COURT SAYS DOCUMENTARY MAKER CAN’T CLAIM PRESS SHIELD

Documentary filmmakers must establish that they have retained editorial independence throughout the making of their films if they wish to be protected by press shield laws, a federal court ruled on Thursday as it ordered director Joe Berlinger to turn over some 600 hours of outtakes from his 2009 documentary, Crude, to Chevron. The film concerns legal efforts by a group of Equadorians to hold Chevron responsible for environmental damage to the rainforest area where they live.

But in its ruling, the Second Circuit Court of Appeals noted that Berlinger had initially been approached by Steve Donziger, a counsel for the plaintiffs, to make the film and that Berlinger removed a scene from it at the plaintiffs’ behest. “Those who gather and publish information because they have been commissioned to publish in order to serve the objectives of others who have a stake in the subject of the reporting are not acting as an independent press,” the appellate court ruled. “Those who do not retain independence as to what they will publish but are subservient to the objectives of others who have a stake in what will be published have either a weaker privilege or none at all.” Famed First Amendment lawyer Floyd Abrams had filed an amicus brief on behalf of the New York Times and other media organizations, defending the filmmaker’s privilege. Daily Variety reported today (Friday) that it had received an email from Berlinger in which he maintained that he had complete editorial independence throughout the making of the film and that the decision to remove the scene in question “was exclusively my own.”