Along for the Ride: Reality Journalism and the Right to Privacy

Bad boys, bad boys, what ya gonna do? What ya gonna do when they come for you?¹

Around 8:30 p.m. on March 5, 1992, four special agents of the U.S. Secret Service led a CBS News television crew from the prime-time magazine Street Stories into the New York apartment of a man wanted for credit card fraud. The suspect, Babatunde Ayeni, wasn’t there. His wife and their preschool-age son, who were not implicated in the warrant, were at home alone. Mrs. Tawa Ayeni was wearing a dressing gown when agents and the camera crew entered her apartment. When she held a magazine in front of her son’s face to prevent the crew from videotaping him, Special Agent James Mottola grabbed the magazine, threw it on the floor, and told her to “shut up” (Ayeni v. Mottola 1994). Then agents instructed the camera crew to videotape Mrs. Ayeni’s face as agents questioned her. The CBS crew also taped the apartment search, including the agents’ review of “books, photographs, financial statements and personal letters” (Ayeni v. CBS, Inc. 1994).

One month later, just after dawn on April 16, 1992, Charles and Geraldine Wilson were lying awake in bed, listening to the still spring morning in a suburb of Washington, D.C. Then they heard loud and persistent banging on their front door. When Charles Wilson reached his living room, he encountered a half dozen U.S. Marshals and Montgomery County, Maryland sheriff’s deputies with their weapons drawn. Recording each detail of the scene inside the house was veteran Washington Post reporter Paul Valentine and his photographer—both of whom entered the Wilson home with police. Wilson stood in his underwear, in plain view of officers and the Post staffers. Officers said they were searching for the Wilson’s adult son, Dominic, who did not live in his parents’ home. Dominic, a clean-shaven twenty-seven-year-old, weighed 185 pounds. Charles Wilson weighed 220 pounds. Yet upon seeing the undressed, forty-seven-year-old African-American man—with a beard so gray that it was almost completely white—sheriff’s deputies ordered him to lie down on the floor. Though he looked nothing like the suspect they claimed to seek, U.S. Marshals then began “questioning” Wilson, alternatively cursing at him and threatening to arrest him if his son Dominic was found in the house.² He wasn’t.

Each story represents a journalistic practice that has become common-place. The two events also vividly display the pitfalls of “reality”³ or “reality-based”⁴ journalism, in which reporters and camera crews ride along for a firsthand look at law enforcement. Specifically, reality journalism describes broadcast news and entertainment programming that relies on actual footage of law enforcement officers, firefighters, and emergency medical technicians responding to calls on the job. Reality-based programming uses actors to reenact incidents based on actual events without benefit of original on-scene videotape.

In either case, dramatic footage and graphic stories are the payoff. But such coverage can come at a cost that should make journalists worry. At what point does access—granted not by the resident but bartered on the back of a law enforcement officer’s shield—demand payment in the form of a wrongful damages suit? Independence in storytelling and the First Amendment protections that journalists have fought hard to fortify are both at risk. The press cannot expect courts to indefinitely uphold reporters’ right to refuse to turn over notebooks, videotape outtakes, and sources when they are no longer acting independently but rather as publicists for law enforcement.

That idea startles Valentine, who worked as a reporter at the Washington Post for thirty-three years. Valentine, who retired last spring, defends the right of the press to observe the “behavior of the police” but concedes that he is troubled by the fact that ride-alongs could carry a heavy price. Speaking in a telephone interview, Valentine said, “I wouldn’t want to be viewed as an instrument or agent of the government. When I’m performing my job as a reporter, I want to feel and know I am independent and not in any way acting under the color of the state.”⁵

But law enforcement dictated which case, what time, and what home Valentine entered when he found himself in the Wilsons’ living room. Valentine’s objective was to obtain background for a story about a joint federal and local law enforcement task force dubbed Operation Gunsmoke. The operation targeted prison escapees, bail jumpers, and individuals violating probation or parole.

Dominic Wilson, who was suspected of violating probation, was not captured in the raid. But his father, Charles, was captured on film, lying on his living room floor, clearly subdued by police. Geraldine Wilson, who came into the room wearing a nightgown and pleading with police to free her husband, was also photographed. Ultimately, the newspaper chose not to publish the photographs.

Later the couple located their son and compelled him to surrender to authorities. He did. Then the Wilsons filed a lawsuit, asserting that U.S. Marshals and sheriff’s deputies violated their constitutional rights by bringing the Post reporter and photographer into their home, without permission, while executing a search warrant for Dominic Wilson.

That suit—Wilson v. Layne —reached the U.S. Supreme Court last fall. The Court ruled unanimously on May 24 that police violate “the right of residential privacy at the core of the Fourth Amendment,” when they bring members of the news media into private homes during the execution of a warrant.⁶

Justices, during the March 24 oral argument, openly expressed skepticism about the value of media ride-alongs which bring reporters into private homes.⁷Observed Justice Sandra Day O’Connor about the entry by the Washington Post into the Wilson Home: “This was an amazing intrusion.” She added, “There is a very weighty interest on the part of homeowners to have privacy in their home.”⁸Justice David Souter posed a similar question. Asked Souter: “Why do you have to take photographers into someone’s house? You can have a news conference when it’s over.”⁹

Richard Willard, a lawyer for the Wilsons, said: “We’re not challenging in the Supreme Court the legitimacy of the entry into the home. We’re saying it’s unconstitutional to bring the journalists inside the home.”¹⁰

The Wilsons’ lawsuit argued that officers should be held personally liable for allowing news media to enter homes on raids and arrests. Federal courts are split over that question. The Wilsons’ appeal stemmed from a lower court ruling that held that law enforcement authorities were immune from prosecution because they had not exceeded the scope of the arrest warrant simply by bringing reporters along. However, the U.S. Supreme Court, in granting the Wilsons’ petition, combined their case with a separate lawsuit from Montana. There, the Ninth Circuit Court of Appeals took the opposite view and ruled that ranchers Paul and Emma Berger could sue the U.S. Fish and Wildlife Service for allowing CNN to wire agents with hidden microphones and cameras to videotape a federal raid of the Bergers’ seventy-five-thousand-acre ranch. Federal agents were investigating whether the Bergers had been illegally using pesticides to protect livestock at the expense of federally protected endangered species of wildlife. At trial, Paul Berger was acquitted of charges that he violated federal laws to protect eagles. He was, however, found guilty of a misdemeanor charge that he improperly used a pesticide. After the trial, CNN used edited segments of the search footage in a story about government initiatives to protect endangered species.

Lawyers for the sheriff’s deputies and U.S. Marshals in Wilson argued that police should not be held liable, thus granting law enforcement qualified immunity from prosecution, because the officers “were simply implementing the terms of a facially valid policy” issued by the U.S. Justice Department.

That defense—that the officers were just following policy—relied on a U.S. Marshals Service media ride-along advisory guide. It stated, “Keeping the public adequately informed of what the service does can be viewed as a duty in its own right, and we depend on the news media to accomplish that.” The guide booklet urged officers to establish ground rules with the press in advance of the actual ride-along. Those ground rules, noted the guide, “must be realistic but balanced—remember, the media will want good action footage, not just a mop-up scene” (Wilson v. Layne 1998: Appendix A). By an eight to one majority the Court ruled that the officers in these cases were entitled to qualified immunity because the practice of media ride-alongs was not “clearly established” as unconstitutional in 1992 and 1993.

More than two dozen news organizations joined together to file a “friend of the court” brief in the Wilson case.¹¹ In the brief, four major television news networks, the Washington Post, the New York Times, and the Los Angeles Times among others asserted that the reporting that comes from media ride-alongs “has contributed meaningfully to public scrutiny of official conduct.”¹²

The American Civil Liberties Union takes issue with that argument. “This isn’t an instance where the press is covering news; the press are only there at the invitation and desire of the police,” says Arthur Spitzer, an attorney for the ACLU, which helped prepare the Wilsons’ case before the court. “Having the media as watchdogs of the police is a very important part of what the media do and is something that the ACLU wishes the media did more of. But . . . the Washington Post can’t bust into my house and cover a story, and they can’t do it behind the police.”¹³

When the Ayeni case came to trial in New York, the Justice Department policy that allowed media ride-alongs was ruled to be in violation of the Fourth Amendment. The Fourth Amendment provides “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”¹⁴ Its central purpose is control of the police (Bond 1997:825, 830). Courts routinely recognize that the Fourth Amendment’s greatest potency is within an individual’s home (Lunday 1997:278, 302). It was upon these principles that the Second Circuit rested in ruling against the U.S. Secret Service. Said the court, “A private home is not a soundstage for law enforcement theatricals” (Ayeni v. Mottola 1994).

CBS never broadcast the Ayeni search footage. Initially, the network argued that it was entitled to the same qualified immunity as law enforcement because the crews were present with government permission. The court disagreed. Later, the network reached a confidential settlement with the Ayenis and was not party to the case when it reached the Second Circuit on appeal.

After the Ayeni case, but before the search occurred in the Wilsons’ Maryland home, the Justice Department amended its media ride-along policies and prohibited press accompaniment inside private homes while federal agents execute search warrants.¹⁵

In this era of reality journalism, it is often forgotten that the U.S. Supreme Court has never explicitly granted First Amendment-protected access to the scenes of news events (Branzburg v. Hayes 1972:684). Justice Byron White, writing for the Court in 1972, stated that “newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded.” Added White, “The First Amendment does not reach so far as to override the interest of the public in ensuring that . . . [the] reporter is invading the rights of . . . citizens” (Branzburg v. Hayes 1972:691–92).

The last two decades have seen an increasing number of cases in which news organizations, acting alongside law enforcement, are being sued by individuals who neither asked for press presence nor sanctioned media entry onto their property or into their homes (Gonzalez 1997:935). Plaintiffs have included a suicidal teenager who placed a call to 911. When police arrived at her home, they brought along a television camera crew covering a “day in the life” of police officers.¹⁶ Similarly, a heart attack victim’s wife sued NBC when a producer at one of its local affiliates entered the woman’s apartment with paramedics who had been called to administer CPR to her husband. Attempts to revive the dying man were broadcast on the local news (Miller v. National Broadcasting Co. 1986).

Courts are split over the appropriate rule of law.

And it’s a tough call, even for the Post’s Valentine, who has “done dozens of ride-alongs” with local law enforcement officers, although only one in which he entered a private home while police executed a search warrant. “My mind is not made up on this issue. I can see two different strands of thought. One is that the property owner has the right to exclude people who have no legal right to be there. A reporter following along on a ride-along may fall into that category. I just don’t know. On the other hand, reporters are not just there as voyeurs watching someone being taken into custody. We are also observing the behavior of police, and that’s an important function in journalism.”¹⁷

Other journalists, and journalism scholars with experience in this area, are equally divided. “I’m mixed on it,” says Gary Fields, a national correspondent for USA Today who covers law enforcement. Fields’s first experience with police was as a seventeen-year-old honors student in Rapides Parish, Louisiana, when a sheriff’s deputy “had me stretched out over the hood of a car as a murder suspect.” Fields adds, “I came into police reporting with a healthy dose of skepticism.” Even so, as a reporter for the Shreveport (La.) Times, Fields went on his share of media ride-alongs with police. “The ride-alongs were helpful in getting a better understanding of what cops do.” But Fields sees a tension between being a “good aggressive reporter” and going into an individual’s home. “When I’m on my own covering a story, I have to knock on the door and say, ‘Can I talk to you?’ If you tell me no, I can’t break into the house. Does that change or should it change because [the reporter] is hooked up in a ride-along?”¹⁸

Shannon Martin, an assistant professor of journalism at Rutgers University, says no. Martin, a former reporter for the Louisville Courier-Journal, rode along with the Louisville vice squad earlier in her career. She says it is important to note that reporters “don’t have the same privileges [as police]. They’re not law enforcement.” Adds Martin, “The Fourth Amendment is about law enforcement behavior, and everybody ought to be one step further back after that.”¹⁹

Dean Tom Goldstein of the Columbia University Graduate School of Journalism says that the cases decided by the Supreme Court focused on “the intersection of a constellation of tricky issues and competing interests.” But Goldstein comes down on the side of the press, abiding by a standard of “openness.” “The overriding interest is the public’s ability to know how its law enforcement officers behave. You have to hope that the press would be responsible,” says Goldstein.²⁰

Oftentimes, that “hope” offers little consolation to individuals who believe that the press has run roughshod over the right to privacy—defined more than a century ago by Samuel Warren and Louis Brandeis as “the right to be let alone” (Warren and Brandeis 1890:193, 195). More recently, a federal district court in Pennsylvania put it even more succinctly: “A search warrant is simply not a press pass” (Hagler v. Philadelphia Newspapers 1996).

The Wilson case raised questions about whether police should be held liable for damages when they allow press access inside private homes. Added Willard, the Wilson’s lawyer, “We think a simple rule requiring that consent first be obtained before law enforcement officials bring the media into an area protected by the Fourth Amendment . . . There are many ways for law enforcement officials to publicize their efforts and many ways for the media to report on those efforts without barging into homes without the occupants’ consent.”²¹ Underlying this question, however, is a related inquiry that should be even more troubling for reporters: Should the press be held liable for violating individual privacy rights when they are covering law enforcement operations?

The question of reporter liability, particularly in an era of “lowest common denominator journalism” (Denniston 1998:1255, 1257), could be next. Still pending before the Court is the related question of whether journalists can be punished financially, too.