Judge's ruling may signal new 'reality'

November 24, 1992|By Los Angeles Times

In a case that may have legal implications for the numerous "reality" TV series that have cameramen and reporters accompanying law-enforcement agents in their work, a New York federal judge has criticized the Secret Service and the U.S. Attorney's office for taking a crew from CBS' "Street Stories" on a search of the home of a man under investigation for credit card fraud.

U.S. District Judge Jack Weinstein said CBS News had no journalistic privilege under the First Amendment to be present during the search.

The issue came up last week in conjunction with the case of Nigerian-born Babatunde Ayeni. His attorneys subpoenaed the CBS videotape as evidence. A hearing was held on CBS' argument that it did not have to turn over the tape because it was made as part of the news-gathering process protected by the First Amendment's guarantee of freedom of the press.

"I don't believe there is a [journalistic] privilege in a case where the government is operating together with a television agency," Judge Weinstein said.

When a search warrant is issued for somebody's home, Judge Weinstein said, it does not allow the government "to give entree to various television and media people of any kind. . . . You can't use the warrant as a way of breaking down a door by the government to permit [CBS] to enter. If that's what was done, that's a serious breach of ethics of the government as well as others."

Although news organizations traditionally resist turning over their videotapes or reporters' notebooks in legal cases, CBS said it would comply with Judge Weinstein's decision. The judge will review the "Street Stories" footage -- which the network said it had not aired -- to determine whether it will be part of Mr. Ayeni's trial, which is due to begin Monday.

Attorneys for CBS had argued that "Street Stories" had implicit permission to film the search because the wife of the defendant, who was at home with her 5-year-old son at the time, did not ask the camera crew to leave.

Judge Weinstein criticized CBS' position, saying that someone whose apartment was being searched could not be expected to "assert anything" under such circumstances.

Henry Rossbacher, Mr. Ayeni's attorney, hailed Judge Weinstein's ruling and predicted it would have broad repercussions for television.

The last few years have brought a flurry of so-called "reality" series, such as "Street Stories," CBS' "48 Hours" and Fox's "Cops" that have followed various government agents on drug "busts" and other activities.

"TV producers and networks should now be on notice that a respected federal judge has said that they are acting illegally if they go rampaging into people's homes behind the government on a search warrant," said Mr. Rossbacher, who said he believed this was the first such case to be litigated.

"The traditional argument of the press in asserting its First Amendment rights to journalistic privilege is that reporters shouldn't be turned into agents of the government by having their materials used in legal cases," he continued. "What CBS has done here is to voluntarily become an agent of the government by cutting a deal with the Secret Service and the Justice Department. The Secret Service searched this woman's apartment for three hours, and she said in an affidavit and is prepared to testify that, during the 20 minutes that CBS filmed her, she tried to shield herself and her son from the cameras. This kind of activity denotes a dangerous trend in the media, and it's got to be stopped."

Mr. Rossbacher said he believed the new crop of "reality" TV-cop shows are putting pressure on government agencies for more access.

"When I was a U.S. attorney [in Los Angeles from 1978 to 1985], our guidelines were that even U.S. attorneys couldn't go along on search warrants because we weren't law enforcement officers," he said. "Today, you have all of these infotainment TV cop shows, and the Drug Enforcement Agency, the Secret Service and other government agencies are inviting the press along on their activities to make the agencies look good. The only way that some TV reporter is getting into these situations is by having a federal officer with a flak jacket and a gun give the reporter entree he wouldn't have otherwise. It subverts law enforcement to have government agencies chauffeuring TV reporters to telegenic crimes."

CBS News declined comment on the case. Mr. Rossbacher is seeking dismissal of the charges against Mr. Ayeni on the grounds of "outrageous" behavior by the government during the TV-covered search.

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