‘To Catch a Predator’: An Invasion of Privacy Fabricated As News

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					‘To Catch a Predator’: An Invasion of Privacy Fabricated As News No one is home in this picturesque house in the small suburban town of Murphy Texas – no one, that is, except an adorable and sexually experimental fifteen-year-old virgin. She has announced to various men on the Internet that her parents have left town to visit some friends in Las Vegas and she is horny, and looking for some action. After a couple hours of conversation with anonymous men who have sent her various inappropriate photos, this young woman now finds herself awaiting the arrival of her chat partners, some journeying as long as several hours. Armed for action with variations of sexual lubricants, booze, dirty magazines, and every shape, size, and textured condom on the market, it‟s not long before the men begin to filter in. With a quick “surprise” the potential child rapists are shocked to learn that the young teenager they knew only as „Casey‟ or „HotGirl695,‟ isn‟t as alone as she made herself out to be. The men quickly establish that the home is simply a decoy, doubling as the set for exploitating sexual deviants on the NBC Dateline program To Catch a Predator. The stunningly handsome, blonde, and charismatic host, Chris Hansen, asks the men to sit down while he subsequently interrogates them for several minutes. At the point in which the potential rapists are the most uncomfortable, stumbling over their words with stunned white faces, Chris Hansen introduces himself. He announces that the men are now part of a journalistic news TV show shedding light to a “growing national epidemic.”1 On cue for this line, cameras, stagehands, and others involved in the film

1

Vanessa Grigoriadis, „To Catch a Predator‟: The New American Witch Hunt for Dangerous Pedophiles, Rolling Stone, Jul. 30, 2007.

crew storm the kitchen revealing lights, cables, and the look of extreme embarrassment on the faces of the cornered men. As American‟s jump from their couches and shriek at the thought of what must be going through the men‟s minds, the police fall into their position outside and finish the fiasco in a spectacular take down operation. Cutting to commercial, captivated viewers find themselves falling off the edge of their seats, eagerly ready for the next sick, unsuspecting, potential predator. This ratings and attention-grabbing phenomenon has quickly become one of the most successful shows in network television history; America can‟t get enough. But what does the law say? Should networks be allowed to exploit the full identity and image of victims in sting operations? Can this be considered „fair use‟ because it is newsworthy? What is newsworthy? Introduction: I want to be very straightforward: I am by no means an advocate for sexual assailants, child rapists, marital infidelity, or secret illegitimate Internet fetishes. Nonetheless, I am deeply concerned of the possible effects that could come from allowing private organizations to use their financial backings and respectable positions in society to violate citizen‟s fundamental rights (statutory rapist or not). This article is an attempt to consider what boundaries are in place to protect those who do not wish to have their identity exposed illegally. NBC‟s producers for To Catch a Predator willingly

admit that they violate the publicity rights of those they catch in the sting operations. 2 However, the predators will have an easy time arguing only three of the four requirements necessary to file a common law violation of publicity claim. The fourth prong, whether or not the studio is using the caught men for commercial purposes, hinges on whether To Catch a Predator can be seen as news programming. News journalism should cover life in society but the material should be „newsworthy.‟ The courts have failed to define the definition of what exactly newsworthiness is, but when a media network creates a situation that if committed by a public official would be deemed entrapment and the head producer quits for what she calls “extreme ethical issues,” some type of regulation should be in place to make sure no rights are violated.3 Overview: Stemming from the emergence of cameras, film, and motion picture in the early 20th century, United States citizens‟ personality rights have earned court protection.4 Personality rights have recently emerged to generally protect two types of rights: the right to privacy and the right of publicity. The initial concept, the right to privacy, or the right to be left alone and not have one‟s personality publicly broadcasted without permission, was made available to anyone

2

Chris Hansen‟s live blog on Dateline, http://www.msnbc.msn.com/id/11103248 (Feb. 3, 2006,1:37 EST). 3 WFAA News 8: ZERO Prosecutions in To Catch a Predator Dateline NBC show (television broadcast)(logged video http://www.youtube.com/watch?v=UgLyXIzmx8E&NR=1). 4 Mark Roesler, Right Of Publicity, http://www.markroesler.com/ipresources/rightofpublicity.htm.

not in the public eye.5 Celebrities were seen as citizens who „sought public attention‟ and could not file charges with the court to prevent the display of their image.6 But what restrictions were in place to protect socialites from having private aspects in their lives broadcasted? What about those in the public eye who never desired to have their celebrity status? The right of publicity, as set forth by the Honorable Jerome Frank in a 1953 case between Haelan Laboratories, Inc. v. Topps Chewing Gum, was defined as the “inherent right of every human being to control his or her commercial identity.”7 Seen as a form of property, ones image or likeness was found as licensable to make money.8 Individuals are deprived just compensation when their images are used for commercial purposes without permission.9 Restricting certain communication of “personally identifiable information,” publicity rights are protected by states and the common law under four distinct torts.10 In a country that abides by The First Amendment, broadcasters still have some rights that allow them to publicize this information. Fair use clauses, inure in the First Amendment, allow for a person‟s image to be used and displayed fairly.11 Furthermore, fair use

5

Right of Publicity, http://ilt.eff.org/inex.php/Right_of_Publicity (last visited Feb. 5, 2008). 6 O‟brien v. Pabst Sales Co., 124 F.2d 167, 168 (C.C.A. 5th Cir. 1941). 7 Haelan Laboratories Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir. 1953). 8 Thomas Phillip Boggess, Cause of Action for an Infringement of the Right of Publicity, 31 COA2d 121 (2007). 9 Haelan Laboratories Inc., 202 F.2d at 868. 10 Eugene Volokh, Freedom of Speech and Information Privacy: The Troubling Implicatins of a Right to Stop People From Speaking About You,52 Stan. L. Rev. 1049, 1051. 11 Right of Publicity, http://ilt.eff.org/inex.php/Right_of_Publicity (last visited Feb. 5, 2008).

clauses are regulated by the Supreme Court and lower courts, which have the ability to create and expand upon these legal exceptions.12+13 I admire Dateline NBC’s intent to catch child predators, but question how the network may expose these individuals names, image, lifestyle, history, location, and portray them to society as guilty pre-conviction. It is easy to see that the shows perverts of the hour are not the only ones in this production who come off as sketchy. Ratings, advertising dollars, and blurred lines between cameras standing behind the police or in front of them, lead me to be concerned that NBC‟s actions do not line up with their intentions. In the end, I do not consider the First Amendment defense was ever intended to protect the money-making entertainment studios. The courts should expand the amendment exceptions to protect potentially innocent citizens from the many conflicts of interest that potentially arise from these types of invasions.

The Right to Publicity: Those caught by the NBC sting will argue that they have a right to their publicity and the studio violated this right when they broadcasted their image, name, and other information. The common law tort for an action against ones right of publicity has been defined under four distinct torts:

12 13

Volokh at 1051. Id.

1) 2) 3) 4)

Intrusion; Disclosure; False light; and Appropriation.

Prosser, Privacy, 48 Calif. L Rev. 383 (1960). These torts are based upon the idea that a person has the right to be left alone and the ability to control their identity.14 The above torts, recognized in at least 28 states, have been critical to members of the entertainment industries in California and New York, who have cited these torts to protect their right to publicity.15 California Civil Code Section 3344.1, authorizes a cause of action by any living person whose name, photograph, or likeness has been used for commercial purposes without his or her consent.16 New York Civil Rights Law Section 50 creates a private right of action against an entity who without gaining consent, uses a person‟s name, portrait, or picture for “advertising purposes or for purposes of trade.”17 The disclosure tort is exceptionally important. This tort places limits on the distribution of non-newsworthy personal information, much of which is considered by people as being highly private.18 Criminal laws forbidding the publication of the names of rape victims, their medical histories, reading or viewing habits, and other potentially embarrassing information have been authorized under this tort to protect individuals‟

14

Thomas Phillip Boggess, Cause of Action for an Infringement of the Right of Publicity, 31 COA2d 121 (2007). 15 Right of Publicity, http://ilt.eff.org/inex.php/Right_of_Publicity (last visited Feb. 5, 2008).
16 17

Cal. Civ. Code § 3344.1(a)(1). N.Y. Civ. Code § 50 (http://law.onecle.com/new-york/civil-rights/CVR050_50.html 2006). 18 Volokh at 1053.

privacy.19 Additionally, this tort covers restrictions that exist to prevent people from communicating information that might put others in danger of crime, for example the names of witnesses or jurors or databases with sensitive information that could be used for fraud.20 Although the actual language of publicity laws vary in each jurisdiction, plaintiffs‟ publicity is violated under the common law when a defendant: 1) 2) 3) 4) Uses plaintiff‟s identity; Appropriates from plaintiff‟s name and likeness to their advantage Lacks consent; and Causes injury.

Eastwood v. Super. Ct., 149 Cal. App. 3d 409,417 (1983). In Comedy III Productions v. Gary Saderup, Inc, the court settled a publicity claim involving a celebrity group‟s image being printed on articles of clothing without consent.21 Comedy III Productions is the registered owner of the rights to the comedy troupe the Three Stooges.22 This group sued an artist, Gary Saderup, after he began selling silk-screened t-shirts with images bearing charcoal drawings resembling the Three Stooges.23 The court found Saderup violated all four factors that made up a publicity claim and he was restricted from selling his shirts.24 The most difficult claim the “captured” predators will have to prove is that NBC appropriated from their name and likeness and used it to the studio‟s advantage. Unlike
19 20

Volokh at1056. Volokh at1057. 21 See generally Comedy III Productions, Inc. v. Gary Saderup, Inc., 21 P.3d 797, , (2002). 22 Id. 23 Id. 24 Id.

in Comedy III Productions v. Saderup, NBC is not selling objects or commercial products with any of the offender‟s image or information on them. In addition, courts have consistently held that one‟s publicity rights should not be construed to apply to “publications concerning newsworthy events or matters of public interest.”25 NBC will defend any allegations by claiming their news journal status permits them to get away with airing the broadcast and the fact that they profit from the programming advertisement sales is irrelevant.

The First Amendment Exception: In response to the publicity violation claims, NBC will cite to their rights to report information that is “newsworthy.” They will point to Dateline’s mission that declares itself “a news program not an entertainment program.”26 Courts have repeatedly held that the common law right of publicity must be balanced against the public interest in “dissemination of news and information consistent with the democratic processes under the constitutional guarantees of freedom of speech and the press.”27 Though the courts have never given a definition for something to qualify as „newsworthy,‟ they have tried to narrow the scope by using what they have labeled the “public concern test.”28 This test includes judging the social value of the facts published, the depth of the publication's intrusion into the private affairs, and “the extent

25 26

Stephano v. News Group Publ Inc.,64 N.Y.2d 174 (N.Y. 1984). Chris Hansen‟s live blog on Dateline, http://www.msnbc.msn.com/id/11103248 (Feb. 3, 2006,1:37 EST). 27 Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400, 409 (2001). 28 Volokh at 1090.

to which the party voluntarily acceded to a position of public notoriety.” 29 California law considers many factors in this test.30 In the California Supreme Court case of Shulman v. Group W Productions, Ruth Shulman was caught on film being rescued from a car accident.31 The footage was subsequently run on the defendants television show and Shulman sued for the public disclosure of private facts based on the broadcast and portrayal of her image.32 Ultimately, the California Supreme Court found that the studio‟s First Amendment defense claim to the broadcast was proper because “automobile accidents are by their nature of interest to that great portion of the public that travels frequently by automobile.”
33

In addition to being substantially relevant newsworthy material, the broadcast was not

overly “lurid, sensational, personal, or emotional in tone.” 34 These facts allowed the court to find in favor of the defendants. In Giofriddo v. Major League Baseball, four professional baseball players who played in the major leagues between 1932 and 1948 sued Major League Baseball after images of them were displayed in media guides at individual All-Star and World Series games.35 Claiming a right to their publicity, the baseball players sought compensation from the use of their images.36 The court was not persuaded by the players‟ argument.37 The interest of players in their images displayed in media guides was found to be
29

Michaels v. Internet Entertainment Group, Inc., 5 F.Supp.2d 823, 834 (C.D. Cal. Civ. 1998). 30 Cal. Civ. Code § 3344.1(a)(1) 31 Shulman v. Group W. Productions, Inc., 18 Cal. 4th 200 (1998). 32 Id. 33 Id. at 228. 34 Id. 35 Gionfriddo at 405. 36 Id. 37 Id. at 416.

outweighed by the public‟s interest in knowing factual data exemplifying the history of the game.38 In furtherance of a First Amendment defense to a right of publicity claim, the court held that celebrities and others in the public spotlight have less of a right to their image and privacy than those with a lesser status in society.39 In addition, the private concern exception is used by courts to essentially state that one does not have the right to speak about a topic that the courts think are not of a legitimate concern to them or their listeners.40 In Diaz v. Oakland Tribune, the court was left to decide whether a situation was enough of a private concern that it should have not been awarded the right to be broadcasted to the public.41 In this case, a community college student body president had the fact that she was a transsexual published in an issue of the Oakland Tribune.42 After Diaz filed suit for violating her publicity, the publication claimed a First Amendment newsworthy fair use defense.43 Though the court did not establish a definition for what was meant by the term newsworthy, they did instruct the jury to consider the public concern test. This instruction was to examine “the social value of the facts published, the depth of the article, {its} intrusion into ostensibly private affairs, and the extent to which the plaintiff voluntarily acceded to a position of public notoriety.”44 Ultimately, the court found

38 39

Id. Id. 40 Volokh at 161 . 41 See generally Diaz v. Oakland Tribune, 139 Cal. App. 3d 118 (1983). 42 Id. at 134. 43 Id. 44 Id.

“little if any connection between the information disclosed and Diaz‟s fitness for office” and thus the information was not to be considered newsworthy.45 In Stephano v. News Group Publications, the plaintiff contended that the defendant used his picture in a news article without his consent.46 The defendant countered that the picture was used to express a fashionable trend and that this constituted consumer interest and would be newsworthy.47 The court of appeals for the state of New York found that one‟s right to publicity should not be construed to apply to “publications concerning newsworthy events or matters of public interest.”48 The plaintiff argued that his picture was an “advertisement in disguise,” and use by the plaintiff entitled him to compensation.49 The court found in favor of the defendant; no genuine issue of material fact shows that the plaintiff‟s rights to privacy were violated.50 News Journalism: Like all networks, NBC relies on shows advertising dollars to support their company. These dollars are directly related to the popularity of a show, the higher the ratings the more demand for the advertisements. As it is no surprise, the studios are well aware of the fact that controversy sells or as one attorney puts it: “for businesses like NBC, ratings and money matter.”51

45 46

Id. at 135. Stefano at 174. 47 Id. 48 Id. at 184. 49 Id. at 174. 50 Id. 51 WFAA News 8: To Catch a Predator Dateline NBC Sued for $105 Million, (television broadcast) (logged video http://youtube.com/watch?v=w_M-Jpz1kO8).

Clearly, NBC broadcasts To Catch a Predator with the intent to attract viewers and sell commercials to run their business. Calling itself a „news program not an entertainment program,‟ Dateline circumvents the torts for publicity by citing to the newsworthiness exception.52 They claim a high-minded purpose: warning the American public about what they call a “growing national epidemic,” and cut, edit, than finally broadcast each sting.53+54 In the end, the network is left with an exuberant amount of revenue, while the „predators‟ find their reputations and lives in peril.55 On it‟s face, I shake my head and accept that this is a classic example of a bad guy getting caught and paying the price. There is no doubt; these men are on some level a societal predator. However, after only beginning to scratch the service into investigating this situation, I was quick to find that behind all the glorified take down operations, is a clear picture of why the ruined reputations of these individuals do matter. If networks can get away with violating the rights of citizens in this context, what is preventing them from doing the same in other scenarios? Perverted Justice: In order for the show to take place, NBC hires a group of private investigators that call themselves Perverted Justice.56 This group sets up the sting operations by placing the youthful bait online, while NBC outfits a decoy home, contacts local law officials,
52

Chris Hansen‟s live blog on Dateline, http://www.msnbc.msn.com/id/11103248 (Feb. 3, 2006,1:37 EST). 53 Id. 54 Vanessa Grigoriadis, „To Catch a Predator‟: The New American Witch Hunt for Dangerous Pedophiles, Rolling Stone, Jul. 30, 2007. 55 Id. 56 ABC 20/20: To Catch a Predator Dateline NBC Under Fire from ABC 20/20 (television broadcast) (logged video http://youtube.com/watch?v=5WZipuhPrCY).

sets up the cameras, and finds a youthful adult to play the part of the horny child.57 As transcripts from the conversations indicate, these decoys scour the Internet in an entrapment like style by initiating contact, soliciting photos, and inviting the men to come to “their home.”58 Issues arise from the fact that Perverted Justice investigators running the sting operations are not themselves law enforcement officials.59 Their lack of experience taints the investigations and though they are able to smoke out new criminals (90% of the men who make their appearance in this stardom have no pre-existing criminal history), “in the interest of justice” a majority of the cases are dismissed because the stings have not been conducted in accordance with the law.60 First Amendment Defense – Public Concern Test: Though the First Amendment cases in this article are all unique, the one thing they have in common is they are based on non-studio created news. On the other hand, Dateline‟s To Catch a Predator program is a sting operation where news is first studio produced and than reported. I doubt the probability of a court finding this method of making news holds up against the public concern test in deciphering what is newsworthy. 61

57 58

Id. WFAA News 8: To Catch a Predator/Dateline NBC Implicated in Entrapment, (television broadcast) (logged video http://youtube.com/watch?v=YL_R-lSewHA). 59 Id. 60 WFAA News 8: To Catch a Predator/Perverted Justice: NOT WANTED, (television broadcast) (logged video http://youtube.com/watch?v=uD_-Q2tY9ek). 61 Though there is no ultimate test for what is newsworthy, The Public Concern Test is the closest thing I‟ve found that has been adopted by the courts.

In Shulman, the courts found the camera crew reporting a car accident did not violate any rights of publicity because the social value of the facts published, the depth into the private affairs of those in question, and the extent to which the party voluntarily acceded to the position of notoriety, were all acceptable and in accordance with the public concern test. The footage was based on social relevance and was neither overly lurid, sensational, or personal, thus allowing the court to find the broadcast as newsworthy.62 On the other hand, Dateline‟s To Catch a Predator fails to meet any of the necessary criteria. A) Social Value of The Facts Published Constructed Fear: To Catch a Predator claims to be bringing attention to a rising epidemic and thus is displaying information that is socially valuable. Chris Hansen is very open with these claims and states that the “scope of the problem is immense,” and “seems to be getting worse.”63 But how great is the danger? A study conducted by the Department of Justice issued by the National Center for Missing and Exploited Children (“The Youth Internet Safety Survey”), found that the type of Internet “solicitation” parents should be concerned about is experienced by 3% percent of teenagers.64 This percentage is only a drop in the bucket when compared with several of the other prominent „epidemics‟ affecting teens, including one figure that points to 20% of American teenagers who plan

62 63

Shulman at 200. Benjamin Radford, Predator Panic: A Closer Look, Sept. 2006, http://www.csicop.org/si/2006-05/panic.html, (last visited April 26, 2008). 64 Id.

activities on a daily basis that revolve around drugs and alcohol.65 Furthermore, The National Center for Missing and Exploited Children, reports that random individuals online pose little threat and the actual “danger to children is greater from someone they or their family knows than from a stranger.” 66 Where are the hidden camera sting operations for these shows? The Youth Internet Safety Survey also found that, when they do occur, “most young people seem to know what to do to deflect” inappropriate internet based sexual „come-ons.‟67 So if issues like alcohol or drug abuse and domestic violence are more prevalent concerns in society, than why are the media networks making Internet predators such an urgent issue? One journalist for the Skeptical Inquirer answered this question best: Because there is little hard data on how widespread the problem of Internet predators is, journalist often resort to sensationalism, cobbling a few anecdotes and interviews together into a trend while glossing over data suggesting that the problem may not be as widespread as they claim. But good journalism requires that personal stories – no matter how emotional and compelling – must be balanced with facts and context. Much of the news coverage about sexual predation is not so much wrong as incomplete, lacking perspective.68 Similar to SARS and Mad Cow Disease, the hysteria Dateline creates is certainly shocking, but a far cry from anything resembling an uncontrollable outbreak. Ultimately, the To Catch a Predator program portrays an over hyped fear about sexual assailants that only promotes irrational facts and should not be given consideration as an important social value.

65

Kids Drink, Use Drugs to Cope, http://www.druglibrary.org/schaffer/other/kiddrnk.htm ,(last visited April 26, 2008). 66 Benjamin Radford, Predator Panic: A Closer Look, Sept. 2006, http://www.csicop.org/si/2006-05/panic.html, (last visited April 26, 2008). 67 Id. 68 Id.

Disregard For The Law: The reckless disregard for notice of the law differentiates To Catch a Predator from news based programs with social values. NBC has shown such reckless disregard in staging the operations that most of the perverts find their charges dropped, cases dismissed, and are immediately released back into society. In one sting, the District Attorney warned NBC and the police department in advance that not only were they “in the law enforcement business, not show business,” but that it was a “bad idea” for them to conduct the sting if their interest really were looking towards helping society.69 Despite this written “shot over the bow,” the sting in Murphy Texas went forward, busted twenty-three men, made excellent television, and had numerous illegalities that tainted the operation so much that the DA refused to prosecute a single case.70 The problems included: partial transcripts, poorly planned takedown executions, over dramatization, and even no proper warrants for arrests.71 The sting scenario done here was so sloppy that it forced many DA‟s across the nation to adopt the expression: “if you are not a cop you are not welcome.”72 If NBC knew in advance that their sting operation needed to change in order to pursue their initiative of benefiting society, than why did the production fail to correct it? Why is it that of the 286 individuals arrested in the three years of this NBC program, only

69

ABC 20/20: To Catch a Predator Dateline NBC Under Fire from ABC 20/20 (television broadcast)(logged video http://youtube.com/watch?v=5WZipuhPrCY). 70 WFAA News 8: To Catch a Predator/Perverted Justice: Not Wanted, (television broadcast) (logged video http://youtube.com/watch?v=uD_-Q2tY9ek). 71 Id. 72 Id.

36% have pled guilty and150 have yet to be tried?73 Why does NBC continue to exploit these heinous individuals when they are not even being fully prosecuted?74 Though NBC does an excellent job in portraying the caught men as guilty, they mishandle the cases so much that now individuals are not being convicted, not becoming registered sex offenders, and ending up back in the same communities that they came from. If they really were conducting the stings with the intent on them being of social value, I would expect them to have followed the proper legal procedures from the start. Though the throw down arrest, hidden cameras, and confrontation make fascinating television, if NBC is not paying attention to what legal officials are stating would be the best possible method to lock up these sickos‟, than what they are doing can not be considered in the interest of society. In the end, the individuals are released back into communities and American families are left believing that every child is at an incredible risk of being engaged by some perverted man online. With cops having guns drawn, cameras shooting from every angle, and intense editing, To Catch a Predator can only be seen as sensational entertainment with little social value. B) Depth into the private affairs of those in question If NBC‟s primary objective is to bring attention to the problems that come from having predators and children on the Internet, than is it necessary for them to broadcast as much information about the predators as they do? In the Oakland Tribune case, the court found that information published regarding an individuals sexuality was not newsworthy because it was a private affair and had no overall connection or relation with the purpose

73 74

Id. Id.

of the article.75 The court concluded that just because the media outlet had the fact, did not give them the right to publish and broadcast it.76 To Catch a Predator broadcasts a lot of information about the individuals they catch. Besides the names, locations, and employment, of the men caught in the sting, the show displays their faces, full bodies, and even one individual‟s cell phone number.77 But if the purpose of the program is to bring awareness, this information is not needed. Dateline could very easily restrict personal information they collect from the show and still keep there set purpose in tact. By not blurring out the faces of the men and releasing a substantial amount of information, the show follows in the footsteps of the Oakland Tribune and dives overly deep into the affairs of the men caught in the sting. Many other news outlets reporting on To Catch a Predator themselves limited the amount of information they received.78 When conducting an interview with one of the men from the sting, Rolling Stone Magazine refused to publish any information that could compromise that individual‟s identity. After reading the article, I found this restriction did nothing to compromise the authors overall purpose or intent. C) The Extent to Which the Party Voluntarily Acceded to the Position of Notoriety.

75 76

Diaz at 118 Id. at 133. 77 WFAA News 8: ZERO prosecutions in To Catch a Predator Dateline NBC show, (television broadcast)(logged video http://www.youtube.com/watch?v=UgLyXIzmx8E&NR=1). 78 Vanessa Grigoriadis, „To Catch a Predator‟: The New American Witch Hunt for Dangerous Pedophiles, Rolling Stone, Jul. 30, 2007.

Unlike COPS or other live actions series shows, NBC does not ask for releases prior to broadcasting the perverts on To Catch a Predator.79 The series holds no restraint on information relating to each predator. This information includes the individuals name, location, employment, and even past arrest history. These individuals‟ images are overly exploited for the purpose of furthering controversy and are subsequently broadcasted across the airways and Internet. NBC even has pictures and information broadcasted of the individuals on their website.80 Differing from the baseball players in Gionfriddo, the individuals on To Catch a Predator have no public celebrity status.81 The baseball players agreed to have their images broadcasted as part of their agreement of being in the social spotlight.82 By putting themselves in the public eye, they forfeited many rights to their private lives.83 With no contracts or restrictions, the men in the To Catch a Predator stings were thrown into the publics view against their will.84 After being showcased on To Catch a Predator, these individuals are finding their identities ruined and their lives at stake. Their guest appearances have led many of the

79

Chris Hansen‟s live blog on Dateline, http://www.msnbc.msn.com/id/11103248 (Feb. 3, 2006,1:37 EST). 80 See: http://www.msnbc.msn.com/id/9878187. 81 I should note that some individuals caught in the stings were well known in their local communities, but none were as universally known as any professional athlete would be. Additionally, none of the caught individuals agreed to the stardom they ascended to because of their appearances on the broadcast. 82 Gionfriddo at 415. 83 Id. 84 The ironic part about this is that had Dateline done the investigations properly, the men would have been convicted as sexual predators and brought into the public eye as included in the sexual predator registry.

„predators‟ to fall victim to abuse, threats, and fear of society.85 This stems from the abundant personal information including the full names and contact information that is released to the public subsequent to each broadcast.86 As one post-televised predator remarks:“ I love Dunkin Donuts, but I won‟t go in anymore. I‟m so scared of the first encounter with someone I know who has seen me on TV.” 87 The individuals caught in the sting operations are not celebrities who agreed to be in the social spotlight nor have any of them had an intention of acceding to the level of notoriety that the show created for them. I doubt any of the men would ever have signed off to the negative attention, constant threat of abuse, and public humiliation, that is now cast upon them. Potential Remedies: Though The Supreme Court will probably never define what it means for something to be news worthy, they should at least expand upon the list of exceptions that they see as not newsworthy. In lieu of that thought, I devise a set of concepts that should be incorporated to restrict media outlets from exploiting the publicity rights of individuals. These include requiring sting operations to be conducted in line with District Attorneys and establishing a scope of what personal information can be considered newsworthy. a) Work with District Attorneys

85

Vanessa Grigoriadis, „To Catch a Predator‟: The New American Witch Hunt for Dangerous Pedophiles, Rolling Stone, Jul. 30, 2007. 86 Id. 87 Id.

If these predators are as big of a threat as NBC says they are, than why are the stings conducted in such poor fashions that over a majority of those caught are not convicted? Why would they ignore a District Attorney who instructed them in advance that their operation was not abiding by the law? Unlike the TV show cops where the cameras are placed behind the police officers, To Catch a Predator puts cameras not only in front of the police, but also on them.88 Now the police are overacting their duties and being overly dramatic for the production.89 This would not be an issue if NBC had teamed up with the District Attorneys when setting up the stings. One attorney remarking on the failure to prosecute the caught predators stated that had NBC “done {the stings} according to the law, they‟d be prosecuted.”90 In order to make sure that justice is served properly, news networks or media outlets should be allowed to work with local law enforcement and District Attorneys on sting operations, however they should not be allowed to run the operation. Media should be allowed to follow the public servants during their normal operations but in order to prevent any individuals from getting off the hook, all aspects of take down operations should be conducted by those who will be doing the actual arrests and prosecutions. In the interest of justice, arrests must be conducted and executed completely by the professionals.

88

WFAA News 8: ZERO prosecutions in To Catch a Predator Dateline NBC show, (television broadcast) (logged video http://www.youtube.com/watch?v=UgLyXIzmx8E&NR=1). 89 Id. 90 WFAA News 8: To catch a predator/perverted justice: Not wanted, (television broadcast) (logged video http://youtube.com/watch?v=uD_-Q2tY9ek).

b) Limit What Information Can Be Broadcasted Like screaming fire in a crowded theater, many types of speech are limited by The The First Amendment. Exceptions like this are established by the courts looking at the societal interest in suppressing certain types of speech and whether it outweighs the value of that speech in terms of its connection to the free expression guarantee.91 Today, emerging technology has increased the access, speed, audience, and material, captured by the news channels.92 This fact has challenged the “fair use doctrine” and has changed the nature of the press past what was likely envisioned by the framers of the Constitution.93 The court in the Oakland Tribune, followed this process when they put limits on what one could say and not say regarding the publication of news information. With this power, the courts should differentiate between news that is made and that which is reported. News like that reported by To Catch a Predator is made with an intrinsic entertainment value and does not help society in the sense that it broadcasts individuals‟ private information. Dateline does no justice by displaying the full names, occupations, and images of men who have not even been convicted. Press must be less concerned with the presentation of the full names and identities given and more focused on making sure that stings are conducted in accordance with the law. While I do believe that future sting operations should be documented to allow the public to be aware of the activities

91

Calvin Massey, American Constituional Law; Powers and Liberties 798 (Aspen Publishing 2005). 92 Leslie Ann Reis, The Rodney King Beating – Beyond Fair Use: A Broadcaster‟s Right To Air Copyrighted Videotape as Part Of a Newscast, 13 J. MARSHALL J. COMPUTER & INFO. L. 269 (1995). 93 Id.

occurring in their community, officials should lead them and the cameras should always remain behind the action (not part of it). Ultimately as To Catch a Predator pointed out, the leaking of individuals personal information regarding certain instances can be a danger to the public. Though most are not convicted as sex offenders, many of the men face public ridicule, violent threats, and possible problems establishing employment. If the media creates news, they should have restrictions on what personal information should not be disclosed. Numbers, full identities, places of employment, or any information that can allow an individual to track down another should not be broadcasted to the public if it does not further the broadcast.94 Conclusion NBC is a television network operating as a private business whose goal is to make money. Television networks you would believe are in the business to entertain, however, NBC‟s primary concern is to gain television show ratings to maximize exposure for commercials to be seen by their viewers. Private corporations and media conglomerates should not be allowed to lead sting operations, it just leads to conflicts of interests. What does a huge network like NBC care about the rights of a possible sex offender? Controversy attracts viewers, high volume of viewers‟ increases exposure, and more eyeballs equals more ad sales; isn‟t this what is really going on here?

94

As for defining what “further the broadcast” means, courts should reinforce the importance of the public concern test to allow networks the ability to have a tool to independently judge by.

By not benefiting society, what NBC is doing is simply for entertainment value. Unlike the TV show 60 minutes which only broadcasts news, by being for entertainment reason, To Catch a Predator violates the perverts right to protection of their publicity. It is this right that protects them from starring in these performances that they never intended on being in. Like how Stephano argued that the image of him was nothing other than an „ad in disguise,‟ To Catch a Predator I argue is none other than entertainment made out to be news.95 It is my opinion that the circumstances revolving around these stings give the sexual predators a clear case against the network for violating all four of the necessary elements needed to pose a publicity tort claim. As stated earlier, a plaintiff of a publicity case must prove that a defendant used their identity without consent, this use resulted in an injury, and the plaintiff appropriated from the use. Additionally, the men should focus their claims on the disclosure tort because of the problems that may stem from the release of their personal information. I refuse to accept NBC‟s claim that To Catch a Predator is a news program and thus any episode produced for the broadcast is considered newsworthy and receives First Amendment protection from a publicity claim. If To Catch a Predator were a news program than why is it cited as a reality show, produced by the entertainment division of NBC?96 Why do theatrical agents control the contracts that exist between most of the parties involved with the sting operations?97 In order to move forward, media companies should not be allowed to create
95 96

Stephano at 174. WFAA News 8: To Catch a Predator/perverted Justice Antics Exposed, (television broadcast)(logged video http://youtube.com/watch?v=aGptggF2mf8). 97 Id.

entertainment and report it as news. Anytime a sting operation is established there should be no reason why caught individuals should not be prosecuted; it defeats the entire purpose of conducting a sting to begin with. In order to prevent this from occurring, District Attorneys and police officials should be the only ones in charge of conducting these operations. Entertainment groups should be allowed to document the events as they unfold, but the cameras must be kept behind the action; this is the only way to not taint any evidence that may be used against possible suspects. Additionally, just because information is caught and recorded, does not mean it should be broadcasted. In order to protect the individuals‟ rights of publicity, media companies should be required to broadcast information relevant and necessary to informing the public of individual situations. Personal information like full names and places of employment can cause a danger to the lives of individuals and breach my thoughts of the line of allowable information. Dateline‟s real intentions here are not to tell a news story but to sell the winning combination of fear, controversy, and entertainment. Ultimately, society is duped into believing misguided facts and sex offenders are released without being prosecuted, how can this be in the public‟s best interest? The law must be adjusted to prevent this from happening again in other context. In regards to the disgusting, inappropriate, and heinous men caught in the sting operations, they should challenge NBC‟s First Amendment newsworthy claim and demand an injunction to have NBC stop violating their right of publicity.