Newsgathering in public forums: a personal encounter with the Daily Show

A couple weeks ago I had the opportunity to watch Daily Show “correspondent” Aasif Mandvi at work here in Boise.  Apparently he was in Boise for a piece that recently aired on the Daily Show about a two-headed fish.  No joke. The clip is here.

My interest in Mandvi, however, has nothing to do with the substance of his story (which is potentially blog-worthy another day), but how he went about some of his “reporting.”  Namely, he did so by accosting me, my wife, and a lot of others, while we were trying to have lunch in outdoor seating along a street on one of the first beautiful spring days here.  Here is how it went down:  I’m eating my veggie burger, my wife is eating her salad, and out of the blue, Mandvi was in our faces, asking my wife where she worked, two television cameras behind him and rolling.  When I asked him who he was, he refused to identify himself or state that he was with the Daily Show (I figured it out a few minutes later because, well, I watch the Daily Show).  He aggressively asked me who I worked for, I said I’d tell him when he told me who he worked for, we went around a little like that, and eventually he left.  We then watched Mandvi do this all up and down the street for about an hour.  The basic approach is that Mandvi huddles with his crew, they pick out a victim, then they all charge the person at once with the cameras on.  The goal, of course, is to elicit a remark that, when taken out of context, will be funny on the show and most likely show the person interviewed to be less than informed about the world.  Any watcher of the Daily Show knows what I’m talking about (I admit, I’ve laughed at plenty of these “gotcha” moments).  If not, watch the clip, and you’ll see what I mean.  Apparently my confrontation with Mandvi was not deemed funny enough, as I am not in the clip, nor is my wife.

I did find myself reflecting back on Mandvi in action.  I have always enjoyed the Daily Show, but that afternoon was one of those “when you see the sausage being made” moments.  As my mind inevitably does, my mind turned to the law, and I wondered whether there was anything out there on situations like this.  Could it really be that it’s okay for someone to badger an entire street for an hour, and then broadcast comments of those people out of context?  Since Mandvi goes up to people with cameras rolling, there is no meaningful way to opt out of the “interview.”  Can Mandvi really just take a person by surprise and broadcast it nationally?  It just seemed bizarre to me.  Could you really call what Mandvi was doing “newsgathering” and thus protected speech under the First Amendment?

Well, rather than working on the articles I am trying to write this summer, I found myself researching obscure aspects of the First Amendment.  One interesting issue is whether what Mandvi does is “newsgathering” at all or, is the Daily Show just an entertainment product (i.e., what is the First Amendment standard for “truthiness”?).  That question aside, it seems the best legal claims against what Mandvi is doing, if one were the litigious sort, would be one of the several privacy torts.  However, my cursory review of these didn’t yield any cases that seemed particularly like a slam-dunk. 

For a refresher on these torts, here are several of the most relevant.  The Restatement (Second) of Torts § 652B defines the tort of “Intrusion Upon Seclusion” as:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

The Restatement (Second) of Torts § 652C defines the tort of “Appropriation Of Name Or Likeness” as :

One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of privacy.

The Restatement (Third) of Unfair Competition § 46 states:

One who appropriates the commercial value of a person’s identity by using without consent the person’s name, likeness, or other indicia of identity for purposes of trade is subject to liability. . . .

As I say, my cursory review of these torts didn’t really seem to fit the situation. What did seem apropos was the following excerpt from Grant v. Esq., Inc., 367 F. Supp. 876, 884 (S.D.N.Y. 1973):

Taggart v. Wadleigh-Maurice, supra (3d Cir. September 21, 1973) presents an interesting illustration of the problem here involved. Plaintiff in that case had been an employee of a company which had contracted to provide portable latrines to the now famous Woodstock music festival. Plaintiff's job had been to empty the latrines. In the course of shooting film for their documentary “Woodstock”, defendant movie makers: (a) shot pictures of plaintiff going about his task; and (b) engaged him in conversation, producing comic effects which defendants included in their final product, to great critical acclaim. Plaintiff sued under § 51. In reversing a grant of summary judgment for defendant, the Third Circuit Court of Appeals found that an issue of fact was presented by the question whether plaintiff had been “drawn out as a performer” rather than merely “photographed as a participant in a newsworthy event”. Although the Court articulated the question in slightly different language, the message of Taggart appears to be that the First Amendment does not absolve movie companies-or publishers-from the obligation of paying their help. They are entitled to photograph newsworthy events, but they are not entitled to convert unsuspecting citizens into unpaid professional actors.

This analysis rang true to how I saw Mandvi work.  In other words, if what Mandvi is doing is drawing people out as performers—singling them out in advance, not giving them fair warning, refusing to identify himself, trying to get them to say something dumb—rather than merely engaging the person on the street in a newsworthy event, then First Amendment protections may not apply.  It’s an interesting question to me about the nature of public spaces and the media (and one I happen to have lived!)  It seems especially relevant in this era obsessed with “reality,” and also especially for an enterprise like the Daily Show, which openly plays with the distinctions between news and entertainment. Our public forums increasingly have to address these issues of privacy when everywhere there are media outlets, and even You Tube-savvy individuals, looking to capture, and profit off of “reality.”  How should the law respond, or should it?    

Stephen R. Miller