Zero Dark Thirty screenwriter sues U.S. Government

Mark Boal, the screenwriter of “Zero Dark Thirty” and “The Hurt Locker” has sued the U.S. government in a Los Angeles federal court.  The suit which names President Obama, Defense Secretary Carter, Secretary of the Army Fanning, and others, is a move to block the government’s attempts to access roughly 25 hours of interviews that Boal conducted with accused Army deserter Bowe Bergdahl. Bergdahl is infamously accused of desertion after he disappeared in Afghanistan in 2009 and was held by the Taliban for five years.[1] Excerpts from the hours of interviews were used in season two of the popular Serial podcast. Bergdahl faces a court martial in February 2017. The military prosecutor is threatening to subpoena Boal’s interviews with Bergdahl. Boal’s suit alleges that “[t]he threatened subpoena from the North Carolina-based military prosecutor against a civilian is unlawful and inconsistent with the Frist Amendment, the common law, Department of Justice guidelines for the issuance of subpoenas to reporters and state protections for reporters.”[2] Boal’s suit further alleges that this is a ‘”nearly unprecedented” move by the military prosecutor in the Bergdahl case to force a private citizen into military court to relinquish legally protected materials for an ongoing military trial.”[3]

The case does appear to touch upon some relatively novel First Amendment issues.  Specifically the question is whether a civilian journalist can be compelled to appear in a military tribunal and forced to release recordings from a source. In essence this is a test of the extent of journalist “privileges.”  The legal theory goes that courts have a right to review all admissible evidence, but that some people have privileges which should keep some evidence from being admitted.  For instance, the Fifth Amendment’s right against self-incrimination can be seen as a privilege of the accused to keep evidence against himself out of the court’s view.  Journalists argue that the First Amendment enshrines “societal interests that can trump the demand for all evidence…[journalists] must be able to remain independent, so they can maintain their traditional role as neutral watchdogs and objective observers. When reports are called into court to testify for or against a party, their credibility s harmed. Potential sources come to see [reporters] as agents of the state, or supporters of criminal defendants, or as advocates for one side or the other in civil disputes.”[4] This argument is, among other things, a reliance upon the First Amendment’s guarantee that “Congress shall make no law…abridging the freedom of speech, or of the press.”

It will be interesting to see how this case plays out, and what effect, if any, it has on the breadth and width of the First Amendment’s protections on journalists.

--By Derek A. Jordan, Esq., Barnes Law

Derek A. Jordan is an associate attorney with Barnes Law, licensed to practice law in Tennessee.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] See: http://www.wsj.com/articles/army-sgt-bowe-bergdahl-arraigned-on-charges-including-desertion-1450803202

[2] See: http://variety.com/2016/film/news/mark-boal-sues-u-s-government-bowe-bergdahl-subpoena-threat-1201819492/

[3] Ibid.

[4] See: https://www.rcfp.org/browse-media-law-resources/guides/reporters-privilege/introduction