Opposition Brief — Berger v. Cable News Network, Inc.

Supreme Court brief1998

Ask Donna

What actually matters in this document.

Text

Supreme Court, ug |

P FILED

AUC 3 1998

No. 98-38

soetcemee vaneiecateneiataliilaahiniin so |

Seton

IN THE

Suprene Court of the United States

OCTOBER TERM, 1997

PAUL W. BERGER and ERMA R. BERGER,

Cross-Petitioners,

CABLE NEws NETWORK, INC., TURNER BROADCASTING

SYSTEM, INC., ROBERT RAINEY, DONALD HOOPER,

and JACK HAMANN,

Cross-Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

CROSS-RESPONDENTS’ BRIEF IN OPPOSITION

TO CONDITIONAL CROSS-PETITION

FOR WRIT OF CERTIORARI

DAVID C, KOHLER P. CAMERON DEVORE *

JENNIFER FALK WEISS JESSICA L. GOLDMAN

CABLE NEWS NETWORK, INC. MICHELE EARL-HUBBARD

One CNN Center ERIc M. STAHL

P.O. Box 105366 DAVIS WRIGHT TREMAINE LLP

Atlanta, GA 30348-5366 2600 Century Square

1501 Fourth Avenue

Seattle, WA 98101

(206) 622-3150

* Counsel of Record Counsel for Cross-Respondents

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Do members of the news media violate the Elec-

tronic Communications Privacy Act (18 U.S.C. § 2510,

et seq.) when, as part of their news coverage of a law

enforcement action, they record conversations of a law en-

forcement agent, with the agent’s consent?

2. Must an appeals court issue an injunction restrain-

ing members of the news media from future telecasts of

news footage based solely on unproven allegations that the

footage was improperly obtained, where theve has been

no final judicial determination as to the propriety of the

newsgathering, no allegation that the footage itself may

appropriately be enjoined, and no factual showing that

other, less intrusive remedies are inadequate?

(i)

RULE 29.6 LISTING

Time Warner, Inc. is the parent company of Cross-

Respondent Turner Broadcasting System, Inc. (“TBS”)

which, in turn, is the parent company of Cross-Respondent

Cable News Network, Inc. (“CNN”). Neither TBS nor

CNN has any nonwholly owned subsidiaries.

TABLE OF CONTENTS

QUESTIONS PRESENTED 0

-sdiseeseel tu ecbicomgd, sa. ct StS a aa

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED .... Cbpteietbeblntntetipiiantnsbbeibelsnsdcsbaisiveen-..

STATEMENT OF THE Re ileidsdestlinicinsinin Sh. ah,

A. Factual Background.

REASONS THE WRIT SHOULD BE DENIED.............

I. THE HOLDING THAT CNN DID NOT VIO-

LATE THE WIRETAP ACT WAS CORRECT,

DOES NOT CONFLICT WITH ANY OTHER

DECISION, AND CAN BE UPHELD ON

GROUNDS INDEPENDENT FROM THOSE

UPON WHICH THE NINTH CIRCUIT RE-

cy etry pen NAW SS RR ee a

A. Review by This Court Is Unnecessary Be-

cause the Wiretap Act Expressly Permits

Journalists To Record Conversations for

Newsgathering I ec

B. If, as the Ninth Circuit Found, CNN Acted

Under Color of Law for Bivens Purposes

Based on CNN’s Alleged Association With

Law Enforcement Agents, then 18 U.S.C.

§ 2511(2)(c) Applies and Expressly Ex-

empts CNN from Wiretap Act Liability...

Il. REVIEW OF THE NINTH CIRCUIT’S RE-

FUSAL TO ISSUE A PRIOR RESTRAINT IS

ee OOO

ow &

TABLE OF CONTENTS—Continued

Page

A. This Case Does Not Raise the Question Pre-

sented in the Cross-Petition as There Has

Been No “Final Judicial Determination”

That CNN Did Anything Unlawful .............. 23

B. The Denial of the Bergers’ Requested Prior

Restraint of News Footage Follows From

an Unbroken Line of Authority From This

I i aa ee 24

CECE ATIRIGIY scenescnnnprexcnsmmnasansditebapepestvtiertonihinnnseiitiecaaite 29

TABLE OF AUTHORITIES

CASES Page

Bailey v. United States, 516 U.S. 137 (1995) ........ 17

Benford v. American Broad. Co., 502 F. Supp. 1159

(D. Md. 1980), aff'd, 661 F.2d 917 (4th Cir.

Ceres Be EY Res BPs Dei ll arte alc eels Bi 18

Bivens v. Six Unknown Named Agents of the Fed-

eral Bureau of Narcotics, 408 U.S. 388 (1971) .... passim

Boddie v. American Broad. Co., 731 F.2d 333 (6th

Ry RUUD ee a ea eee ee he eS 18

Butz v. Economou, 488 U.S. 478 [er oa. 8

CBS, Inc. v. Davis, 510 U.S. 1815 (Blackmun, Cir-

Ou Campees BUG) ik cases ov passim

City of Los Angeles v. Lyons, 461 U.S. 95 (1983)... 28

Desnick v. American Broad. Co., 44 F.3d 1345 (7th

7 Riernainer intron 1 SP Bae AO cal oko eee eet 15, 16

Deteresa v. American Broad. Co., 121 F.3d 460

(9th Cir. 1997), cert. denied, 118 S. Ct. 1840

Ce es I ee tT ESS Siete 15

Georgia Soc’y of Plastic Surgeons v. Anderson, 363

ae Wee CO RUE ee PE aS 27

Goldblum v. National Broad. Co., 584 F.2d 904

We ED cee ne 27

Harte-Hankes Communications, Inc. v. Connaugh-

won, Se. US. GGT (1908) = 16

In re King World Prods., 898 F.2d 56 (6th Cir.

sme ac igi IRS Tat EE te BE IS a 26

Lothschuetz v. Carpenter, 898 F.2d 1200 (6th Cir.

sac Ne 3 REASSURES FSI SY OCS a 27

Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982) __.. 9

Rave Rory OOO eh PS 25, 26

Monroe v. Pape, 365 U.S. 167 (1961)... 22

Near v. Minnesota, 283 U.S. 697 SERED iets 26, 27

Nebraska Press Ass’n v. Stuart, 427 U.S. 539

5s 5: [SSN AMSA RIES SRG Nee ORE tA a a 12, 24, 26

New York Times Co. v. United States, 403 U.S.

A EMUER ena tes es sk i Seey es 11, 24, 26

Omron Ail. Corp. v. Barr, 990 F.2d 861 (6th Cir.

ME Wiciis chiatric et 20, 22

Organization for a Better Austin v. Keefe, 402

en MO UI ED eaicicsnis e 2, 23

TABLE OF AUTHORITIES—Continued

Page

Russeli v. American Broad. Co., 28 Med. L. Rptr.

2428 (N.D, GE. ADB) asian ccecttietitl nin 14, 15, 16

Smith v. Phillips, 455 U.S. 209 (1982) .................... 13

Sussman v. American Broad. Co., 971 F. Supp.

482 (C.D. Cal. 1997) 15

Thomas v. Pearl, 998 F.2d 447 (7th Cir. 1993),

cert. denied, 510 U.S. 1048 (1994) ............. 14, 20, 21, 22

Wilson v. Layne, 141 F.8d 111 (4th Cir. April 8,

1998) 17

CONSTITUTIONAL PROVISIONS AND STATUTES

U.S. Const. amend. I ._..................... 1,2

T USC. & TB EO) CED CD oaicesscige ccc dn dee. 7

pRB UR ef SERRE RRRT ORE ny RUE Tame oe 9

pL Bek Ga Fk MRR tener rer amtan yearn passim

18 UGG, © pad GP ROD eosin sintered ees passim

bP REM Rag & 1b os 3A } aie neeparen a cua ene aoe meme passim

PF Rik okt & | TERMERR Rr eMeME aN CRN wer urn 8, 10

MISCELLANEOUS

4 William Blackstone, Commentaries *151, 162...... 27

Robert L. Stern et al., Supreme Court Practice

SZB CT OG, TID cccineicac eset tect ntsentiln nanos 13

S. Rep. No. 99-541, 99th Cong., 2d Sess. 17, re-

printed in 1986 U.S.C.C.A.N. 3556 ...........2......... 3,18

In THE

Siyprene Court of the United States

OcTOBER TERM, 1997

No. 98-38

PAUL W. BERGER and ERMA R. BERGER,

ee Cross-Petitioners,

CaBLE News Network, INC., TURNER BROADCASTING

SYSTEM, INC., ROBERT RAINEY, DONALD Hooper,

and JacK HAMANN,

Cross-Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

CROSS-RESPONDENTS’ BRIEF IN OPPOSITION

TO CONDITIONAL CROSS-PETITION

FOR WRIT OF CERTIORARI

Cross-Respondents Cable News Network, Inc., Turner

Broadcasting System, Inc., Robert Rainey, Donald Hooper,

and Jack Hamann (collectively, “CNN”) respectfully re-

quest that this Court deny the conditional Cross-Petition

for writ of certiorari.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED *

In addition to the Constitutional Provisions and Stat-

utes Involved cited by the Bergers, Cross-Pet. at 2-4. The

Cross-Petition also involves the First Amendment to the

Constitution of the United States, which provides as

follows:

* As originally served, the Cross-Petition misquotes 18 U.S.C.

§ 2511(2)(d). Cross-Pet. at 4. Just prior to filing this Brief in

Opposition, CNN received notice that the Bergers have filed a

revision with the Clerk correcting this error.

Congress shall make no law . . . abridging the free-

dom of speech, or of the press....

U.S. Const. amend. I.

STATEMENT OF THE CASE

The issues raised in the Bergers’ Cross-Petition do not

merit review by this Court. First, the Cross-Petition

presents no valid grounds for undermining the well-

established principle that the Wiretap Act expressly per-

mits the recording of a conversation where one party con-

sents. This Court’s review is unnecessary: The Bergers

complain that the Ninth Circuit erred in applying the

Wiretap Act’s “color of law” exemption, 18 U.S.C.

§ 2511(2)(c), to CNN. But even if the Bergers are cor-

rect, the judgment reached by the Ninth Circuit would

be affirmed because, as the district court held, a separate

exemption, 18 U.S.C. § 2511(2)(d), permits parties not

acting under color of law to record conversations, with

one party’s consent, for newsgathering or other non-

tortious, non-criminal purposes. The Bergers ignore nu-

merous decisions considering the precise issue presented in

their Cross-Petition, all of which hold that § 2511(2)(d)

—both on its face and by specific congressional intent-—

permits the type of newsgathering activity CNN engaged

in here. Furthermore, the Bergers attempt to manu-

facture a “conflict” between a Seventh Circuit case and

the opinion below regarding the meaning of the phrase

“color of law” in the Wiretap Act, but there is no mate-

rial conflict: The courts’ reasoning is in complete accord.

Second, the Ninth Circuit’s decision not to enjoin

CNN from future broadcasts of news footage follows

from an unbroken line of authority, from this Court and

others, reiterating the “heavy presumption” against the

constitutionality of any prior restraint of the news media.

Organization for a Better Austin v. Keefe, 402 U.S. 415,

419 (1971). The Bergers’ argument—that allegations of

improper newsgathering by CNN somehow justify enjoin-

ing the telecast of the acquired truthful news footage—

has been considered and universally rejected by this Court

and others.

The Bergers’ Cross-Petition ignores the fundamental

fact that CNN in this case was doing what our Constitu-

tion assumes the news media will do—gather and report

the news. Instead, the Bergers seek to characterize the

ordinary and longstanding journalistic practice of report-

ing on government law enforcement activities as nothing

but a calculated intrusion on the rights of criminal sus-

pects. According to the Cross-Petition, the fact that CNN

was reporting on newsworthy events is irrelevant, because

the resulting news coverage may also be “sensational”

and entertaining. Cross-Pet. at 5. For the Bergers, it

is but a small step from demeaning (or deliberately dis-

regarding) CNN’s exercise of its First Amendment news-

gathering function, to asserting that civil + liability ought to

attach to CNN’s actions, and that the courts may, by in-

junction, control CNN’s future editorial decisions. These

contentions are inconsistent with First Amendment prin-

ciples and not worthy of this Court’s review.

A. Factual Background

Cross-Respondents herein are Cable News Network,

Inc., a twenty-four-hour television news network; its par-

ent compary Turner Broadcasting System, Inc. (“TBS”);

Jack Hamann, a news reporter for CNN; and Robert

Rainey and Donald Hooper, CNN employees who served

as Hamann’s camera crew.”

1 Under the Bergers’ interpretation of the Wiretap Act, CNN and

other news outlets recording conversations for newsgathering pur-

poses also could be criminally liable. See 18 U.S.C. § 2511(1). “Such

a threat is inconsistent with the guarantees of the first amendment.”

S. Rep. No. 99-541, 99th Cong., 2d Sess. 17, reprinted in 1986

U.S.C.C.A.N. 3555, 3571 (§ 2511(2)(d) specifically intended to

clarify that journalists may record conversations so long as one

party consents),

2 Cross-Petitioners Paul and Erma Berger, plaintiffs below,

brought two separate actions arising from the events described

here. One named Cable News Network, Inc. and Hamann as

defenuants; the other named TBS, Rainey, and Hooper, as well as

Reporter Hamann is a Seattle-based correspondent for

CNN who regularly reports on environmental matters and

other news from the western United States. ER Hamann

5/2; Hanlon 8/2. In 1993, while working for the CNN

Environment Unit, he heard reports that western ranchers

were poisoning endangered species in violation of federal

law, often with impunity since local officials and juries

were sympathetic toward the ranchers’ efforts to protect

livestock from predators. ER Hamann 5/2; Hanlon 8/2.

Hamann decided to investigate what, if anything, federal

authorities were doing to stop the illegal wildlife killings.

In the course of his newsgathering process, Hamann

learned that the United States Fish and Wildlife Service

(“FWS”) was investigating a report that a Montana

rancher—who, unbeknownst to Hamann at the time, was

Paul Berger—was killing eagles unlawfully on his 75,000-

acre property, and that the FWS would be searching the

rancher’s property for evidence of this criminal activity.*

certain federal government actors (the United States of America,

an Assistant U.S. Attorney, and four U.S. Fish and Wildlife Service

(“FWS”) agents) as defendants. The actions proceeded on identical

courses in the district court and were treated as consolidated on

appeal. App. 7a, 49a n.1. CNN has petitioned for certiorari seeking

review of the Ninth Circuit's holdings (1) that CNN was a “joint

actor” with the FWS agents and thus acted under color of law for

purposes of Bivens liability, and (2) that law enforcement agents

violate clearly established Fourth Amendment rights when they per-

mit journalists to observe and record the execution of a warrant, 66

U.S.L.W. 3783 (U.S. May 26, 1998) (No. 97-1914)! The individual

government agents filed a separate petition for certiorari seeking

review of the Ninth Circuit’s qualified immunity and Fourth

Amendment holdings. 66 U.S.L.W. 3783 (U.S. May 26, 1998)

(No. 97-1927).

3 The excerpts of record (“ER”) refer to the two volumes Cross-

Petitioners filed in each of the two actions (“Hamann” or “Hanlon,”

respectively). The references are to tab number within the ER,

exhibit within the tab, and page number within the exhibit.

*# Mr. Berger was suspected of deliberately poisoning and shoot-

ing eagles—and not, as the Cross-Petition asserts, at 7 n.4, of

merely killing eagles in the course of his efforts to also kill preda-

tory coyotes. ER Hamann 5/8 & Hanlon 8/8/Tape 8/page 13. See

The FWS investigation of Berger had begun before

Hamann became interested in reporting on illegal wild-

life killings; it had been ongoing for at least two months

at the time the FWS gave CNN permission to observe

the search. App. 4a. This permission was confirmed

in a letter stating that the government “agrees to allow

CNN to accompany USFWS Agents as they execute

a criminal search warrant near Jordan, Montana, some

time during the week of March 22, 1993.” The letter

further stated that CNN retained “complete editorial con-

trol” over any footage it recorded of the search, but that

CNN would not show any footage until such time as

doing so posed no risk to any defendant's fair trial rights.>

As part of its coverage of the search, CNN attended

a briefing for FWS agents the day before the warrants

were executed. Hamann asked a few questions regarding

the nature of the poisons allegedly used by Berger and

local ranchers’ views about federal authorities, ER Ham-

ann 5/8 & Hanlon 8/8,/Tape 5/pages 6-8, but the record

contains no evidence that CNN played any role in the

briefing, assisted in planning or executing the search, or

coordinated in any way with the government beyond

what was necessary to arrange to observe and record the

search for newsgathering purposes.®

also id. Tape 7/page 11, which records Berger as stating, “I'll kill

every son of a bitch [eagle] I get a chance to.”

5 This was the complete substance of the letter, which is set out

in full in the Ninth Circuit opinion. App. 4a-5a. The letter merely

grants CNN permission to accompany the government agents. It

plainly does not, as the Bergers assert, give CNN “ ‘exclusive

access’ to the Berger Ranch to use as the backdrop for, and the

search as a source of, video and audio recordings ....” Cross-Pet.

at 6. Nor does CNN therein agree to “grant{] the Government’s

express desire to publicize its efforts to enforce environmental laws.”

Id. at 7. The agreement expressly states that CNN “shall not be

obliged to use the footage,” App. 5a, belying the Bergers’ sugges-

tion of any quid pro quo arrangement.

6 Specifically, the record provides no support for the Bergers’

unsubstantiated claim that CNN was “made privy to confidential

Fn ee ee eT ee ee ee ee

On the day of the search, the large group of govern-

ment agents executing the search warrants drove to the

ranch, followed in a separate private vehicle by Hamann,

Rainey, and Hooper. ER Hamann 5/8 & Hanlon 8/8/

Tape 6/page 3-Tape 7/page 2. One of the government

vehicles had a small, fixed CNN camera visibly mounted

on its hood facing into the vehicle, and FWS agent Joel

Scrafford wore a microphone that transmitted sound to

the CNN crew. App. 6a; ER Hamann 5/8 & Hanlon

8/8/Tape 7/pages 1-23-Tape 20/page 1.7 It is un-

disputed that Scrafford consented to wearing the micro-

phone and to having his conversations recorded by CNN.

App. 22a, 42a, 54a.8 The CNN crew members were

dressed in casual clothes and thus were readily distin-

guishable from many of the law enforcement officers on

the scene who were either in uniform or wore hats or

jackets with government agency patches or labels, and

were visibly armed with handcuffs and guns. ER Hamann

5/8 & Hanlon 8/8/Tape 6/pages 3-4.°

information about the Bergers and the criminal investigation... .”

Cross-Pet. at 7-8 n.5.

7 Contrary to the Bergers’ assertions, Cross-Pet. at 5, the CNN

crew did not ride in any government vehicle.

8 It also is undisputed that Scrafford, in his capacity as an FWS

agent, participated in the investigation of Paul Berger’s suspected

criminal activity and in the execution of the valid search warrants.

The Bergers do not explain their characterization of Scrafford as a

“human ‘boom mike’” and “simply a piece of recording equipment.”

Cross-Pet. at 9, 18, 22. Whether or not this is meant as hyperbole,

it is misleading to the extent it implies that Scrafford played no role

in executing the warrants or investigating Paul Berger. A more

accurate characterization of the undisputed facts surrounding

Serafford’s activity is that he was an FWS agent, on the Berger

property to execute a valid search warrant, who also agreed to

facilitate CNN’s newsgathering efforts by wearing a microphone.

8The Bergers’ claim, Cross-Pet. at 8, that Agent Scrafford

threatened to arrest Paul Berger if he was uncooperative, is mis-

leading. The record indicates that when the agents first encoun-

tered Berger, Scrafford told him, “[Wle aren’t going to arrest

you.” ER Hamann 5/8 & Hanlon 8/8/Tape 7/page 7. Later,

Scrafford told Berger that if Berger did not cease interfering with

While the FWS agents executed the warrant, the journ-

alists videotaped portions of the agents’ authorized search

of the ranch, its outbuildings and surrounding public

roads. App. 6a. CNN never entered the Bergers’ home,

though Agent Scrafford did, with Berger’s consent. Jd.!

Berger’s voluntary conversations with the FWS agent

both inside and outside the house were recorded through

the microphone Scrafford was wearing. /d.

During the search, which lasted several hours, the

CNN crew interviewed one of the government officials

present for the execution of the warrant, Assistant

United States Attorney Kris McLean. ER Hamann 5/8

& Hanlon 8/8/Tape 11/pages 2-8. McLean stated in

the interview that the government’s purpose in allowing

CNN to record the FWS search was to educate the public

that the government does enforce criminal laws protecting

wildlife, and that there are consequences to illegally pois-

oning protected species. Id. page 8.

Based on evidence seized during the search, Berger was

charged with violating federal laws that prohibit killing

eagles. A jury convicted him of applying a pesticide to

sheep carcasses with the intent to kill predators, including

eagles, in violation of 7 U.S.C. § 136j(a)(2)(G). He

was acquitted of three other charges. App. 7a.

federal poison specialists trying to photograph poisons found on the

property Scrafford would have no choice but to arrest him. ER

Hamann 5/8 & Hanlon 8/8/Tape 8/page 3.

10 The Bergers’ assertion that Agent Scrafford “neither requested

nor received permission from [the Bergers] to enter their resi-

dence” is shown by the record to be untrue. The tape log records

the following conversation between Scrafford and Paul Berger out-

side the Berger home, while Mrs. Berger was inside:

Scrafford: Do you want me to try and explain it, or do you

want to talk to her?

Berger: No, comeonin...

Serafford: Okay ... just... don’t want to get her upset

any more than we have to.

ER Hamann 5/8 & Hanlon 8/8/Tape 7/page 16.

Seven months after the search, and two months after

Paul Berger’s criminal conviction, CNN used portions of

its footage of the search on its regular environmental news

programs “Earth Matters” and “Network Earth” as part

of its news coverage of government efforts to protect

endangered species. The footage made up only a portion

of each program. The programs were shown in October

1993 and several times in 1994. App. 2a; ER Hamann

5/9; Hanlon 8/9. They have not been shown since

1994.

B. Proceedings Below

After Berger’s criminal conviction, he and his wife

brought these civil actions against CNN and the gov-

ernment. The Bergers sued under Bivens v. Six Un-

known Named Agents of the Federal Bureau of Narcotics,

403 U.S. 388 (1971), claiming primarily that the federal

agents violated Plaintiffs’ Fourth Amendment rights by

permitting the news media to attend and record the

search, and that by observing the search, CNN acted

under color of federal law and thus would be accountable

for a Fourth Amendment violation as if it too were a

government actor. App. 3a. The Bergers also sued CNN

for alleged violations of the Wiretap Act, for a variety

of state law claims, and for an injunction barring further

broadcasts of the news footage recorded during the exe-

cution of the search warrant. /d.

The district court granted summary judgment for CNN

on all issues. The court found, first, that the Bergers

could not show that CNN acted under color of federal

law—-one of the requisites for Bivens liability. “When a

private party, such as [CNN], is present during a search

as a means of furthering its own interests, it is not acting

under color of law and is not liable under Bivens.” App.

41a; accord, id. at 54a.™

11 The requirement under Bivens that the defendant act under

color of federal law is akin to the “under color of state law” show-

ing required under 42 U.S.C. $1983. Butz v. Economou, 488 U.S.

478, 500-01 (1978). Both standards generally are treated as the

As for the Bergers’ claim under the Wiretap Act, which

permits civil suits for the intentional interception of cer-

tain communications, the district court held that one of

the Act’s provisions expressly permitting the recording of

communications applied. App. 21a, 4la, 54a; 18 U.S.C.

§§ 2511, 2120. That provision, in pertinent part, permits

the interception of oral communications (1) by a party

“not acting under color of law,” (2) where one of the

parties to the communication has given prior consent to

the interception, (3) so long as the communication is not

“intercepted for the purpose of committing any criminal

or tortious act... .” 18 U.S.C. §2511(2)(d). The

district court found CNN was not acting under color of

law (a logical extension of its holding that CNN was

not liable under Bivens), and that the FWS agents con-

sented to having CNN record their conversations. The

court also held that CNN had not recorded the conversa-

tions for the purpose of committing a crime or tort. “In-

stead, the recordings were made for the purpose of pro-

ducing a news story and for the defendants’ commercial

gain.” App. 42a, 55a.

The Ninth Circuit aflirmed that CNN did not violate

the Wiretap Act, but on different grounds. To under-

stand why, reference must be made to the circuit court’s

conclusion on the Bergers’ principal claim: The court

found for the Bergers on their Bivens claim, holding that

the search of the Berger ranch was nothing more than

a joint government/media venture, under the guise of a

legitimate law enforcement action, to acquire publicity

for the FWS and television footage for CNN. App.

2a-3a, 9a-10a. Reversing the district court, the Ninth

Circuit found that the FWS violated the Bergers’ Fourth

Amendment rights by inviting journalists to observe the

search of the property, and that CNN could be held

liable as well by virtue of iis joint planning and partici-

equivalent of the “state action” showing required to assert con-

stitutional violations in other contexts. See Lugar v. Edmonson

Oil Co., 457 U.S. 922, 924, 928-29 (1982).

pation with the government in the search. App. 9a-10a,

17a-21a.

The Ninth Circuit did not consider, as the district

court did, whether 18 U.S.C. § 2511(2)(d) expressly

permitted CNN to record the FWS agent’s conversations

on the Berger ranch. Rather, the court turned in the

first instance to 18 U.S.C. § 2511(2)(c), which applies

on its face to persons “acting under color of law,” and

permits such persons to record conversations where one

of the parties consents. The court recognized that “the

phrase ‘under color of law’ in the wiretap context is not

equivalent to the scope of the phrase in the general

[42 U.S.C.] section 1983 or Bivens context,” in that 18

U.S.C. §2511(2)(c) “was not created to exempt all

government employees from liability . . .: Its core aim

must have been to exempt those acting under law enforce-

ment authority.” App. 2la-22a. Thus, the court found

that CNN satisfied the statutory “color of law” require-

ment because “both the federal appellees and the media

appellees were acting under authority of a search warrant.”

App. 22a. Though the court’s analysis on this point is

cursory, it clearly followed the internal logic of its Bivens

finding: Since the court found that CNN acted under

color of law for Bivens purposes—based on CNN’s al-

leged participation with the FWS agents in the agents’

prosecution of their law enforcement duties—the court

also concluded that CNN was acting under law enforce-

ment authority for Wiretap Act purposes.

The Bergers also sought an injunction preventing fur-

ther broadcast of any of the news footage gathered

during the search. Both the district court and the Ninth

Circuit recognized that the Bergers’ claim “is essentially

a request for a prior restraint, which carries a ‘heavy

presumption against its constitutional validity.’” App.

25a (quoting CBS, Inc. v. Davis, 510 U.S. 1315, 1317

(Blackmun, Circuit Justice 1994)); accord App. 42a,

55a. The district court held that the Bergers failed to

show this “is an exceptional case that would justify the

imposition of a prior restraint.” App. 43a, 56a. The

Ninth Circuit held that “[e]ven though the Bergers have

alleged triable claims for damages arising out of the

manner in which the media appellees obtained the mate-

rial, such allegations are not sufficient to support the im-

position of an injunction.” App. 25a (citing New York

Times Co. v. United States, 403 U.S. 713 (1971)).

REASONS THE WRIT SHOULD BE DENIED

The Cross-Petition should be rejected because the issues

it raises do not require review by this Court. The Ninth

Circuit’s judgment that CNN did not violate the Wire-

tap Act by virtue of § 2511(2Z)(c)’s “color of law” ex-

ception does not conflict in any material or important

fashion with any other court’s decision. Further, even if

the Court were to find that CNN did not act under color

of law, an independent basis exists for affirming the Ninth

Circuit’s decision that CNN did not violate the Wiretap

Act. Specifically, if the Ninth Circuit is incorrect and

CNN did not act under color of law for Wiretap Act

purposes, then CNN’s recordings were expressly permis-

sible under 18 U.S.C. § 2511(2)(d). Since one or the

other of these Wiretap Act provisions must, as a matter

of simple logic, apply, the Ninth Circuit’s judgment would

be affirmed no matter how this case proceeds.

Regarding the rejection, by both the Ninth Circuit and

the district court, of the Bergers’ requested injunction,

this case does not raise the question presented in the

Cross-Petition: The Bergers argue from the premise that

a “final judicial determination” has already been made

that CNN’s conduct was illegal or unconstitutional. In

fact, there is no judgment against CNN; the Ninth Cir-

cuit simply reversed the district court’s grant of summary

judgment in CNN’s favor and remanded for further pro-

ceedings. More significantly, the Bergers’ requested prior

restraint fails to overcome the heavy presumption against

such injunctions. This Court and others consistently have

ruled that the types of allegations the Bergers have leveled

against CNN do not, even if proven true, provide a suffi-

cient basis for “one of the most extraordinary remedies

known to our jurisprudence.” Nebraska Press Ass'n v.

Stuart, 427 U.S. 539, 542 (1976). The Ninth Circuit’s

decision is consistent with, and follows from, the decisions

of this Court and others.

I. THE HOLDING THAT CNN DID NOT VIOLATE

THE WIRETAP ACT WAS CORRECT, DOES NOT

CONFLICT WITH ANY OTHER DECISION, AND

CAN BE UPHELD ON GROUNDS INDEPENDENT

FROM THOSE UPON WHICH THE NINTH CIR-

CUIT RELIED.

The Wiretap Act contains two broad provisions that

expressly permit the recording of oral communications

where one participant to the communications consents.

One applies to parties “acting under color of law,” 18

U.S.C. §2511(2)(c), the other to parties “not acting

under color of law.” Jd. §2511(2)(d). As a matter of

simple logic, CNN must fall into one of these two cate-

gories.* If CNN did not act under color of law—as the

district court found, as CNN has always contended, and as

the Bergers themselves only now assert—then § 2511(2)(d)

exempts CNN from any Wiretap Act liability. The Bergers’

contention that § 2511(2)(d) would not apply because

CNN acted “for the purpose of committing any criminal

or tortious act” ignores the plain language of the statute,

mischaracterizes the provision’s legislative history, and

is at odds with the relevant case law, all of which

hold that journalists who record conversations with the

consent of one party in the course of newsgathering are

protected from Wiretap Act liability. If CNN did act

under color of law, as the Ninth Circuit found, then on

its face §2511(2)(c) applies to permit CNN’s actions.

12 CNN’s contention is that it did not act under color of law in

any way—neither for purposes of civil-rights liability nor under

the Wiretap Act. See Pet. for Cert., 66 U.S.L.W 3783 (U.S. May

26, 1998) (No. 97-1914). But, as will be shown, CNN’s conduct

expressly is permitted whether or not it acted “under color of law”

for purposes of the statute.

Because the judgment below must be upheld on one

ground or the other, the Cross-Petition should be denied.'*

A. Review by This Court Is Unnecessary Because the

Wiretap Act Expressly Permits Journalists To

Record Conversations for Newsgathering Purposes.

As CNN has argued in its Petition for Certiorari, the

Ninth Circuit committed grave constitutional error in sub-

jecting CNN, a private, independent news organization,

to constitutional Bivens liability as if it were an arm of

the government. But regardless of whether this Court

grants or denies that petition, or affirms or reverses the

Ninth Circuit’s Bivens ruling, the Ninth Circuit’s holding

that CNN did not violate the Wiretap Act still is cor-

rect and will not be disturbed. If CNN did not act

under color of law for purposes of the Wiretap Act,

then a separate exemption to Wiretap Act liability,

18 U.S.C. § 2511(2)(d), necessarily applies. This sep-

arate ground for affirming the decision below means

there is no need to reach the Wiretap Act issues, and

certiorari is thus unwarranted. In addition, because

the plain language of the statute, the specific legislative

history of § 2511(2)(d), and decisions of other courts

all unequivocally agree that section (2)(d) exempts from

Wiretap Act liability the type of recording engaged in by

CNN in this case, review by this Court simply is not

called for.

Section 2511(2)(d) states that it is not unlawful for

a person not acting under color of law to intercept a wire

communication where a participant to the conversation

13 A respondent “may, of course, defend the judgment below on

any ground which the law and record permit”—including grounds

considered only in the district court—“provided the asserted ground

would not expand the relief which has been granted.” Smith v.

Phillips, 455 U.S. 209, 215 n.6 (1982). In opposing certiorari, it is

appropriate for respondents to demonstrate “that the presence of

other meritorious arguments shows that the decision below is cor-

rect without regard for the question sought to be raised by the

petition ....” Robert L. Stern et al., Supreme Court Practice 373

(7th ed. 1993).

has consented to the interception, “unless such communi-

cation is intercepted for the purpose of committing any

criminal or tortious act in violation of the Constitution

or laws of the United States or of any State.” 18 U.S.C.

§ 2511(2)(d) (emphasis added). Agent Scrafford’s con-

sent to wear CNN’s microphone and have his conversa-

tions recorded is not disputed. App. 22a. Therefore,

assuming CNN did not act under color of law, the only

remaining issue is whether CNN recorded the conversa-

tions “for the purpose of committing” a crime or tort.

On its face, §2511(2)(d) requires examination of a

party’s “purpose” in recording a communication. “[T]he

critical question under section 2511(2)(d) is why the

communication was intercepted, not how the recording

was ultimately used.” Russell v. American Broad. Co.,

23 Med. L. Rptr. 2428, 2431 (N.D. Ill. 1995). A

plaintiff must show the defendant “either intended to

break the law or commit a tort against him... .” Thomas

v. Pearl, 998 F.2d 447, 451 (7th Cir. 1993), cert. denied,

510 U.S. 1043 (1994). Thus, a college basketball coach

who recorded conversations with a potential recruit, after

learning a rival school had offered the recruit improper

perks, was protected from Wiretap Act liability by § 2511

(2)(d) because the coach’s intent was not to commit a

tort or crime, but rather was “to call attention to unfair

and illegal practices by a rival university.” Id. at 452.%*

14 Though relying almost completely on Thomas for its discus-

sion, in dicta, of the contrast between the meaning of “color of law”

in 18 U.S.C. § 2511(2)(c) and in the civil-rights contexts, Cross-

Pet. at 19-20, the Bergeirs seek to disavow Thomas’ holding that

the defendant had not violated the Wiretap Act. Cross-Pet. at 20.

The Bergers attempt to distinguish the portions of the case that

are unfavorable to their position by claiming that the plaintiff,

Thomas, “did not allege any tort other than a wiretap violation

alone.” This is grossly misleading. After first noting that, “[a]l-

though inartful, Thomas’ complaint could be read to state a cause

of action for any of three privacy torts,” the Seventh Circuit went

on to evaluate Thomas’ wiretap claim on the assumption that the

torts were properly alleged. 44 F.3d at 451-53. The court found

that because the defendamt’s purpose was not tortious, his actions

were permissible under § 2511(2)(d). Jd.

Newsgatherers who, with one party’s consent, record

conversations for use in news reports are not acting for

criminal or tortious purposes, and thus are protected

from Wiretap Act liability by § 2511(2)(d). Desnick

v. American Broad. Co., 44 F.3d 1345 (7th Cir. 1995).

In Desnick, producers of a television news program sent

undercover reporters into eye surgery centers with hidden

cameras and sound recorders to show deliberate mis-

diagnosis for financial gain. Plaintiffs claimed the news-

gathering was tortious and violated the Wiretap Act. The

court affirmed dismissal of the Wiretap Act count, finding

that under § 2511(2)(d) the newsgatherers did not enter

the eye centers for the purpose of committing a tort or

crime. Significantly, even though the court found that

“[m]Jaybe the program as it was eventually broadcast

was tortious,” the exemption from Wiretap Act liability

applied because “[t]he defendants did not order the

cainera-armed testers into the Desnick Eye Center’s prem-

ises in order to commit a crime or tort.” Jd. at 1353.

The defendants’ purpose was to gather news, and thus

they were entitled to the protection of § 2511(2)(d). Jd.

Other cases likewise hold that journalists engaged in

newsgathering are not acting for criminal or tortious pur-

poses and thus do not violate the Wiretap Act. Deteresa

v. American Broad. Co., 121 F.3d 460 (9th Cir. 1997)

(broadcast, over plaintiff's objection, of video showing

reporter and plaintiff talking is protected by § 2511(2)(d)),

cert. denied, 118 S. Ct. 1840 (May 26, 1998); Sussman

v. American Broad. Co., 971 F. Supp. 432, 435 (CD.

Cal. 1997) (“{WJhere a journalist is party to a conver-

sation, the recording of such a conversation is not crimi-

nal or tortious conduct within the meaning of” § 2511

(2)(d)); Russell, 23 Med. L. Rptr. 2428 (no Wire-

15 Sussman is distinguishabie from the instant case in that the

reporter there participated in the conversations she recorded,

whereas CNN was not a party to the conversations in question, but

recorded them with a party’s consent. The distinction, however, is

entirely irrelevant because § 2511(2)(d) applies equally to both

situations.

tap Act liability for hidden camera news investigation of

sanitary conditions at plaintiff’s fish market).

The relevant question in this case is not, as the Bergers

assert, whether CNN’s recording eventually is held to be

tortious or criminal. Rather, as Desnick and Russell make

clear, the relevant question under the Wiretap Act is why

CNN chose to record Agent Scrafford’s conversations

during the search of the Berger ranch. As both the dis-

trict court and the Ninth Circuit held, the undisputed

answer is that CNN’s purpose was to gather news infor-

mation to use in its coverage of an important environ-

mental issue, not to commit any crime or tort. Indeed,

the district court, in a finding that was not disturbed by

the Ninth Circuit, expressly held that the recordings were

not made for criminal or tortious purposes. “Instead,

the recordings were made for the purpose of producing

a news story and for the defendants’ commercial gain.”

App. 42a, 55a; see also App. 23a (Ninth Circuit noting,

in reversing district court's dismissal of state trespass

claims, that “the officers invited the media for newsgath-

ering, not for law enforcement”).

Thus, the Bergers’ Cross-Petition ignores the plain lan-

guage of the statute and the case law, both of which

make clear that 18 U.S.C. § 2511(2)(d) expressly per-

mits consensual recording by parties acting for other

than criminal or tortious purposes. Instead, the Bergers

rely principally on a conclusory and mistaken interpreta-

tion of the Wiretap Act's broad legislative history. Cross-

Pet. at 21-22. The Bergers assert that Congress intended

the § 2511 exceptions to protect solely the “legitimate

needs of law enforcement.” Jd. at 21 (not citing any

congressional statement, but rather citing Department of

Justice comments on bill). Under the Bergers’ syllogism,

16 It is well recognized in other contexts that commercial profit

in no way diminishes the protections available for newsgathering.

See Harte-Hankes Communications, Inc. v. Connaughton, 491 U.S.

657, 667 (1989).

CNN cannot benefit from § 2511 because CNN did not

record Agent Scrafford’s conversations for any legitimate

law enforcement purpose.!” /d.

This reasoning is fatally flawed. Statutory interpreta-

tion begins not with broad assertions about legislative

history, but rather “with the language of the statute.”

Bailey v. United States, 516 U.S. 137, 144 (1995). The

plain language of § 2511(2)(d) states that the provision

applies to individuals “not acting under color of law.”

Also, the consensual recordings permitted by the statute

are not limited to those that further law enforcement ob-

jectives; the statute plainly states that any such recording

not done for tortious or criminal purposes is permissible.

Second, to the extent legislative history is relevant,

the specific history of § 2511(2)(d) shows that Congress

unequivocally intended for that provision to exempt journ-

alists engaged in newsgathering from Wiretap Act liabil-

ity. As originally enacted in 1968, § 2511(2)(d) made

it unlawful to record conversations not only for tortious

or criminal purposes, but also “for the purpose of com-

mitting any other injurious act.” In 1986, Congress

deleted the “injurious” purpose language specifically to

17 The Bergers’ syllogism also fails to recognize that the FWS

had a legitimate law enforcement purpose for allowing CNN to

cover its activities: to show the public there are consequences to

illegally poisoning protected species. ER Hamann 5/8 & Hanlon

8/8/Tape 11/page 8 (interview with AUSA Mclean). “Tt is in fact

a legitimate function of law enforcement to facilitate accurate re-

porting on law-enforcement activities and to improve publie over-

sight of those activities by use of the press.” Wilson v. Layne, 141

F.3d 111, 118 (4th Cir. 1998) (en banc), petition for cert. filed,

U.S.L.W. —— (U.S. July 7, 1998) (No. 98-83).

18 Indeed, the Bergers’ argument collapses on itself. The Bergers,

in discussing § 2511(2)(c), argue that under the Wiretap Act, a

party only acts under color of law where he or she is furthering a

law enforcement action. Cross-Pet. at 18-21. What they fail to

acknowledge is that by their own reasoning, it necessarily follows

that the phrase “not acting under color of law” in § 2511(2)(d)

must encompass individuals who are not furthering law enforce-

ment aims.

clarify that journalists who record a conversation with the

consent of one of the participants do not violate the

Wiretap Act. As the Senate Report of the 1986 ameud-

ment explained,

In numerous court cases the term “other injurious

purpose” has been misconstrued.® Most troubling of

these cases have been attempts by parties to chill the

exercise of first amendment rights through the use

of civil remedies under [the Wiretap Act]. . .. This

interpretation places a stumbling block in the path

of even the most scrupulous journalist. Many news

stories have been brought to light by recording a

conversation with the consent of on[l]y one of the

parties involved—often the journalist himself.

S. Rep. No. 99-541, 99th Cong., 2d Sess. 17, reprinted

in 1986 U.S.C.C.A.N. 3555, 3571. The report explains

that the amendment is necessary to assure that journ-

alists do not face potential civil and criminal Wire-

tap Act liability for recordings “made in the ordinary

course of responsivle news-gathering activities and not for

the purposes of committing a criminal act or a tort.” Z/d.

Given this specific congressional intent that journalists

engaged in newsgathering be exempt from Wiretap Act

liability, as well as the absence of any conflict among the

courts of appeal on the meaning of the post-1986 lan-

guage of § 2511(2)(d), it is clear that CNN’s conduct

did not violate the Wiretap Act. Review by this Court is

unnecessary.

19The Senate Report states that the 1986 amendment to

§ 2511(2)(d) was specifically intended to reject the holding of

Boddie v. American Broad. Co., 731 F.2d 333 (6th Cir. 1984), in

which a reporter secretly recorded an interview with plaintiff and

used a portion of the recording in a news broadcast. The court’s

conclusion, specifically rejected by Congress, was that the plaintiff

could recover under the Wiretap Act by showing that the news-

gathering was intended to insult or injure the plaintiff, even though

the conduct was not tortious or criminal. See also Benford v.

American Broad. Co., 502 F. Supp. 1159 (D. Md. 1980) (holding,

prior to 1986 amendment, that § 2511(2)(d) does not as a matter

of law exempt from Wiretap Act liability hidden camera recording

used in news broadcast), aff'd, 661 F.2d 917 (4th Cir. 1981).

B. If, as the Ninth Circuit Found, CNN Acted Under

Color of Law for Bivens Purposes Based on CNN’s

Alleged Association With Law Enforcement Agents,

Then 18 U.S.C. § 2511(2)(c) Applies and Expressly

Exempts CNN From Wireiap Act Liability.

Under 18 U.S.C. § 2511(2)(c), a party who acts

“under color of law” is permitted to record a conversation

with one participant’s consent, regardless of the recording

party’s purpose. Though CNN disputes the Ninth Cir-

cuit’s conclusion that CNN acted under color of law for

Bivens purposes, if that conclusion is correct, then CNN

also acted under color of law for purposes of the Wiretap

Act for the reasons discussed below, and its conduct,

thus, was permissible under § 2511(2)(c).

On the Bergers’ Bivens claim, the Ninth Circuit held

that CNN could be held liable for an alleged violation of

the Bergers’ Fourth Amendment rights. It reached this

conclusion by finding, first, that the FWS violated the

Fourth Amendment by allowing the news media to ob-

serve and record its search of the Berger ranch. App. 9a-

10a. Second, the court contended that CNN could be

liable for this constitutional violation, even though as a

private actor it normally would not be subject to the

Fourth Amendment’s strictures, because of its “joint ac-

tion” with the government. App. 19a. This determina-

tion amounted to a finding that CNN acted “under color

of law,” as that term is used for purposes of establishing

civil-rights liability. Specifically, the court found that

CNN and the FWS agreed “to engage jcintly in . . . the

execution of a search warrant... .” App. 19a. CNN

vigorously disagrees with the Ninth Circuit’s conclusion

that it acted “under color of law” when, for independent

newsgathering purposes, it arranged to be present and

record government officials’ execution of a search war-

rant. However, the Ninth Circuit, having concluded that

CNN’s involvement with law enforcement officials meant

that CNN acted under color of law for Bivens purposes,

simply acted consistently when it held that CNN also

acted under color of law for purposes of the Wiretap Act.

App. 21a-22a.

The Bergers contend that the phrase “color of law” has

a different meaning in the civil-rights context than it does

under the Wiretap Act. Cross-Pet. at 19. Even if true,

this argument does not help the Bergers. Only two

courts—the Ninth Circuit in the opinion below and

the Seventh Circuit in Thomas—appear to have consid-

ered the differences between the two “color of law” re-

quirements,”° and both agree that a party acts under color

of law for purposes of 18 U.S.C. § 2511(2)(c) when it

is “acting under law enforcement authority.” App. 22a.

Inherent in the Ninth Circuit’s holding that CNN jointly

planned and executed the search with law enforcement

agents was the conclusion that “both the federal appellees

and the media appellees were acting under authority of

a search warrant,” and thus that § 2511(2)(c) applies.”

Attempting to find some basis for review by this Court,

the Bergers assert that the Ninth Circuit opinion is in

conflict with Thomas. They are in error. Thomas arose

in an entirely distinguishable factual context. A state

college basketball coach allegedly recorded telephone con-

versations with a potential recruit in an effort to prove that

a rival school had offered the recruit perks in violation of

a collegiate athletic association’s rules. 998 F.2d at 448.

20“The vast majority of cases involving the § 2511(2)(c) ‘color

of law’ exception focus on whether a party to the intercepted com-

munications had truly ‘consented’ to the interception.” Omron Atl.

Corp. v, Barr, 990 F.2d 861, 864 n.8 (6th Cir. 1993). In this case,

Agent Scrafford’s consent is not disputed. App. 22a.

21 The Ninth Circuit’s analysis on this point is cursory, resting

simply on the notion that because CNN was “acting under law

enforcement authority,” the exception to the Wiretap Act applied.

App. 21la-22a. Read in context, however, it is clear that the court’s

holding on Wiretap Act liability is a direct result of its holding

that CNN and the FWS were “joint government actors” and thus

that CNN was to be treated in this case as if it were an arm of

the government, acting “under the government’s cloak of author-

ity.” App. 17a-2la. Having previously accepted the Bergers’

theory that CNN acted under color of law because CNN in effect

stood in the shoes of federal agents, the court acted consistently

by concluding that CNN acted under color of law under the Wiretap

Act as well.

The court held that the coach, though a state employee,

did not act under color of law for purposes of 18 U.S.C.

§ 2511(2)(c). Just as in the Ninth Circuit opinion below,

the court found that the statute’s “color of law” require-

ment differed from the civil-rights “color of law” require-

ment, because § 2511(2)(c) was meant to apply in the

law-enforcement context. The Seventh Circuit’s concern

was that, devoid of any link to law enforcement, broad

application of § 2511(2)(c) “would confer on every last

employee of federal, state and local government a free

pass to record conversations without the second party’s

consent.” Jd. at 451. Because of the complete absence of

any link between the basketball coach’s job description

and law enforcement activities, the coach did not act

“under color of law” for purposes of the Wiretap Act.

Id. Thus, Thomas held only that state employees with

no connection to law enforcement cannot benefit from

§ 2511(2)(c); it expressly did not hold that § 2511(2) (c)

applied only to “law enforcement officers acting within

the scope of their authority.” 22

In sum, the Bergers cite no evidence that the color of

law requirement of 18 U.S.C. § 2511(2)(c) has proven

difficult for courts to administer or otherwise requires

clarification from this Court. Though “color of law”

may not be defined identically for purposes of § 2511 and

22 Thomas also is distinguishable in that its analysis was not

complicated by a finding that the defendant was a state actor by

virtue of the “joint action” theory, as was the Ninth Circuit opinion

here. The coach in Thomas clearly was a state actor and would

have been deemed to act under color of law had he been sued on

a civil-rights theory. 998 F.2d at 450. The question was whether

he acted under color of law under the Wiretap Act. In holding he

did not, the court’s prime distinction was between public officials

having and not having law enforcement ties. In contrast, the “color

of law” question in this case is whether purely private actors who,

by virtue of joint action with government law enforcement officials,

are being treated as law enforcement officials for civil-rights liabil-

ity also should be treated as law enforcement officials for Wiretap

Act purposes. This question was not present in Thomas or in any

other case cited by the Bergers.

in cases alleging civil-rights liability, the courts are in

agreement that a party recording communications in the

course of a law enforcement action or investigation is act-

ing under color of law and thus benefits from the § 2511

(2)(c) exemption. App. 21a-22a; Thomas, 998 F.2d at

451; see also Omron Atl. Corp. v. Barr, 990 F.2d 861,

865 (6th Cir. 1993) (private party who records conver-

sation under nominal and irregular authority of govern-

ment agents satisfies color of law requirement of § 2511

(2)(c)). In this case, the FWS agents—government offi-

cials searching the Bergers’ ranch in the line of duty—

were acting “under color of law” for both civil-rights and

Wiretap Act purposes. The agents had a valid search

warrant, and in fact gained evidence for their investiga-

tion that resulted in a criminal conviction of Paul Berger.

App. 7a. Their actions were at all times connected to a

law-enforcement search.”* The question is whether CNN,

a private actor, was a participant in this law enforcement

action. The Ninth Circuit held that it was.** If that hold-

23 The Bergers assert the FWS did not act under color of law

because the agents searched in a manner that exceeded the scope

of the warrant. Cross-Pet. at 18. Even if the agents did exceed

their authority, the Bergers’ conclusion is erroneous because a

law enforcement official is deemed to act “under color of law” not

just for fully authorized conduct, but also for actions that exceed

his authority. Monroe v. Pape, 365 U.S. 167 (1961).

24 The Bergers suggest that the court’s refusal to apply the “in-

vited informer” doctrine somehow is relevant to the court’s “color

of law” analysis. Cross-Pet. at 17-18. This is incorrect. The Ninth

Circuit simply held that the “invited informer” exception to govern-

ment Fourth Amendment liability “was developed in cases where

the government placed informers, often with recording devices, to

obtain information for legitimate law enforcement purposes.” App.

15a. Here, the court found the doctrine did not apply to CNN,

which was recording for newsgathering purposes, not to inform on

the Bergers.

Along similar lines, the Bergers assert, in support of their argu-

ment that CNN did not act under color of law for Wiretap Act

purposes, that the FWS “neither applied for nor obtained court

authority to wiretap the Bergers . . . because it knew or should

have known that the Media’s wiretap was illegal.” Cross-Pet. at

ing is correct, then it follows that § 2511(2)(c) applies

to CNN as it applies to the officers.

Il. REVIEW OF THE NINTH CIRCUIT’S REFUSAL

TO ISSUE A PRIOR RESTRAINT IS NOT WAR-

RANTED.

This Court should reject the Bergers’ request that it

review the Ninth Circuit’s refusal to issue an injunction

barring CNN from telecasting the news footage it re-

corded of the FWS search. The Bergers have not come

close to overcoming the “heavy presumption” against the

constitutional validity of prior restraints. Organization

for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971).

The arguments the Bergers present to justify their request

are indistinguishable from arguments flatly and consist-

ently rejected by this Court. As such, the Cross-Petition’s

arguments do not merit review.

A. This Case Does Not Raise the Question Presented

in the Cross-Petition as There Has Been No “Final

Judicial Determination” That CNN Did Anything

Unlawful.

This case is an inappropriate vehicle for review by this

Court because it does not raise the question presented.

The Bergers assume, both in their “Questions Presented”

and their substantive argument, that a “final judicial

determination” has been made that CNN’s newsgather-

ing practices were illegal or unconstitutional. Cross Pet.

at i, 24-26. That assumption is wrong. There has been

no such final judicial determination. The appeal to the

22. But the record contains no evidence why the FWS did not

apply for court permission to record conversations with the Bergers;

in any event such permission was unnecessary because the FWS

agents did not “wiretap” the Bergers. CNN, not the FWS, did the

recording at issue here. Because CNN did so with Agent Scrafford’s

consent, no court order was necessary—the recording for news-

gathering purposes expressly was permitted either by 18 U.S.C.

§ 2511(2)(c) or (2)(d). The lack of any judicial authorization for

CNN’s permissible recording was irrelevant to the Ninth Circuit’s

conclusion that CNN and the FWS acted “under authority of a

search warrant.” App. 22a.

Ninth Circuit arose after the district court granted

CNN’s motion for summary judgment; the Ninth Circuit

reversed in part and remanded for further proceedings to

determine whether the Bergers could prove the defendants’

liability. App. 26a. CNN’s liability, if any, has yet to be

adjudicated.

B. The Denial of the Bergers’ Requested Prior Re-

straint of News Footage Follows From an Unbroken

Line of Authority From This Court.

CNN denies that its recording of the FWS actions at

the Berger ranch violated any law or constitutional provi-

sion. But even if the Bergers were to prevail at trial on

their claims of damage arising from CNN’s newsgathering,

an injunction against the telecast of that footage would be

unjustified.

This Court never has upheld a prior restraint on the

news media. Instead, it has held that the First Amend-

ment dictates that injunctions against publication or

broadcast are impermissible in all but the most extraordi-

nary circumstances. Nebraska Press Ass'n vy. Stuart,

427 U.S. 539, 557-59 (1976). This Court’s prior cases

make clear that the Bergers do not come close to dem-

onstrating such circumstances exist here: Even where the

news media obtain information through allegedly improper

means, the appropriate remedy is damages or criminal

sanctions, not an injunction. See New York Times Co. v.

United States, 403 U.S. 713 (1971) (refusing to suppress

publication of Pentagon documents classified top secret

and obtained by newspapers without authorization).

CBS, Inc. v. Davis, 510 U.S. 1315 (Blackmun, Cir-

cuit Justice 1994), is instructive. CBS surreptitiously

videotaped a meat-packing operation and planned to tele-

vise the footage on a news broadcast. Plaintiffs sued in

state court for trespass, other torts, and violation of a

trade secrets statute and obtained a preliminary injunction

barring CBS from broadcasting the undercover footage it

gathered at the plant. In staying the injunction, Justice

Blackmun held:

Although the prohibition against prior restraints is

by no means absolute, the gagging of publication has

been considered acceptable only in “exceptional

cases.” Even where questions of allegedly urgent

national security, or competing constitutional inter-

ests, are concerned, we have imposed this “most

extraordinary remedy” only where the evil that would

result from the reportage is both great and certain

and cannot be militated by less intrusive measures.

Id. at 1317 (citations omitted).

In issuing his ruling, Justice Blackmun rejected the

same arguments the Bergers rely on to justify their re-

quested injunction. Enjoining a broadcast is not appro-

priate even where the videotape in question “was obtained

through ‘calculated misdeeds’” of the broadcaster. Jd.

Similarly, alleged economic harm also is an insufficient

basis upon which to impose a prior restraint. 7d. “Sub-

sequent civil or criminal proceedings, rather than prior

restraints, ordinarily are the appropriate sanction for cal-

culated defamation or other misdeeds in the First Amend-

ment context.” Jd.

The Bergers argue that CNN’s alleged (and still un-

proven) “violation of the Fourth Amendment empowers

the courts to enjoin further action by the Media,” includ-

ing CNN’s future use of the truthful news footage it ob-

tained during the FWS search. Cross-Pet. at 26. The

Bergers cite no authority for this assertion, and it ap-

pears that there is none.” As the First Circuit has noted,

“(W]e have not found any case upholding a prior restraint

issued to protect Fourth Amendment rights.” Matter of

25 The Bergers refer to a footnote in Justice Harlan’s concur-

rence in Bivens stating that courts have the power to enjoin inva-

sions of constitutionally protected interests. Cross-Pet. at 26

(citing 403 U.S. at 404 n.5). This footnote is part of an analysis of

the federal courts’ general authority to grant any relief for violations

of constitutional authority absent a specific grant from Congress.

Bivens, of course, held that a Fourth Amendment violation does

give rise to a federal cause of action for damages. Neither this

holding nor Justice Harlan’s concurrence in any way supports the

kind of relief the Bergers seek.

Providence Journal Co., 820 F.2d 1342, 1350 n.55 (lst

Cir. 1986), opinion modified on reh’g on other grounds,

820 F.2d 1354 (1987). Indeed, this Court has held that

restraint of the news media is inappropriate even in the

face of competing constitutional interests. Nebraska Press

Ass'n v. Stuart, 427 U.S. 539 (1976) (Sixth Amendment

right to fair trial did not justify prior restraint of press);

New York Times Co. v. United States, 403 U.S. 713

(1971) (constitutional authority of executive branch to

conduct foreign affairs and enforce national security did

not justify prior restraint); accord Davis, 510 U.S. at

1317.

Furthermore, neither an alleged nor actually proven

violation of the Wiretap Act justifies a prior restraint on

the news media. “While § 2511 proscribes certain con-

duct, it in no way provides for a prior restraint of the

press in their exercise of their first amendment rights

even if the press’s conduct clearly violates § 2511.” In

re King World Prods., 898 F.2d 56, 59 (6th Cir. 1990)

(vacating injunction against use of videotape allegedly

recorded in violation of Wiretap Act). The same is true

of the other torts alleged by the Bergers. See id. at 60;

Providence Journal Co., 820 F.2d at 1350 (“That publi-

cation would prove embarrassing or infringe [plaintiff's]

privacy rights is . . . an insufficient basis foi issuing a

prior restraint.”).

The Bergers attempt to distinguish their claim from

other requested prior restraints on the news media by

arguing that they merely seek to enjoin further use of the

“ill-gotten” news footage in the event a final determina-

tion is made that CNN recorded it unlawfully. Cross-Pet.

at 6. This Court, however, rejected analogous reasoning

in Near v. Minnesota, 283 U.S. 697 (1931). In Near,

a state court issued a permanent injunction barring a

newspaper from future publications of “malicious, scan-

dalous and defamatory articles,” after determining at trial

that the paper previously had published such articles. Id.

at 705. Along the lines of the Bergers’ argument that

ee ee ee

their requested injunction is needed to prevent CNN

“from using the fruits of its unlawful newsgathering,”

Cross-Pet. at 24, the state in Near defended its injunction

as necessary to protect the public from a publication that

was in the “ ‘business’ of publishing defamation.” 283

U.S. at 720. The Court rejected this reasoning:

If . . . the publisher has a constitutional right

to publish, without previous restraint, an edition of

his newspaper charging official derelictions, it cannot

be denied that he may publish subsequent editions

for the same purpose. .. . If his right exists, it may

be exercised in publishing nine editions, as in this

case, as well as in one edition.

Id2® The same is true in this case. If CNN had the

right to telecast its footage of the FWS search free from

prior restraint in the first instance, then a permanent

injunction against some future use of the footage also

is unjustified.

Similarly, other courts have held that an injunction

barring broadcast or publication is an unconstitutional

restraint on speech even when sought after the publisher

is held liable for publication. See, e.g., Georgia Soc’y of

Plastic Surgeons v. Anderson, 363 S.E.2d 140 (Ga.

1987) (reversing, as “an impermissible prior restraint”

on free speech, injunction barring defendants from dis-

paraging plaintiffs issued after defendants’ publication

found to be libelous); 2" cf. Goldblum v. National Broad.

Co., 584 F.2d 904, 907 (9th Cir. 1978) (“[T]he press

26“fBjut if he publishes what is improper, mischievous or

illegal, he must take the consequences of his own temerity,” in the

form of civil or criminal sanctions after publication. 283 U.S. at

714 (quoting 4 William Blackstone, Commentaries *151, 152).

27Some courts have approved narrow and limited injunctions

barring defendants from continuing to make specific charges against

plaintiffs after the charges have been found defamatory. See,

e.g., Lothschuetz v. Carpenter, 898 F.2d 1200, 1208-09 (6th Cir.

1990) (Wellford, J., concurring and dissenting). Such cases are

inapt here, however, since the Bergers seek to suppress truthful

information.

may not be required to justify or defend what it prints

or says until after the expression has taken place.”).

The Bergers cannot—and do not-—allege that future

broadcasts, if amy, of CNN’s news footage would cause

“great and certain” evil that “cannot be militated by

less intrusive measures.” Davis, 510 U.S. at 1317. The

Bergers fail to allege any facts which would establish

a threat of irreparable (much less “great and certain”)

harm from future broadcast of CNN’s news footage,

particularly given that the facts contained in the foot-

age are true and have long since been established and

publicized. CNN already has telecast portions of the

videotape on multiple occasions (though not since 1994),

and much of the information contained in the CNN news

coverage was publicized at Paul Berger’s criminal trial.

But to the extent the Bergers are injured by future CNN

broadcasts, they have failed to demonstrate why damages

would in any way be an inadequate remedy.** In sum,

the Cross-Petition should be denied because the Ninth

Circuit correctly found the Bergers have no grounds for

obtaining an injunction.

28The Bergers’ remaining arguments in support of their re-

quested injunction similarly are meritless. Their assertion that a

prior restraint somehow is justified because the First Amendment’s

“purpose is not to reward criminal, tortious and unconstitutional

conduct,” Cross-Pet. at 25, rests on the illogical proposition that

something cannot possibly have effects outside of its purpose. More

significantly, it again ignores the distinction between newsgather-

ing and broadcasting. Even if the Bergers were able to prove the

illegality of CNN's newsgathering, they still would not have justi-

fied prior restraint of ensuing telecasts.

Finally, the Pergers’ reliance on City of Los Angeles v. Lyons,

461 U.S. 95 (1983), Cross-Pet. at 25, is puzzling, as that case

involveg an injunction against police chokeholds and did not even

discuss the First Amendment or the unique circumstances required

to issue prior restraints on the news media.

CONCLUSION

As a matter of simple logic, CNN either did or did not

act “under color of law,” as that term is used in the

Wiretap Act. Either way, recording a conversation with

the consent of one of the participants for newsgathering

purposes expressly is permitted under the Wiretap Act.

Additionally, the Ninth Circuit correctly ruled that the

Bergers failed to justify their extraordinary request to

enjoin CNN from future telecasts of its news footage. For

the reasons set forth herein, the Cross-Petition should be

denied.

Respectfully submitted,

DAVID C,. KOHLER P. CAMERON DEVORE *