Major broadcasters, media companies and others are interjecting themselves in a case with potentially big First Amendment implications. On Friday, 36 media organizations including ABC, CNN, Fox News, NBCUniversal and the Washington Post asked permission to file an amicus brief in Mark Boal’s lawsuit against the United States of America over a threatened military court subpoena.
Boal, the screenwriter and producer of The Hurt Locker and Zero Dark Thirty, is seeking to protect about 25 hours of recorded interviews conducted with U.S. Army Sgt. Bowe Bergdahl, the soldier who deserted his post in Afghanistan and was later found to be with the Taliban. Bergdahl, whose release was secured by the White House in exchange for five Taliban prisoners held at Guantanamo Bay, is scheduled to go to trial on a court martial for desertion and misbehavior in February.
Some of Boal’s interviews were played on the acclaimed podcast Serial, but military prosecutors have indicated they want access to all of it. Last week, Boal sought to prevent this by filing an action in California federal court that contends that the First Amendment as well as common law and state statutory provisions protect a right to gather and publish newsworthy material free of government interference.
Now, other media groups including the E.W. Scripps Company, The National Press Club, the News Guild and the Boston Globe are rallying behind Boal to urge further recognition of a reporter’s privilege, which prevents compelled disclosures on journalists of source material in court proceedings.
According to a brief, which awaits a judge’s permission, “Amici write to explain the important policy reasons underpinning the recognition of the reporter’s privilege. In addition, amici support Boal’s arguments that the reporter’s privilege extends to Boal, because Boal had the intent, at the inception of the newsgathering process, to disseminate to the public information regarding Sgt. Bergdahl’s disappearance from an Army outpost in Afghanistan.”
Katie Townsend at the Reporters Committee for Freedom of the Press authored the brief urging the court to immediately address Boal’s claims that he can’t be compelled to hand over his material.
“This is important not just to establish that Boal, specifically, is entitled to protection, but because as the definition of what constitutes journalism and what form it takes continues to advance at a rapid pace, established protections for journalists must continue to evolve to encompass a wide variety of forms and formats,” states the amicus brief.
The media groups note a 2014 comment from then Attorney General Eric Holder, “As long as I’m attorney general, no reporter who is doing his job is going to jail.”
Loretta Lynch, the current AG, is said to have adopted this pledge in 2015.
“Yet, if the government seeks to enforce a subpoena to compel Boal to reveal confidential and unpublished material through contempt proceedings, it will be attempting to send a journalist to jail simply for “doing his job,'” the media companies say.
The U.S. government is set to file a reply to Boal’s motion for a temporary restraining order next week.
Here’s a look at the full amicus brief: