"The Central Park Five" co-directors David McMahon, Sarah Burns,and Ken Burns at the New York Film Critics Circle awards dinner in early January. (AP/Evan Agostini)
"The Central Park Five" co-directors David McMahon, Sarah Burns,and Ken Burns at the New York Film Critics Circle awards dinner in early January. (AP/Evan Agostini)

‘Central Park Five’ case reinforces reporter’s privilege

As the film “The Central Park Five” heads into the Film Independent Spirit Awards in Los Angeles on Saturday, where it is nominated for best documentary, its filmmakers can rest assured that at least one contest, the one that was taking place far from Hollywood in a New York City courtroom, is over. In a case closely watched by the documentary film and journalism community, a New York district court judge on Tuesday quashed a subpoena seeking access to outtakes from the film, saying that the plaintiff had established entitlement to a reporter’s privilege.

The courtroom battle between the documentary’s filmmakers–the prominent documentarian Ken Burns, his daughter Sarah Burns, and David McMahon–and New York City officials was the latest, unlikely chapter in one of the city’s most notorious crimes. “The Central Park Five,” which was released in November, tells the story of the conviction and eventual exoneration of five men in the infamous 1989 rape and assault of a jogger in Central Park. The film makes the case that conviction of the five teenagers on scant evidence and confessions (later disavowed) was a miscarriage of justice by the legal system and society, both of which sought quick resolution and to assign blame for an emblematic attack. The five men, who were cleared of the charges after another inmate confessed to having committed the crime, have been engaged in a civil dispute with the city for years, seeking damages for the seven to 13 years they spent in prison.

A subpoena filed in October, amending a broader version brought a month earlier, sought access to all of the film’s unused footage featuring the five men, their family members, attorneys, and anyone with knowledge of the case, claiming the content was of use in the civil case. Florentine Films, the movie’s distributor, filed an appeal to quash the subpoena on the grounds that the filmmakers were entitled to a reporter’s privilege under the New York State Shield Law.

Shield laws, which are on the books in 40 states and frequently offer only qualified protection, have been at the center of many journalistic legal struggles in recent years. What differentiates the “Central Park Five” from many of the latest national security-related cases is firstly that the material sought did not come from a confidential source. Sarah Burns acknowledged that the threshold to overcome a reporter’s privilege is much lower when it comes to non-confidential sources under the New York Shield Law, but that the protection exists nonetheless. While the subjects of the film did not ask to remain anonymous, they did not “give the interviews with the understanding that they would be investigative material in the case for the city,” Burns told CPJ. “The city has the opportunity to ask them those questions when they depose them in the case. We felt that it was an unnecessary and unfair intrusion into our work to ask for this material,” she added. “It is not our job to be investigators on their behalf.” Judge Ronald L. Ellis agreed, writing in his decision that the city had “failed to overcome the reporter’s privilege by making a showing that the information they seek pertains to a significant issue and is unavailable from other sources.”

But the real distinguishing factor in the “Central Park Five” case stems from its medium: documentary film. Documentaries have long been closely related to traditional journalism, with films from “The Thin Blue Line” to this year’s Oscar-nominated “The Invisible War,” perfecting the art of the cinematic exposé. While the directors clearly felt they deserved protection as journalists under the reporter’s privilege, there was enough uncertainty in recent legal precedents to create cause for concern.

The doubts stem from a 2011 decision in a case that pitted filmmaker Joe Berlinger against the Chevron Corporation. Chevron sought access to all 600 hours of outtakes in Berlinger’s documentary “Crude,” which centered on a lawsuit filed by Ecuadorans who accused Chevron of contaminating their water supply in the Amazon.

The contentious case again Berlinger included revelations that the idea for the film had been originally presented to the filmmaker by the Ecuadoran plaintiffs’ attorney, and that he had removed a potentially incriminating scene after receiving a request to do so from the attorney. Berlinger said that he maintained editorial independence throughout the making of the film. But the language of the decision, which ruled that Berlinger could not claim a reporter’s privilege because the documentary was not an act of “independent reporting,” disturbed the documentary film community.

Documentary filmmaker Michael Moore told the New York Times that the decision could have much wider repercussions and worried that it might cause a “chilling effect.” Professor Jon M. Garon at the Law and Informatics Institute wrote in a blog that in light of the court’s designation of Berlinger as an advocate rather than a journalist, documentary filmmakers might need to rethink the practice of receiving support from nonprofit groups with similar advocacy goals or partnering in awareness campaigns. That technique, which has become a mainstay of an industry that often needs to fight for funding, distribution, and viewers, could imperil their ability to claim the independent journalist status necessary for a reporter’s privilege, Garon wrote.

At the heart of the “Central Park Five” case is the filmmakers’ clearly sympathetic portrayal of the five men. Classifying the directors as “advocates” for the Central Park Five would be no stretch of the imagination, and they have been vocal about their desire for a settlement favorable to their subjects in the civil case. An advocacy angle is often intrinsic to documentary film, where filmmakers choose stories that speak to them and spend much longer periods of time with their subjects. Does this relationship or lack of neutrality disqualify them for journalistic legal protection?

It does not, says Michael Donaldson, a lawyer specializing in documentaries who filed an amicus brief in the Berlinger case. “The case law is well established. One does not stop being a journalist just because he or she advocates for a position that is consistent with his or her writing,” Donaldson told CPJ. “That unfortunate, rather imprecise, reference in the Berlinger decision is just that. It does not change the law.”

Sarah Burns argued that “a lot of journalism is advocacy in one way or another. … There is no such thing as total objectivity. Opinion columns are not objective.” The more important distinction to make, she told CPJ, was that “there was no financial or editorial relationship between us and the subjects of our film.” A side issue of whether Burns could be considered an independent journalist because she had interned at the law firm that was then defending the five men while in college was dismissed by the judge because the material sought had not been collected during that time. The key point to qualify for the reporter’s privilege is whether the plaintiff’s “intention at the time the information in question is gathered was for the purpose of disseminating the information to the public, ” Judge Ellis wrote. Moreover, “having a point of view,” he concluded, does not make the newsgathering process non-independent.

The outcome in the case has averted a “major setback,” in the words of Donaldson, though he advised documentary filmmakers to be “wary” and that if “they want later to invoke a reporter’s privilege they have to conduct themselves like a journalist.”

What seems clear is that this won’t be the last case of a documentary filmmaker invoking journalistic protection. Dwindling resources in media companies and the increased appeal of documentaries thanks to Internet distribution means journalists and filmmakers will likely increasingly look to film as a way to tell–or break–a news story. More subpoenaing of filmmakers in civil and criminal cases can’t be far behind.

One sector of society that faces the harshest scrutiny in “The Central Park Five,” is the New York City press, whose hysterical coverage the filmmakers portray as having amplified the drumroll for the convictions. Asked if she finds it ironic to be claiming journalistic protection for a movie that slams the media, Burns told CPJ that in the “Central Park Five” case, the press failed to fulfill its purpose of “asking questions and holding our politicians and society accountable.” But the role of journalists is a “hugely important one in our society,” said Burns, who considers herself part of that community, “so trying to do that role properly is noble.”