Shielding Reality

Take the time on this holiday to read SF Weekly’s fascinating and troubling look from last week at Bait Car, a reality show on TruTv.

The show’s producers, collaborating with the San Francisco Police Department, sprinkled cars around the city, keys in them, engines left running. The bait cars were wired for video, and police, producers and camera operators lurked around the scene waiting to catch who might hop in and drive away, handcuffs at the ready.

Why’d the piece give me the skeevies? Besides the traditional concerns of entrapment, there’s a colorable case that some of the drivers weren’t up to anything other than moving the mysteriously abandoned cars out of traffic lanes. There’s also the perennial issue of reshaping police priorities and procedures for the sake of the camera, with unjust or tragic results. For other examples, see CJR’s now-pay walled take on Dateline’s How to Catch a Predator, or Charlie LeDuff’s great Mother Jones article on the death of seven-year-old Aiyana Stanley-Jones in a house raid conducted under the gaze of a “true-crime” camera team. (CJR’s Joel Meares interviewed him about the piece here.)

Public defenders representing the people caught by the SFPD and their Bait Car friends have run into an interesting challenge in trying to get copies of potentially exculpatory raw footage from the show’s producers: the company is claiming that the footage is protected by the state’s reporters’ shield law, which allows journalists to decline subpoenas.

Is this show the kind of enterprise that lawmakers had in mind when crafting the privilege? Probably not.

But shield laws have always had to walk the line between being expansive enough that judges can’t make arbitrary or unfair rulings that deny protection to unpopular or controversial journalists, while not being so broad as to protect non-journalists. It’s not hard to see how that line is muddled by sleazy, yet (nominally to actually) non-fiction, reality TV. As an expert at the Poynter Center told SF Weekly, “One person’s journalism is another person’s tabloid nonsense.”

In this case, the company’s claim to the shield is complicated by one of many things that give the production the flavor of being fully in cahoots with law enforcement, and not an independent journalistic enterprise: a provision in its contract with the SFPD that the producers couldn’t attempt to claim the shield if the *prosecution* asked for the tapes. (Earlier this month, a judge handling two of the trials said he would dismiss those cases if the district attorney didn’t exercise that right and in turn provide the footage to the defense.)

But SF Weekly points out that reality television shows have been playing this card around the country, testing the limits of the laws.

A Louisiana judge ruled that a production company didn’t have to hand over outtakes of an arrest on Steven Seagal Lawman to a defendant charged with cocaine possession. The company’s attorney had argued that Lawman covered crime, “the very essence of news.” California courts were faced with a similar issue when producers invoked the shield law to guard raw footage of The Real Housewives of New York City. The outtakes had been subpoenaed in a civil suit by a firm that had fired its president after learning he would be appearing on the show.

Certainly worth keeping an eye on.

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Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.