California Assemblyman Pedro Nava, D-Santa Barbara, is introducing a bill that would "prohibit the use of a minor's image, name, voice, signature or likeness in an ad for a candidate or ballot measure without the consent of a parent or guardian for children under 12 and the child's consent for those 12 and older." Nava's bill is inspired by pro-Proposition 8 ads last year that used footage of school children attending their teacher's same-sex wedding ceremony at City Hall.
The ad in question, at least the video version, is this:
Of course, this isn't the most odious child-centered Prop 8 ad that surfaced last year. No, that distinction goes to this stomach-churning spot in which a bright-eyed school girl enthusiastically tells her mother how she learned in school that she can grow up and "marry a princess," playing on fears that legalizing same-sex marriage will empower left-wing public school teachers to turn our children gay:
(Also available en español ).
The key difference between the wedding spot and the princess spots, of course, is that the adorable actresses in the latter were willing participants in the commercials, while the images of the kids in the wedding ads were used without the consent of either the children or their parents. Only the hapless children from the wedding ads would fall under Nava's bill.
But there's more to it than that. The wedding footage was actually lifted from the San Francisco Chronicle's coverage of the event, i.e., information that's publicly available from a major newspaper. It's not like the Yes on 8 folks invaded a private ceremony with their digital cameras and camcorders and secretly gathered material for their campaign ads. And it's pretty hard to justify a law that would prevent something -- anything -- that appears in a newspaper from being used in a political ad.
And, frankly, because the ceremony in question took place on the steps of City Hall, in public view, the Prop 8 proponents should be able to use the images even if they had taken the pictures themselves. There's simply no violation of any right to privacy here, as Nava claims in submitting the bill.
Indeed, the bill as drafted seems to acknowledge this issue. In what I can only assume is a clause designed to preserve the bill against the inevitable First Amendment challenge, the bill provides for a civil penalty only "if a court finds that the privacy interests of the minor outweigh the speech interests of the person." But, given the fact that the unwitting poster children for the anti-same-sex marriage campaign have become the unwitting poster children for Nava's bill, either Nava considers the privacy right in an image plastered all over a newspaper to be superior to the free speech interest in robust political discourse, or Nava's bill is a solution in search of a problem. Either way, it's hard to see how this bill is a good idea.
Tacky political ads that exploit children and our desire to protect them have been around at least since Lyndon Johnson vaporized a girl picking flowers in 1964. And they work with varying degrees of success -- The "Daisy" ad helped Johnson clobber Goldwater, but Hillary Clinton's blatant ripoff fizzled against Obama. I can sympathize with Nava's interest in keeping unwilling kids out of political advertisements, but a bill that prohibits the use of publicly-available information in political speech isn't the right way to do it.