AP Photo by Francois Mori
Sarah Burns considers herself a journalist.
The daughter of famed documentary filmmaker Ken Burns certainly employed many of the tools of the trade, spending years along with her father and their production company, Florentine Films, researching the story of five men wrongfully convicted of the rape of a Central Park jogger.
But to listen to New York City officials tell the story of the genesis of “The Central Park Five,” the documentary film released last fall was a biased project about a controversial moment in the city’s history produced to force the settlement of a $250 million civil rights lawsuit filed by the five men.
The City’s Law Department subpoenaed Florentine Films last fall seeking raw footage of interviews of the now-exonerated former suspects of the case. In the process, they argued that the filmmakers could not establish the independence necessary to evoke the protections of the reporter’s privilege laws against compelled disclosure of such information.
“Notably, given Florentine Films’ expressed desire for the City to resolve this litigation, it is surprising that Florentine Films would attempt to withhold evidence that could impact the litigation,” New York City Law Department Senior Counsel Elizabeth Daitz wrote in a letter to Florentine Films attorney John Siegel last fall.
A federal magistrate court judge, however, disagreed with that position, ruling this month that Florentine Films was entitled to invoke the protections of reporter privilege laws.
In doing so, the decision may help to define the contours of a recent Second Circuit case that raised concerns among filmmakers and other independent journalists. In Chevron Corp. v. Berlinger in 2011, the U.S. Court of Appeals in New York City affirmed a federal district court decision requiring a documentary filmmaker to turn over all of his unused footage chronicling a lawsuit filed by Ecuadorians against oil company Texaco, claiming the now wholly owned subsidiary of Chevron Corp. was responsible for polluting their country’s rainforest. The court found that the filmmaker had worked too closely with the attorneys suing Texaco.
While the appellate court’s opinion in Berlinger recognized a qualified reporter’s privilege, the court determined that such a privilege would only be upheld “where the purpose to disseminate the information motivated the gathering” as opposed to “where the information was gathered for other reasons and the intent to publish arose only later.”
Berlinger inserts independence requirement
In doing so, the Second Circuit suggested that the reporter’s privilege applies with full force only to reporters acting independently of the subjects of their journalism.
“The most important part about this decision [concerning the film “The Central Park Five”] is that Magistrate Judge [Ronald Ellis] did a craftsman’s job of following the holding in Berlinger,” Siegel said. “This case provides instructions to other courts called upon to determine the meaning of that case.”
In 2010, Chevron subpoenaed filmmaker Joe Berlinger to obtain 600 hours of raw footage, claiming it was needed as evidence in three ongoing legal matters regarding the company’s oil drilling in Lago Agrio, Ecuador. Berlinger claimed the outtakes should be protected by a journalist’s privilege, which the Second Circuit has long recognized.
The court found Berlinger was not covered by the privilege because he failed to prove “he collected information for the purpose of independent reporting and commentary.” The court emphasized that it was not deciding that he was not an independent journalist, but was instead just upholding the lower court’s determination that he had failed to prove that he was.
The lower court had ruled that Berlinger was “solicited” by Stephen Donziger, the legal adviser to the plaintiffs, to produce the film to serve the objectives of the litigants. The district court ruling also noted that Berlinger removed at least one scene from the film at the request of the subjects of the film.
The appellate court clarified 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 while the oil company had made a showing that Berlinger was not independent, he had failed to counter that in a manner convincing to the trial judge. The appellate court also found that the trial court “was not obliged to credit [Berlinger’s] self-serving testimony” about his own independence as a filmmaker.
Florentine Films establishes independence
“The Central Park Five” follows the lives of five men — Antron McCray, Yusef Salaam, Kharey Wise, Raymond Santana and Kevin Richardson — who were convicted and later exonerated of the April 19, 1989 assault and rape of jogger Trisha Meili.
The case garnered national attention and highlighted racial tensions in the city at the time. The men, who were teenagers at the time of the attack, confessed to the crime and later retracted their statements but were still charged with the crime. The men served their full jail sentences before finally being exonerated after a serial rapist, Matias Reyes, later confessed to the crime. Reyes’ DNA matched the DNA found at the crime scene, and the five men were exonerated.
In 2002, the men filed a lawsuit against the city, each seeking $50 million in damages.
Last September, New York City attorneys served a subpoena seeking all copies of audio, video and written materials with everyone appearing in the film. The city then withdrew its subpoena and issued a narrower one seeking the outtakes of interviews of the wrongfully convicted men, as well as anyone who had represented them, including attorneys and family members.
In his opinion granting the motion from Florentine Films to quash the subpoena, Ellis concluded that the documentarians had demonstrated the requisite independence to be considered journalists under the reporter’s privilege.
Ellis rejected arguments by the city that Florentine Films and its filmmakers — Ken Burns, daughter Sarah Burns and son-in-law David McMahon — were not independent journalists entitled to reporter’s privilege.
New York City officials argued, relying on the Second Circuit decision in Berlinger, that Florentine Films could not rely on any reporter’s privilege claims, in part, because the filmmakers had a “longstanding sympathetic relationship” with their subjects and because of public statements made by Burns that suggested the purpose in making the film was to force a settlement of the civil litigation.
However, Ellis said the city was “misleading” in its retelling of Burns’ statements.
“Burns does not indicate what the film’s ‘purpose’ is, and the quoted portion by [city attorneys] mischaracterizes the quote and Ken Burns’ position,” Ellis wrote. He also noted that statements made which were sympathetic to the film’s subjects will not necessarily erode a journalist’s independence.
“In Berlinger, the Court made clear that consistency of point of view does not show a lack of independence where, for example, a filmmaker has editorial and financial independence over the newsgathering process,” Ellis wrote. “Indeed, it seems likely that a filmmaker would have a point of view going into a project. Thus, even assuming that the relationship Defendants cite between the filmmakers and Plaintiffs somehow demonstrates that the filmmakers had a point of view in favor of the Plaintiffs’ case before producing the film, this fact, standing alone, does not resolve the question of whether the actual newsgathering process in the making of the film remained independent.”
Ellis also shot down claims that Sarah Burns compromised her journalistic independence because of work she had done as a paralegal for the firm of one of the attorneys representing the men, stating that the material sought by the subpoena was all gathered after she left the firm.
Ellis also found that New York City officials were not able to overcome the privilege by showing that the information they sought involved a significant issue in this case that was unavailable by other means.
“In sum, [New York City has] failed to present this Court with a ‘concern so compelling as to override the precious rights of freedom of speech and the press’ the reporter’s privilege seeks to ensure,” Ellis wrote.
The Reporters Committee for Freedom of the Press, joined in a friend-of-the-court brief by the Associated Press, Dow Jones Co., Gannett Co., Inc. and The New York Times Co., urged the judge to quash the subpoena because the city disregarded the well-established qualified reporter’s privilege shielding both confidential and non-confidential information from compelled disclosure.
Siegel, the Florentine Films attorney, said he expects the opinion by Ellis will “rein in” the Berlinger decision “to the particular facts of the case.”
“Unless a reporter or a filmmaker is both solicited and recruited to work on a story by a source, and undertakes steps that don’t entail independence from the source, the decision in Berlinger cannot be interpreted as a broad license to subpoena,” Siegel said.