Just a few days prior to that last ruling, though, a judge in a different jurisdiction ordered filmmakers from the BBC to hand over their unaired footage from a 10-year-old documentary about Yasser Arafat. The family of a woman who was killed in Israel is suing the Palestinian Authority and Palestine Liberation Organization under the Anti-Terrorism Act, and they say the footage from the 2003 film can help them link their daughter’s killers to these organizations. Lawyers for the BBC argued that the footage the plaintiffs sought was not at the heart of their case, nor was it entirely crucial to it—two factors that typically weigh heavily on deliberations about whether subpoenas of this type would be upheld or thrown out.

“If you’ve got the only interview with a murder suspect, the court is probably going to say that that can’t be obtained any other way,” says Leslie, by way of example. “But if it was something that you videotaped while police officers were sitting there, then they, as witnesses, would be a better source of the evidence, so the court in that case would say that it didn’t have to go to the journalist [for the information].”

In the BBC case,, Judge Paul L. Friedman wrote in his opinion that the demands of reporter’s privilege had not been met. Leslie notes that this case was argued in a district not particularly known for its recognition of reporter’s privilege in general. (The BBC wrote, in an emailed statement about the case, that it “has filed a motion for reconsideration and, in the alternative, has applied to the court to certify its ruling for immediate appeal.”)

In both the BBC case and the Chevron case, the judges ruled that the confidentiality of the films’ subjects were not at issue, thus raising the bar for the filmmakers to claim reporter’s privilege. The confidentiality piece of the privilege is a difficult one to prove when it comes to film, of course. If subjects willingly appear on camera and have no say over what gets included in the final broadcast, it is hard to show that those subjects expected to be protected.

Just as every journalist has to protect her sources, she also has to protect herself. For instance, to try to get a subject comfortable with speaking on film, a filmmaker might want to say something like “say anything you want, and we’ll edit it later if you change your mind.” But that gets into dangerous territory, says Gregg Leslie. (See the Chevron film example above as case in point.) While filmmakers should allow input from their sources, Leslie says, they have to establish and maintain editorial control—and ideally, to do it in writing.

“It’s often an uncomfortable conversation to have with a source at the start of a project, because it can make it look like there’s a lot of legalistic reasoning going on behind the scenes,” says Leslie, “but it really is kind of essential to make sure that things go well in the end.”

Documentary filmmakers can’t control whether or when or how or where their footage may be subpoenaed, of course, but they can take steps toward strengthening any future claims they may have to make of reporter’s privilege. Leslie says that accepting money from a source, or allowing a source to pay for production is a pretty quick way to lose your reporter’s privilege in the eyes of a court, says Leslie. So is inviting editing input from a source—or even appearing to do so—which is why he encourages filmmakers to get as much in this area in writing as possible.

Editorial and journalistic independence doesn’t mean the end of advocacy, however. Filmmakers can still have a viewpoint, says Policinski; they just have to stay in charge of their projects and stay ethical.

“We’re not required by the First Amendment to be opinionless, vapid souls,” Policinski says. “We can defend the helpless, or stand up for the abused, and we may share a great deal of the views and values of the subjects on which the documentary is based. But it comes down to the really pragmatic aspect of who makes the final decision about the content.”

If you'd like to get email from CJR writers and editors, add your email address to our newsletter roll and we'll be in touch.

 

Lauren Kirchner is a freelance writer covering digital security for CJR. Find her on Twitter at @lkirchner