LOOKING AT CHILD EXPLOITATION IN REALITY TELEVISION
Looking at Child Exploitation in Reality Television
Mary Stortstrom
Shepherd University
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LOOKING AT CHILD EXPLOITATION IN REALITY TELEVISION
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Abstract
This research examines the topic of children appearing on reality television programs with
attention given to child labor laws. The research will address whether or not children who
appear on reality television are considered to be working, and if so, whether or not their work
exceeds the requirements set by child labor laws. The reality shows “Kid Nation” (CBS, 2007)
and “Jon & Kate Plus Eight” (Discovery Health, 2007 and TLC, 2008-2009) will be used as case
studies of child appearances on reality television programs, and used to demonstrate and discuss
crossovers between showing children appearing for entertainment purposes and children being
exploited on reality television. Current state statutes on child labor laws will be discussed, as
well as the work standards provided by the Fair Labor Standards Act (FLSA). The options as to
what could be done to modify the laws to better protect children who appear on reality television
programs in the future will be looked at as well.
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Looking at Child Exploitation in Reality Television
From its beginnings, television has been a medium of fiction. Apart from news
programs, television shows have long been written by professional screenwriters whose trade is
in storytelling, taken place in studios built to resemble neighborhoods, hospitals, or space ships,
and brought to life by trained and paid actors. Within the last two decades, this has changed.
The conventional sit-com, soap opera, and professional drama series have either given way to a
new genre, reality television, or all but disappeared because of it.
Born out of television writer’s strikes in the 1990s, reality television did away with the
tradition of scripts, elaborate sets, and professional acting. One of the earlier and more popular
reality shows was CBS’s “Survivor”, a competition that placed a group of strangers in a remote
tropical location. The participants were not actors, and their purpose on the show was to survive
the conditions of the environment and not be “voted off” of the show by their peers. Many other
reality shows surfaced with the genre’s growing popularity: dating shows such as “The
Bachelor”, “Big Brother”, which played off of the same “outlast to win” idea as “Survivor”, and
national talent competitions such as “American Idol”, “Dancing with the Stars”, and “So You
Think You Can Dance?”.
In reality television’s heyday, a subgenre soon emerged. The idea of the family was
brought back into focus as television producers literally focused on making the American family
the next reality television star. Domestic reality shows most often portrayed dysfunctional
families, following them around their houses with camera crews for an ultimately unflattering
end result. In her article about reality television and children’s rights, Dana Royal (2009) states,
“ABC’s “Supernanny” and CMT’s version, “Nanny 911” follow behaviorally challenged
children whose parents are at their wits’ end as self-proclaimed, child-rearing gurus intervene to
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improve the children’s behavior” (p. 4). Another domestic reality show, “Trading Spouses”, had
two families swap wives or husbands for a week. Celebrity families were featured on domestic
reality shows as well. According to Royal (2009), “MTV’s “The Osbournes” chronicled the
‘foul mouths, erratic behavior,’ and ‘antics’ of Ozzy Osbourne and his children. According to
MTV, ‘the Osbournes are television’s most infamous family, plus they’re real and almost too
raw for broadcast’”(p. 4).
Another facet of the domestic reality show subgenre are shows that feature parents with
considerably more children than the normal couple. Reality television’s popularity has brought
literally dozens of children’s lives into the public eye. Cable network TLC alone “…airs at least
five other reality shows featuring children, including “18 Kids and Counting”, “Table for 12”…”
(Royal, 2009, p. 4). TLC, in part, is also the network that aired “Jon & Kate Plus 8”, a show that
if nothing else, has gained the domestic reality show genre notoriety.
“Jon & Kate Plus 8” featured parents Jon and Kate Gosselin and their eight children, a set
of twins and a set of sextuplets. The show, which debuted on Discovery Health in 2007 but then
moved to TLC until its cancellation in 2009, was filmed on location at the Gosselin family’s
house in Pennsylvania. According to Royal’s article,
“Kate Gosselin, husband Jon, and their eight children star in the hit reality
show, “Jon & Kate Plus Eight”, which chronicles the tumultuous life of
two parents raising eight children—now eight-year-old twins and fiveyear-old sextuplets. For four seasons—the fifth season began this past
May—the Gosselins have captivated viewers across the country. The show
features constant parental bickering, which is characterized as one of its
“main draws”, along with frequent, dramatic meltdowns of the Gosselin
children” (Royal, 2009, p.2).
The show also received widespread tabloid coverage over allegations that both Jon and Kate
were involved in extramarital affairs. The tabloid publicity, no matter how negative, still
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encouraged people to tune in and watch the Gosselin family crash and burn. In spite of all of the
mess, “Jon & Kate Plus 8” was the most popular show in the history of the TLC network.
If the negative portrayal of the Gosselins by the media and Jon and Kate’s unavoidable
divorce after the show weren’t enough, it wasn’t over for “Jon & Kate Plus 8”, even after the
show ended. “Jon & Kate Plus 8” has gotten into some legal hot water with questionings over
compliance with child labor laws. However, before that can be fully discussed, precedents set by
“Kid Nation”, another reality show featuring children, must be examined.
“Kid Nation” was another creation of CBS, the network that spawned the reality
television trend in 2000 with “Survivor”. Wanting to differentiate the network’s programming
from the multitudes of reality shows available to viewers, CBS decided to run a social
experiment. According to a 2007 article in the Los Angeles Times by Maria Fernandez, the
show’s set-up was as follows: “For 40 days in April and May, CBS sent 40 children, ages 8 to
15, to a former ghost town in New Mexico to build a society from scratch. With no access to
their parents, not even by telephone, the children set up their own government, laws and society
in front of reality television cameras” (Fernandez, 2007, p.1).
The show’s creators had idealistic goals for “Kid Nation”, but the show itself was not as
harmless to the children as it sounded. “Kid Nation” was supposed to be an experience for the
child participants that, according to CBS Executive Vice President of Alternative Programming
Ghen Maynard allowed them to “identify with people of their own age” (quoted in Fernandez,
2007, p.1). This community-building experience was structured by the show’s producers, and
the children were divided into class groups. Christopher Cianci’s article “Entertainment or
Exploitation?: Reality Television and the Inadequate Protection of Child Participants under the
Law” outlines the class breakdown on the set:
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“‘Upper class’ status was earned by the first-place team, and they received
$1 in ‘buffalo nickels’, the town’s currency. The upper class team
members were not required to work and could do whatever they wanted.
The second-place team earned ‘merchant’ status and earned fifty cents for
running the stores. ‘Cooks’ were third-place team members and earned
twenty-five cents for cooking all meals and washing dishes. The last team
received ‘laborer’ status and earned ten cents for cleaning the entire town,
including the portable toilets shared by all forty children. The laborers also
had to haul in drinking water for the town from a distant well, care for the
town’s farm animals, and do a number of other unpleasant, often
unsanitary chores” (Cianci, 2008, p. 367).
The children could move up or down in this class system by competing against the other teams in
challenges. If a challenge went successfully for all of the teams, “…the town would get a
reward—a choice between something they needed and something they wanted” (Cianci, 2008, p.
367).
With the knowledge that this is how the children were treated on the show, it’s puzzling
as to how parents would ever surrender their children to CBS for this project. There are a few
techniques that CBS used to calm parents’ fears about leaving their children stranded for 40
days. The contract that parents signed not only warned of physical harm that could occur to the
children during the course of the show, but also “emotional distress, illness, sexually transmitted
diseases, HIV, and pregnancy” that could result from participants becoming involved in
“intimate relationships” (Cianci, 2008, p. 369). While this would be enough to turn most parents
away, CBS told parents that the experience would be similar to their children attending summer
camp to reassure them. The possibility of a $20,000 prize for the parents at the end of the show
also kept parents from turning away the network’s offer to turn their children into celebrities.
If this wasn’t enough of a mess for “Kid Nation”, the show received criticism not only for
its mistreatment of the child participants, but also for its failure to take legal responsibility for
what happened. According to Adam Greenberg’s 2009 article from the Southern California Law
Review, it was not purely a coincidence that “Kid Nation” was filmed in New Mexico, “a state
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known to have lax child labor laws” (Greenberg, 2009, p. 596). The “Kid Nation” fiasco had
such an impact that it changed the state’s legislation. Greenberg (2009) adds, “ In fact, the state
did not have any statutes regulating minors on television until after the “Kid Nation” cast vacated
Bonanza City” (p.596).
A more up-to-date website, “Film New Mexico”, which features the state as an ideal
location for television and film production, mentions on its “Permits and Procedures” page the
child labor laws currently in place for the state of New Mexico. According to the site, “It is the
responsibility of the employer to obtain a child performer pre-authorization certificate before the
employment begins” (New Mexico). While it is argued later in the research that the child
participants of “Kid Nation” were not performers, permits of some kind still should have been
provided to the state by CBS. This never happened because at the time, the child labor laws in
New Mexico were more or less nonexistent. Another set of requirements mandated by the state
of New Mexico and posted on the “Permits and Procedures” page of “Film New Mexico” are the
requirements for education and work hours when filming while school is in session. “Kid
Nation” took place during April and May, while children ages 8 to 15 are still in school. Laws
that were formed after CBS had taken advantage of the “Kid Nation” cast require that for every
group of 10 or fewer child performers, there is one teacher present on the set and that “No child
performer shall begin work before 5:00 am or continue work after 10:00 pm on evenings
preceding school days” (New Mexico). The “Film New Mexico” site also lists the hours that
child performers are allowed to work, including times of rest and recreation. Total days even for
a 15-year-old, the age of the oldest cast member on “Kid Nation”, are not to exceed 9 hours: 5
hours of work, 3 hours of school, and 1 hour of rest and recreation (New Mexico). This clearly
did not happen for the children in Bonanza City. After “Kid Nation” was filmed, “On July 16,
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Television Week revealed that the sources in the New Mexico Department of Labor claimed the
children worked as many as 14 hours a day…”(Fernandez, 2007, p. 1).
While New Mexico’s laws on child labor were vague at the time of the production of
“Kid Nation”, it is logical to examine next what protection the show’s child participants had
from the federal government. The Fair Labor Standards Act (FLSA) was put in place in 1938 by
the federal government and helps to regulate the employment of children in interstate commerce.
According to Greenberg (2009), “The FLSA explicitly excludes some forms of child labor from
its reach, including a provision that exempts children ‘employed as…actors or performers’.
Consideration of the FLSA has likely been left out of the “Kid Nation” discussion for one
primary reason: an assumption that this exemption applies to… ‘reality children’—children who
participate in reality television programs”(p. 596). Greenberg’s argument is that “reality
children” such as the participants of “Kid Nation” do not fall under the FLSA’s exemption for
children as actors or performers because the children are not trained, paid actors.
In order for the children of “Kid Nation” and other reality television shows to have
protection under the FLSA, clarifications must be made as to why the children are receiving legal
protection. In other words, two questions must be addressed: “First, does participation on a
reality show constitute work? And second, even if it is work, are participants employees as
contemplated by the FLSA?”(Greenberg, 2009, p. 596).
The FLSA’s definition of work concerns the relationship between employer and
employee. In his article, Greenberg cites the 1944 landmark case Tennessee Coal, Iron &
Railroad v. Muscoda Local No. 123 for the FLSA definition of work. According to Greenberg
(2009), when the case was decided in 1944, “…the Supreme Court in Tennessee Coal offered the
preeminent definition: ‘physical or mental exertion (whether burdensome or not) controlled or
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required by the employer and pursued necessarily and primarily for the benefit of the employer
and his business’” (p. 560). This definition was good, but did not hold up for too long after the
Tennessee Coal case. Later on, the Supreme Court clarified that exertion did not necessarily
qualify an activity as work, and that an employer could hire a worker to “…do nothing, or to do
nothing but wait for something to happen” (Greenberg, 2009, p. 560). Therefore, work is
defined as an activity controlled and required by the employer, and pursued for the benefit of that
employer.
Once it is decided whether or not an activity is work, the next logical step is to determine
whether or not the person performing the work qualifies as an employee under the FLSA.
Unfortunately, the FLSA definitions of employees and employment are vague and circular.
Greenberg (2009) notes this and quotes the exact text of the document, “Employee is defined as
‘any individual employed by an employer’…And the term employ, whose meaning lies at the
crux of employment status cases, is defined as ‘to suffer or permit to work’”(p. 561). The “suffer
or permit to work” phrase was included by Congress to ensure that the FLSA’s minimum labor
standards are realized. The language of the phrase is actually borrowed from child labor laws
with the intent to protect a broad range of workers. The courts over the years generally honor
this intent and apply the FLSA’s employment definition rather broadly (Greenberg, 2009, p.
561).
After looking at the FLSA definitions of work and employment and reexamining “Kid
Nation”, it is arguable that the child participants of the show were, in fact, working employees.
The children were certainly physically and mentally exerting themselves, which constitutes work
under the Tennessee Coal definition of work. The updated definition of work under the FLSA
only requires that the employees be present at the place of employment and that the activity the
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employees are engaged in benefits the employer. The children of “Kid Nation” lived on the
show’s set in Bonanza City where everything was ultimately controlled by the executives at
CBS, the network that employed them. Being in front of the cameras brought controversy,
publicity, viewers, and ratings to CBS, all things that benefited the network. The participants of
“Kid Nation” were child workers, so they most likely would have been covered by the “suffer or
permit to work” phrase of the FLSA employment definition. In short, the child participants of
“Kid Nation” should have been protected by the FLSA since the child labor laws in New Mexico
at the time of the show’s filming were worthless.
Returning to a more recent and more notorious case of children working in reality
television with little to no legal compensation, Jon and Kate Gosselin and their brood of eight
have not been spared from the same criticism that befell CBS in regards to “Kid Nation”.
Michael Rubinkam of the online newspaper The Huffington Post describes the reality family’s
impending legal troubles in his article “‘Jon & Kate’ Stars Being Investigated Over Child Labor
Complaint” from May of 2009. Rubinkam (2009) writes, “In a cold dose of reality for reality
TV, Pennsylvania’s Labor Department has opened an investigation into whether the hit show
‘Jon & Kate Plus 8’ is complying with state child labor laws” (p. 1). In later sections of the
article, TLC representatives claim “that the network ‘fully complies with all applicable laws and
regulations’ for all shows” (as quoted in Rubinkam, 2009, p. 1). Pennsylvania, unlike New
Mexico at the time of the filming of “Kid Nation”, has child labor laws in place. Different from
the nonexistent and vague child labor laws of New Mexico,
“Pennsylvania law permits kids who are at least 7 to work in the
entertainment industry, as long as a permit is obtained and certain rules are
followed… The law allows performers younger than 7 to have ‘temporary
employment… in the production of a motion picture’, and spend up to
eight hours a day and 44 hours a week on set as long as their ‘educational
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instruction, supervision, health and welfare’ needs are being met”
(Rubinkam, 2009, p. 1).
State laws on child labor in the entertainment business vary drastically from state to state. The
closest thing to a federal law is the FLSA and its definition of work, employment, and child
labor.
Referring back to the definitions of reality television, the state statutes on child labor for
both New Mexico and Pennsylvania are flawed. Both states set up rules for children working as
performers, but the entire purpose of reality television is to do away with scripted acting and
trained, paid actors as much as possible. Therefore, the children in “Kid Nation” and “Jon &
Kate Plus 8” are working as employees of television networks. There is still lack of sufficient
protection for children who appear on reality television because state laws are only interested in
children’s rights as performers, but at the same time there is no overarching federal law to
ensure that these children are accounted for as employees.
The final questions left after looking at the negative impact that shows like “Kid Nation”
and “Jon & Kate Plus 8” have had on child participants in reality television, as well as the FLSA
and its sparse definitions of work and employment are: Where do things go from here? Are the
events surrounding “Kid Nation” and “Jon & Kate Plus 8” enough of a warning to prevent
networks and reality show producers from letting this happen again? What should be done from
a legal standpoint to make sure that children are protected when they appear on reality television
programs? Dana Royal proposes a unique solution to answer these questions in her article “Jon
& Kate Plus the State: Why Congress Should Protect Children in Reality Programming”.
Royal’s solution sounds simple, but if applied, would require years to take effect. Royal
proposes a federal statute regulating the employment of children in reality television. She is
aware that current state laws are insufficient since “…state labor laws do not clearly apply to
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children in reality programming. Three states with important connections to the entertainment
industry, California, New York, and Florida, have laws that may apply to children in reality
programming as do other states, but the extent of their protection is uncertain” (Royal, 2009), p.
21). Royal does not simply condone choosing a state with the “best” or “most complete” laws on
the issue and then requiring that all states follow suit. She claims that state laws are still subject
to interpretation and enforcement by each state’s judicial and executive branches, so that “Even
if all states enacted identical statutes, forum shopping would not end” (Royal, 2009, p. 21).
Royal’s solution is a federal statute that “… would provide a sliding scale of prohibition
based primarily on age, which would result in total prohibition for the vast majority of minors”
(Royal, 2009, p. 33). Her reasoning for basing the prohibition on age is to protect children as
they develop, keeping them sheltered and allowing them to enjoy youth in privacy. Royal
suggests that Congress should define reality programming in the statute and that Congress could
investigate and hold hearings to establish the appropriate age categories for prohibition from
reality programming. Royal (2009) proposes, “It might consult with child psychologists and
others to determine at what point in development appearing in reality programming becomes
least harmful. With this in mind, Congress should develop a sliding scale of prohibition and
regulation” (p. 35).
Royal’s interesting choice of words wisely states that appearing in reality programming
can only become “least harmful”. “Jon & Kate Plus 8” and “Kid Nation” have clearly shown
that reality television is never a safe place for children. Other reality television shows have all
but proven that reality programming is rarely a safe place for adults, as exes Jon and Kate
Gosselin are soon going to realize as their names disappear from the tabloids. The American
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Dream is no longer a house in the suburbs, but a mansion, 15 children, a camera crew and a few
Suburbans. The institution of the family is being replaced by the desire for 15 minutes of fame.
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References
Cianci, C. C. (2008). Entertainment or Exploitation?: Reality Television and the
Inadequate Protection of Child Participants under the Law. Southern California
Interdisciplinary Law Journal, 18, 363.
Fernandez, M. E. (2007, Aug. 17). Is Child Exploitation Legal in "Kid Nation'? Los
Angeles Times, p. E1.
Greenberg, A. P. (2009). Reality's kids: Are children who participate on reality television
shows covered under the fair labor standards act? South. Calif. Law Rev.
Southern California Law Review, 82(3), 595-648.
New Mexico Film Office. (n.d.). Film New Mexico: Permits and Procedures. Retrieved from
http://www.nmfilm.com/filming/permits/labor-laws.php#nm-child
Royal, D. B. (2009). Jon & Kate Plus the State: Why Congress Should Protect Children
in Reality Programming, from http://ssrn.com/paper=1452986
Rubinkam, M. (2009, May 29). ‘Jon & Kate’ Stars Being Investigated Over Child Labor
Complaint. The Huffington Post, http://www.huffingtonpost.com/2009/05/29/jon-kateplus-8-stars-bei_n_209133.html