A few days after Donald Trump was elected president, a respected documentary film director met with a roomful of potential backers and distributors in New York City. The director was making a film about questionable contributions to Republican political campaigns, a hot topic given the election. The men and women in the room were riveted by the stirring trailer that captured the drama and enthused over the unusually close access to the subjects. The cinematography was terrific. One-by-one, they pledged money for production and to get word out to festivals. The filmmaker was thrilled, but also was looking for a bigger commitment.
“We’re seeking lawyers,” the filmmaker said. “Pro bono legal resources. We think we might encounter opposition.”
Those present asked that specifics about the meeting, and the film, be withheld to keep potential litigants from catching wind of the project. These concerns are not paranoia. Just the threat of a lawsuit, no matter how baseless, can tie a film up in court and deplete its maker’s savings. And it’s a silencing tactic that deep-pocketed political and corporate interests are wielding with greater frequency.
Some of the hardest-hitting documentaries in recent years have been forced to delay release or cough up hefty fees for attorneys, among them Bananas!, a 2009 documentary about Nicaraguan plantation workers for Dole Food Co. who were sickened by a pesticide banned in the US; Citizenfour, which followed Edward Snowden as he began to leak documents about US surveillance programs; and Crude, which dealt with a multi-billion-dollar lawsuit against Chevron Corp. that claimed the oil giant despoiled the Amazonian jungle in Ecuador.
Many in the documentary film world expect further assaults on free speech in the current divisive political climate. With a president-elect who has threatened to loosen libel laws and sue over reporting he doesn’t like, indie filmmakers are steeling themselves for open season.
“We have a deep concern that documentary filmmakers will face increasing legal challenges,” says Joaquin Alvarado, the chief strategy officer of the Center for Investigative Journalism “If any one of us wanted to flip to the dark side, we could shut down documentary projects. I think that powerful forces will increasingly turn their attention to that.”
Chi-Hui Yang of the Ford Foundation worries the Trump Administration might pull funding from public broadcasting, the main benefactor of documentaries. “What are the protections that we will have for our films and our subjects?” asks Yang, program officer of the foundation’s Justfilms, which supports social justice storytelling. “Then there’s the future of public media. What will the new administration do? We don’t know.”
Documentary filmmakers tend gravitate towards topics like whistleblowers and corruption, which make them vulnerable to legal action. They are more exposed than reporters, because they typically lack affiliation with large media organizations and their legal teams. They don’t have unions, and they generally work alone, relying on savings and small grants until a film is finished. In the past, filmmakers entered into a partnership with broadcasters at the start of production, but now they are generally out on a financial limb until the film is done, a model that affords no protection.
Pro bono counsel is rare, and only a few documentarians, such as Academy Award winners Laura Poitras, Alex Gibney, and Davis Guggenheim, can afford to have attorneys standing by from the start. Even when filmmakers slide through production without litigation, distributors might still demand cuts or even drop the project if they feel the topic is too risky, or they come under pressure.
Such was the case for Tia Lessin, a long-time producer for Michael Moore and an Academy Award-nominated director. Her first film, Behind the Labels, exposed the trafficking of garment workers to the Pacific island of Saipan, the only US territory that is exempt from labor and immigration laws. She included a sequence from a commercial by Gap, one of the companies whose clothing was made by those workers and shipped duty free to the US. The legal counsel for Oxygen, the broadcaster, told her to cut it. She couldn’t afford not to. “I didn’t have the resources. It could have been the poster child for fair use. But they were afraid of being sued.”
Then there was Citizen Koch, about the billionaire Koch brothers and the influence of money in politics in Wisconsin. Lessin and her partner, Carl Deal, were commissioned to make the film by the Independent Television Service, which funds and presents documentaries on public television. But the Public Broadcasting Service pulled the film before it aired and withheld $150,000 in promised funding. According to an investigative story in the The New Yorker, David Koch, a board member of the public television stations WNET and WGBH, had previously pledged a multi-million dollar donation to WNET. The group that commissioned the documentary didn’t want to jeopardize its relationship with the PBS flagship station.
Six months after the article ran, Lessin and Deal raised $175,000 on Kickstarter. They got the film on Netflix. But they burned a year self-distributing the film. “It’s pretty taxing on a filmmaker,” Lessin concludes. “A PBS executive told us in no uncertain terms why they were dropping their support: ‘We live in a world where we have to be aware that people with power have power.’”
Attempts by subjects of tough filmmaking—whether they’re shown on camera or merely named in the films—to stall projects in court has driven up premiums for liability insurance, says Brenda Coughlin. (She was an independent producer of Citizenfour, the Edward Snowden documentary, which was threatened with a civil lawsuit by a Kansas man who alleged that those making the movie violated federal law by profiting off the disclosure of state secrets. The court dismissed the case.) Errors and Omissions insurance policies can protect an individual from bearing the full cost of defending a legal claim. Usually one makes a film and sends it to an insurer, who will charge more if it’s seen as risky. The premium can range from $3,000 at the low end to $50,000 for something more problematic.
Documentaries can take years to make, during which time they can change conceptually. Insurers want to know just what they are insuring, which is often hard to determine until a film is in editing or close to completion. And yet, some filmmakers are still editing right up to their premieres at festivals. At that point, an insurer might balk against paying up in case of a lawsuit.
Documentarians should contact a lawyer from the beginning—especially now, says Thomas Burke, who specializes in media law as a partner with David Wright Tremaine in San Francisco. “Post-election, the country’s more and more polarized, and I’m expecting that there are likely to be more threats to speech,” he says. “People are intimidated when they receive a demand letter. Filmmakers need to understand and be ready to assert their legal protections if they face legal threats.”
The good news is the First Amendment protects advocacy, he says. While there may be more libel threats, protections for speech based on Supreme Court precedent will remain strong. However, the mere threat of legal action can be a powerful deterrent.
Lawsuits that seek to punish people for speaking out can often be defended with the help of anti-SLAPP (Strategic Lawsuits Against Public Participation) statutes. Twenty-nine states have such legislation on the books, although they vary greatly in scope and specifics. California has among the strongest protections that can see the quick dismissal of a meritless lawsuit and the recovery of attorneys’ fees. It has the most appellate court opinions (several hundred) interpreting its provisions. Guam, the District of Columbia, and 11 states have strong statutes modeled on features or interpretations of California’s: Arizona, Georgia, Illinois, Indiana, Louisiana, Maine, Nevada, Oregon, Pennsylvania, Texas, and Vermont. Other states’ shield statutes are weak, including New York, home to many filmmakers.
Anti-SLAPP legislation in California helped the producers and filmmaker of Bananas! beat back a challenge from Dole, which claimed pesticides it used on Nicaraguan banana fields did not cause sterility in its workers. Dole sued, claiming that the film was defamatory and false. In November 2010, a Los Angeles Superior Court granted an anti-SLAPP motion, dismissed Dole’s lawsuit with prejudice (meaning it could not refile it) and ordered the firm to pay attorneys fees and costs in the amount of $200,000.
Despite shield laws in New York, filmmakers still have to prove they are independent or their footage should remain privileged. In 2010 a federal judge in New York ordered Joe Berlinger to turn over all 600 hours of footage he shot for Crude, the documentary that followed a multibillion-dollar class-action lawsuit filed in Ecuador against Chevron. The amount of footage demanded was later reduced, but the move was akin to ordering a reporter to hand over a notebook.
Benefiting from this knowledge, Florentine Films, maker of the Ken Burns film Central Park Five, about teenagers who were wrongfully convicted of raping a woman and went to prison, in 2013 fended off a subpoena by New York City for raw footage that could affect lawsuits pending, which its subjects had brought against the city. The filmmakers cited state shield laws designed to protect journalists from compromising sources.
Lawsuits not only sap resources and time but also can change content itself. To enable release of their films, directors have succumbed to pressure to cut scenes or include disclaimers, anathema for an art form that, unlike traditional journalism, does not feel obliged to provide more than one point of view. The film world shuddered when the British oil company SOCO International intimidated the makers of Virunga into issuing a disclaimer with their film. The movie features park rangers in the Democratic Republic of Congo who defend mountain gorillas amidst poachers, corruption—and oil exploration. SOCO’s lawyers insisted that director Orlando von Einsiedel read a statement at the Tribeca Film Festival that denied anyone working for the company had engaged in the illegal activity depicted. That disclaimer was also incorporated into the film, where it remains today.
At least he showed his opus in its entirety. The makers of The Opposition were told by a court that they could not use footage of one subject, Papua New Guinean politician Dame Carol Kidu, who filed for breach of contract. The film tells the story of residents of a poor settlement that battle against eviction to make way for a luxury hotel development in Port Moresby. The injunction came just weeks before the film’s world premiere at the Hot Docs Festival in Toronto, forcing the filmmakers to heavily redact it at the last minute. The injunction was dismissed a few months later, and the full film was only released last month, after costing the makers time and income.
The industry’s response to these growing assaults is scattershot, without a central repository of information about lawyers. The election of Trump has accelerated discussions about more accessible legal resources for the community. On the sidelines of major film events in November in New York and Amsterdam, movers and shakers from the industry met to discuss collective action. As of publication, they were still working it out.
“Our community is powerful but informal,” says Tabitha Jackson, director of the documentary film program at the Sundance Institute. “We need to create structures.”