CNN held to be ‘state actor’ for videotaping federal search

MONTANA–A federal appeals court in mid-November ruled that CNN could be considered a state actor for the purposes of a civil rights suit filed against it in federal District Court in Billings, Mont.

Writing for a unanimous panel of the U.S. Court of Appeals in San Francisco (9th Cir.), Judge Mary Schroeder said that the news channel had cooperated so closely with the U.S. Fish and Wildlife Service during a search that they became joint actors, allowing CNN to be sued for civil rights violations as if the network itself had become an agent of the state.

“In this case we have not only a verbal agreement, but a written contractual commitment between the government and the media to engage jointly in an enterprise that only the government could lawfully institute — the execution of a search warrant — for the mutual benefit of both the private interests of media and the government officials’ interest in publicity,” she wrote.

The suit was filed by Paul and Erma Berger after agents of the Fish and Wildlife Service raided the Bergers’ Montana ranch in search of evidence that they had been illegally poisoning endangered species of eagles and other birds.

Prior to the raid, the service granted permission for a CNN camera crew to accompany agents onto the property. During the course of the search, the camera crew filmed the agents as they searched the Bergers’ house and surrounding ranch. The crew also recorded conversations between Paul Berger and Special Agent Joel Scrafford via a hidden microphone worn by the agent.

The ranchers alleged that they were unaware Scrafford was wearing a microphone and that their conversations were being recorded. They also alleged that they never knew the cameras did not belong to the government officers and that nobody ever told them that some of the searchers were CNN employees rather than federal agents. The Bergers sued the Fish and Wildlife Service and CNN and its employees in separate actions, asserting civil rights violations in both lawsuits. They also sued the network and its employees for violation of the federal wiretap act and several state law torts.

District Court Judge Jack Shanstrom in Billings dismissed the civil rights suit against the network in February 1996, holding in part that the reporters could not be considered state actors and thus were not subject to suit for civil right violations. The district court also dismissed the other claims against CNN and its employees.

The appellate court panel reversed the dismissal of the civil rights claim and the Bergers’ state tort claims of trespass and intentional infliction of emotional distress. However, it upheld the dismissal of the federal wiretap act claim and the state tort claim of “conversion” — that CNN had “captured” their images and voices without their consent. It also upheld the lower court’s denial of the Bergers’ request for an injunction barring the network from further airings of its report on the raid. (Berger v. Hanlon; Media Counsel: P. Cameron DeVore, Seattle)