California 91436-3000. On November 6, 2015, I served true copies of the following document(s) described as PETITION FOR REVIEW on the interested parties in this action as follows: SEE ATTACHED SERVICE LIST BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with Horvitz & Levy LLP's practice for collecting and processing correspondence for mailing. On the same day that the correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I declare under penalty ofperjury under the laws ofthe State of California that the foregoing is true and correct. Executed on November 6, 2015, at Encino, California. Raeann Diamond SERVICE LIST Paul Raef v. The Superior Court of Los Angeles County, Appellate Division Court of Appeal Case No. B259792 Katharine H. MacKenzie Deputy City Attorney Office of the Los Angeles City Attorney 200 North Main Street James K. Hahn City Hall East, 5th Floor Los Angeles, CA 90012 Attorneys for Real Party in Interest, Richard A. Schmidt, Assistant City Attorney Valley Criminal Branch Operations of The Office of The City Attorney Of Los Angeles 6262 Van Nuys Boulevard, Suite 151 Van Nuys, CA 91401 Counsel for Real Party in Interest, Dmitry Gorin Alan Eisner Eisner Gorin LLP 14401 Sylvan Street, Suite 112 Van Nuys, CA 91401 Honorable Patti Jo McKay Honorable Sanjay T. Kumar Honorable Alex Ricciardulli Appellate Division Los Angeles Superior Court I l l N. Hill Street, Dept. 70 Los Angeles, CA 90012 PEOPLE OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA Co-Counsel for Petitioner, PAULRAEF Respondent, SUPERIOR COURT OF LOS ANGELES, APPELLATE DIVISION Case No. BS140861 Honorable Thomas Rubinson Judge ofthe Superior Court Van Nuys Courthouse, Dept. N 14400 Erwin Street Mall Van Nuys, CA 91401 SUPERIOR COURT OF LOS ANGELES Honorable Christine C. Ewell Judge of the Superior Court Van Nuys Courthouse, Dept. 105 14400 Erwin Street Mall Van Nuys, CA 91401 SUPERIOR COURT OF LOS ANGELES Case Nos. 2VY03020 and BS140861 Case Nos. 2VY03020 and BS140861 Clerk, Court of Appeal Second District, Division Four 300 S. Spring Street 2nd Floor/North Tower Los Angeles, California 90013 Case No. B259792 Electronic Service http://www.courts.ca.gov/2dca-efile.htm Jean-Paul Jassy J assy Vick Carolan LLP 6605 Hollywood Boulevard, Suite 100 Los Angeles, CA 90028 Counsel for Amici Curiae for Petitioner, THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, ET AL. Eugene Volokh Scott & Cyan Banister First Amendment Clinic UCLA School of Law 405 Hilgard Avenue Los Angeles, CA 90095 Counsel for Amici Curiae for Petitioner, PENNSYLVANIA CENTER FOR THE FIRST AMENDMENT AND THE MARION B. BRECHNER FIRST AMENDMENT PROJECT Office of the Attorney General 300 South Spring Street Los Angeles, CA 90013-1230 Service on Attorney General Required by and Cal. Rules of Court, Rules 8.29(c) and 8.212(c).