The BBC must turn over footage from a 2003 documentary on Palestinian leader Yasser Araft, a Washington federal district judge ruled yesterday, rejecting the broadcasting company's arguments that it should be shielded by the First Amendment.
The family of Esther Klieman, a U.S. citizen killed by gunfire in Israel in 2002, subpoenaed the BBC as part of its lawsuit against the Palestinian Authority. Klieman's estate claimed the footage would help tie the group they believed was responsible for the 2002 attack, the Al-Aqsa Martyrs Brigade, to the Palestinian Authority. The BBC isn't a party to the case.
The BBC argued that it was protected by the qualified reporter's privilege under the First Amendment. U.S. District Senior Judge Paul Friedman sided with the plaintiffs, finding the footage was directly relevant to the plaintiffs' claims and that the plaintiffs didn't have another way to get the information. The judge drew a distinction between the protection of a reporter's confidential source and an interview the subject knew would be publicly broadcast.
"The Court recognizes the vital function of newsgathering organizations and acknowledges the threats to journalists’ safety and their ability to collect information if they are perceived as readily handing over information to the courts," the judge wrote. "But the importance of this consideration is weaker where, as here, a reporter’s source agrees to openly participate in a recorded interview, with the understanding that portions of the interview will be broadcast by a major news network."
The BBC is being represented by Charles Tobin, chair of Holland & Knight's national media practice. Tobin said he was "examining the decision with the BBC and weighing the options." A BBC spokesperson did not immediately return a request for comment.
Klieman's estate is being represented by Heideman Nudelman & Kalik in Washington, which has brought a number of cases against alleged supporters of terrorism abroad. Name partner Richard Heideman declined to comment. A lead attorney for the Palestinian Authority, Richard Hibey of Miller & Chevalier, also declined to comment.
Klieman's estate sued the Palestinian Authority under the theory that it provided weapons, training, money and other support to Al-Aqsa. The BBC's footage, according to court documents, included interviews with Palestinian leaders tying the Palestinian Authority to Al-Aqsa's operations.
Friedman reversed a previous ruling by U.S. Magistrate Judge John Facciola granting the BBC's motion to quash the subpoena. Without addressing the BBC's First Amendment claim, Facciola found the court couldn’t enforce a section of the subpoena requiring the BBC to make a representative available for a deposition on the footage's authenticity and how it was recorded and stored. Since the court could not compel a person to travel more than 100 miles for a deposition, Facciola said, he was bound to toss the subpoena.
Friedman said Facciola was correct on the law, but failed to consider whether the subpoena could be modified to satisfy the court's rules. In lieu of an in-person deposition, Friedman ordered the BBC to provide a written affidavit on the materials' authenticity, saying the court did have the power to compel a party located more than 100 miles from the city to produce documents.