CNN Must Defend Itself In Case
Involving Montana Ranch Raid

(Editor's note: Every journalist treasures the First Amendment, and rightly so. But every honest journalist recognizes that there are limits to freedom of the press, limits imposed by decency and respect, if nothing else. Every time elements of the press rush to defend an abuse of that right, whether forced taxpayer subsidies of questionable "art" at the Brooklyn Museum, witholding evidence in a murder trial, or wanton trespass in search of an anti-ranching "scoop," it hastens the day when a fed-up public eventually turns its back on the freedom of speech and press. If and when that day comes, the First Amendment will suffer the trashing that has already been inflicted on the equally important Second Amendment right to keep and bear arms — and this nation will lose the second of its two greatest bulwarks against tyranny. The Ninth Circuit Court — one of the most liberal in the country, no less — has drawn at least a faint line limiting journalists who can't summon the character to limit themselves. If the case succeeds, it may serve to make the press think twice about abusing the First Amendment. Here come de judge!)

SAN FRANCISCO —(AP)— A federal appeals court opinion last Thursday means a trial will likely begin early next year to decide if Cable News Network violated a Montana couple's privacy rights when a camera crew accompanied federal agents raiding their ranch.

In a brief order, the 9th U.S. Circuit Court of Appeals agreed with a U.S. Supreme Court decision that the couple's complaint presents a valid constitutional issue that can be decided at trial.

The appeals court also reaffirmed its prior decision that the media do not share the qualified immunity granted to the officers who allowed them to come along on the raid.

The Supreme Court had rejected, without comment, CNN's appeal of a 9th Circuit ruling saying the network should have to defend itself at trial.

``It's now made clear that the 9th Circuit believes, as we believe, that the Supreme Court affirmed a holding that the media had violated the Fourth Amendment,'' said Henry H. Rossbacher, a Los Angeles attorney representing ranchers Paul and Erma Berger.

The case focuses on the issue of whether CNN could be considered an agent of the state when they accompanied officers serving the warrant. The agents have already been granted immunity.

``This is a very, very favorable situation for us,'' Rossbacher said.

CNN spokeswoman Megan Mahoney said by telephone from Atlanta that the company does not comment on current litigation.

In May, the Supreme Court ruled that it is a violation of privacy rights for police to bring TV camera crews and other reporters into homes during searches and arrests.

However, justices said that right was not clearly established at the time of the 1993 raid and therefore threw out the Montana couple's lawsuit against the agents.

The court ordered the 9th Circuit to restudy the Montana case.

A 1992 Supreme Court ruling made it easier to sue citizens accused of acting with government agents in violating someone's rights. Private citizens do not enjoy the same ``qualified immunity'' enjoyed by government agents, the court said then.

CNN's appeal claimed the ruling ``raises important First Amendment issues.''

``Journalists pursuing news for independent, professional purposes do not act under color of law, even when their news-gathering activities inherently involve making arrangements with government officials,'' the appeal argued.

U.S. Fish and Wildlife Service agents raided the Berger's 75,000-acre ranch near Jordan, looking for evidence the couple was poisoning wildlife.

The government claimed the Bergers were poisoning "endangered" species such as eagles to protect their livestock from predators.

As a result of the raid, Paul Berger was charged with violating federal laws protecting eagles. A trial jury acquitted him of all charges, however, except improper use of a pesticide, a misdemeanor.

After Berger's trial, CNN used portions of its footage of the search on the environmental news programs ``Earth Matters'' and ``Network Earth.''