Newspaper reporters, like shortstops and outfielders, go through rites of passage. Sandlots come before Astroturf. For many reporters an early assignment in the news room is to go for a "ride-along."
Now some ranchers in Montana are trying to spoil the fun for reporters everywhere. I'm afraid Paul and Erma Berger make a plausible case, and I sigh for the old days.A ride-along is the story one writes after riding with police on patrol. On a good night a reporter may get a real-world taste of domestic violence, prostitution, drug dealing or child abuse. The experience can be unforgettable.
The Supreme Court has been asked to take three cases that pit the rights of a ranching family against the privileges of the press.
The cases arose in 1993. Officers of the Fish and Wildlife Service began an investigation of complaints that Paul W. Berger was using poison to kill certain protected predators on his 75,000-acre ranch near Jordan, Mont.
Reporters from CNN (Cable News Network) and TBS (Turner Broadcasting System) learned of the investigation and made a deal with the U.S. attorney. The networks wanted the story, and the government wanted the glory. CNN would have complete editorial control. Nothing would be telecast until the possibility of prejudicing a jury had passed. It was a good deal all around.
A magistrate issued a search warrant for the ranch and outbuildings, excluding the Bergers' residence. On the morning of the search, a media crew accompanied the government team to the ranch. Cameras were mounted on government vehicles. Joel Scrafford, a special agent of the Fish and Wildlife Service, was wired with a hidden CNN microphone that continuously transmitted an audio accompaniment.
Scrafford met Berger and served the warrant. Then, with Berger's consent, the party went into the residence. It is undisputed that during an eight-hour search, Scrafford covertly recorded all his conversations. The following October, CNN broadcast both the video footage and the sound recordings.
Berger went to trial on a charge that he had applied the poison Furadan to sheep carcasses and thus had killed one golden eagle, one bald eagle, one protected hawk and one protected gull. A jury acquitted him on all charges except a misdemeanor charge of using Furadan contrary to its labeling.
Berger had moved before trial to have the evidence thrown out as a violation of his Fourth Amendment rights. Last November the 9th U.S. Court of Appeals agreed:
"This was no ordinary search. It was jointly planned by the law enforcement officials and the media, as memorialized by a written contract, so that the officials could assist in the media obtaining material for their commercial programming. The television cameras invaded the residential property of the plaintiffs and the microphone invaded their home."
The 9th Circuit's opinion apparently conflicts with a decision in the 8th Circuit finding no Fourth Amendment violation in a similar case. CNN's position is that members of its crew were not agents of the government. They were exercising their First Amendment right to report on governmental activities. They were observers, not participants. In brief, they were just along for the ride.
I like that position, because I like to ride along, but I expect Berger and his wife may yet prevail.