Chevron's "Crude" Attempt to Suppress Free Speech

Saturday 15 May 2010

by: Bill Moyers and Michael Winship, t r u t h o u t | Op-Ed

Chevron's "Crude" Attempt to Suppress Free Speech
(Image: Lance Page / t r u t h o u t; Adapted: philosophygeek, Arenamontanus)

Even as headlines and broadcast news are dominated by BP's fire-ravaged, sunken offshore rig and the ruptured well gushing a reported 210,000 gallons of oil per day into the Gulf of Mexico, there's another important story involving Big Oil and pollution - one that shatters not only the environment but the essential First Amendment right of journalists to tell truth and shame the devil.

(Have you read, by the way, that after the surviving, dazed and frightened workers were evacuated from that burning platform, they were met by lawyers from the drilling giant Transocean with forms to sign stating they had not been injured and had no first-hand knowledge of what had happened?! So much for the corporate soul.)

But our story is about another petrochemical giant - Chevron - and a major threat to independent journalism. In New York last Thursday, Federal Judge Lewis A. Kaplan ordered documentary producer and director Joe Berlinger to turn over to Chevron more than 600 hours of raw footage used to create a film titled Crude: The Real Price of Oil.

Released last year, it's the story of how 30,000 Ecuadorians rose up to challenge the pollution of their bodies, livestock, rivers and wells from Texaco's drilling for oil there, a rainforest disaster that has been described as the Amazon's Chernobyl. When Chevron acquired Texaco in 2001 and attempted to dismiss claims that it was now responsible, the indigenous people and their lawyers fought back in court.

Some of the issues and nuances of Berlinger's case are admittedly complex, but they all boil down to this: Chevron is trying to avoid responsibility and hopes to find in the unused footage - material the filmmaker did not utilize in the final version of his documentary - evidence helpful to the company in fending off potential damages of $27.3 billion.

This is a serious matter for reporters, filmmakers and frankly, everyone else. Tough, investigative reporting without fear or favor - already under siege by severe cutbacks and the shutdown of newspapers and other media outlets - is vital to the public awareness and understanding essential to a democracy. As Michael Moore put it, "The chilling effect of this is, [to] someone like me, if something like this is upheld, the next whistleblower at the next corporation is going to think twice about showing me some documents if that information has to be turned over to the corporation that they're working for."

In an open letter on Joe Berlinger's behalf, signed by many in the non-fiction film business (including the two of us), the Independent Documentary Association described Chevron's case as a "fishing expedition" and wrote that, "At the heart of journalism lies the trust between the interviewer and his or her subject. Individuals who agree to be interviewed by the news media are often putting themselves at great risk, especially in the case of television news and documentary film where the subject's identity and voice are presented in the final report.

"If witnesses sense that their entire interviews will be scrutinized by attorneys and examined in courtrooms they will undoubtedly speak less freely. This ruling surely will have a crippling effect on the work of investigative journalists everywhere, should it stand."

Just so. With certain exceptions, the courts have considered outtakes of a film to be the equivalent of a reporter's notebook, to be shielded from the scrutiny of others. If we - reporters, journalists, filmmakers - are required to turn research, transcripts and outtakes over to a government or a corporation - or to one party in a lawsuit - the whole integrity of the process of journalism is in jeopardy; no one will talk to us.

In his decision, Judge Kaplan wrote that, "Review of Berlinger's outtakes will contribute to the goal of seeing not only that justice is done, but that it appears to be done." He also quoted former Supreme Court Justice Louis D. Brandeis' famous maxim that "sunlight is said to be the best of disinfectants." There is an irony to this, noted by Frank Smyth of the Committee to Protect Journalists. Brandeis "made his famous sunlight statement about the need to expose bankers and investors who controlled 'money trusts' to stifle competition, and he later railed against not only powerful corporations but the lawyers and other members of the bar who worked to perpetuate their power."

In a 1905 speech before the Harvard Ethical Society, Brandeis said, "Instead of holding a position of independence, between the wealthy and the people, prepared to curb the excesses of either, able lawyers have, to a large extent, allowed themselves to become adjuncts of great corporations and have neglected the obligation to use their powers for the protection of the people."

Now, more than a century later, Chevron, the third largest corporation in America, according to Forbes magazine, has hauled out their lawyers in a case that would undermine the right of journalists to protect the people by telling them the truth. Joe Berlinger and his legal team have asked Judge Kaplan to suspend his order pending an appeal to the United States Court of Appeals for the Second Circuit.

As the Independent Documentary Association asserts, "This case offers a clear and compelling argument for more vigorous federal shield laws to protect journalists and their work, better federal laws to protect confidential sources, and stronger standards to prevent entities from piercing the journalists' privilege. We urge the higher courts to overturn this ruling to help ensure the safety and protection of journalists and their subjects, and to promote a free and vital press in our nation and around the world."

Rebecca Wharton conducted original research for this article.

This work by Truthout is licensed under a Creative Commons Attribution-Noncommercial 3.0 United States License.

Comments

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Don't let it get to the

Sat, 05/15/2010 - 12:08 — Anonymous (not verified)

Don't let it get to the present Supreme Court.

Just plain ol' fascism done

Sat, 05/15/2010 - 12:18 — Anonymous (not verified)

Just plain ol' fascism done "Uh-murkin" style: greed, oppression, and poverty with a side of oil. Gee. DRILL BABY DRILL is now GOP 'n Slop without a mop.

In a 1905 speech before the

Sat, 05/15/2010 - 12:26 — Adoregon (not verified)

1) Most lawyers (and elected representatives) are money whores.

2) All judges were once lawyers.

3) "Great" corporations have lots of money with which to seduce lawyers (and those running for elective office).

4) "The People" don't have lots of money, except in the aggregate, in the form of tax money.

5) The government, influenced as it is by corporate bribes (aka lobbying) isn't going to use "the People's" money to fight corporations in court.

6) To fight corporations, "the People" must pool their money to seduce lawyers who will argue the Peoples' interests.

7) "The People" must also organize to effectively boycott unethical and unresponsive corporations to deprive them of the cash flow the corporations use to work against "the Peoples'" interests.

Fasten your seat belts. Good luck.

Oh, my God. We are all

Sat, 05/15/2010 - 12:30 — Anonymous (not verified)

Oh, my God. We are all living Ted Geisel's tale of The LORAX. The corporate "Oncelers" have infested every facet of our government, every once-democratic institution, and poison everything they touch. God save us. They have unofficially declared war on us all. Will we rise up and defend ourselves while we still can?

Thank you Bill Moyers &

Sat, 05/15/2010 - 12:34 — Anonymous (not verified)

Thank you Bill Moyers & Michael Winship for continuing to keep the candle burning in the darkness. Your, sadly, now defunct "Bill Moyer's Journal" was the main reason I donated money to KCET every year. I continue to do the same for NPR and Amy Goodman's "Democracy Now" and Pacifica radio. Good investigative journalism and analysis are worth their weight in platinum and as both of you gentlemen, national treasures each, have reminded us over the years, it is "the" crucial element in our society for anykind of democracy to exist. Corporate America and their Washington lackeys are out of control. If this disease continues to spread into the judicial branch anymore than it already has then we are truly sunk! Thank you so much for your brilliant work!

A staunch supporter,

Ivan Ladizinsky
Studio City, Ca.

Amen to avoiding the current

Sat, 05/15/2010 - 12:47 — farmertx (not verified)

Amen to avoiding the current Supremes.

Oil companies in particular seem to have the old robber baron mentality of the 1800's; they can do no wrong.

And we have too many in Congress who value greed over responsibility to their sworn duty. Neither Party is exempt from that greed.

I have to wonder what it will take for the American People to finally say enough already.

Oil company execs are THE

Sat, 05/15/2010 - 12:52 — David R Velasquez (not verified)

Oil company execs are THE oligarchs of the new feudalism.
They feel they can write, or rewrite rather, laws to suit their whims and disregard any natural rights to further their profiteering.
I'm reminded of the Royal Dutch Shell Oil complicity in the exectution of Ken Saro-Wiwa, a journalist and activist in Nigeria. Shell pressured the Nigerian gov't into framing Saro-Wiwa so that they could get their meathooks on Ogoni tribal land.
In a way, Chevron is just doing what oilygarchs do... being true to their nature.
Federal Judge Lewis A. Kaplan on the other hand, is supposed to understand that maintaining a viable free press trumps corporate interests.

If the rule of three-sources

Sat, 05/15/2010 - 12:57 — Jade Queen (not verified)

If the rule of three-sources to verify before reporting is followed, that would make out-takes out of context. Out-of-context information as if it had been vetted could undermine the professional reputation of the reporter, a separate cause of action. The privacy of unused information protects source and reporter, but it also protects the general public from information that would be sifted out anyway, if truth is the objective. It puts sand in the gears of truth, degrades the gears, and slows the process. Delays in the process harm the already harmed and should not be tolerated. Large governments and large corporations are increasingly using these tactics everywhere, not just where they have customarily gotten away with it.

Oil IS the root of all

Sat, 05/15/2010 - 13:03 — Anonymous (not verified)

Oil IS the root of all evil...

Corporate money, including

Sat, 05/15/2010 - 13:30 — David Brookbank (not verified)

Corporate money, including Big Oil money, elected (and re-elected) Bill Clinton. Bill Clinton appointed lawyer Lewis Kaplan to the Federal Court. Lewis Kaplan rules in favor of Big Oil. Any surprise? Until the people have a candidate in the game free of these money obligataions, forget about truth or justice.

Hate to be the voice of

Sat, 05/15/2010 - 13:33 — Anonymous (not verified)

Hate to be the voice of conservatism here (which I definitely AM NOT), but it seems to me that Chevron IS entitled to this information. All of your responses assume that the producers/writers/directors of this film are as pure as the driven snow, with no ulterior motives or hidden agendas. In other words, they're not human. Put it another way: if Chevron had produced a successful documentary about the corrupting influence of the liberal community, we would be screaming for them to produce all of THEIR sources and footage. Sauce for the goose, it seems to me. If the filmmakers' final footage can be justified, then they have nothing to fear, right?

Chilling, positively

Sat, 05/15/2010 - 14:24 — Floresta (not verified)

Chilling, positively chilling, this ruling from Justice Kaplan. I would love to see the trajectory of his career (did he ever work for an oil co, receive campaign contributions from one?)and wonder if he was bought. Off-shore account somewhere???
After all, Clarence Thomas worked a a lawyer for Monsanto and shortly after his appointment to the Supreme Court, was a yes vote in the case of Monsanto having patent "rights" on genetic life created in their labs.
Annon 18:33, with all due respect, please read the article again; this is about free speech, protection of reporters' sources and materials and the protection of whistle blowers. Chevron has a multi-million dollar PR department, most reporters and film makers do not have access to that kind of media influence.
I have traveled in Ecuador, met with native people desperately trying to save their access to clean water, soils and air. What Chevron has done in that region is absolutely horrible!

"Hate to be the voice of"

Sat, 05/15/2010 - 14:36 — Anonymous (not verified)

"Hate to be the voice of" does have a point. Problem is pitting a corporation with lots of unexposed data against the results of research of another entity has too many pitfalls to be lightly swept under the rug. The film can be made to speak from an editorial p.o.v. The purpose of any medium is expression. The purpose of a corporation is to produce products for consumption. The costs are not enumerated on the package, and, for the most part, we Americans use the products without much thought beyond is it available, and can I afford to get it right now. In terms of a film, we can take it or leave it. In terms of oil, it's not quite so simple. Oil companies make a point of suppressing certain facts about their operations, or there would not be the debacles they create. Yet they survive as protected, subsidized entities, a privilege not afforded film production companies, especially those who make documentaries. Legally defined, they are, in effect, idiot children we are supposed to care for, yet they are not limited in their activities as we limit the mentally impaired.

It is quite complex. My view is that the oil companies have no right of access to the film except as paying customers. Let the film say what it will, and then allow them their say.

Sorry but no we live in the

Sat, 05/15/2010 - 14:44 — Anonymous (not verified)

Sorry but no we live in the 1984 land of doublespeak corporate dominated culture! So they will twist out of context anything they can. Just like Judge Kaplan did to Brandeis.

You really think that the

Sat, 05/15/2010 - 14:53 — Anonymous (not verified)

You really think that the innocent have nothing to fear in this society?

Suggest you all go read "The

Sat, 05/15/2010 - 15:07 — Frances Griffin (not verified)

Suggest you all go read "The Tyranny of Oil" by Antonia Juahaz(sp.?). Readable and a great resource for activists, writers and citizens.

She points out that deep sea drilling is a disaster for the environment even when there is NOT a leak.

Met a fellow passenger at the Seattle airport who identified herself as a former oil company employee who said many engineers were utterly opposed to deep sea drilling from the get-go. They were ignored and all were muzzled so they did not go public with what they knew.

yes, of course, the innocent

Sat, 05/15/2010 - 15:27 — Hate to be the voice of (not verified)

yes, of course, the innocent have EVERYTHING to fear. But you really CAN'T have one set of rules for us good guys and another set of rules for the bad guys. Else, why bother with rules anyway? Anarchy rules.

Suggest you talk to people

Sat, 05/15/2010 - 15:32 — Hate to be the voice of (not verified)

Suggest you talk to people who actually work at oil companies or the companies who support them, rather than rely on the word of a chance-met stranger in an airport. Geez. Surely some of us liberals (which I proudly label myself, rather than a milque-toast progressive) have minds at least SOMEWHAT open to argument or are we so arrogantly convinced of our own purity???

1. Where's the raw footage

Sat, 05/15/2010 - 15:36 — RoughAcres (not verified)

1. Where's the raw footage of the Acorn sting?

2. Where's the transcript of the energy commission led by Cheney?

3. Where are all the 2000 and 2004 election ballots?

DOUBLESPEAK. SHELL GAME. ACCOUNTABILITY.

When the revolution comes, it will be the People vs. the MegaCorporations - who are the equivalent of the Chicago gangs during the '30s, the Mafiosi during the '80s, and the Royalists during the French Revolution.

@adoregon: Don't be too

Sat, 05/15/2010 - 15:41 — Lawyer (not verified)

@adoregon:

Don't be too hasty to damn an entire profession. When Shakespeare wanted two of his characters to be seen as oafs, that's what he had them do.

I'm a lawyer; my wife's a physician, and we have both spent countless unpaid hours helping a rural community fight off a giant would-be corporate polluter. There are many, many people in my profession who have done the same. There will always be corporate tools. And there will always be people of conscience who fight them.

Get behind them instead of trying to damage them.

Oil companies supply people

Sat, 05/15/2010 - 16:48 — tahoevalleylines (not verified)

Oil companies supply people who are used to getting gasoline & diesel at reasonable price and without limit on size of purchase. We chose cars over public transport early in the 20th century. We chose the convenience of pure truck haul after WWII, and supported Ike's freeways, knowing we would share lanes with long-haul trucks.

We got into the oil patch with the Suez Crisis, coincidentally the same year Ike signed the Highway Bill (1956). Oil will represent the biggest hit to the US negative export trade balance for now on.

Either oilwell depletion or attack or surging demand or some combination will bring motor fuel rationing. Voluntarily imposing restriction on oil use would be more desirable, along with massive rebuild of dormant rail lines, etc. See "Suntrain Transportation Corporation" for upbeat scenario for renewable propelled rail lines.

Chevron has a website for public input: "Will You JoinUs .com", a vehicle to show corporate involvement with activists in environment, students, etc. Along with lay comments, there are some actual inputs from energy professionals, and company shills show up now and then. Chevron, BP, Exxon, Shell, etc. are in position to fund redirect of US transport policy, but don't have the nerve & skill to do it.

The US oil companies are in position to adopt dormant US rail branchlines, beginning with the agricultural feeder lines. Wheat country branch lines in Canada are being abandoned in favor of 1/3 efficient truck haul. Ours were abandoned decades ago. This is no panacea, simply a requisite step in meeting the Oil Interregnum challenge.

China is in a constant state of famine challenge, as desertification encroaches along the north edge. US should recharge aquifers (NAWAPA) and go into a long-term grain partnership with China, solution to the crushing debt burden involved. Chevron and BP are in position to front initial capital for the US railway upgrades needed. An interesting test for free enterprise...

The devil was building a

Sat, 05/15/2010 - 17:23 — Anonymous (not verified)

The devil was building a fence that was about a half-cubit over on Heaven's side. God threatened to sue. The devil laughed and said, "Where are you gonna get a lawyer?".

"The purpose of a

Sat, 05/15/2010 - 18:09 — S.O. Teric (not verified)

"The purpose of a corporation is to produce products for consumption." The purpose of a corporation is to produce profits. If you can produce profits without a product, so much the better. That's why Goldman Sachs calls their swindle "financial products." It's all a lie. A misrepresentation.

Dear Sirs, Was it in the

Sat, 05/15/2010 - 18:41 — Clifford Spencer (not verified)

Dear Sirs,
Was it in the national interest for Big Oil to drill at the US Naval oil reserve at Teapot Dome?
Clifford Spencer

To Lawyer My greatest

Sun, 05/16/2010 - 02:06 — Tim (not verified)

To Lawyer

My greatest adoration for the you, who fought for the rights of people and environment.A rare breed indeed! We hope you can ban together and multiply.

One of the biggest 'lacks of' is no money to pay the lawyer.People could accomplish much with legal representation. For example, my friend had his inventions stolen by a branch of the US Military and he has no money to fight it. The US Military knows all to well, and they can pay for any legal fees to fight a patent challenge! So Godspeed to any lawyer who fights for justice.

If you think this perversion

Sun, 05/16/2010 - 06:13 — bbuc (not verified)

If you think this perversion of the First Amendment is bad (and it is), consider a 2003 appeals court decision allowing Fox News to lie to the public. A Florida Court of Appeals unanimously agreed with an assertion by FOX News that there is no rule against distorting or falsifying the news in the United States. Google: fox news permission to lie.

The FCC still needs to iterate and enforce rules about lying and distorting news to the public.

Here's Hoping these

Sun, 05/16/2010 - 08:05 — Dave Lindorff (not verified)

Here's Hoping these filmmakers have the guts to go to jail over this. They need to risk contempt of court charges, because Judge Kaplan is surely contemptible. And they should start a legal defense fund to which all of us journalists--what's left of us--need to contribute.

This is surely worth taking a principled stand on.

Dave Lindorff
www.thiscantbehappening.net

It may be time to start destroying notebooks and film takeouts. I know that opens us to a risk of losing libel suits, but by carefully culling out the material not actually used in a story, and destroying the rest, one doesn't risk that much.

Recipe for Disaster: Mix

Sun, 05/16/2010 - 09:30 — Powerpuff (not verified)

Recipe for Disaster:

Mix tons or gallons of natural resources with large amounts of greed. Give this mix to a sociopath and there is it, major disaster.

Gold was the old oil. In the future it will be water and food we kill and die for.

As for free speech, remember folks, who pays the piper calls the tune.

Everybody dance now!

Federal Judge Lewis A.

Sun, 05/16/2010 - 20:16 — Gus W (not verified)

Federal Judge Lewis A. Kaplan needs to explain why Chevron could not do their own research to present their best case and why they get to see Berlinger's.

This is an attempt to frame Berlinger for leaving something out or exercising bias in his documentary. But Chevron only wants the footage so they can do the same thing in their favor. It's up to them to get their own footage from scratch. Will Kaplan make Chevron share all their documents and internal emails with Berlinger? I think not.

America is very soon going to find out first hand what it's like to have oil in our water, food and bodies, so this is extremely relevant.

@ tahoevalleylines:

Sun, 05/16/2010 - 20:31 — Gordon K (not verified)

@ tahoevalleylines: Actually, to some extent, Americans did not "choose" automobiles over public transport in the early 20th century. The choice was made by General Motors and other auto manufacturers and oil producers. These corporations systematically bought up trolley companies and other privately owned mass transit entities for the sole purpose of dismantling them, knowing that the only realistic alternative left would be the private automobile. This scenario was satirically portrayed in the movie, "Who Framed Roger Rabbit?" Few people realize that this absurdist film contained such a larger kernel of truth. A quick Google search should yield plenty of references.

as a victim of a corporate

Tue, 05/18/2010 - 12:56 — Anonymous (not verified)

as a victim of a corporate SLAPP suit I can tell you that when this shit happens your support dries up real quick, people who want to join, support, or donate to a just cause will turn on a dime if threatened - you have to have nothing to participate without fear in losing everything, our rights have gone if we don't get them back - we have no voice

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Chevron's "Crude" Attempt to Suppress Free Speech

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