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CNN settles privacy suit over involvement in search of ranch

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  1. Libel and Privacy

    NMU         MONTANA         Privacy         Jun 8, 2001    

CNN settles privacy suit over involvement in search of ranch

  • Cooperation with federal authorities in executing a search warrant made the media “state actors,” but did not give them the same immunity the federal agents enjoyed.

CNN and the federal government have settled an invasion of privacy lawsuit brought by Montana ranchers. Details of the settlement, reached on May 8 at a court-mandated settlement conference, were not released due to a confidentiality clause.

The case had been at the center of a legal battle as to whether the media could be liable for accompanying law enforcement officials on otherwise lawful searches of private persons.

The suit was filed by Paul and Erma Berger after agents of the Fish and Wildlife Service raided their Montana ranch in March 1993 in search of evidence that they had been illegally poisoning endangered species of eagles and other birds.

Prior to the raid, Fish and Wildlife officials granted permission for a CNN camera crew to accompany agents onto the property. During the search, the camera crew recorded the agents’ search of the ranch. The crew also recorded conversations between Paul Berger and Special Agent Joel Scrafford, who wore a hidden microphone.

The Bergers sued Fish and Wildlife and CNN over alleged civil rights violations and other issues, including wiretap law violations. The federal district court in Billings dismissed the 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.

In November 1997, the U.S. Court of Appeals in San Francisco (9th Cir.) reversed the dismissal of some of the claims, including the civil rights claim. The appellate panel said that the news channel had cooperated so closely with agents during the 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 May 1999, the U.S. Supreme Court vacated the appellate decision. The high court remanded the case to the Ninth Circuit to reconsider its ruling in light of the court’s finding that the law was unclear at the time of the raid. At the same time, the Supreme Court ruled in a similar case that law enforcement officials were entitled to qualified immunity for their actions because the state of the law was uncertain at the time of the search.

In November 1999, the Ninth Circuit acknowledged that the federal officials had a qualified immunity, but that immunity only applies to the government, not to the media participants.

The Berger case again wound up in federal district court before Shanstrom, who refused to dismiss the case in February 2001. The settlement conference followed in May.

(Cable News Network, Inc. v. Berger; Media Counsel: P. Cameron DeVore, Davis Wright Tremaine, Seattle) DB

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© 2001 The Reporters Committee for Freedom of the Press

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