35th Annual Silha Lecture

INCONVENIENT TRUTHS AND TIGER KINGS: THE VITAL ROLE OF DOCUMENTARIES TODAY

The 35th annual Silha Lecture addressed the importance of documentaries and the need for U.S. law to recognize such importance.

BY SCOTT MEMMEL

ON OCT. 19, 2020, DALE COHEN, THE

DIRECTOR AND FOUNDER of the UCLA Documentary Film Legal Clinic and Special Counsel to FRONTLINE, the award-winning PBS documentary series, contended during the 35th Annual Silha Lecture that “documentaries provide a brilliant platform for filmmakers to tell us important stories and give voice to perspectives that are often overlooked. Some of them are straight up news. Some are advocacy. Some are designed primarily to make us laugh or to intrigue or entertain. Whatever form they take, films provide us with a vivid and entertaining medium for understanding our world. It’s time for the law and our institutions to treat documentaries as an essential and equal part of our journalism universe.”

Cohen’s lecture, titled “Inconvenient Truths and Tiger Kings: The Vital Role of Documentaries Today,” attracted approximately 200 attendees from a variety of locations in the United States and abroad, marking the first Silha Lecture held in a virtual format due to the ongoing COVID-19 pandemic.

Cohen began his lecture by discussing the importance of documentaries in our culture today. He explained that thousands of documentaries are available for streaming and viewing and that in the first half of 2020, Netflix had announced that 150 million viewers worldwide had watched at least one of its documentaries in the last year.

Cohen also cited several “powerful documentaries,” in which “documentary filmmakers get to add their skills, their tools, and their talents to enhance and contextualize that footage.” He continued, “They use music, sound, lighting, graphics, effects, and cinematography, and use these tools to grab our attention, to make us think, to tug at your heartstrings just as much as any Hollywood blockbuster does.” Cohen cited several examples, including An Inconvenient Truth—a 2006 documentary film about former U.S. Vice President Al Gore’s efforts to inform the American public about global warming—and Tiger King: Murder, Mayhem and Madness—a 2020 documentary miniseries about the life of zookeeper Joseph Maldonado-Passage, better known as Joe Exotic.

Cohen then considered the legal landscape around documentaries in the United States, asserting “the surprising fact that our legal system does not treat doc filmmakers with the same constitutional deference as we provide the journalists operating in other media.” He explained that the U.S. Supreme Court first considered motion pictures in Mutual Film Corporation v. Industrial Commission of Ohio. In this case, the Court held in a 9-0 vote that the free speech protection under the Ohio Constitution did not extend to motion pictures. According to Cohen, the Court provided three main reasons why it did not extend First Amendment protections to motion pictures, including that motion pictures “were capable of causing harm, given their ‘attractiveness and manner of exhibition.’” The second reason was that films, according to the court, were for entertainment, not the conveyance of opinion. The final reason was that films were created

as part of business to make a profit. of the most effective communications

Cohen argued that today we see media and the one that our youngest how wrongheaded these rationales “Our legal system generations have come to rely upon the are for three reasons. First, Cohen said, “the fact that the particular does not treat doc most.” Cohen also cited Ness v. City of media might be utilized for insidious filmmakers with the Bloomington, a case pending before purposes is not a justification for eliminating protection for all works same constitutional the U.S. Court of Appeals for the Eighth Circuit stemming from the conin that media category.” Second, deference as stitutionality of a Bloomington, Minn., Cohen also contended that “the line between entertainment and opinion we provide the ordinance prohibiting intentionally taking a photograph or otherwise recording a can’t really be effectively drawn,” citing journalists operating minor in a city park without the consent the Supreme Court’s ruling in Brown in other media.” of the parent or guardian. Sally Ness, v. Electronic Merchants Association, a Bloomington resident, claimed that in which the Court struck down a the law was unconstitutional under the California law that prohibited the sale First Amendment. Cohen asserted that or rental of violent video games to in July 2020, the District of Minnesota minors, declaring video games to be protected speech “dismissed the claim incorrectly, in my view, largely under the First Amendment. Finally, Cohen argued that based on the misunderstanding of First Amendment “that operation for profit has never excluded speech law.” Cohen argued that the trial court misinterpreted from the First Amendment protection.” He cited New First Amendment law because the ordinance is not York Times Co. v. Sullivan, in which the Supreme Court “content-neutral” and “the City Council and the court applied the First Amendment to an advertisement both improperly ignored the constitutionally salient truth published by The New York Times seeking donations that there is no reasonable expectation of privacy in a for the legal defense of Martin Luther King, Jr. on perjury public park.” charges. The Court ultimately established the “actual Cohen drew a parallel to the “same erroneous malice” standard, which requires proof that defendants judgment that many in the film industry make when they knowingly made false statements or made statements insist that documentary filmmakers must have releases with reckless disregard for their truth or falsity. from everyone who appears in their films.” He explained

Cohen next cited the Supreme Court’s ruling in Burs- that such releases “certify that an interviewee consents tyn, Inc. v. Wilson, in which the Court “reversed course” to an interview and its use in a documentary and may and held that “[i]t cannot be doubted that motion pictures include other provisions, including the release of other are a significant medium for the communication of ideas. tort claims.” They may affect public attitudes and behavior in a variety He added, “Here again documentarians are being of ways, ranging from direct espousal of a political or treated differently than other journalists. The New York social doctrine to the subtle shaping of thought which Times doesn’t ask interviewees to sign a release. And characterizes all artistic expression. The importance their insurance company certainly doesn’t require that. of motion pictures as an organ of public opinion is not ‘60 Minutes’ correspondents and local television news lessened by the fact that they are designed to entertain people do not ask for releases when they interview as well as to inform.. . . [W]e conclude that expression people or when they film them on the street for their by means of motion pictures is included within the free news stories. Why then should documentarians be speech and free press guaranty of the First and Four- expected to meet this standard? Their interviewees [and teenth Amendments.” people filmed in public] do not have any reasonable

Cohen provided examples, including that the expectation of privacy [and] know they’re being filmed Supreme Court “still doesn’t allow [cameras in the and they typically know what the interviewer knows and courtroom] and [that] most courts still disfavor them.” He intends to do with the recording.” explained that “[e]ven in the states that allow cameras, “The First Amendment protects a marketplace of there’s generally a process that requires specific court ideas—opinion and advocacy are welcome,” he said. approval.” Conversely, according to Cohen, there is “And as the Supreme Court has often reminded us, the “no similar process or bias against reporters attending First Amendment protects a robust uninhibited and wide trial and in other situations. In fact, the rules regarding open discussion of matters of public interest.” Cohen cameras are strange, given that the Supreme Court has therefore called for U.S. law and institutions to better emphatically pressed for courts and their proceedings to recognize the importance of documentaries and treat be open to the public, but apparently [not] through one them equally with traditional journalism. Silha Center activities, including the Silha Lecture, are made possible by a generous endowment from the late Otto and Helen Silha. A link to the video of this lecture is available at silha.umn.edu