Outtakes from a controversial documentary about five men who are suing New York City claiming they were wrongfully imprisoned for the 1989 Central Park jogger attack are protected by the reporter’s qualified privilege under federal common law, a judge ruled yesterday.
Southern District Magistrate Judge Ronald Ellis rejected the attempt of the city of obtain outtakes from "The Central Park Five" in a $250 million civil rights lawsuit brought by the five men who claim that as teens they were railroaded into giving confessions implicating them in the brutal attack on jogger Patricia Meili.
The film—by Ken Burns, his daughter Sarah Burns and her husband David McMahon—asserts that the five men were coerced into giving confessions that sealed their fate at trial, and that overzealous police and prosecutors, while under pressure to solve a horrific crime, overlooked inconsistencies in the confessions and evidence.
It also posits that the arrest and prosecution of the five—Yousef Salaam, Korey Wise, Raymond Santana, Antron McCray and Kevin Richardson—occurred in a racially charged, high-crime environment that accelerated a rush to judgment.
In quashing the subpoena, Ellis said the filmmakers had made the requisite showing of journalistic independence needed to invoke the privilege.
The five were in Central Park on April 19, 1989, the night of the Meili attack, and were among a larger group of teens, some of whom were arrested for attacking joggers and walkers in the park in what was termed by some police and commentators as a "wilding."
The five claimed vindication when convicted rapist and murderer Matias Reyes came forward and said that he acted alone when he attacked Meili and left her for dead. District Attorney Robert Morgenthau dropped the case against them in 2002.
They filed suit in 2003 claiming malicious prosecution and civil rights violations in In re McCray, 03-cv-09685.
The city’s Law Department has spent the last nine years aggressively fighting the suit, claiming that police acted with probable cause to arrest and that prosecutors, including former sex crimes unit chief Linda Fairstein acted properly in obtaining the confessions, indictment and guilty verdicts (NYLJ, Nov. 23, 2012).
The Law Department served a subpoena on Burns’ company, Florentine Films, on Sept. 12, 2012, seeking the outtakes, especially of interviews with four of the plaintiffs. It claimed that the full interviews would shed light on the claim that the confessions were coerced. An amended, somewhat narrower subpoena was served in October, but it still sought outtakes of interviews with 18 people, including the plaintiffs, their experts and some witnesses.
Lawyers for Florentine Films, John Siegal and Peter Shapiro of Baker & Hostetler, moved to quash what they called a "sweeping" subpoena, and, in November, filed a memorandum that said the five had not even been deposed for the pending litigation and the city was embarking on a fishing expedition (NYLJ, Nov. 9, 2012).
They invoked the federal reporters’ common law privilege and New York’s Shield Law, N.Y. Civil Rights Law §79-(h).
The city countered by saying the privileges couldn’t be invoked because the film was not an exercise in journalism, but instead an advocacy piece in which the filmmakers sided with the plaintiffs.
In the city’s papers, Assistant Corporation Counsel Philip DePaul and Senior Counsel Elizabeth Daitz said any claim to objectivity in "The Central Park Five" was undercut by the fact that Sarah Burns had worked with one of the plaintiffs’ lawyer, Jonathan Moore, as an intern, and that Ken Burns had made public statements urging the city to settle with the plaintiffs.
But yesterday, Ellis said Florentine Films had "met its burden of demonstrating journalistic independence in the undertaking of the Film." He also said independence is not sacrificed because a reporter takes a position.
"An otherwise independent newsgathering process is not undermined solely because a publication reflects the journalist’s previously held point of view," he said. "A journalist seeking to invoke the privilege must also demonstrate that her intention at the time the information is gathered was for the purpose of disseminating the information to the public, not for different reasons."
Here, he said, Sarah Burns stated that the film was not solicited by the plaintiffs or their attorneys, that it was actually made over the objection of one plaintiff’s attorney, and that Florentine retained full editorial control.
And any statement made after the gathering of information, Ellis said, is "irrelevant for purposes of the reporter’s privilege."
Ellis went on to say that the city had failed to show that the information it was seeking "is of likely relevance to a significant issue in the case and not reasonably available from another source."
Ellis distinguished this case from Chevron v. Berlinger, 629 F.3d 297 (2011), where the U.S. Court of Appeals for the Second Circuit said filmmaker Joseph Berlinger had to turn over outtakes from his own film about environmental litigation in Ecuador because the film had been solicited by plaintiffs attorney Steven Donziger and Donziger exercised some editorial control over the final product.
Siegal called Ellis’ ruling "a marvelous decision for the media industry." The magistrate judge, he added, "faithfully followed the circuit’s decision in the Berlinger case and limited that case to its perhaps unique circumstances."
Siegal added that Ellis declined to examine New York’s shield law, saying only that it is consistent with the federal common law.
"He was articulating and protecting New York’s robust tradition of protection for journalistic freedom," Siegal said.
In a statement, Celeste Koeleveld, executive assistant corporation counsel, said, "While journalistic privilege under the law is very important, we firmly believe it did not apply here. This film is a one-sided advocacy piece that depicts the plaintiffs’ version of events as undisputed fact. It is our view that we should be able to view the complete interviews, not just those portions that the filmmakers chose to include."
@|Mark Hamblett can be contacted at firstname.lastname@example.org.