Filmmaker Ken Burns is locked in a legal battle with the City of New York over his first Amendment rights to keep footage and research from his documentary film, The Central Park Five. The film chronicles the story of five men imprisoned for a 1989 rape of a jogger in Central Park. All five were later set free when another man confessed to the crime, but the five are now pursuing a $50 million lawsuit against the city. Burns is using the reporter’s privilege and the New York Shield Law in the case.
In its defense of the suit, the city’s law department is seeking to subpoena research and footage from the Central Park Five documentary, arguing that it will support its case that police were acting on the best information available. Meanwhile, Ken Burns and attorneys for his production company, Florentine Films, have vowed to fight the subpoena, citing New York’s shield law.
“As you can imagine, we strongly believe in the media’s right to investigate and report on these and other issues and that this process, including the reporting notes and outtakes, come under the New York reporters’ shield law,” the filmmakers say. “The government has an exacting burden before it can obtain these and other materials.”
New York’s shield law (N.Y. Civil Rights Law, Art. 7, Section 79-h) codifies the reporter’s privilege grounded in the First Amendment. It protects professional journalists from being forced to disclose confidential sources or materials obtained in the course of news gathering for public dissemination. The statute defines a professional journalist as one who is engaged in “….gathering, preparing, collecting, writing, editing, filming, taping or photographing of news intended for a newspaper, magazine, news agency, press association or wire service or other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public…”
Burns argues that the statute clearly applies to their work on the documentary. Meanwhile, the city argues that the filmmakers crossed the line from reporting to advocacy, noting that Burns’ daughter, who collaborated on the film, worked for a law firm representing the men. Burns himself wrote a letter to Mayor Bloomberg, calling on him to settle the case. “Mr. Burns and his daughter have publicly sided with the plaintiffs and their families, who are seeking hundreds of millions from New York City,” said city attorney Celeste Koeleveld, “The movie has crossed from documentary to pure advocacy.”
The two sides also disagree over whether the city has satisfied its burden of proof. In cases where news was not obtained or received in confidence, the statute requires the party seeking to compel disclosure to make a clear and specific showing that the news: (i) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party’s claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternative source.
In its motion to quash the subpoenas, Florentine Films argued that the city’s subpoena is merely a fishing expedition.
“Thus far, the city’s rationale for the subpoena has amounted to nothing more than hope and speculation that the outtakes make contain material useful to defendants. They have not limited the subpoena to any specific issue of likely relevance in this case. They have not made any showing that they have sought alternative sources of the information, for instance by deposing the plaintiffs first. And, they have not appropriately narrowed the outtakes they seek; they are requesting all recordings of everyone interviewed for the film who has any direct knowledge of the Central Park criminal case or this civil litigation,” the motion argues.
At this point, neither side shows signs of backing down. Therefore, we will likely have to wait for the court to weigh in.