Floyd Abrams, Leading First Amendment Lawyer, to Lead Court Fight for Major Media to Protect Film Footage
Amazon Defense Coalition
2 June 2010 - FOR IMMEDIATE RELEASE
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New York, NY – Chevron's attempt to view more than 600 hours of private video outtakes from celebrated filmmaker Joe Berlinger is now being opposed by The New York Times, ABC, CBS, NBC, Dow Jones, the Associated Press, the Hearst Newspapers, the Daily News, and the Gannett Company, according to court papers filed this week by one of the nation's leading First Amendment lawyers.
The major media outlets weighed in after several journalists and filmmakers – including Bill Moyers, Michael Moore, Trudie Styler, and Ric Burns – condemned Chevron for trying to view the footage and sharply criticized a trial court decision in favor of the oil giant. Burns said the ruling could deliver a "killer blow" for the documentary film industry.
The outtakes are from the 2009 film Crude, which has garnered 22 film festival awards and documents the trial in Ecuador where Chevron faces a $27 billion liability for environmental damage. Floyd Abrams, the noted First Amendment lawyer, is representing the media companies on the appeal.
In a "friend of the court" brief filed Tuesday, Abrams wrote that the amount of footage Chevron is seeking from Berlinger appears to be "the largest amount of film outtakes in American history" subject to a subpoena.
"Never before … has a court confronted with the journalist's privilege approved production of a body of work approaching the elephantine amount of material at issue here," Abrams wrote in the brief.
The media outlets are joining Berlinger's appeal of a decision by Judge Lewis A. Kaplan ordering Berlinger to turn over the footage to Chevron, which claims it needs it as evidence in the civil litigation in Ecuador to prove "misconduct" by the plaintiffs. Berlinger shot the footage between 2005 and 2008.
Representatives of the Amazonian communities have accused Chevron of committing environmental crimes and fraud in Ecuador related to the deliberate discharge of billions of gallons of toxic waste into the rainforest. The amount of oil dump is at least ten times that discharged by BP into the Gulf up to this point, leading to an outbreak of cancer and the decimation of six indigenous groups, according to lawyers for the plaintiffs.
"Chevron's attempt to see the film footage is a sideshow designed to delay a trial where thousands of indigenous people are seeking relief for an environmental catastrophe created by Chevron," said Ilan Maazel, who represents the plaintiffs.
Berlinger is arguing that his footage is covered by First Amendment privileges that protect reporters and others in the newsgathering business from being compelled to reveal sources and material. The issue has become a flash point recently in the federal judiciary and has led some reporters to spend time in jail rather than disclose the identity of their sources.
Berlinger has vowed to fight Chevron's discovery attempts and has argued that the demand for his private footage constitutes a violation of his First Amendment rights and threatens the ability of filmmakers and journalists to play their traditional watchdog role to ferret out corporate and governmental abuse.
The media outlets compared Berlinger's outtakes to a "reporter's notebook" and argued that it should be protected.
Abrams is considered by many to be the country's leading First Amendment advocate and has argued frequently before the U.S. Supreme Court. Signing onto the brief is the Director's Guild of America, the International Documentary Association, the Associated Press, the Daily News, Dow Jones, the Hearst Corporation, HBO, ABC, NBC, CBS, and The New York Times and The Washington Post.
"It makes me shudder to think that all that stuff would be turned over...not because of any secrets that are revealed, but because of the killer blow to the trust a filmmaker cultivated, deeply, over a very long period of time," Burns said in an interview with the New York Times. Burns went on to label Kaplan's decision "insane."
Moyers, in an op-ed on The Huffington Post, said that by seeking the footage Chevron was putting in jeopardy "the whole integrity of the process of journalism." Moore said the court decision in favor of Chevron would have a "chilling effect" on whistleblowers.
Separately, the Aguinda plaintiffs have argued in court filings that Chevron's attempt to subpoena the footage amounted to little more than a "fishing expedition" designed to "silence filmmakers such as Joe Berlinger whose work (however evenhanded) has helped expose Chevron's shocking and unconscionable misconduct."