By Christopher B. Daly
Thanks to documentary film-maker Ken Burns, a federal magistrate has struck a blow for press freedom that strengthens the legal protections for documentary film-makers, journalists, all sorts of people who prepare non-fiction for audiences, and — not least — those audiences themselves. In this case, everyone wins except the government lawyers who wanted to rummage through Burns’ outtakes from a controversial film.
Briefly, the case involves a 2012 film made by Burns and his daughter, Sarah Burns. The film, titled “The Central Park Five,” tells the true story of 
a notorious 1989 rape that occurred in New York’s Central Park. It tells of the fateful rush to judgment by law enforcement officials and the railroading of five young African-American men who were sentenced to long jail terms, even though they were innocent of the crime. Eventually, the men sued the city of New York.
Then, the city’s lawyers, presumably seeking some exculpatory material, decided to go fishing in the Burnses’ raw footage. They probably hoped to get lucky and find something that would let the city off the hook or at least muddy the waters. The city’s lawyers demanded access to the Burnses’ notes and outtakes. Right there, they should have known better. What could be more chilling to the practice of journalism (or documentary film-making, or history, for that matter) than having government lawyers picking through the material that doesn’t meet the standard of truth and accuracy. (I know that I have cartons full of notes of material that never saw the light of day because I considered that stuff wrong, unfair, or simply incomprehensible.)
To his credit, Ken Burns resisted that demand and hired lawyers of his own. This week, Magistrate Judge Ronald L. Ellis of United States District Court in Manhattan threw out the government lawyers’ request.
[Before any journalists reading this get too smug, “The Central Park Five” is also a cautionary tale about the news media’s own rush to judgment in the case, which was just as grotesque as that of law enforcement — indeed it may have been a driver of the ultimate injustice.]
So, congrats to Ken and Sarah Burns for standing up for freedom. In the rape case, it turns out the authorities had the wrong guys. In the subpoena for outtakes, it also turns out the authorities had the wrong guys.
From today’s New York Times:
Judge Ellis also ruled that the city failed to meet the requirements for subpoenas to journalists for nonconfidential material: that the material would be significant and relevant to its case and was unavailable elsewhere. He said pretrial depositions would give the city’s lawyers ample opportunity to question the five men.
“It’s a marvelous decision for documentary filmmakers and point-of-view journalists,” Mr. Burns’s lawyer, John Siegal, said. “And it’s an important victory for the media industry generally.”
Prof Chris Daly's Blog 