Judge: Even Chevron Enjoys First Amendment Rights

By September 7, 2010General

A follow-up to the Shopfloor post immediately below, “Judge’s Ruling on ‘Crude’ Shows that the Truth is in the Outtakes“…

In ruling that movie director Joe Berlinger had to submit to depositions so Chevron can fully defend itself in court, Judge Lewis Kaplan also rejected Berlinger’s attempt to punish the company because it had suppposedly violated an order from the Second Circuit when it used the film outtakes for public relations purposes.

Berlinger’s claim rested in part on the assertion that Chevron supplied one of its court filings to Shopfloor, the blog of the National Association of Manufacturers, and that I wrote about the document in this Aug. 3 post. See, PR! But the assertion wasn’t true — as we explained here — and even it were, so what? There’s this thing called the First Amendment.

Judge Kaplan did not treat Berlinger’s claims kindly. In his 28-page ruling, starting on page 24, he writes:

As an initial matter, there is irony in Berlinger’s application. On the one hand, he has resisted production of his outtakes, and resists the discovery that Chevron now seeks, by invoking the Free Press Clause of the First Amendment. Yet he seeks to prevent Chevron from publicly discussing litigation taking place on the public record. The First Amendment, however, protects Chevron’s right to speak about this litigation at least to the same, and probably to a greater, extent than it protects Berlinger’s desire to avoid giving evidence in court like any other citizen. But Berlinger’s cross-motion fails for reasons having nothing to do with the First Amendment.

Alas, First Amendment advocates and media mavens like Reporters Committee for Freedom of the Press appeared untroubled by Berlinger’s disregard for constitutionally protected liberties.

Judge Kaplan then provides a quick lesson on how federal courts use electronic filings, which make the documents public records, accessible by people like bloggers:

This Court uses an electronic filing system in which lawyers in most cases, including this one, file their “papers” electronically. The “papers” are publicly available immediately upon filing. In this instance, Chevron filed its motion and memorandum of law, which contains the description of the outtakes that is referred to in the blog post, at 5:39 p.m. EDT on August 3, 2010, at least two hours and eight minutes before the alleged time of the blog post. Indeed, the NAM blog post, at least as of August 15, 2010, linked to an image of Chevron’s memorandum of law that bears the case and docket item numbers and filing date automatically affixed by the Court system, thus establishing (assuming that the image in the link was not changed in the interim) that the image was created after the filing of Chevron’s motion. In short, Berlinger has not even remotely approached proving that Chevron gave the author its papers, let alone any outtakes, before they were a matter of public record. Indeed, he has offered no evidence that Chevron even alerted the author to the filing of the papers.

The judge also refutes Berlinger’s assertion that Chevron supplied transcripts to the San Francisco Chronicle. If we may paraphrase, Berlinger is making wild charges with little evidence:

Berlinger’s charge amounts to an allegation of civil contempt of the Second Circuit Order. He therefore is obliged to establish his charge by evidence that “is clear and convincing.” A
newspaper clipping stating that Chevron provided transcripts of outtakes is not admissible to prove the truth of the statement and certainly not clear and convincing evidence. Even if it were, the import of the article appears to be quite different from what Berlinger claims.

The litigation against Chevron is being revealed again and again not to be based on legitimate claims about pollution in Ecuador, but rather machinations and manipulations of the law and the public. This trial lawyer shakedown would make for a hell of a documentary, wouldn’t it?

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