Tiwari v. NBC Universal, Inc.

District court denies defendant’s motion to dismiss federal constitutional and state-law claims related to defendant’s television show “To Catch A Predator,” rejecting defendant’s First Amendment defense.

Plaintiff filed suit against defendant NBC Universal asserting both federal and state-law claims based on defendant’s production, filming, and broadcast of its television program "Dateline NBC: To Catch a Predator." Plaintiff alleged defendant violated his federal constitutional rights under the Fourth Amendment and the substantive due process clause, and committed the state-law torts of defamation and intentional infliction of emotional distress. Defendant moved to dismiss plaintiff’s federal and state-law claims arguing, inter alia, that the First Amendment protected its conduct. The district court rejected the First Amendment argument, finding that that plaintiff’s claims mainly alleged harm from NBC’s conduct in the course of recording the broadcast, and not harm from the broadcast itself, and that the First Amendment did not shield defendant from liability for those actions.

The premise of the show, as its title suggests, is to apprehend sexual predators. The plaintiff alleged, inter alia, that in producing the show, NBC (1) paid members of an organization called the Perverted Justice Foundation to assume the identities of teenagers in order to engage adults in conversations, with the goal of convincing an adult to meet a teenager at a “sting house”; (2) at a sting house in California, orchestrated the video-recorded arrest of plaintiff; (3) directed local police officers to arrest him in a manner that was physically and emotionally abusive, including having some officers draw their guns and aim them at plaintiff’s head; (4) following plaintiff’s arrest, filmed plaintiff as he entered a “pre-booking facility” that NBC had constructed specially for the show, and then filmed plaintiff’s interrogation; and (5) did not disclose to plaintiff until the end of his interrogation that the video-recordings of him would be used for an episode of the NBC show Dateline.

Plaintiff claimed that since the police were acting at the direction of NBC, NBC was liable for violating his federal constitutional rights, as well as for several state-law torts.

NBC moved to dismiss plaintiff’s federal and state-law claims arguing, among other things, that the First Amendment protected its conduct. Drawing heavily on a Southern District of New York case that also addressed claims arising from the Predator show (Conradt v. NBC Universal, Inc., 536 F. Supp. 2d 380 (S.D.N.Y. 2008)), the district court disagreed, finding that plaintiff, for the most part, was not seeking “broadcast damages,” but rather was mainly alleging harm from NBC’s conduct in the course of producing and recording the show. The court declined to adopt NBC’s argument that the production of the show and its broadcast are intertwined, and that both are protected by the First Amendment.

The court did find that, in some instances, plaintiff was alleging broadcast damages – for example, in his claim that by airing the show, NBC violated his substantive due process rights by punishing him prior to his trial. The court reasoned, however, that the First Amendment did not automatically insulate NBC from all liability from broadcast damages. The court had to balance NBC’s rights against plaintiff’s constitutional right and this balancing was not appropriate at the motion to dismiss stage.

NBC also sought to strike plaintiff’s state-law claims pursuant to California’s anti-SLAPP statute (California Code Civil Procedure §425.16), which allows for the dismissal of claims arising from the exercise of the right of free speech, unless plaintiff has established a probability of success on the merits. Again, the court rejected NBC’s First Amendment defense, finding that plaintiff was claiming injury from NBC’s “production conduct,” not its broadcast of the show. For this reason, the court denied NBC’s special motion to strike plaintiff’s state-law claims.

The court did grant NBC’s motion to dismiss plaintiff’s defamation claim, which was based on the allegation that, in an epilogue to subsequent rebroadcast NBC had incorrectly reported the nature of his criminal punishment. The court found the broadcast to have been substantially true, however, and dismissed plaintiff’s defamation claim pursuant to California Civil Code §47(d), which insulates from suit “fair and true” broadcasts.