Jon & Kate Plus the State: Why Congress Should Protect Children in Reality Programming

Abstract

As "reality" programming continues to increase in popularity, so too does the number of children living out their young lives in front of the camera. Yet the current legal regime is inadequate to protect these children, whose parents have betrayed their best interests for fame and fortune. This article argues that Congress should enact a statute providing a regulatory sliding scale based on age that would largely prohibit children from participating in reality programming. A federal statute would bring clarity to this unsettled area of the law while ensuring that parents and programming executives cannot skirt individual state laws and continue to exploit the nation’s children.

To this end, Part II identifies the various harms that reality programming causes and argues that participating in reality programming is detrimental both to the individual children and to society. Part III surveys the current legal landscape by examining the federal law on point--the Fair Labor Standards Act--and numerous state laws, focusing heavily on those states with historic ties to the entertainment industry. Part III concludes that the current legal regime is unable to remedy this emerging problem and argues that state law is not the best vehicle to do so. Part IV posits that a national solution is necessary, canvasses the options, and then argues in favor of a federal statute providing a sliding scale of prohibition for children in reality programming. Finally, Part V maintains that such a statute will not violate the Constitution because it is within Congress’s Commerce Clause authority and violates neither parents’ due process rights nor the First Amendment.

Children deserve to experience the full richness of childhood and not to labor as spectacles for public amusement. A federal statute regulating employment in reality programming would prevent the sale of children’s privacy to the highest bidder.

Keywords: Employment, Labor Law, Constitutional Law, Juveniles, Parental Rights, Due Process, First Amendment, Legislation, Regulation, Reality TV

JEL Classification: K31