Even as headlines and broadcast news are dominated by BP's
fire-ravaged, sunken offshore rig and the ruptured well gushing a reported
210,000 gallons of oil per day into the Gulf of Mexico, there's another
important story involving Big Oil and pollution -- one that shatters not only
the environment but the essential First Amendment right of journalists to tell
truth and shame the devil.
(Have you read, by the way, that after the surviving, dazed
and frightened workers were evacuated from that burning platform, they were met
by lawyers from the drilling giant Transocean with forms to sign stating they
had not been injured and had no firsthand knowledge of what had happened?! So
much for the corporate soul.)
But our story is about another petrochemical giant --
Chevron -- and a major threat to independent journalism. In New York last
Thursday, Federal Judge Lewis A. Kaplan ordered documentary producer and
director Joe Berlinger to turn over to Chevron more than 600 hours of raw
footage used to create a film titled CRUDE: THE REAL PRICE OF OIL.
Released last year, it's the story of how 30,000 Ecuadorians
rose up to challenge the pollution of their bodies, livestock, rivers and wells
from Texaco's drilling for oil there, a rainforest disaster that has been described
as the Amazon's Chernobyl. When Chevron acquired Texaco in 2001 and attempted
to dismiss claims that it was now responsible, the indigenous people and their
lawyers fought back in court.
Some of the issues and nuances of Berlinger's case are
admittedly complex, but they all boil down to this: Chevron is trying to avoid
responsibility and hopes to find in the unused footage -- material the
filmmaker did not utilize in the final version of his documentary -- evidence
helpful to the company in fending off potential damages of $27.3 billion.
This is a serious matter for reporters, filmmakers and
frankly, everyone else. Tough, investigative reporting without fear or favor --
already under siege by severe cutbacks and the shutdown of newspapers and other
media outlets -- is vital to the public awareness and understanding essential
to a democracy. As Michael Moore put it, "The chilling effect of this is,
[to] someone like me, if something like this is upheld, the next whistleblower
at the next corporation is going to think twice about showing me some documents
if that information has to be turned over to the corporation that they're
In an open letter on Joe Berlinger's behalf, signed by many
in the non-fiction film business (including the two of us), the Independent
Documentary Association described Chevron's case as a "fishing
expedition" and wrote that, "At the heart of journalism lies the
trust between the interviewer and his or her subject. Individuals who agree to
be interviewed by the news media are often putting themselves at great risk,
especially in the case of television news and documentary film where the
subject's identity and voice are presented in the final report.
"If witnesses sense that their entire interviews will
be scrutinized by attorneys and examined in courtrooms they will undoubtedly
speak less freely. This ruling surely will have a crippling effect on the work
of investigative journalists everywhere, should it stand."
Just so. With certain exceptions, the courts have considered
outtakes of a film to be the equivalent of a reporter's notebook, to be
shielded from the scrutiny of others. If we -- reporters, journalists,
filmmakers -- are required to turn research, transcripts and outtakes over to a
government or a corporation -- or to one party in a lawsuit -- the whole
integrity of the process of journalism is in jeopardy; no one will talk to us.
In his decision, Judge Kaplan wrote that, "Review of
Berlinger's outtakes will contribute to the goal of seeing not only that justice
is done, but that it appears to be done." He also quoted former Supreme
Court Justice Louis D. Brandeis' famous maxim that "sunlight is said to be
the best of disinfectants."
There is an irony to this, noted by Frank Smyth of the
Committee to Protect Journalists. Brandeis "made his famous sunlight
statement about the need to expose bankers and investors who controlled 'money
trusts' to stifle competition, and he later railed against not only powerful
corporations but the lawyers and other members of the bar who worked to
perpetuate their power."
In a 1905 speech before the Harvard Ethical Society,
Brandeis said, "Instead of holding a position of independence, between the
wealthy and the people, prepared to curb the excesses of either, able lawyers
have, to a large extent, allowed themselves to become adjuncts of great
corporations and have neglected the obligation to use their powers for the
protection of the people."
Now, more than a century later, Chevron, the third largest
corporation in America, according to FORBES magazine, has hauled out their
lawyers in a case that would undermine the right of journalists to protect the
people by telling them the truth. Joe Berlinger and his legal team have asked
Judge Kaplan to suspend his order pending an appeal to the United States Court
of Appeals for the Second Circuit.
As the Independent Documentary Association asserts,
"This case offers a clear and compelling argument for more vigorous
federal shield laws to protect journalists and their work, better federal laws
to protect confidential sources, and stronger standards to prevent entities
from piercing the journalists' privilege. We urge the higher courts to overturn
this ruling to help ensure the safety and protection of journalists and their
subjects, and to promote a free and vital press in our nation and around the
"Oscar Winners Back Filmmaker in Dispute With Chevron,"
Dave Itzkoff, THE NEW YORK TIMES, May 12, 2010.
Joe Berlinger and Third Eye Motion Picture Company in In re
Application of Chevron Corporation (lawyers for Mr. Berlinger)
Chevron: Ecuador lawsuit
Judge Kaplan's ruling (PDF)
Moyers is president of the Schumann Center for Media and Democracy. Michael
Winship is president of the Writers Guild of America, East. Rebecca Wharton
conducted original research for this article.