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Judge blocks “Central Park Five” footage subpoena

by Kevin Ritchie 

Documentarian Ken Burns has won a court battle to prevent outtakes and notes from his film The Central Park Five (pictured) being subpoenaed for a lawsuit between New York City and the five men wrongfully convicted in the 1989 Central Park jogger rape case.

The film, which was directed by Burns with his daughter Sarah Burns and her husband David McMahon, includes interviews with the five men who were initially accused and jailed, and later exonerated after another man confessed and provided a DNA sample.

The men have since filed a US$50 million lawsuit against city officials over their handling of the now-infamous case. Last fall, attorneys for the city issued subpoenas against Burns’ production company Florentine Films in a bid to obtain material that might bolster their defense.

The filmmakers countered that the request violated journalistic privilege and would have a chilling effect on similar reporting. The city argued Burns lost the protection of journalistic privilege when he publicly advocated on behalf of the film’s subjects.

On Tuesday (February 19), New York Federal District Court magistrate judge Ronald L. Ellis granted Burns’ motion to quash the subpoena on grounds of journalistic privilege, and because the defendants failed to show that “the information they seek pertains to a significant issue and is unavailable from alternative sources.”

“In sum, [the city has] failed to present this court with ‘a concern so compelling as to override the precious rights of freedom of speech and the press’ the reporter’s privilege seeks to ensure,” Ellis wrote in a 15-page ruling.

The indie film community, including the International Documentary Association, NAMAC and Film Independent, as well as several individual filmmakers, rallied behind Florentine by filing a brief prepared by lawyers Michael C. Donaldson and Andrew Cielli.

“Documentary filmmakers gather and disseminate information about significant social and political issues. Through their films, they uncover new information, advocate action, and initiate public debate where none had previously existed,” Donaldson wrote.

“Preservation of the journalistic privilege for documentary filmmakers in spite of how they initially find out about a story and in spite of how passionately they advocate for their subjects is essential to documentarians being able to work effectively.”

The Central Park Five played in North American cinemas last year and will air on PBS in April.

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