American reality TV has increasingly encroached on the private lives of its cast members. The Real Housewives franchise in particular has aired a number of highly personal events in the cast’s lives in past seasons including Luann de Lesseps’ arrest, Teresa Giudice’s prison stint and ex-husband’s deportation, and Kim Richards’ struggle with alcoholism, to name a few. The recent 2021 season of Real Housewives of Beverly Hills was one of the most intrusive plots to date, revolving around Erika Girardi's divorce from prominent Beverly Hills lawyer Tom Girardi and the lawsuits alleging him of misappropriating funds from plane crash victims for personal gain. With increasing intrusion into stars' personal affairs, viewers are left to wonder where the line is drawn between reality entertainment and violation of individuals' privacy.
Privacy has increasingly eroded in the modern technological age but challenges arise in protecting personal privacy because it was not a right originally included in the United States Constitution. There is often a dilemma between the state’s need to enforce public safety and providing a good quality of life for citizens versus personal privacy. The Supreme Court has indicated that the right to privacy is implied in the penumbras of the First, Third, Fourth, Fifth, and Fourteenth Amendments. The first rights to privacy were established in rulings that permitted interracial marriage (Loving v. Virginia), adult film ownership (Stanley v. Georgia) and abortion (Roe v. Wade). Privacy rights are covered by government regulations such as the Health Information Portability and Accountability Act (HIPAA) and the Federal Trade Commission (FTC).
The Federal Communications Commission (FCC) regulates American media content, including reality TV, by monitoring language usage and the spread of misinformation on all media platforms. The Supreme Court ruling FCC v Pacifica Foundation stated that broadcasting is such a powerful medium due to its expansive reach that “the [viewer’s] right to be left alone plainly outweighs the First Amendment rights” to freedom of speech in the media. This allows the FCC to regulate content. Furthermore, the Illinois ruling Best v. Berard established that reality TV content that depicts an event in an honest, unmanipulated manner does not violate the right to privacy because the First Amendment prohibits censoring speech or press and limits the free exercise of either when content depicts public records. Because legal investigations are of public concern, even active ones including the current suit against Erika Girardi, they cannot be legally censored regardless of case content.
When discussing privacy violations, the Supreme Court mentions two types of issues. The first is the publication of private facts; this is when personal information is inadvertently shared on public platforms or in public spaces such as public cafes or supermarkets. The second is intrusion, or trespass, which is when someone is unaware of the presence of visual or audio recording devices. Neither type of violation applies to reality TV because cast members willingly agree to be recorded, are made aware of the presence of recording devices and have signed contracts stating all recorded information is permissible for show usage. Their contracts explicitly state that Bravo (the cable network) is allowed to use any content filmed in the final cut and also include a stipulation that the Housewives are prohibited from suing each other. Clauses in the contract further deny the women’s personal rights such as the prohibition of changing one’s hairstyle during the 14 weeks of filming and restrictions on speaking to fellow castmates leading up to the reunion.
As privacy is increasingly challenged in the digital age, the distinction between protected rights and contractual obligations in the reality TV industry has come under increased scrutiny. Considering how invasive the show can be on Housewives’ lives, Bravo is upfront during its casting process with interviewees about filming and how footage is used. Casting director Melissa Stanforth shared that "I always ask people what's off the table. [If they] say, 'This, this, this and that,' I say, 'You shouldn't be on reality TV,'" demonstrating an important acknowledgment from the show’s production team of the severe invasion of privacy. While reality TV does violate cast members’ right to privacy, it is done so with consent by cast members who are aware of visual and audio recording devices.
As the entertainment industry moves forward, it must make a concerted effort to strike a balance between legal freedoms of speech and the harm that can be caused by sharing personal information publicly. Reality TV could be the catalyst not only for a new public debate on actors' well-being but also a legal one about to what degree constitutionally-implied rights can or should be waived as part of a contract.