From the Winter 2011 issue of The News Media & The Law, page 35.
Broadcasters have long embraced media ride-alongs with police officers as a way to capture audio and video footage of newsworthy events. But these activities have not been free of legal problems; some citizens filed suits against media entities in which they claimed the media entities were jointly liable when the citizens Fourth Amendment rights were allegedly violated by officers during ride-alongs.
Because the majority of these cases were settled out of court, the judges in the cases that were heard never ruled on the media’s role in such violations. But with the advent of reality television, suits against media entities became more prevalent, allowing courts the opportunity to tackle the issue of media liability in such cases.
The U.S. Supreme Court established legal boundaries on traditional news ride-alongs with two rulings issued in 1999.
In Wilson v. Layne, the circuit court for Montgomery County, Md., issued three arrest warrants for “any duly authorized peace officer” to arrest and immediately bring in Dominic Wilson for violating his probation. The warrants made no mention of media presence or assistance. Although deputy U.S. marshals and Montgomery County police officers thought they were going to Wilson’s home to execute the warrants, the computer actually provided them with the home address of Wilson’s parents.
As part of the Marshals Service ride-along policy, a reporter and a photographer from The Washington Post accompanied officials into the private home while executing the search warrant.
While officers were in the home, the photographer took numerous photos and the reporter observed all interactions between police and the homeowners. “At no time, however, were the reporters involved in the execution of the arrest warrant,” according to a brief filed on behalf of the marshals. The paper never published its photographs of the event.
The homeowners sued law enforcement officials, alleging that the officers violated the Wilsons’ Fourth Amendment rights by bringing members of the media into their home during the execution of a warrant.
The case of Hanlon v. Berger involved Paul and Erma Berger, who owned a 75,000 acre ranch in Montana. A magistrate issued a warrant authorizing the search of the ranch, excluding the residence. Agents from the U.S. Fish and Wildlife Service executed the warrant while CNN reporters observed and recorded the action. The Bergers alleged that a videotaped search of their property violated their constitutional rights.
The U.S. Supreme Court held in both cases that while executing an arrest warrant in a private home or on private property, enforcement officers who invite representatives of the media to accompany them can be held in violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures.
The court’s opinion in Wilson said that although the Fourth Amendment does not require “that every police action while inside a home must be explicitly authorized by the text of the warrant,” it does “require that police actions in execution of a warrant be related to the objectives of the authorized intrusion.” The court held the reporters’ presence in the home “was not related to the objectives of the authorized intrusion.” The court ruled “it may well be that media ride-alongs further the law enforcement objectives of the police in a general sense, but that is not the same as furthering the purposes of the search.”
While the court clearly established that police act unconstitutionally when they invite the media into a private home or on private property while executing a search warrant, the court did not resolve whether the media could be jointly charged with the police as a so-called state actor.
Before the case reached the Supreme Court, the U.S. Court of Appeals in San Francisco (9th Cir.) in Hanlon provided the guidelines for determining whether a private party, such as a media organization, is a state actor sufficient to subject it to liability for Fourth Amendment or other constitutional violations. The court determined the “joint action” test is the appropriate test to decide whether the conduct of private parties amounts to government action. This test states a private actor may be considered a government actor if he or she is a “willful participant in joint action with the [government] or its agents,” according to the 1980 Supreme Court case Dennis v. Sparks.
The Hanlon decision noted that the Supreme Court said this requirement is satisfied when “the plaintiff is able to establish an agreement, or conspiracy between a government actor and a private party.”
In this case, the media defendants were found to be state actors because they participated in the execution of a search warrant with federal officers “in a manner designed to enhance its entertainment, rather than its law enforcement value.”
The U.S. District Court in Denver, Colo., tackled the issue of whether the media could be held as a state actor in the case Broker’s Choice of America, Inc. v. NBC Universal, Inc.
The Alabama Department of Insurance and Alabama Securities Commission joined forces with the Alabama Attorney General’s Office to investigate and prosecute improper annuities sales practices. NBC’s “Dateline” joined the investigation.
The coalition decided its investigation should include covering one of Broker’s Choice of America’s two-day training sessions for insurance agents in marketing annuities, which were held in Centennial, Colo. Two “Dateline” producers were issued insurance producer licenses by the Alabama Department of Insurance and registered for the sessions. They recorded their experiences and some of the recorded footage was aired in a “Dateline” report in April 2008. Broker’s Choice of America sued NBC Universal, claiming defamation and liability under the state-actor doctrine because of “Dateline’s partnership with the state of Alabama.”
However, the court found in January that the agreement did not show a joint relationship because “Dateline” wanted “to obtain footage for use in its Report,” while Alabama authorities “hoped to learn more about predatory practices toward seniors.” Broker’s Choice never claimed that Alabama authorities had editorial control over the use of the material recorded or the content that was aired.
The company has appealed that ruling to the U.S. Court of Appeals in Denver (10th Cir.).
In a similar case, the U.S. District Court in Central Islip, N.Y., examined whether the media could be held as a state actor in the 2010 case Young v. Suffolk County.
Deborah Young filed a civil rights suit alleging Suffolk County police and her ex-husband invited the news media to enter her home.
She claimed the media were permitted to look through her personal possessions and specifically stated in her complaint that “the presence of the media inside of the premises was not related to the objectives of the questionable intrusion, and the media did not assist the police and was [sic] not in aid of the execution of the warrantless search and seizure.” Pictures and reports were published in local and state newspapers, and distributed over the Internet.
The court disagreed with Young, however, finding she did not sufficiently allege that the media assisted the state in searching her home and never claimed the state was involved in the media’s role there. Instead, the allegations only claimed the media were permitted “to photograph and record and make notes on the media’s observations and for the media’s own stories or purposes,” the opinion stated.
Although suits alleging media defendants jointly violated individuals’ constitutional rights have continued in the traditional media forum, plaintiffs more recently have brought claims in which they alleged that media companies violated their constitutional rights by conspiring with police in order to maximize the entertainment value of reality programs.
A mid-level appellate court in New York City tackled this type of claim in the 2006 case Rodriguez v. City of New York.
Plaintiff Vivian Rodriguez, also known as Julie Rodriguez, brought an action against the New York City government, HBO, Time Warner Inc. and Eames Yates Productions Inc. to recover damages for injuries she received when a police officer allegedly shot her during the execution of a search warrant. The plaintiff alleged in her compliant that Eames Yates filmed the event for possible inclusion in a reality television program involving the New York Police Department for HBO and Time Warner. The complaint also alleged the media defendants “planned, conspired, encouraged, and agreed with the police that excessive force would be used in order to maximize the entertainment value of the [reality] television program.”
The court granted the media defendant’s motion to dismiss, but Rodriguez appealed to the Supreme Court, Appellate Division and won. The appellate court found that Rodriguez sufficiently alleged that the media defendants “formed a common plan to use excessive force in the execution of the warrant, and that such plan created an unreasonable danger to persons such as the plaintiff and was a proximate cause of her injuries.” The case is expected to go to trial soon.
Similarly, in Best v. Malec, a plaintiff successfully claimed that media entities were liable for Fourth Amendment violations due to the media’s alleged conspiring with police to make more entertaining programming.
The case involved an invasion of privacy claim during the filming of the reality television program “Female Forces,” which airs on The Biography Channel, owned by A&E Television Networks. The program follows several female Naperville, Ill., police officers as they perform their duties. A contract between the city and the show’s producer gives the police department the right to review a rough cut of each episode and demand removal of material from the episode if it chooses.
In 2008, Eran Best was driving in Naperville when she was pulled over by an officer because she had an expired sticker on her license plate.
After the officer took her driver’s license and registration, he returned to his vehicle and requested Malec, a female officer who was being followed by a “Female Forces” camera crew, to join him. Best and the officer waited 30 minutes for Malec to arrive. Once the camera crew and Malec arrived, they told Best that the crew was filming a documentary about Malec. The officers performed a sobriety test on her and then told her she was driving with a suspended license and placed her under arrest. The officers drove Best to the police station.
Once there, a “Female Forces” producer approached Best and tried to convince her to sign a written consent form to allow the footage of her arrest to be used on the show. Best refused.
The footage of her arrest and sobriety test were still aired, along with scenes showing the officers searching her car while making comments that she had expensive taste, a shot of a dashboard computer that displayed Best’s date of birth, weight, height, driver’s license number, a description of her previous arrest and traffic stops, and a scene showing Malec in her car saying, “Do I feel sorry for [Best]? No. Pretty little blond girl, 25 years old, driving a Jaguar. Yeah, that’s Naperville.” In Best’s complaint, she alleged the media “staged, sensationalized, and/or enhanced” her arrest for commercial purposes and defendants invaded her privacy by publicly disclosing private facts about her.
The media entities filed a motion to dismiss, which the U.S. District Court in Chicago denied in June 2010. They moved to reconsider, but were again denied. The court found that the airing of the footage could constitute a use of her identity for commercial purposes because the show is a “for-profit product, broadcast on a network with commercial advertisements,” the ruling stated. Steve Mandell, attorney for the media, said that, although the show earns a profit, that does not mean it is used to promote a product. He noted that the U.S. Supreme Court has recognized that ride-alongs serve a valid public purpose and the network is simply trying to communicate coverage of public activities.
The court also held that, taken in combination, the airing of a dashboard computer screen that contained Best’s name, age, height, weight and driver’s license number could support a claim of public disclosure of private facts, “particularly given the identity theft risks that disclosure of such information presents.” Mandell said he contests this conclusion because all of the information is public and accessible in her traffic violation file. “Just because television makes the information readily available doesn’t convert public information into private,” Mandell said.