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Want to Protect Your Documentary from the Federal Government? Read On

On January 24, by unanimous vote, Congress did something good for documentary filmmakers. It passed the Protect Reporters from Exploitative State Spying Act (aka the PRESS Act). It’s a journalist-protection bill, but could easily have been called the Protect All Documentarians Act.

PRESS makes no mention of documentary filmmakers because they’re presumed: Federal courts uniformly include documentary filmmakers in their definitions of journalists. However, documentarians stand to be one of the bill’s biggest beneficiaries.

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The PRESS Act prohibits the federal government from compelling documentary filmmakers to turn over their outtakes except in limited circumstances such as preventing terrorism or imminent violence. This bill protects source-identity information along with records, contents of communication, or information obtained or made in the course of work.

Notably, this would prevent technology providers from spying on documentarians with express restrictions on using phone, email, or other telecommunications providers to access a journalist’s communications.

The House passage of this legislation, co-sponsored by 10 Democrats and 10 Republicans, is a sign of hope. However, before any of this can happen, the act must pass the Senate.

The Senate has yet to propose or introduce a version of the PRESS Act this year, but Sen. Ron Wyden (D-OR) introduced a version in 2023 co-sponsored by Sen. Judiciary Chair Richard J. Durbin (D-IL) and Sen. Lindsey Graham (R-SC). The Senate’s 2023 bill had the same language as the 2024 House bill, which suggests there won’t be significant markups. However, it remains to be seen how it might be impacted by lobbying and political pressures, or by certain members who want to remove provisions including broad language protecting who are “journalists” or the significant protections against the government.

The government seeking outtakes and source material from documentary filmmakers is not an abstract possibility. Our law office, Donaldson Callif Perez LLP, has twice weighed in on a pro bono basis by filing amicus briefs in support of filmmakers. We argued that the reporter’s privilege applied to filmmakers and would protect their outtakes and sources.

The first case concerned Ken and Sarah Burns’ 2012 documentary “Central Park Five” in which Sarah’s interviews and outtakes were sought by the City of New York as it fought a civil suit by the five men who were wrongfully convicted (and subsequently pardoned) of rape and murder in New York’s Central Park. Burns prevailed because of state laws concerning journalistic privilege.

Another matter involved Joe Berlinger’s 2009 “Crude” in connection with an Ecuadorian class-action lawsuit brought against Chevron over environmental contamination in the Amazon rainforest. Chevron obtained a subpoena for Berlinger’s outtakes and interviews because the company wanted to know what certain people had to say about its failure to abate certain waste products and related clean-up efforts. This case was a tough fight, but it illustrated the definition of a reporter, the extent of the reporter’s privilege, and the importance of the privilege to documentary filmmakers.

Any documentary that upsets a large corporation or someone in power is under threat of just such an action. The PRESS Act is helpful and broad in the protection it gives all documentarians as journalists.

To compel disclosure under the PRESS Act, the government must show significant evidence that there is a reasonable threat of imminent violence. However, even when records demands are allowed, notice provisions ensure that documentarians can go to court to challenge the legal demand (again, with limited exceptions).

Journalists currently have some protection via state shield laws, but these run the gamut from absolute privilege in Nevada — which provides that no filmmaker may be required to disclose any unpublished information or information regarding their sources — to Wyoming, which offers no protection.

In between are states that offer privilege except for certain circumstances. In California, the shield law must yield to a criminal defendant’s right to a fair trial. In Texas, a subpoena and evidence are necessary to produce materials. In Idaho, the courts rely upon the state’s Constitution to recognize a limited reporter’s privilege.

Journalists aren’t seeking special treatment. Among the established legal privileges that protect confidential communications from being introduced in court are those between a patient and psychologist, a client and lawyer, and between two spouses. The PRESS Act recognizes that many sources come forward at significant personal risk and that society benefits from such reporting.

The PRESS Act is in the legislative docket and it can provide much protection to documentary filmmakers. If the PRESS Act and its language can be adopted broadly, it would increase and clarify protections for documentary filmmakers.

Michael C. Donaldson is a partner in the law office Donaldson Callif Perez, which represents organizations like Film Independent, Women in Film and the International Documentary Association on many policy issues. On a pro bono basis, the firm currently works with the office of Sen. Wyden to gain support from documentary filmmakers for the PRESS act. To offer your support, text your name and company to (310) 801-7191 and you’ll be added to the list. Donaldson is also one of three recipients of the International Documentary Association’s Amicus Award, an honor that also belongs to Steven Spielberg and Discovery founder John Hendricks.

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