YOU'RE UNDER ARREST, AND ON TV

JERKY camera movements, shouts, cops rushing through a darkened doorway,
guns drawn. It all makes great television. “Reality-based” programming has
mushroomed in America and it is easy to see why. Almost everyone comes out
a winner. The police look like heroes. Journalists get a great story. TV
firms get an endless stream of cheap programmes. And audiences love such
in-your-face entertainment. Perhaps the only loser is the person being
searched or arrested in the full glare of publicity. What if the target
turns out to be innocent?

On March 24th the Supreme Court heard oral arguments in two cases which ask
whether media “ride-alongs” with policemen executing search or arrest
warrants is a breach of the Fourth Amendment’s prohibition of “unreasonable
searches and seizures”. If the court decides to ban or sharply restrict the
practice, many local-news and tabloid TV shows will, at a stroke, be
deprived of a staple subject.

Lower courts have issued a series of contradictory rulings on the subject.
In the two cases before the Supreme Court, for example, federal appeals
courts came to diametrically opposite conclusions.

In 1993 federal wildlife agents raided the Montana ranch of Paul and Erma
Berger looking for evidence that Mr Berger was poisoning eagles to protect
his livestock. The agents were accompanied by a CNN crew, which failed to
identify itself but recorded the all-day search. In a subsequent criminal
trial, Mr Berger was acquitted of violating endangered-species laws, but
convicted on the lesser charge of misusing a pesticide. Nevertheless, CNN
later used the footage in two environmental-news programmes. The Bergers
sued the agents and CNN. The Ninth Circuit Court of Appeals let the lawsuit
proceed, ruling that the Bergers’ Fourth Amendment rights had been violated
because the search had been “designed to enhance its entertainment, rather
than its law-enforcement, value.”

In 1992 Charles and Geraldine Wilson were abruptly awakened early one
morning by a team of US marshals and local policemen, accompanied by a
Washington Post reporter and photographer. The police were looking for the
Wilsons’ son, for whom there was an outstanding arrest warrant. An enraged
Mr Wilson was wrestled to the ground in his underwear in front of the
reporter and photographer. Their son was not in the house. Although the
photographs were never published, the Wilsons later sued the police. The
Fourth Circuit Court of Appeals, by a 6-5 majority, granted the police
officers immunity from the suit.

Lawyers for the Bergers and Wilsons argue that media ride-alongs serve no
useful law-enforcement purpose. Search and arrest warrants, they say, are
licences limited to the police only, not a general permission for the press
to observe and record freely on private property.

Lawyers for the police, supported by an amicus brief from 26 media
organisations, argue that ride-alongs can help law enforcement, and so
should be allowed by the Fourth Amendment. By publicising the government’s
efforts to fight crime, they help to deter it, as well as strengthening
public confidence in the police. They also deter improper behaviour by the
police themselves, a greater threat to both the targets of searches and the
public than media exposure. Courts should judge the reasonableness of
ride-alongs on a case-by-case basis, maintain the media firms. Any blanket
restriction, they say, would clash with First Amendment press freedoms and
make it difficult for the public to monitor what the police do on its behalf.

In the recent past the Supreme Court has been reluctant to second-guess the
police on how to execute warrants, giving them ever greater latitude. But
media firms are nervous. The justices could decide that entertainment is
not the same as edification, requiring viewers to settle, once again, for
the pretend “busts” of shows like “NYPD Blue” rather than the real thing.