Supreme Court’s ‘let stand’ decision in CNN case triggers debate

Wednesday, June 2, 1999

Rarely has a one-line order of the Supreme Court triggered so much confusion
and Talmudic debate over an issue that could have major impact on the news

Without elaboration, the Supreme Court announced yesterday, among dozens of
other orders, that it was denying review in the case of CNN, Inc. v. Berger.

Normally the legal significance of such an announcement is to let stand the
lower court ruling that the plaintiff — in this case, cable network CNN — wanted
the court to take up and reverse.

So, normally, what the court did yesterday would mean that the ruling of the
U.S. Court of Appeals for the Ninth Circuit would stand as the law of the
land — or at least the law of the states in the 9th Circuit.

And the part of that ruling CNN objected to said that CNN had become a
“state actor” — the equivalent of a government agent — when it accompanied
federal wildlife agents, by pre-arrangement, on a raid on the Montana ranch
of Paul and Erma Berger. As a state actor, CNN could be held liable for money
damages for violating the constitutional privacy rights of the Bergers.

So, the impact of the Supreme Court action was to let that decision take
effect, right? Well, perhaps not, in the view of some hopeful media lawyers
who view the 9th Circuit’s ruling as a menace to the First Amendment and
don’t want it to take effect.

The reason for their doubts about what otherwise would be clear is what the
Supreme Court did last week in a companion case. Last week, the Supreme
Court dealt with the other half of the 9th Circuit ruling, which said that
law enforcement agents could be held liable for their part in the same
unconstitutionally invasive raid.

The court reversed that ruling on May 24 and said that law enforcement agents
could not be held liable because the law on the issue was not clear at the
time of the raid. It would be unfair, the court concluded, to hold the agents
responsible for violating a rule against media ride-alongs that did not exist
at the time.

But in its ruling last week — and here is the rub — the court said the 9th
Circuit ruling was “vacated,” which means it is effectively erased from the
books as it is overturned.

But the court did not say in its ruling that only the part of the 9th
Circuit ruling that pertained to the law enforcement agents was being
vacated. It could be said — and CNN’s lawyers may well say — that the whole
ruling was vacated last week.

In other words, by the time yesterday rolled around, was there anything
left standing in the lower court ruling for the Supreme Court to let stand?
What, if anything, did the court’s decision this week not to review the CNN
case mean, if the lower court decision involved was already off the books, so
to speak?

“It appears that the operative ruling was last week’s, which wiped away the
9th Circuit’s decision in its entirety,” says Lee Levine, author of a brief
in the case on the side of news media organizations. He thinks the case will
head back to lower courts where all issues, including the “state actor” issue
for the media, will be up for grabs.

Levine acknowledges, however, that “the court’s action is not as clear as it
might be.”

Levine and others pointed out that the Supreme Court could have cleared
things up by granting review in the case, vacating the lower court ruling and
remanding the case to the lower courts to evaluate in light of last week’s
ruling. It would have been just as quick, but procedurally cleaner and
clearer. But the court did not go that route, leaving confusion in its wake.

“I’m baffled by today’s action,” said Jane Kirtley of the Reporters Committee
for Freedom of the Press. “Having vacated the 9th Circuit decision last
week, there was nothing to grant review from” this week. CNN officials and
lawyers, as they have throughout the litigation, declined comment yesterday.

To Henry Rossbacher, lawyer for the Bergers, the confusion among media
lawyers is so much wishful thinking. To him, the court’s actions were clear.
Last week the court struck down the part of the 9th Circuit ruling that
pertained to and had been appealed by the law enforcement agents. This week,
the court let stand the rest, which declared CNN to be a state actor.

“The press has lost on the state actor issue, and there’s no question about
it,” says Rossbacher. “We’re delighted.”

Rossbacher says he will make that argument to the lower courts and expects to
prevail. All that will be left is for the lower court to decide factual
issues about CNN’s actions in the raid and whether the network is liable.

Media lawyers argue that if law enforcement agents were immune from liability
under last week’s ruling, the media should also be immune. But Rossbacher
says past Supreme Court rulings in other contexts have shown that private
parties do not enjoy the same immunity that government officials do.

In the end, it appears likely that the media at some point in the next phase
of the CNN litigation will have to face the determination that they have been
deemed to be state actors.

If that is the case, Levine thinks it will have “dangerous” implications for
the media in other contexts besides police-media ride-alongs. All sorts of
day-to-day arrangements between the press and government — pooling cameras
and access to events and government buildings, for example — could expose the
press to liability as government agents if something goes wrong.

“The notion that the media by working out arrangements with the government
can become state actors is dangerous,” says Levine.

But that will be a valuable lesson for the media, says Rossbacher.

“The media should be watchdogs of the government,” he says. “They make all
sorts of mistakes when they become partners of government.”

Tony Mauro covers the Supreme Court for USA TODAY and is a legal correspondent for the First Amendment Center.