Academic journal article Journal of Film and Video

Reality-Based Television versus the Civil Right to Privacy: A Battle of Access

Academic journal article Journal of Film and Video

Reality-Based Television versus the Civil Right to Privacy: A Battle of Access

Article excerpt

the general public has come under closer scrutiny from those who seek to obtain information about them, whether they like it or not, from technologies such as hidden cameras, Internet spyware, miniature recording devices, and super-telescopic photography lenses (e.g., Elder, Johnson, and Rishwain). Society's interest in "voyeurism" or "social curiosity" (Baruh 202) appears to fuel a growing genre of television programming called reality TV. Its popularity has influenced traditional television journalistic newsgathering practices and along the way has created legal challenges regarding the public's right to privacy.

In Wilson v. Layne and Berger v. Hanlon, the US Supreme Court's decisions affected newsgathering techniques that can be used by journalists while accompanying law enforcement officials during the execution of a search warrant. Shulman v. Group W Productions further altered the media's process of gathering information by clarifying access to emergency situations and access to patients where guarded personal information is exchanged between the victim and an emergency respondent.

These decisions were meant to provide media outlets with clear boundaries regarding the public's right to know versus the public's right to privacy or the First Amendment versus the Fourth (Esch; Gossett; C. Calvert). The media outlets in question were print and broadcast news organizations in the Wilson and Berger decisions. The courts did not specify whether "alternative" programming provided by independent television production companies was included under the "media ridealong" decision.

With the rise of reality-type information gathering, the question remains of whether or not these legal lines of privacy have been crossed (Mast). The theoretical and empirical context of this research is to explore implications of legal decisions regarding privacy rights and apply them to "justice" (Erikson) and "accident and emergency format" (Kilborn; Bondebjerg) reality-type television programming.


Orbe suggests using diverse methodological and theoretical approaches to critical media scholarship (350). Cross-disciplinary research methods are employed during this article's exploratory study, including "genre criticism" (Butler 432) examining production techniques, critical analysis of reality television (Lunt; Hight), and critical legal studies or "empirical legal studies" (Trubek 585), where legal concepts are applied to sociological inquiry.

Previous critical legal studies (CLS) are associated with empirical application of social science and research on the "behavior of legal actors" (Trubek 600). Trubek postulates that a relationship exists between "legal beliefs and practice" (604) and social order and action. "Critical empiricism" (Coombe 71) in law is applicable in film theory, the "ideological efficacy" (118) of television. Causal empirical research in CLS, proposes Tushnet, is an "interminable critique" (516) on social values. Miller posits the field of television studies borrows from CLS (3). CLS allows an opening in sociological research, with legal foundations providing a basis for critical application.

This article examines the rise of the tabloid journalism type of reality television (Cavender and Fishman; B. Calvert et al.; Turner) and applies Prosser's torts on privacy to the production of nonfiction documentary-style programs, otherwise noted as reality-type television. The article focuses on one state case, Shulman v. Group W, and two federal cases, Berger v. Hanlon and Wilson v. Layne, to the application of reality television programming.

Reality Television Defined

There are many definitions of reality-based television programming. Prosise and Johnson, expanding on Cavender and Fishman, indicate a belief that reality programming "blurs the line between news and entertainment . . . fact and fiction" (Prosise and Johnson 73), where the videotaped interactions are presented to the audience as real rather than fictionalized encounters (e. …

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