CA10: No state action for Fourth Amendment claim against NBC’s “Dateline”

In a defamation action against NBC’s Dateline for surreptitiously entering plaintiff’s brokerage seminar to record parts of it with the encouragement of Alabama state officials, there was no Fourth Amendment violation. There was no state action or coercion in facilitating the entry. The Fourth Amendment claim is dismissed, but the summary judgment on the defamation claim is reversed and can proceed. Brokers’ Choice of Am. v. NBC Universal, 2014 U.S. App. LEXIS 12922 (10th Cir. July 9, 2014):

In both Wilson and Hanlon, government agents were using the coercive power of government to gain access to citizens’ homes. In exercising that coercive power, the government agents invited the press along for no legitimate police purpose. Nothing comparable occurred here. No government actors were present and the Dateline operatives neither represented themselves to be government officers nor demanded entry on behalf of the government. At worst, it is a classic case of government agents sending willing and available operatives to obtain information freely revealed to those operatives. The fake insurance agent credentials supplied by Alabama officials fit easily into the types of deception courts have generally found permissible because it involved no coercion, express or implied. It is, instead, the classic ruse of misrepresented identity. Moreover, according to BCA’s allegations and the available facts of record, the Alabama officials facilitated the ruse for a legitimate investigative purpose. Dateline may have violated state tort law, but no actionable Fourth Amendment violation occurred.