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Should a journalist's privilege to protect sources extend to filmmakers?




Army Sgt. Bowe Bergdahl was interviewed by screenwriter Mark Boal, who is trying to fend off an effort by the U.S. government to access all of Boal's tapes prior to Bergdahl's trial on desertion charges.
Army Sgt. Bowe Bergdahl was interviewed by screenwriter Mark Boal, who is trying to fend off an effort by the U.S. government to access all of Boal's tapes prior to Bergdahl's trial on desertion charges.
Sara D. Davis/Getty Images

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Last month, screenwriter Mark Boal sued the United States government over a threatened military court subpoena of about 25 hours of recorded interviews he conducted with U.S. Army Sgt. Bowe Bergdahl, who is scheduled to be tried for desertion in February. Some of the interviews were used on the popular podcast, “Serial.”

Last Friday, 36 media companies — including CNN, The Washington Post and National Public Radio — asked permission to file a friend-of-the-court amicus brief on Boal’s behalf, urging broader recognition of journalistic source material being protected from disclosure and government intervention.

Boal, who wrote "The Hurt Locker” and “Zero Dark Thirty," is also using the interviews as the basis for a screenplay he is writing about the Bergdahl episode. His pre-emptive action against the government is raising the question of whether a filmmaker should be given the same protections as journalists.

Several years ago, award-winning documentary filmmaker Joe Berlinger faced a battle over his 2009 documentary, “Crude,” a behind-the-scenes look at class-action lawsuit plaintiffs in Ecuador who claim that Chevron-owned Texaco contaminated local waters. The director behind 2004’s “Metallica: Some Kind of Monster” and the new Netflix movie, “Tony Robbins: I Am Not Your Guru,” was sued by Chevron, and ordered to surrender 600 hours of interview outtakes from “Crude." Media outlets also filed a friend-of-the-court brief in support of Berlinger, to no avail.

Berlinger said the his “Crude" documentary cost $1.2 million to make, but his legal battle cost $1.3 million.

"The documentary business is not the most profitable end of the entertainment business," Berlinger told The Frame’s John Horn. "So that’s beyond real money to have to deal with.”

Similarly, Dole sued Swedish filmmaker Fredrik Gertten over his 2009 documentary, “Bananas!” The film details the produce company’s alleged misuse of a pesticide in Nicaragua.    

Berlinger lost his legal battle with Chevron, appealed, then lost again, setting a precedent with “tremendous chilling effect,” he said, for “filmmakers being afraid to take on tough stories because of the costs of defending yourself against these kinds of invasions into the journalist’s privilege, and an effect upon whistleblowers.”

Berlinger fortunately was aided financially by music bigwigs Sting and Metallica during his legal fight, and entertainment notables such as Robert Redford and Norman Lear rallied around him as well, he said.

Honoring source confidentiality is key for documentary filmmakers to maintain trustworthiness and access, Berlinger added. Boal’s case, like his, hinges upon the idea of expanding what a journalist is so that filmmakers and screenwriters are also protected under reporters' privilege.

“Since my Chevron lawsuit," said Berlinger, "I’ve had dozens of phone calls from young filmmakers who are afraid to proceed with their stories, concerned about what it means to be sued, how to protect themselves."



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