Right of Publicity Claim Involving Reality TV Show Prohibited Under First Amendment

A federal district court recently ruled that a plaintiff whose arrest was depicted on a reality television show could not recover under a state right of publicity statute because the coverage is protected under the First Amendment.

In Best v. Berard, the Northern District of Illinois granted a motion to dismiss the plaintiff's claims under the state's right of publicity statute. The case involves the unscripted reality television show Female Forces, which follows on-duty female police officers in Naperville, Illinois. Plaintiff Eran Best was pulled over in Naperville for a traffic violation and was arrested for driving with a suspended license. Although she never signed a consent form, footage of Best's arrest was broadcast during an episode of Female Forces.

Best brought suit against the producers of the television show and the network that aired the program, claiming that they used her identity for commercial purposes without her consent in violation of the Illinois Right of Publicity Act.

In dismissing the claim, the Northern District of Illinois court held that the depiction of Best's arrest and the surrounding circumstances conveyed truthful information on matters of public concern. Applying the standard set forth in Snyder v. Phelps for evaluating whether speech is of public or private concern, the court considered the content, form and context of the speech, and said that arrests are a matter of public concern. Therefore, the coverage was protected by the First Amendment.

The court's ruling offers two valuable insights for media defendants. First, the court said that there is no exception to its public concern analysis based on the de minimis nature of the crime. Even minor crimes, like driving with a suspended license, are matters of public concern. Because it is relatively commonplace for newspapers to reprint "police blotter"-type information involving arrests, the court said "it is difficult to conceive an interpretation of the First Amendment that would not protect the reporting or broadcasting of this sort of information." This analysis is applicable even though "Best's encounters with the police involved conduct that was arguably toward the lower end of the spectrum of criminality."

And second, the court recognized that First Amendment protections extend beyond traditional news broadcasts and found that the status of Female Forces as an entertainment program did not alter its First Amendment analysis.

Although it was not before the court at this time, the opinion also suggested that the First Amendment would bar invasion of privacy and intentional infliction of emotional distress claims for broadcasting the same footage.