Why Reality TV Is Not Child Abuse: Lithwick

Mere hours after police said that the story of 6-year-old Falcon Heene drifting away in a silver balloon was a hoax, Americans began clamoring for his parents' blood. The Heenes' alleged act of concocting a phony crisis makes them eligible for felony charges. But for the heartsick millions who watched that silver egg float away, it wouldn't be enough to send Richard Heene to jail. We are convinced he and his wife, Mayumi, should lose their children as well. (Click here to follow Dahlia Lithwick)

No fit parent, some contend, could subject his children to a life of chasing dementedly after hurricanes, vying to appear on reality shows, and colluding in a national fraud. Online polls revealed a belief that these children are abuse victims. Pundits everywhere weighed in to say that there is already ample cause to remove the kids: former prosecutor Wendy Murphy told CBS News last week that "all they have to have is evidence of neglect or abuse…And, boy, I think they've got plenty of that here."

The impulse to remove innocent children from their stupid parents simply because their parents are stupid is a strong one. But it sweeps broadly and often irrevocably. Was the Octomom showing good judgment when she had herself implanted with eight embryos she had neither the financial nor emotional resources to support? Do the preposterous Jon and Kate Gosselin really believe their children have thrived as a consequence of having their every burp and sniffle broadcast to millions of viewers? A clutch of children's-rights advocates and many outraged Americans argue that any parent who agrees to put a small child on a reality show should be, by definition, a child abuser. But our legal system doesn't agree. Despite data that show what happens to child stars, current laws are concerned only with protecting young celebrities' finances and making sure they stay on the right side of child-labor rules. Being willing to do virtually anything for fame and money isn't a crime in America. It's a vocation.

In the absence of a legal framework to protect the child victims of reality television, is there any evidence that the Heene children have been abused? Colorado's state code is clear on what constitutes abuse or neglect that warrants removal from a home: cases in which "a child exhibits evidence of skin bruising, bleeding, malnutrition…burns, fracture of any bone…soft tissue swelling, or death," or if the child is subject to "emotional abuse," meaning "an identifiable and substantial impairment of the child's intellectual or psychological functioning or development." Throwing up on the morning shows is not prima facie evidence.

Even if Richard Heene is convicted of a felony, he will not automatically lose custody of his children, not even if the elastic crime of "contributing to the delinquency of a minor" can be proved. Heene's 1997 arrest for three misdemeanors—he pled no contest to vandalism charges—are not evidence of abuse or neglect, either. Much more compelling, if true, are records showing that police have twice been called to the Heene residence in the past year, including an alleged domestic-violence incident in February. If state officials believe the Heene children are at genuine risk of abuse, they should be removed. But as Heene's lawyer has argued, there is no evidence of that yet, and the emotional harm caused by storm-chasing with Dad is nothing compared with being ripped from the custody of your parents.

Whether and when to remove a child from the care of his completely nutty parents is a complicated legal question, not one that should be hashed out via online polls. State laws properly recognize that tearing apart a family is an extreme step to be taken when a child faces imminent danger, not when his parents make terrible choices.

Recall the fate of poor Adolf Hitler Campbell, who at the age of 3 made national headlines last January when he and his sisters—JoyceLynn Aryan Nation Campbell and Honszlynn Hinler Jeannie Campbell—were removed by the police from their New Jersey home shortly after a local bakery refused to frost Adolf's name onto his birthday cake. The state claimed the children's names were not the cause of their removal, but nine months later the children are still not living with their parents. Because the records remain sealed, we don't know quite why the Campbell children were removed or when their parents will get them back. Somewhere between the bright lights of reality TV and the rabbit hole of child-abuse allegations lies an appropriate resolution for the Heenes. Thankfully, the standards for canceling a TV show and wresting custody from a parent are still not the same.