From the Summer 2001 issue of The News Media & The Law, page 13.
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 presented the legal question of 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 Fish and Wildlife Service agents raided the Bergers’ Montana ranch in March 1993 searching for evidence that they had illegally poisoning endangered eagles and other birds. Prior to the raid, the service granted a CNN camera crew permission to accompany the agents onto the property. During the search, the camera crew filmed the agents as they searched the Bergers’ ranch, and recorded a conversation between Paul Berger and an FWS agent, who wore a hidden microphone.
The Bergers sued the Fish and Wildlife Service and CNN and its employees in separate actions, asserting civil rights violations in both lawsuits and several wiretap and other state claims against the network. A District Court judge in Billings dismissed the civil rights suit against the network in February 1996, holding in part that the reporters could not be “state actors” and thus cannot be sued for civil right violations. The district court also dismissed the other claims against CNN and its employees.
In November 1997, the U.S. Court of Appeals in San Francisco (9th Cir.) reversed the dismissal of the civil rights claim and the Bergers’ claims of trespass and intentional infliction of emotional distress. The panel held that the news channel had cooperated so closely with the Fish and Wildlife Service during a search that they became joint actors. This decision made CNN susceptible to a lawsuit for violating the Bergers’ civil rights. (See NM&L, Winter 1998)
In May 1999, the U.S. Supreme Court sent the case back to the Ninth Circuit to reconsider its ruling in light of the high 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. (See NM&L, Summer 1999)
In November 1999, the Ninth Circuit ruled the federal officials were immune to suit, but media participants were not.
The Bergers’ case again wound up before Shanstrom, who refused to dismiss the case in February. The settlement conference followed in May. — DB