Judge’s Ruling a Victory for Documentarians

As filmmakers increasingly seek to create movements around their projects, there is bound to be more scrutiny of their independence.

Judge's Ruling Victory Documentarians

“The Central Park Five” may not be in contention at Sunday’s Oscars, but Ken Burns and the other makers of the project have good reason to celebrate a win this week.

Actually, after a federal judge’s ruling, there’s a reason for the entire documentary community to cheer.

U.S. Magistrate Judge Ronald Ellis ruled that Burns and his Florentine Films were protected by journalistic privilege and did not have to turn over outtakes from their project to attorneys for New York City. The film chronicles the fate of the five men who went to prison for the 1989 attack on Trisha Meili, aka the “Central Park jogger,” only to have the New York Supreme Court vacate their convictions a decade ago following another man’s confession and DNA evidence. They sued the city, the New York Police Department and the district attorney, and the city sought the outtakes as it defended itself.

There was actually a lot more at stake than just this project. Having a strong point of view is pretty much a requirement among today’s generation of documentarians — as is seen by a number of Oscar nominees including “Invisible War” and “How to Survive a Plague.” If filmmakers don’t communicate this strongly, as Jeremiah Reynolds of Kinsella Weitzman Iser Kump & Aldisert noted, “It is a very boring documentary. It’s hard enough to get an audience.”

Yet as lines between journalism and advocacy blur, so too is there more scrutiny of when and whether a filmmaker loses independence, and therefore the privilege of state shield laws.

The city of New York tried to cast Burns and his colleagues not as journalists but as agents of the attorneys for Antron McCray, Kevin Richardson, Raymond Santana, Kharey Wise and Yusef Salaam. They cited Chevron’s successful effort in 2011 to obtain hundreds of hours of outtakes from the film “Crude,” about Ecuadorians’ class-action suit again Chevron for environmental damage in a rainforest region. In that suit, a federal appeals court ruled that director Joe Berlinger had lost his journalistic privilege and had to comply with Chevron’s subpoena as it defended itself in the class-action litigation. The appellate panel said that because the counsel for residents suing Chevron had solicited Berlinger to make the project, and the director removed a scene from the final version at the plaintiffs’ legal team’s request, he lost journalistic independence.

Chevron trumpeted the ruling, with its spokesman noting that “somewhere along the line, Joe Berlinger went from being an objective observer to an advocate.”

Burns, Sarah Burns and David McMahon also had a point of view in making “Central Park Five,” and the city argued that because the filmmakers had a “longstanding sympathetic relationship” with the Central Park Five, received assistance from plaintiffs’ counsel, and even expressed hopes for a settlement, they lost reportorial privilege.

The concern was that the “Crude” case would prove to be the framework for a “Central Park Five” decision, even though “the differences between the two cases are quite stark,” said attorney Michael Donaldson, who co-wrote a friend-of-the-court brief on behalf of the indie community. The risk, noted Reynolds, was that an “overbroad” interpretation of the “Crude” ruling would have the effect of diminishing the New York shield law.

Ellis didn’t buy the similarities to the “Crude” case. He wrote that they were still protected by the state’s shield law and federal court precedent, noting that “an otherwise independent newsgathering process is not undermined solely because a publication reflects the journalist’s previously held point of view.” Financial and editorial independence are factors as well.

Still, as definitive as the ruling was, it’s hard to see how this is the end of the spectacle of filmmakers being served subpoenas, made to account for the process of their work.

As filmmakers increasingly seek to create movements around their projects, engaging non-profits, politicians and other advocates to spread the word, there is bound to be more scrutiny of their independence, particularly when it comes to funding. The scrutiny of tone and substance also is becoming a bigger factor in dramatic storytelling, with “Zero Dark Thirty” screenwriter Mark Boal characterizing a new brand of filmmaking that delves into recent events via an intersection of investigation and imagination.” He may be subpoenaed by a Senate committee on the extent of the CIA’s cooperation in making the project.

Donaldson’s takeaway is that “the courts have made it clear that documentary filmmakers are journalists, unless they become like publicists.” This time around, a judge saw the difference.