Joe Berlinger's back is against the wall. Last week the independent filmmaker, already facing crushing debt from legal bills, was dealt a major blow in his continuing fight against the third-largest company in America: Chevron.
It's a battle that epitomizes the hardship individuals face trying to challenge corporate giants that punch back with a knockout force of high-powered lawyers and unlimited cash.
What's more, Berlinger's struggle continues to raise serious First Amendment issues and – as we approach the first anniversary of the Supreme Court's Citizens United decision – throws yet another spotlight on the increasingly pro-business stance of the nation's legal system.
It was this past May when my friend and colleague Bill Moyers and I first wrote about Berlinger's documentary “Crude” and its legal troubles. The film tells the story of how Ecuadorians challenged the pollution of rivers and wells from Texaco's drilling in the Lago Agrio oil field, a rainforest disaster savagely damaging the environment and the local population's health that's been described as the Amazon's Chernobyl. When the petrochemical behemoth Chevron acquired Texaco in 2001 and attempted to dismiss claims that it was now responsible, the indigenous people and their lawyers fought back in court.
In May, federal judge Lewis A. Kaplan ordered Berlinger to turn over to Chevron more than 600 hours of raw footage used to create the film. On appeal, the United States Court of Appeals for the Second Circuit limited the amount of footage to be turned over (although it still amounts to more than 500 hours) but ordered Berlinger to submit to depositions.
Now, on January 13, that same court ruled, as reported in The New York Times, that Berlinger “could not invoke a journalist's privilege in refusing to turn over that footage because his work on the film did not constitute an act of independent reporting,” and that the argument “that he was protected as a journalist from being compelled to share his reporting materials was not persuasive.” As evidence, the court said that the film “was solicited by the plaintiffs in the Lago Agrio litigation for the purpose of telling their story, and changes to the film were made at their instance.”
Berlinger responded, “While the idea for ‘Crude' was pitched to me by Steven Donziger, one of the Lago Agrio plaintiffs' lawyers, this was not a commissioned film. I had complete editorial independence, as did 60 Minutes and Vanity Fair, who also produced stories on this case that were solicited by Mr. Donziger. The decision to modify one scene in the film based on comments from the plaintiffs' lawyers after viewing the film at the Sundance Film Festival was exclusively my own and in no way diminishes the independence of this production from its subjects. I rejected many other suggested changes and my documentary ‘Crude' has been widely praised for its balance in the presentation of Chevron's point of view as well as the plaintiffs'.”
Were mistakes made, errors in judgment? Perhaps. But the court's ruling fails to fully understand the nature of news and documentary reporting and will have a chilling effect on journalists who constantly receive information and suggestions from sources representing a variety of interests and points of view. It's the professional journalist's job to sort through them on the way to determining the truth. As Moyers and I wrote in May, “This is a serious matter for reporters, filmmakers and frankly, everyone else. Tough, investigative reporting without fear or favor – already under siege by severe cutbacks and the shutdown of newspapers and other media outlets – is vital to the public awareness and understanding essential to a democracy.”
Just as dismaying about this latest ruling is the endless sinking feeling that the courts more than ever are stacked against the individual seeking redress against big business. In the 39 states where judges are elected, corporate cash has poured into judicial races – contributions have more than doubled in recent years, prompting Sandra Day O'Connor to say, “No state can possibly benefit from having that much money injected into a political campaign.” And in the federal courts, well, suppose Berlinger's case were to make it all the way to the Supreme Court. A recent Fortune magazine cover proclaimed it “the most pro-business court we have ever seen,” and, as the Times more understatedly noted last month, “It is clear … that the Supreme Court these days is increasingly focused on business issues.”
In case you missed the Times story over the holidays, it was headlined “Justices Offer Receptive Ear to Business Interests.” Scholars at Northwestern University and the University of Chicago prepared a report analyzing nearly 1,500 Supreme Court decisions across almost six decades. It found that, “The Roberts court, which has completed five terms, ruled for business interests 61 percent of the time, compared with 46 percent in the last five years of the court led by Chief Justice William H. Rehnquist, who died in 2005, and 42 percent by all courts since 1953.”
According to the Times' Adam Liptak:
"The Roberts court's engagement with business issues has risen along with the emergence of a breed of lawyers specializing in Supreme Court advocacy, many of them veterans of the United States solicitor general's office, which represents the federal government in the court. These specialists have been extraordinarily successful, both in persuading the court to hear business cases and to rule in favor of their clients.
"Many of these lawyers work for or with the US Chamber of Commerce and its National Chamber Litigation Center, which calls itself “the voice of business in the courts on issues of national concern to the business community.”
The Times reported:
"The chamber now files briefs in most major business cases. The side it supported in the last term won 13 of 16 cases. Six of those were decided with a majority vote of five justices, and five of those decisions favored the chamber's side. One of them was Citizens United, in which the chamber successfully urged the court to guarantee what it called “free corporate speech” by lifting restrictions on campaign spending. "
The court's independence – and historic skepticism about the needs of corporate America – are relics of the past. Here's what was in a 2007 edition of BusinessWeek magazine:
"Robin S. Conrad, head of the Chamber of Commerce's litigation arm, notes that the judicial branch offers an alternative forum where business can seek changes it has failed to win from other branches of government. In the 1990s, the chamber and other business groups made this a vital part of their tort reform strategy on a state level, pouring money into local judicial campaigns to reshape state supreme courts and, ultimately, state laws. Now with a US Supreme Court that's not allergic to business cases, the approach is playing out on a national level…. "
It was President Calvin Coolidge who in 1925 famously declared, “The chief business of the American people is business,” a sentiment this Supreme Court and much of the American judicial system would stoutly embrace. But ironically – especially for journalists and filmmakers like Berlinger – he made the remark in a speech to the American Society of Newspaper Editors. Its title: “The Press Under a Free Government.”
Truth and freedom, Coolidge said, “are inseparable.” There is “no justification for interfering with the freedom of the press, because all freedom, though it may sometime tend toward excesses, bears within it those remedies which will finally effect a cure for its own disorders.”
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