10th Circuit reverses dismissal of 'Dateline' defamation case

Bradleigh Chance | Libel | News | July 14, 2014

Last week the 10th Circuit Court of Appeals determined that while NBCUniversal reporters did not violate anyone’s Fourth Amendment rights creating the 2008 Dateline segment titled “Tricks of the Trade,” a lower court will have to review the originally dismissed defamation claims made by an insurance broker featured in the piece.

Tyrone M. Clark and his company, Brokers’ Choice of America, initially sued NBC over video clips recorded with a hidden camera by Dateline crew members during an insurance brokers’ seminar in Colorado located on BCA property.

The reporters worked with Alabama law enforcement to gain access to the event since it was only open to licensed insurance agents, which Clark and BCA claimed to be a Fourth Amendment violation of the company’s right against unreasonable searches and seizures.

The Dateline piece allegedly showed Clark teaching scare tactics to get seniors to buy annuities, but BCA says the statements were taken out of context and that through manipulative editing NBC presented Clark in a false light.

The court wasn’t able to review the unused portion of the video taken by NBC because the district court had ruled the outtakes were protected by a reporter’s privilege. However, the 10th Circuit says that evidence should be admissible.

The court found that because “this is not a case involving confidential sources or confidential information,” the unused portion of the film should not be protected by a reporter’s privilege.

“In essence, Dateline wants to pitch the baby out with the bath water,” Judge O’Brien said. “It appears the identity of those who filmed the seminar is well known to the parties, but if undisclosed others were involved, BCA is not seeking to identify them.”

Now Clark and BCA are getting a second chance in court to pursue the defamation claims – this time with access to the unused video material to support them.

But according to the 10th Circuit’s opinion, NBC did not do anything unconstitutional by attending undercover. The court affirmed the lower court’s decision to throw out the Fourth Amendment violation claims.

Because Dateline and law enforcement were working together, the court said Dateline secretly recording the seminar is “no different from an undercover police officer misrepresenting himself as a drug dealer."