I don't usually get involved in the squabbles between paparazzi and their prey, not only because I don't want to get hit by either of them, but also because I generally take the position that those who take pictures for money and those they take pictures of are locked in some symbiotic relationship that is beyond me. I'm not sure exactly how it relates to the First Amendment, but who's to say? Not me. At least not until my former student Michael Schwimer gets in the middle of it.




Michael is a surfer dude who went to law school &

graduated, actually, after doing very well. I met him when he was my student, and his father was not only my radiologist, but also my friend Lynne's, the guy who saw the shadow at Christmastime and insisted on the biopsy. It took me a minute to make the connection between the careful radiologist and the surfer with the skateboard in my gender discrimination class, but once I got it, I became fans of both.




I tried to get Michael a job as general counsel to a sports equipment company, but they weren't ready for an in-house lawyer, so he's been out on his own, doing some contract work for a firm and representing clients he meets in his other activities. Which is why you will find him right in the middle &

legally speaking &

of the fight last weekend between some residents of Port Dume beach in Malibu and the paparazzi who were staking out the beach in the hopes of getting shots of its newest resident, Matthew McConaughey.




Michael's client is the beach marshal who tried to enforce the no-trespassing rule on the visiting "paps." An altercation ensued, in which somebody is said to have pulled a knife and quite a few somebodys were using tripods as weapons. The "paps" are posting their pictures online, which show them as the victims; Michael is calling foul and trying to figure out how you write a constitutional anti-pap law.




It's not that simple.




How do you tell the difference between the paparazzi who are chasing Matthew McConaughey and what most of us would think of as "legitimate photojournalists" covering a politician's love shack on the beach? How do you protect access to the latter while giving us all a break from the annoyances of the former?




The paparazzi are engaged in commerce. They're patrolling the beach for cash, not the Constitution. A bulge over a bikini (from the right celebrity, not us) can make their week. Of course it's not news.




But being able to see that and capturing it in a regulation are not the same things. Local newspapers and television stations are also engaged in commerce. They're almost as interested in covering celebrities as the tabloids are in covering politicians. The days of clear lines between who is and isn't "legitimate" are gone, if ever they existed. Blame it on Gennifer Flowers, who rocked the 1992 campaign from her perch as a tabloid story &

the biggest news money could buy. It was still news. The fact that you pay for the picture doesn't mean the Constitution doesn't protect your right to get it.




Communities are entitled to enact reasonable regulations to protect public order and safety. Keeping photographers a minimum distance away from their prey might be fine, provided the distance is small enough, but no one wants to give the cheating politician a safe house. Requiring the press to abide by the same laws as everyone else sounds fair enough, at least until you remember that investigation a few years back into supermarket butcher departments, where the news folks went undercover and got hit with trespass and everything else. Is there a way to get the cameras behind the butcher's counter and keep them off of the beach? Can Malibu come up with an approach that protects the First Amendment and the peace and quiet of its high-profile beaches? They're going to try, and if anyone can figure it out, it's my old friend Michael.




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