Peavy v. WFAA-TV, WFAA-T

Citation221 F.3d 158
Decision Date31 July 2000
Docket NumberNo. 99-10272,INC,WFAA-T,99-10272
Parties(5th Cir. 2000) CARVER DAN PEAVY; SALLY PEAVY, Plaintiffs-Appellants/Cross-Appellees, v.; ROBERT RIGGS, Defendants-Appellees/Cross-Appellants
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

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[Copyrighted Material Omitted] Appeals from the United States District Court for the Northern District of Texas

Before POLITZ, JOLLY, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Primarily at issue is whether the First Amendment shields WFAA-TV, Inc., and its reporter, Robert Riggs, from liability for their "use" and "disclosure", in violation of the Federal and Texas Wiretap Acts, of the contents of the Peavys' cordless telephone conversations, illegally intercepted and recorded by the Harmans, with them providing the recordings to Riggs and with Riggs and WFAA having some participation concerning the interceptions, at least as to their extent. Numerous other federal and state law issues are presented, including whether defendants "procured" or "obtained" the Harmans to make the interceptions, in violation of the Federal and Texas Acts, respectively, and whether the Federal Act even permits a civil action for damages for such "procurement". The district court granted summary judgment for WFAA and Riggs, holding, inter alia: the Harmans were neither so "procured" nor "obtained"; and even though defendants engaged in proscribed "use" and "disclosure", the First Amendment trumps the two Acts. We AFFIRM in part; REVERSE in part; VACATE in part; and REMAND.

I.

The facts are largely undisputed. The following is drawn, in part, from the magistrate judge's recommendation, adopted by the district court without a separate opinion. Peavy v. Harman, 37 F. Supp. 2d 495, 502-04 (N.D. Tex. 1999).

Carver Dan Peavy (Peavy) was elected a trustee for the Dallas Independent School District (DISD) in 1986, so serving until 1995. By the early 1990s, he controlled purchases of insurance for DISD employees. He was a friend and business associate of Eugene Oliver, an insurance agent who had been convicted as an accomplice to murder. The Peavys had been long involved in various, ongoing disputes with their neighbors, Charles and Wilma Harman. Id. at 502 n.2.

In early December 1994, Charles Harman (Harman) acquired a police scanner, in order to monitor police activity in his neighborhood. The first time he turned it on, he overheard a telephone conversation between Peavy and another neighbor, in which they discussed filing a class action against the Harmans. Id. at 502. Thereafter, Harman locked the scanner onto the frequency for the Peavys' cordless telephone, and continued listening to their conversations. Harman overheard conversations which he interpreted as threats to his safety, and some involved what he perceived to be public corruption on the part of Peavy involving insurance at DISD. Id. Shortly thereafter, Harman began recording the intercepted conversations. Id.

The Harmans claimed to have consulted with various law enforcement officials regarding the legality of intercepting and recording cordless telephone calls, and to have been told it was legal. Id. (However, in a related proceeding, subsequent to the summary judgment in this case, the magistrate judge found that no one told the Harmans such interception was legal. See Goodspeed v. Harman, 39 F. Supp. 2d 787, 793-94 (N.D. Tex. 1999).)

Frustrated at the lack of police response to his reports of Peavy's threats and public corruption, Harman contacted WFAA on 8 December 1994, and spoke with one of its producers, P. J. Ward. Id. at 503. Harman told Ward he had information about possible corruption by an elected official, who he eventually identified as Peavy. Id. Ward relayed the tip to Riggs, a WFAA investigative reporter. Id.

Riggs telephoned Harman that afternoon. Id. Harman told Riggs he: had proof Peavy was threatening to harm him and was involved in an insurance kickback scheme; was concerned for his family's safety; and wanted to talk to Riggs in person. Id. Riggs had never heard of Peavy and was not working on a story about DISD insurance.

The next day, Riggs went to the Harmans' home. Id. They told him about their history with Peavy; hearing, with a police scanner, his threats and discussions of insurance kickbacks; and taping his conversations. They told Riggs about the contents of overheard, but not recorded, conversations; played a tape of recorded conversations; and showed him the scanner. Riggs knew the parties to those conversations were not aware of, and did not consent to, the interception and recording.

Riggs claimed: he asked Harman, at their initial meeting, whether it was legal to record the conversations; and Harman assured him his actions had been approved by the Dallas County District Attorney and the Dallas Police Department. Id. On the other hand, the Harmans claim Riggs told them he had consulted with WFAA's attorney about the legality of the intercepts prior to their meeting. Riggs denied then consulting counsel and stated he did not do so until a few days later.

At their initial meeting, Harman asked Riggs whether he wanted a copy of the tape, as well as others he (Harman) might make in the future. Id. Riggs replied he did. Id. He also instructed the Harmans not to turn the tape recorder on and off while recording intercepted conversations, and not to edit them, so that the tapes' authenticity could not be challenged. Id.

Riggs took the tape of the intercepted conversations to WFAA; met with Ward and WFAA News Director John Miller; told them about his meeting with the Harmans; and played portions of the tape for them. Id. They agreed Peavy's activities should be investigated. Id. After that meeting, Riggs asked another WFAA employee to conduct research regarding the contents of the tape, and instructed Ward to conduct other research at DISD.

WFAA asked its outside legal counsel, Paul Watler, whether it was lawful for WFAA to receive tapes of the intercepted and recorded cordless telephone conversations. At a meeting with Riggs and Miller on 12 December 1994, Watler advised he would have to double-check, but thought it legal to intercept and record cordless telephone conversations. At a meeting at WFAA on 4 January 1995, Watler told Riggs: it was legal to listen to, and record, cordless telephone conversations; and WFAA could legally accept and broadcast the tapes.

In February 1995, Ward and Watler decided to have portions of the tapes transcribed. Ward selected for transcription those portions she believed would illustrate to Riggs, Miller, and Watler the evidence of public corruption and racial discrimination. At Watler's suggestion, Ward had them transcribed by a court reporter in Austin, Texas, and took measures to ensure the confidentiality of the tapes and transcripts.

After the transcript was prepared, Ward made copies for Miller, Riggs, and Watler. Ward and Riggs reviewed, edited, and corrected it. Watler reviewed it to familiarize himself with the contents of the tapes so that he could advise WFAA on legal questions that might arise. And, Riggs gave a copy of the transcript to the Harmans to review for accuracy.

In late February, Riggs began preparing a memorandum in which he formulated story outlines based on the contents of the tapes and his investigation of those contents.

By the end of that month, the Harmans had provided to WFAA 17 more tapes of the Peavys' conversations. Id. Ward listened to, and took notes about, each tape. At Miller's request, Ward prepared a memorandum regarding the persons, and another regarding the topics, mentioned on the tapes.

The 18 tapes WFAA received from Harman contained 188 telephone conversations between the Peavys and others. Id. Because the contents of those conversations are not particularly relevant to the issues at hand, it is not necessary to describe them in detail. Generally, they concern DISD insurance and Peavy's conduct as a DISD trustee, a plan to sell cancer insurance to an entity other than DISD, and Peavy's relationship with Oliver. They also include offensive language, as well as conversations about intensely personal matters which the participants obviously would never have discussed had they known of the interceptions.

By late February 1995, Riggs had been informed by law enforcement sources for another story on which he was working that the Federal Wiretap Act had been amended to cover interception of cordless telephone calls. Id. Accordingly, he asked Watler to re-check his previous advice regarding the legality of using the intercepted conversations. Id. At WFAA's request, Watler conducted further research and discovered that the law had been amended in October 1994 (about six weeks before the first Riggs-Harman meeting), to make it unlawful to intercept the radio portion of a cordless telephone call. Id. Pub. L. No. 103-414, § 202(a)(1), 108 Stat. 4290, 4291 (codified as amended at 18 U.S.C. § 2510(1) (deleting from definition of "wire communication" provision which excluded radio portion of cordless telephone communication that is transmitted between handset and base unit)).

Watler immediately informed Miller of the amendment and advised WFAA not to accept any more tapes. On 1 March, Watler met with Miller and Riggs and advised them his previous advice had been incorrect. He opined that, in any event, the First Amendment took precedence over the wiretapping laws and that WFAA could still use, and broadcast (disclose), the tapes, because it had lawfully obtained them. Nevertheless, he advised WFAA that the more conservative approach was not to accept additional tapes, not to broadcast any tapes, not to disclose the contents of the tapes to third parties, and not to confront individuals about conversations on the tapes, unless the same information was available from other...

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