Brokers' Choice of America, Inc. v. NBC Universal, Inc.
757 F.3d 1125
| 10th Cir. | 2014Background
- Dateline producers covertly filmed portions of Tyrone Clark’s two-day "Annuity University" seminar in October 2007 after Alabama officials provided the producers with false insurance licenses so they could attend; Dateline used short edited excerpts in an April 2008 broadcast titled "Tricks of the Trade."
- The aired segment portrayed Clark as teaching agents to use scare tactics and misrepresentations to sell unsuitable annuities to seniors; Dateline conceded the statements were defamatory in substance but argued they were substantially true.
- BCA (Clark and his company) sued Dateline and related defendants asserting state-law defamation and federal § 1983 claims (Fourth Amendment search-and-seizure; Fourteenth Amendment privacy and stigmatization), and sought discovery of Dateline’s unedited hidden-camera footage.
- The district court dismissed the complaint and quashed discovery, relying on Colorado’s newsperson privilege and finding the broadcast substantially true and that BCA failed to plead state action for § 1983 claims; BCA appealed.
- The Tenth Circuit reversed dismissal of the defamation claim (finding BCA plausibly alleged the broadcast conveyed a false gist when compared to the full seminar) but affirmed dismissal of the § 1983 claims; it also held BCA was entitled to discovery of the unedited footage despite Colorado’s newsperson privilege.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Dateline broadcast was substantially true (defamation falsity) | Clark: selective editing of 112 words created a false overall impression; full seminar shows balanced, ethical instruction | Dateline: aired statements reflect true gist; individual quoted statements are accurate | Reversed dismissal — pleadings plausibly allege falsity as to gist; falsity is fact issue requiring discovery/trial |
| Whether Dateline must produce unedited hidden-camera footage (news privilege) | BCA: footage is uniquely relevant and unavailable elsewhere; needed to prove falsity/malice | Dateline: Colorado newsperson privilege (and Gordon) requires preliminary showing of "probable falsity" before disclosure | Court: privilege not dispositive here; Gordon’s "probable falsity" test inapplicable; ordered disclosure for discovery purposes |
| Whether Alabama officials’ assistance converted Dateline’s conduct into state action for § 1983 (Fourth Amendment) | BCA: officials provided false credentials and coordinated with Dateline — joint action that caused an unlawful search/seizure | Dateline: undercover ruse and deception are lawful investigative techniques; no coercive state entry or editorial joint action | Affirmed dismissal — no viable Fourth Amendment claim; deception akin to lawful undercover ruses and invited-informer doctrine applies |
| Whether editorial involvement by state officials supports Fourteenth Amendment privacy/stigmatization claims | BCA: state actors participated in investigation and appeared on program; thus joint action extended to defamatory editorial content | Dateline: appearance/commentary does not show joint editorial control or conspiracy to publish defamatory material | Affirmed dismissal — allegations insufficient to show state actors jointly participated in editorial decisions causing stigmatizing publication |
Key Cases Cited
- New York Times Co. v. Sullivan, 376 U.S. 254 (U.S. 1964) (actual-malice standard for public-figure defamation)
- Herbert v. Lando, 441 U.S. 153 (U.S. 1979) (limited discovery into editorial process may be compelled in defamation suits alleging actual malice)
- Wilson v. Layne, 526 U.S. 603 (U.S. 1999) (police violated Fourth Amendment by bringing media into private home during warrant execution when media presence not in aid of police)
- Hanlon v. Berger, 526 U.S. 808 (U.S. 1999) (upholding Wilson principles where media rode along with federal agents executing searches)
- Hoffa v. United States, 385 U.S. 293 (U.S. 1966) (statements exposed to informants are not protected by Fourth Amendment)
- United States v. White, 401 U.S. 745 (U.S. 1971) (recordings made by informants do not violate Fourth Amendment expectations of privacy)
- Anderson v. Suiters, 499 F.3d 1228 (10th Cir. 2007) (private party must be willful participant in joint action with state to establish state action under § 1983)
- Longoria v. United States, 177 F.3d 1179 (10th Cir. 1999) (invited-informer doctrine: recording by informant in presence of defendant creates no Fourth Amendment violation)
- Lundell Mfg. Co. v. American Broad. Cos., 98 F.3d 351 (8th Cir. 1996) (truth or substantial truth may be decided as a matter of law when underlying facts undisputed)
- Karedes v. Ackerley Group, 423 F.3d 107 (2d Cir. 2005) (falsity inquiry typically requires discovery; assess publication as a whole)