Constitutional Law

2nd Circuit: Filmmaker gave up journalistic privilege

By By The Associated Press

NEW YORK ? Journalists can lose their privilege to shield notes and film from others' scrutiny if they fail to maintain their independence, a federal appeals court said yesterday as it upheld a judge's decision to force a filmmaker to release outtakes from his documentary about a legal dispute between Chevron and Ecuadoreans.

The 2nd U.S. Circuit Court of Appeals in Manhattan said because filmmaker Joe Berlinger allowed lawyers for the Ecuadorean plaintiffs to influence the film's production, he gave up his protections before the energy company asked for the 600 hours of raw footage used to make his 2009 documentary, "Crude."

Berlinger has since turned over large amounts of film.

A unanimous three-judge panel of the 2nd Circuit said it could not conclude that U.S. District Judge Lewis A. Kaplan erred when he reasoned that Berlinger gave up his journalistic privilege by agreeing to make changes to the documentary at the insistence of the plaintiffs' lawyers, who had asked the filmmaker in 2005 to create the film.

"Berlinger failed to carry his burden of showing that he collected information for the purpose of independent reporting and commentary," the appeals court said.

Still, the 2nd Circuit said in Chevron Corp. v. Berlinger that the privilege shields journalists from most efforts to force the release of film or notes. But it said a journalist must maintain control of a story.

"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 judges wrote. "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."

Berlinger said he was "deeply concerned by the court's fundamental misunderstanding" of the film's production. He said that while the idea for "Crude" was pitched to him by one of the plaintiffs' lawyers, the film wasn't a commissioned work and he had "complete editorial independence."

"The decision to modify one scene in the film based on comments from the plaintiffs' lawyers after viewing the film at the Sundance Film Festival was exclusively my own and in no way diminishes the independence of this production from its subjects," he said in an e-mailed statement.

He said he rejected many other suggested changes to the documentary and it had been "widely praised for its balance."

He also said the facts concerning his independence weren't fully before the appeals court because that wasn't a significant issue in the lower court proceedings.

"The appeals court's ruling that a journalist must affirmatively establish editorial independence is a sea change in the law," he said. "The standards it articulates for determining independence will unfortunately deter a great deal of important reporting by independent journalists."

The ruling occurred in a 17-year-old legal fight that began when Ecuadoreans said their land was contaminated during three decades of oil exploration and extraction by Texaco Inc. Texaco became a wholly owned subsidiary of San Ramon, Calif.-based Chevron Corp. in 2001.

Chevron sought the outtakes to prove it was being treated unfairly in Ecuadorean courts and could at any time be subject to a massive damages finding against it. A court-appointed expert in Ecuador has recommended that Chevron pay up to $27 billion for environmental damages and related illnesses.

Chevron has long argued that a 1998 agreement Texaco signed with Ecuador after a $40 million cleanup absolves it of any liability in the case. It claims Ecuador's state-run oil company is responsible for much of the pollution in the oil patch that Texaco quit nearly two decades ago.

Within yesterday?s opinion, the appeals court was careful to draw distinctions about what could be defined as a loss of journalistic independence.

"We do not suggest that a journalist loses or weakens her privilege merely because her publication reflects her previously held point of view. Consistency of point of view does not show lack of independence," the 2nd Circuit panel said in a footnote.

It also said the ruling "does not imply that a journalist who has been solicited to investigate an issue and presents the story supporting the point of view of the entity that solicited her cannot establish the privilege. Without doubt, such a journalist can establish entitlement to the privilege by establishing the independence of her journalistic process, for example, through evidence of editorial and financial independence."

Full post as published by First Amendment Center on January 13, 2011 (boomark / email).