If there’s one thing both Alex Gibney and Scientology should agree upon, it’s the value of the First Amendment: freedom of speech, religion, and the press (in addition to the freedom to assemble and petition the government).
The constitutional right that permits Scientology to act in the name of its religion without government interference is the same constitutional right that permits the team behind Going Clear: Scientology and the Prison of Belief to publicly examine those acts. Most documentaries take critical looks at their subjects, and do so without the consent of those subjects. This generally occurs with impunity because documentarians have substantial First Amendment protections derived from those accorded to the press. And although any disgruntled entity can sue a documentarian, winning that lawsuit is an entirely different story.
The term “press” includes traditional news reporters (reporting unbiased information), news commentators (providing opinions on reported information), pundits (a more exaggerated form of commentator that intentionally seeks to stir controversy with their views), and tabloid journalism (which sensationalizes stories and adheres to a lesser journalist code of ethics than other reporters or commentators). Regardless of what category a journalist falls under, all have the same fundamental protection, as it is not the court or governments role to arbitrate taste, prevent ideas that are offensive, or police against hurt feelings.
Though working in the realm of nonfiction, documentary filmmakers aim to tell a compelling story that often involves a message, in the same way that many narrative filmmakers do. Few documentarians can be seen as straight news reporters, providing unbiased, unfiltered information: Like all storytellers, documentarians have a reason for telling a story, and they have until the end of their film to prove that this reason is convincing. Anyone else who has conflicting beliefs is in turn free to tell his or her version of the story—it’s the “free marketplace of ideas” which the First Amendment preserves; the bedrock for the survival of any democracy.
As American case law has demonstrated, it’s often the most controversial and outrageous acts of speech that protect the rights of the rest of us. Should Scientologists pursue lawsuits against HBO and Gibney’s team, the safe bet is the First Amendment will trump any such claims.
That said, for moviemakers who would like to avoid lawsuits and the costs associated with having them fought, here are seven tips to keep you in the clear—particularly when you have a volatile subject who might be out for your blood:
1. Read the Society of Professional Journalists’ Code of Ethics. The First Amendment may permit you to say whatever you like, but ethically speaking, should you? The watchwords of the SPJ Ethics Code are (a) seek truth, (b) minimize harm, (c) act independently/disclose conflicts of interest, and (d) be accountable and transparent.
2. Avoid Defamation Lawsuits. Do not communicate false statements that can cause actual damage, impugn integrity or imply criminality or perversity. Cause for action exists only around a false statement of fact, not opinion.
Moreover, if the false fact was rendered about a public figure, it must be shown that the false statement was made with “malice.” Under the landmark case of New York Times v. Sullivan, “malice” exists when the statement is made either with knowledge that it is false, or with reckless disregard as to whether it is false. If, as HBO touts, 160 attorneys reviewed Going Clear, you can be certain the bulk of their time was devoted to attempting to verify every statement rendered in the film.
3. Don’t Violate National Security. Historically, the only time courts permit the government to outright censor a work is when national security is at stake. This can lead to both civil and criminal penalties.
4. Know the Difference Between Reportage and Participation. Documentarians must not aid, abet or encourage illegal conduct to occur for the benefit of the camera. When documentarians become investigators, ethical issues can arise over what should be turned over to law enforcement. Of course, if you are working in conjunction with law enforcement to expose criminality, you should comply with law enforcement guidelines.
5. Clear Copyrights as Often as Possible. If a copyright holder is hostile to the subject of your documentary, fair use may be adopted as a means of using the amount of his or her work necessary to convey your film’s message. Remember, though, that fair use is not a type of consent; it’s a defense to claims raised in litigation. Want to avoid litigation? Avoid reliance on fair use.
Fair use best practices and how they apply to documentaries is a complex concept, for which skilled clearance counsel should be consulted early and often. The Stanford Copyright and Fair Use website is dedicated to informing the public about what the law permits in the balance between the First Amendment and protection of copyrighted proprietary works.
6. Remember, Controversy Breeds Controversy. Litigation risks are always heightened when your film acquires a reputation of being an “exposé.” The more controversial your subject, the more you should consider whether incidental uncleared items really need to be in the shot. If it’s not part of the story, consider removing or pixelating, in the interest of avoiding having an otherwise neutral party become a disgruntled one. MM
Going Clear: Scientology and the Prison of Belief opened in selected theaters on March 13, and premiered on HBO on March 29, 2015. A version of this article appears in MovieMaker‘s Spring 2015 issue.
David Albert Pierce, Esq. is an entertainment attorney and MovieMaker’s resident expert on film law. He also is an Adjunct Professor of Media Law & Ethics for Elon University’s Semester In L.A. Program.