The behavior engaged in by many overzealous photographers who make their living capturing celebrity navbar cannot be condoned. On this we all agree. But not only does the legislation recently proposed by Senators Feinstein and Hatch not offer any real solution to this problem, it gravely threatens First Amendment rights and improperly federalizes areas of traditional state concern. It would create a new federal crime and a new federal tort, both specifically targeting the press.

Freedom of the press, which is one of the greatest bulwarks of a democratic society, is ironically also one of the most vulnerable of our constitutional rights. The proposed legislation endangers the media's constitutionality-guaranteed rights while offering public figures no effective new protection against privacy intrusions and harassment. It is both destructive of our liberties and redundant.

There are already state laws in existence which prohibit the kind of behavior we condemn in some of the paparazzi. State law already offers protections against harassment, battery, assault, privacy invasions (including in public places); it already offers injunctive relief and it already provides for damages for intentional infliction of emotional distress, nuisance, and trespass. There are state civil and criminal remedies for practically all of the conduct the Feinstein-Hatch bill would federalize. False imprisonment is but one example. This criminal offense was recently invoked in the case involving Arnold Schwarzenegger and Maria Shriver, who were hounded as they drove their son to pre-school -- behavior the judge found "outrageous," and which subjected the defendants to potential prison sentences of up to two years.

Unlike these state laws which maintain a balance between First Amendment rights and privacy rights, the Feinstein-Hatch proposal is aimed specifically at the press and criminalizes legal First Amendment activity. The measure would make it a federal crime to "persistently follow" a person in order to photograph him/her, but "persistence" is obviously open to interpretation and will lead to uneven and potentially discriminatory enforcement. Can "persistence" be demonstrated in a really intense five minutes, or must the behavior occur over a period of several months? Moreover, by only targeting the actions of those who use their photographs Afor commercial purposes,- the bill exempts the exact same conduct if committed by someone who is not a member of the press - an obsessed fan for example. Making any conduct a federal crime only if committed for "commercial," read "media," purposes seriously compromises the First Amendment.

No matter what the issue, creating new federal crimes is always a dangerous business, particularly when we attach lengthy mandatory minimum sentences. We do not have a federal police force. Our drug laws are enforced by special drug police -- the DEA. Our immigration laws are enforced by another special force -- the INS. Only the FBI is available to enforce the few other national crimes that now exist, and, fortunately, we have been able to limit the size and the power of the FBI so that it has not become too great a threat to individual liberty, notwithstanding the abusive reign of J.Edgar Hoover. If murder, rape, burglary, assault and battery, and child abuse are not federal crimes, but are left to the state authorities to prosecute, should we really create a special new federal offense of "harassment by paparazzi?"

In addition, the bill enters treacherous waters by creating federal civil causes of action for "the use of visual or auditory enhancement devices to capture recordings [photographers] otherwise could not have captured without trespassing." This, too, raises serious First Amendment concerns. Consider the following hypothetical: a gubernatorial candidate who denies his association with an all-male, private club is photographed by a female photographer with a telephoto lens from the sidewalk (public space) as he sits on the club's front porch (private space). If the Feinstein-Hatch proposal becomes law, the photographer can be sued for damages and made to pay the plaintiff's attorneys fees and expert witness fees. This clearly chills her exercise of First Amendment rights.

We may need to consider narrowly drawn, carefully circumscribed legislation concerning developing new technologies such as hidden or off-site listening devices and certain types of enhancing photographic equipment. We many need to reexamine and strengthen laws designed to protect the right of privacy generally. But a bill specifically targeting only the press - while exempting both other private actors and law enforcement - is just another phony political solution that in the end would provide little benefit to those it is supposed to help. It is highly unlikely, for instance, that the FBI would devote much of its personnel and resources to enforcing such dubious legislation.

Law making by public relations is simply the wrong approach to serious First Amendment issues. The text of the "bill" was not released at the highly-trumpeted press conference at which Senator Feinstein and Hatch appeared. Nor has any text been made available by Senator Feinstein's office since then, despite repeated requests - only a "Summary" and a "Back grounder"stating that the bill will protect individuals against abusive conduct Aby commercial media,- in other words by the press. Moreover, aside from its vulnerability on First Amendment grounds, the bill's sponsors undoubtedly know that it faces a stiff Supreme Court challenge based on Congress's lack of authority to enact legislation regulating purely local conduct. In short, the Feinstein-Hatch proposal appears to be just one more instance of cynical political-grandstanding designed to appeal to prospective but powerful supporters.

The purported goal of the ill-fated measure is undoubtedly admirable, but the means are clearly wrong. One more federal criminal law with long mandatory prison sentences is not the answer. There are better ways to regulate the type of paparazzi behavior that society may properly prohibit - ways that do not lessen the protections offered by the First Amendment or further federalize our criminal law. As Camus said, "A free press can of course be good or bad, but, most certainly, without freedom it will never be anything but bad."

The American Civil Liberties Union joins with the National Network for Immigrant and Refugee Rights and other concerned individuals and organizations during this the "National Week of Action Against Immigration Raids" in calling for an end to abusive immigration raids. The abuses documented in various media accounts and in numerous court cases cannot be ignored. There is no excuse for physical and verbal abuses by INS officials, and there is no room for ethnic stereotyping in immigration enforcement or, for that matter, in other law enforcement activities.

Abusive raids must be stopped because they:

--Are conducted in a dragnet manner and sweep in citizens and lawfully-present aliens

--Depart from Fourth Amendment principles of probable cause and reasonable suspicion of a violation as a basis for enforcement activities against particular people

--Target individuals -- primarily Latinos and Asians -- based on their national origin or on proxies for national origin, such as appearance or accent

--Are used by employers to thwart union organizing

--Hamper efforts to protect immigrant communities from crime

These raids do not target particular individuals about whom facts exist indicating that the person is in the country illegally. Instead these abusive raids sweep up every person nearby, citizens and authorized aliens alike, forcing all who are confined to prove their lawful presence to avoid continued detention.

These abusive immigration raids deprive workers of basic Fourth Amendment protections. In many abusive raids, there is typically no probable cause of crime, or even of a violation of the immigration laws, that supports an entry onto property or detention of an individual. In fact, raids directed at employees are often conducted with the consent of the employer. However, the consent of the employer does nothing to further the interests of the true targets of the raid, the employees. Though workers have a right to refrain from answering questions, that right is illusory when questions are posed by armed officers in a coercive environment.

Even raids conducted with a legitimate warrant, often referred to as a "Blackie's" warrant, [Blackie's House of Beef v. Castillo, (D.C. Cir. 1981)], are conducted in a dragnet fashion. The Blackie's warrant does not require that the INS name or even describe the allegedly undocumented aliens it seeks. Consequently, the raid is conducted by barring the exits, and questioning everybody, or discriminatorily questioning those who "look foreign" or speak with a foreign accent.

These abusive raids target people based on their appearance, accent, or surname. While the INS has instructed its employees to refrain from using foreign appearance as the sole criterion in a work-site investigation, this discriminatory enforcement has not stopped. In fact, INS headquarters gave INS district offices a green light to use "foreign appearance" and "ethnic characteristics and language" in combination with other factors during work site raids to determine whom to question and/or detain.

Dragnet tactics that characterize an abusive immigration raid inevitably entangle citizens who are not -- and who should not be -- required to carry with them identity papers, or to retrieve them from home to satisfy an agent of the government. These practices are inconsistent with the principles that underlie the Fourth Amendment, the equal protection component of the Due Process clause, and the most basic notion of privacy: the right to be left alone.

Employers often abuse immigration raids to head off union organizing drives. Employers sometimes report their own work premises to the INS in order to prompt a raid and disrupt the organizing effort. We reiterate our call on the INS to refrain from conducting raids of work sites during union organizing drives.

INS enforcement operations that involve local police are also counter-productive and should be abandoned. The vesting of local law enforcement officials with immigration enforcement powers and joint law enforcement operations between local police and the INS both undermine enforcement of the criminal law. Community policing depends upon the trust and cooperation of the community to be protected. Witnesses to, and victims of crimes will simply not report them to police officers who have immigration enforcement duties, if such reporting could trigger immigration proceedings against themselves, their friends or members of their family. This mixing of law enforcement missions translates into more crimes going unsolved, or unstopped, in immigrant communities.

The answer to abusive immigration raids is not -- as is proposed by the INS -- the placement of a Public Relations officer at each site when INS conducts an abusive raid. An INS PR officer's "spin" does nothing to restore dignity to a person who is intimidated, detained and questioned without any particularized suspicion at a work site, or a park, or on a street corner, just because of ethnic appearance. Rather, this practice must end, and be replaced by law enforcement operations focused on particular suspects, not on entire work forces, entire communities, or everybody on a given street corner. This may be news to the officials in Chandler, Arizona, who went door-to-door last year looking for undocumented aliens: there is no such thing as an "illegal neighborhood."

The answer, rather, is to abandon the practice of indiscriminately rounding up people and putting the burden on them to prove their lawful presence. Immigration enforcement operations should be held to the same standards of particularity and suspicion as are other law enforcement operations.

In addition, we call on Congress to repeal the laws that foster the abuses. In 1986, legislation was adopted to impose sanctions on employers who hire undocumented workers. The ACLU has long opposed employer sanctions because they result in discrimination against Asian and Latino workers based on appearance and accent. It's time for Congress to admit that this experiment has failed, and that employer sanctions must end.

Though they have turned employers into immigration cops, work places into immigration check points, and workers into numbers tracked in a computerized data base maintained by the federal government, employer sanctions have failed to discourage the undocumented from coming to the United States. The fact that some abusive raids are justified as efforts to enforce employer sanctions is one more reason the employer sanctions law should be repealed.

Instead, the root causes of undocumented immigration must be addressed, and workers' rights to a fair wage and safe working conditions must be better enforced to diminish the incentive for employers to hire and exploit the undocumented.

The ACLU of Southern California today sent a letter to the San Bernardino County Coroner's Office protesting the release of more than 50 fetuses to church groups in Chino, Chino Hills and Montclair for the purpose of holding religious memorial and burial services this evening and tomorrow. The ACLU has threatened to sue the County for violating the First Amendment's requirement of the separation of church and state if the fetuses are released to the church groups for the express purpose of holding religious services.

The fetuses were discovered in containers in the Chino Hills area in March 1997. After an 18-month investigation by law enforcement, the San Bernardino County Coroner agreed to turn over the remains to church groups who plan the vigils. The following letter was sent to San Bernardino County Coroner Brian McCormick:

"It has come to the attention of the ACLU Foundation of Southern California ("ACLU") that your office has agreed to turn over more than fifty fetuses to religious groups for the purpose of holding memorial services in the communities of Chino, Chino Hills, Riverside and Montclair October 9 through 11, 1998. We are writing to express our grave concerns about your facilitation, as a public officer, of religious burial services. As described more fully below, such action is in clear violation of the United States and California constitutions, as well as California health law. As such, we urge you to refrain from donating the fetuses in your custody to religious groups to avoid such violations.

"In Feminist Women's Health Center v. Philibosian (1984) 117 Cal. App. 3d 1076, the California Court of Appeal held that the Los Angeles County District Attorney's proposed burial of 16,500 fetuses in a private cemetery, after he was aware that the cemetery had contracted with a religious organization to hold a burial service, violated the separation of church and state guaranteed by the establishment clause of the First Amendment to the United States constitution and article XVI, Section 5 of the California constitution.

"In so doing, the court emphasized that, because burying fetuses in adherence to the beliefs of a Catholic group "represents a particular religious view . . . the district attorney's purported action would, in effect, sponsor and approve that view." Id. at 1086. Moreover, any state action showing a preference of a particular religious belief will be strictly scrutinized and must be invalidated unless it is justified by a compelling governmental interest. Id. at 1088. Because the district attorney's only interest with regard to the fetuses was to "dispose of them lawfully" pursuant to California health law (see, e.g, Calif. Health & Safety Code ﾌ_ 7054.3), the court determined that there was no compelling state interest to dispose of the fetuses in a private ceremony that would "justify the appearance of state sanction of a particular religious belief." Id.

"Moreover, the court stated that because "the abortion issue is one of the most emotionally explosive issues in today's political firmament," the proposed burial clearly presented "political entanglement" with religion. Id. at 1090.

"The appearance of support by the state, of one side of this controversy over the other, is improper political entanglement. The act of indirectly turning the fetuses over . . . for religious burial as murdered humans would vitiate the studied neutrality which is the state's constitutional course. The proposed action would aggravate an already volatile religious issue.

"Like the district attorney's proposed religious burial held unconstitutional in Feminist Women's Health Center, the San Bernardino County Coroner's proposed release of fetuses for religious memorial services clearly violates the constitutional separation of church and state. Moreover, discarding of fetuses in this manner raises concerns about the County Coroner's failure to adhere to California health laws. Given the urgency of the situation, the ACLU expects that the County Coroner's office will take immediate steps to prevent any unlawful delivery of fetuses to religious groups for sectarian purposes. If such delivery is not prevented, we will have no choice but to take legal action. Given the clear status of the law, the Coroner's office would likely be subject to the embarrassment of having an injunction issued against it and damages being assessed."