The dangers of collaborating with the subjects of your work

When nontraditional members of the media invoke the press privilege to refuse to disclose information obtained while newsgathering, courts must examine the circumstances of the publication of the material to decide whether the authors are entitled to this protection. 

Recently, the same court that decided von Bulow found that a documentary filmmaker did not adequately prove he was a journalist entitled to invoke the First Amendment-based reporter’s privilege because circumstances surrounding the creation of the film indicated its lack of one of the hallmarks of investigative journalism: editorial independence.

In that case, Chevron Corp. v. Berlinger, Joseph Berlinger refused to turn over the unused footage from his movie “Crude: The Real Price of Oil,” which chronicled the lives of Ecuadorians who sued Texaco (now owned by Chevron Corp.) over alleged pollution of the country’s rainforest. The oil giant had subpoenaed Berlinger for 600 hours of outtakes, claiming it needed the footage as evidence in three ongoing legal disputes over the company’s drilling operations in Lago Agrio, Ecuador.

In holding that Berlinger was not entitled to withhold the outtakes, the U.S. Court of Appeals in New York (2nd Cir.) in January read into von Bulow an “independence,” as well as intent, requirement, noting that Berlinger failed to prove “he collected information for the purpose of independent reporting and commentary.” (The emphasis is in the opinion.)

In so finding, the appellate court relied on the lower court’s ruling that Berlinger was “solicited” by Stephen Donziger, the legal adviser to the Lago Agrio plaintiffs, to produce the film to serve the objectives of the litigants. The trial court ruling also noted that Berlinger removed at least one scene from the film at the request of the Lago Agrio plaintiffs.

The appellate court said that a journalist solicited to investigate and publish a story supporting the viewpoint of his or her employer can still be protected under the privilege by establishing journalistic independence through evidence of editorial and financial independence.

It found, however, that not only had the oil company made a showing that Berlinger was not independent, he had also failed to counter that evidence in a manner convincing to the trial judge, who “was not obliged to credit [Berlinger’s] self-serving testimony” about his own independence as a filmmaker.

This independence requirement also proved to be a major issue in the case against subpoenaed video blogger Joshua Wolf, who was closely allied with the anarchists he was covering. The court did not consider this factor in its analysis finding that Wolf was not entitled to invoke the reporter’s privilege in refusing to turn over and testify in conjunction with footage of a 2005 protest demonstration during which a police car was set on fire by one of the anarchist protestors. The federal appellate court in California did note, however, that had this subpoena been issued by a grand jury in state court, Wolf would not have qualified, as he claimed, for its protection either because he produced no evidence that the videotape was made while he was connected or employed as a publisher, editor, reporter or other person connected with or employed by a newspaper, magazine, other periodical publication, press association or wire service. (The California Supreme Court has since extended coverage of the state shield law to online news sites, despite this statutory language limiting it to members of the traditional media.)

Wolf eventually reached an agreement with prosecutors at a mediation conference. Prosecutors finally agreed to disclose the questions that they wanted to ask Wolf on the stand -- whether he witnessed or had any knowledge of an assault on a police officer or damage to a police car that occurred at the rally. In a sworn statement, Wolf said that his response to both questions was no. Additionally, investigators wanted all of Wolf's video footage from the rally, including his outtakes. Wolf agreed to post all of the footage of the rally on his blog.

Wolf -- who spent 226 days behind bars -- is the longest-jailed American journalist for contempt of court in recent history.

In light of these trends, a prudent online journalist would be particularly conscientious about acting independently of any interest other than the public's right to know. The Society of Professional Journalists Code of Ethics provides guidelines to help ensure independent reporting. In addition to these activities, an Internet-based writer should also refuse to disclose pre-publication copies of articles to their subjects or sources. Perhaps more importantly, these individuals' requests that statements in the publications be changed somehow should also be rejected.