A police reality show is protected under the First Amendment because airing an arrest is a matter of public concern, a federal court ruled earlier this week.
The court stated that the First Amendment is violated when the government imposes limitations on the publication of truthful information of public concern. Using the definition of public concern outlined in Snyder v. Phelps — the U.S. Supreme Court case in which the court ruled earlier this week that speech on matters of public concern cannot give rise to claims of emotional distress — the court ruled that the arrest was a matter of public concern, despite the fact that the footage was aired on an entertainment program.
Steve Mandell, attorney for the media defendants, was pleased with this ruling. "It is important that people realize that just because something is entertaining doesn't mean that it can't be informing as well and deserving of protection," he said.
The suit was brought against the producers of a television show called "Female Forces" that airs on the Biography Channel, part of A&E Television Networks. The reality television show follows female police officers in Naperville, Ill., as they perform their duties.
On Feb. 24, 2008, Eran Best was pulled over by a male officer because the license plate on her car had an expired sticker. The policeman requested backup from a female officer who was being followed by a "Female Forces" camera crew. Together, the two officers issued a field sobriety test and then arrested Best for driving with a suspended license. After searching her car, they found drug paraphernalia and marijuana. Once at the police station, a "Female Forces" producer tried to get Best to sign a consent form to allow the footage of her arrest to be aired, but Best refused. The footage was ultimately aired along with video of the officers discussing Best's "expensive taste," the officers searching her car and a shot of a dashboard computer screen that displayed Best's weight, height, date of birth, driver's license, and descriptions of previous arrests and traffic violations.
Best filed suit against the city of Naperville and the media, alleging, among other claims, that the media used her identity for commercial purposes without her consent in violation of the Illinois Right of Publicity Act, invaded her privacy under Illinois law by disclosing private facts about her and caused emotional distress.
The media entities filed a motion to dismiss, which the U.S. District Court for the Northern District of Illinois in Chicago denied on June 11, 2010. They moved to reconsider, but were again denied. The court found that the airing of the footage could constitute a use of her identity for commercial purposes because the show is a "for-profit product, broadcast on a network with commercial advertisements."
The media moved to dismiss the claim that they violated the Right of Publicity Act, which "prohibits the use of an individual’s identity for commercial purposes without her written consent" and exempts from liability the “use of an individual’s identity for non-commercial purposes, including any news, public affairs, or sports broadcast or account, or any political campaign.” The media argued the First Amendment precluded the application of the act to "Female Forces" and urged the court to hold the use of Best's identity was for "non commercial purposes" and, therefore, fell under the exemption.
Judge Matthew F. Kennelly granted the media's motion to dismiss the claim, finding the Right of Publicity Act's non-commercial exemption "reasonably may be interpreted to cover the use of Best’s identity in an entertainment program that conveys truthful footage of an arrest and thus implicates a matter of public concern."
Because the media did not move to dismiss the charges of invasion of privacy by public disclosure and intentional infliction of emotional distress, the court directed Best to submit additional briefing if she wanted to defend that claim. Kennelly foreshadowed that using the First Amendment analysis the court applied to the dismissed Right of Publicity Act claim could warrant a similar outcome to Best's other assertions.