Stormy Daniels in Stormy. Courtesy of Peacock
On January 24, by unanimous vote, documentary filmmakers got a big boost from Congress. The House of Representatives passed the Protect Reporters from Exploitative State Spying Act (aka the PRESS Act). It’s a journalist-protection bill that could easily have been called the Protect All Documentarians Act. Although the PRESS Act makes no specific mention of documentary filmmakers, federal courts uniformly include documentary filmmakers in their definitions of journalists. In fact, documentarians stand to be one of the bill’s biggest beneficiaries.
The government seeking outtakes and source material from documentary filmmakers is not an abstract possibility. It happens more often than you would think. Take the case of the 2012 documentary The Central Park Five by Ken Burns, David McMahon, and Sarah Burns. Their documentary laid out the case clearly and convincingly that the five young Black men who were convicted of a rape that took place in 1989 in New York City’s Central Park were in fact innocent. The documentary also suggested that the case was prosecutorially flawed. Twelve years after the rape was committed, another man by the name of Matias Reyes confessed to the crime, revealing details that were not publicly known and adding a few details that he knew but the police did not know. Because the statute of limitations had passed, Reyes was not tried for that crime, but he is still serving a sentence of 33.5 years to life for other crimes (including rape and murder) that he committed in 1989.
The Central Park Five’s convictions were vacated with the support of the Manhattan DA. They sued NYC for their wrongful conviction. The corporation counsel of New York, who was defending the city in the civil case, filed a broad subpoena, asking for all the footage shot in connection with The Central Park Five plus all the filmmakers’ notes and any other paperwork. She wanted everything. Sarah Burns was shocked when the filmmakers were served and was torn. She certainly did not want to turn over all those materials but also felt that the filmmaking team had nothing to hide. However, during the course of the day, she came to realize that the question was bigger than whether they should turn over all the requested material. Whether such a subpoena was permissible was a matter of concern to all documentary filmmakers.
John Siegal of Baker Hostetler stepped forward to file and argue a motion in court to quash the subpoena, meaning to declare the subpoena invalid. Our firm, on a pro bono basis, supplied an amicus brief to the court supporting the filmmakers. In a very carefully reasoned decision, the court agreed that the subpoena should be quashed. Good news, but it took just over a year before the court issued its final decision. Nothing you ever want to get caught up in. Ken, David, and Sarah prevailed because of New York state laws concerning journalistic privilege. During the same general time period, Joe Berlinger fought a similar subpoena from Chevron because his film Crude (2009) questioned Chevron’s environmental practices in the Amazon rainforest.
And it just doesn’t stop. As recently as April of this year, NBC fought a subpoena from Donald Trump’s lawyers seeking all material linked to the TV network’s documentary Stormy (2024). Trump’s lawyers unsuccessfully demanded all material related to the documentary about adult film star Stormy Daniels, who had received a payoff from Trump. They wanted the material as part of the former president’s defense in his hush-money criminal trial. The judge called the subpoena a “fishing expedition” and said Trump’s lawyers wanted to “rifle through the privileged documents of a news organization.”
Any documentary that upsets a large corporation or someone in power is under threat of this type of action. The PRESS Act is helpful and broad in the protection it gives all documentarians as journalists. It 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 even protects not only the sources but also the records, contents of communication, and any other information obtained or made in the course of work. Outtakes contain a trove of information which may not be needed in the film but could be seen as valuable to the government.
Notably, it would also prevent technology providers from assisting in spy efforts with express restrictions on using phone, email, or other telecommunications providers. These communications are as important to protect as outtakes.
Even when records demands are allowed in cases of imminent violence, notice provisions ensure that documentarians can go to court to challenge the legal demand (again, with limited exceptions). The protections provided by state laws don’t reach this far.
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 on the state’s constitution to recognize a limited reporter’s privilege.
The January 2024 House passage of this legislation, co-sponsored by 10 Democrats and 10 Republicans, is a sign of hope. However, before any of these protections can happen, the act must pass the Senate.
At the time of this writing, there was not a final Senate version of the PRESS Act, 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. Hopefully, that means there won’t be significant changes offered by the Senate. However, lobbying and political pressures could have an impact. Also, certain senators want to remove broad language defining who is a “journalist” and their significant protections against the government.
Journalists aren’t seeking special treatment. Among the established legal privileges that protect confidential communications from being introduced in court are those between a doctor and patient, 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 continues to languish in the legislative docket. If the PRESS Act and its language can be adopted broadly, it would increase and clarify protections for documentary filmmakers. So why is it stuck in committee? Good question, given the broad support in the House. Unfortunately, no senator involved seems willing to give a coherent answer to any question about the delays.
Our firm is preparing a letter to all the members of the Senate who are involved in the PRESS Act either as sponsors or because they sit on the Judiciary Committee overseeing the bill. The letter will be on behalf of the IDA, Film Independent, and Women in Film Los Angeles. If you would like your name added as a filmmaker or production company, just send us an email at mdonaldson@dcp.law.
Michael C. Donaldson is a Los Angeles–based entertainment lawyer and past president of IDA with more than 50 years of experience in copyright and entertainment issues. He has been called the Obi-Wan Kenobi of fair use by the American Bar Association Journal.