In Documentary Decision, Second Circuit Garbles 'Reporter's Privilege'

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A strange voice on the telephone: Something is happening to me, please tell my story.

When I was a reporter, this happened to me quite often. Now I'm a lawyer. In this country, at least at the federal level, we don't handle the tension between the law and journalism well.

The tension is on display in a recent case called Chevron v. Berlinger, decided last month by the U.S. Court of Appeals for the Second Circuit. In Berlinger, one of the brainiest judges on a brainy circuit decided that Joseph Berlinger, a respected documentary filmmaker, is not a truly "independent" reporter, because his work began with a call like the one I described. It was a bad decision, and one that will cause mischief down the road.

The case concerns "reporter's privilege." The "privilege" refers to a conditional exemption for journalists from demands to turn over evidence to courts conducting lawsuits and trials.

Court orders to testify or turn over evidence are particularly a problem for reporters. Often they have spent months or years amassing information and documentation about a story. Sometimes they have promised to keep sources' identities secret to protect them from being fired or prosecuted, or even killed. To allow the government or a private party to rummage through their notes could do damage to their work, and to their sources.

The issue first came before the Supreme Court back in the 1970s in a case called Branzburg v. Hayes, in which a number of reporters contested federal grand jury subpoenas for information about stories they had written (one concerned marijuana dealers and two were about the Black Panther Party). The reporters claimed that the First Amendment should shield them from revealing their confidential sources.

The Court ambiguously disagreed. Four Justices wrote that there is no privilege at all; three wrote that the First Amendment should protect the reporters because the government hadn't shown a "compelling interest" in the information; one wrote that reporters had blanket immunity from forced disclosure; the ninth, Justice Powell, wrote that privilege should be judged case by case, striking a balance between the needs of law enforcement and those of the First Amendment -- a balance, he thought, that favored disclosure in these cases. For those scoring at home, that's five votes against the reporters and a different five votes (Powell plus the dissenters) saying that there is probably some kind of privilege out there yet to be defined.

Sometimes they [journalists] have promised to keep sources' identities secret to protect them from being fired or prosecuted, or even killed

Branzburg, then, didn't even clearly answer the question the court was asked -- when can a grand jury demand testimony about a reporter's confidential sources? Lower federal courts have struggled with even murkier questions: What protection does a reporter have for information gathered without a promise of confidentiality? And what happens when the demand for disclosure comes from private parties suing each other about something the journalist has covered? The Second Circuit, in a case called Gonzales v. NBC, offered some protection for journalists when private litigants seek their information just because it may help their case. There is no blanket exemption, the court said, but courts should limit disclosure. The opinion noted that unlimited disclosure might hobble working journalists:

[W]holesale exposure of press files to litigant scrutiny would burden the press with heavy costs of subpoena compliance, and could otherwise impair its ability to perform its duties--particularly if potential sources were deterred from speaking to the press, or insisted on remaining anonymous, because of the likelihood that they would be sucked into litigation.

The Gonzales opinion was by Judge Pierre N. Leval, one of the circuit's stars. It shows a sophisticated awareness of what compelled disclosure entails. That makes what happened in Berlinger all the more distressing. And that brings us back to Crude.

The dispute at the heart of the film stretches back to 1964, when Texaco entered a joint venture to exploit oil reserves in the Oriente region of Ecuador. Eventually the joint venture was joined by Petroecuador, the state oil company, which bought Texaco out in 1992.

In 1993, a group of Ecuadorian plaintiffs sued Texaco in federal court in New York. The plaintiffs, who include indigenous people living in Oriente, allege that waste from the oil production has spread cancer and other environmental diseases among the villages. For nine years, the company demanded that the case be transferred to Ecuadorian court. But by the time they won, Ecuador had a new government hostile to multinational companies. Texaco, meanwhile, had acquired Texaco, and became the defendant. The case began to go badly for Chevron -- and Ecuadorian officials brought criminal charges against the company and two of its lawyers for their alleged role in covering up pollution of the Oriente.

In 2005, the plaintiffs' American lawyer, Steven Donziger, contacted Berlinger. Berlinger's films have won an Emmy and Peabody. Donziger invited Berlinger to cover the case and offered him full access to the plaintiffs' team. (Berlinger remained financially independent of the plaintiffs. ) The resulting film, Crude, is now available on DVD and on Netflix.

Berlinger clearly went to some lengths to allow both sides of the case to be heard. Donziger comes off as passionate, loud, abrasive, and manipulative -- a classic street lawyer whose idealism is shot through with ego and avarice. The film also offers Chevron's explanations of its case, both through footage of proceedings in Ecuador and through interviews arranged by the company with their lawyers and scientists.

Chevron believes that the Ecuadorian government is rigging the case against them. Seeking evidence of this favoritism, they asked a federal district court in New York to order Berlinger to turn over all the footage he shot for Crude to the court in Ecuador and to an international arbitral panel. This is 600 hours of film in all, imposing the "heavy costs of subpoena compliance" Judge Leval warned against. Berlinger admits that he did not promise his interview subjects anonymity, but he contends that his sources would be appalled if every word they spoke is turned over to Chevron's lawyers.

The District Court ordered full disclosure. Berlinger appealed to the Second Circuit, noting the burden that would impose.

At this point the case took a strange turn. The Second Circuit in July substantially limited the scope of the lower court's order. But when it issued its final opinion in January, the same Judge Leval who had authored Gonzales wrote that Berlinger was not covered by the privilege at all. Though this issue is barely mentioned in the briefs, Leval wrote that because Donziger had solicited Berlinger to make the film, Berlinger is not an independent journalist. This was doubly true, he added, because Berlinger had removed one scene from the DVD version of Crude after Donziger protested that it might be misunderstood by viewers.

Judge Leval added the "burden (of proof) is on the person who claims the privilege" to convince the trial court that he or she is completely independent of either side.

I have a tremendous regard for Judge Leval; but this opinion is asinine.

Many stories begin because someone involved approaches a reporter. If that by itself raised questions about "independence," few journalists would merit the privilege. Journalists often show their sources some or all of what they are prepared to show to the public, to make sure they haven't made factual mistakes or inadvertently revealed confidential information. (Ten years ago, I wrote a book about a Supreme Court case. I allowed both my major sources to review the manuscript and made dozens of changes when one or the other protested that something I'd written was inaccurate or invasive. That didn't compromise my independence, because I made the final decisions; it did make for a better book.)

Putting the burden on the journalist to convince a trial court he is "independent" turns the First Amendment on its head. It makes every trial judge a press critic.

The answer to this problem lies in a federal media shield statute. Press groups have tried for 35 years to persuade Congress to enact one. In that period, states have enacted shield laws -- 37 now have them, according the Reporters Committee for Freedom of the Press -- without seeing a collapse of their court systems. Texas is the most recent. That statute would cover Berlinger without any silly folderol about how he began work on the Crude story.

In the last Congress, the House passed a federal shield-law bill and the Senate Judiciary committee approved an amended version. But the Senate leadership could not find floor time for a debate and a vote.

Under the House version of the bill, Berlinger's outtakes would have qualified for the privilege; under the Senate version, they would not. That version provided protection only for information where sources had been promised anonymity. (Neither bill would provide blanket protection; they simply require courts to evaluate the burdens of disclosure.) Even the Senate bill would be preferable to a system where judges consult their own half-formed intuitions about who is a "real" reporter and who isn't.

Judge Leval muffed this one, and Congress should set him straight. If even Texas can get this right, it is a disgrace that congress cannot.

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Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore and lives in Washington, D.C. His new book is American Epic: Reading the U.S. Constitution.

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