NYPD Rebuffed: Journalists In 'Central Park Five' Documentary Are Protected From City Lawyers' Subpoena For Video Outtakes

On February 19th, U.S. Magistrate Judge Ronald L. Ellis issued an Opinion and Order in one of the biggest New York civil rights cases in recent memory. The case relates to the so-called Central Park Five, five juvenile males who were convicted of raping a female jogger in Central Park in April 1989. All five confessed after being held by the police for more than twenty-four hours, but each recanted soon after and claimed he had been browbeaten and intimidated into confessing after several hours of police interrogation. All five were convicted after a trial that received massive media attention and came to symbolize racial tensions in New York City at the time. Several years later, in 2002, a convicted rapist who had not been connected to the Central Park Jogger case confessed to the crime and was matched to the scene by DNA evidence, after which the convictions of the Five were overturned. The Five were all released from prison shortly thereafter.

After getting out of jail, the Five filed civil rights lawsuits against New York City, the NYPD, and the Manhattan District Attorney’s Office that have wound their way through the federal court system for the last decade. The most recent twist in this legal saga involves a Ken Burns documentary about the case entitled Central Park Five.

As they prepared their case, attorneys for the City, NYPD, and DA’s Office attempted to obtain through a subpoena video outtakes from the making of the documentary in which the original suspects and some of their attorneys discussed the 1989 criminal case. Florentine Films, the company that released the documentary, argued in court that, under laws protecting journalists from subpoenas, it was not required to turn over the outtakes.

In his decision, Judge Ellis considered whether federal law intended to maintain journalistic independence from the government in fact shields Florentine Films from the subpoena. The law’s more technical requirements are less interesting than the more abstract determination Judge Ellis had to make: whether Central Park Five is an act of independent journalism, or an advocacy piece on behalf of the plaintiffs who filed the lawsuit. Lawyers for the City, NYPD, and DA’s Office argued that the film is not the product of independent journalism because its makers,

(1) had a ‘longstanding sympathetic relationship’ with Plaintiffs; (2) made certain public statements that reveal their intentions in making the Film and call for Defendants to settle this civil litigation; (3) gathered interviews from Plaintiffs about the case well before they intended to publicly disseminate information relating to this case; and (4) received assistance from Plaintiffs' counsel in creating both the book and the Film about the case.

Judge Ellis decided each point in favor of the Five. Citing the 2011 federal case Chevron Corp. v. Berlinger, he pointed out “that consistency of point of view does not show a lack of independence” and noted, “it seems likely that a filmmaker would have a point of view going into a project.” In contrast to Berlinger, in which the filmmaker was asked by the defendants’ attorneys to make the film in question and removed a scene to which the attorneys objected, Judge Ellis concluded that “Florentine has established its independence in the making of the Film and may claim the reporter's privilege.” The subpoena was quashed, meaning that Florentine is not required to provide the videos to the defendants.

Judge Ellis’s opinion has been hailed as an important counterweight to Berlinger, which many believed set a dangerous precedent of, under certain circumstances, empowering the government to force journalists to turn over their work. However the Five’s ongoing civil rights lawsuit is ultimately resolved, this decision should be recognized as an important victory for those who believe that the independence of the press should be carefully protected and maintained.