Screening room: Yale Law clinic offers legal guidance for documentaries

In April of 1980, three men traveling in a car on a street in Chattanooga, Tennessee fired shotgun blasts at four Black women waiting for a cab. A fifth women was hit by flying glass.

The driver and his two passengers were all members of the Ku Klux Klan.

The men were criminally charged for injuring the women, but an all-white jury acquitted two of them and gave the third a light sentence. That’s when the Center for Constitutional Rights stepped in. The New York City non-profit successfully sued the Klansmen in federal civil court on behalf of the women. That groundbreaking 1982 trial established a model for combatting racial violence, one that continues to be used today.

A new documentary, “How to Sue the Klan,” tells the story of that case and its important legacy. But making the film was especially anxiety-provoking for director John Beder. A film targeting the notoriously violent hate group raised a host of legal questions as well as personal security concerns.

“I had all these questions about how much I could present about these Klan members,” Beder said. “What kinds of things can we say, and arguments can we make, without having to worry about defaming someone or opening ourselves up to liability? And our cast and crew were asking, what measure of protection do we have against someone coming after us in any way, shape, or form?”

Like many documentary makers who operate on a shoestring budget, Beder did not have money to hire lawyers. But he was able to get the expert advice he needed, free of charge, through DocProject, a program of the Media Freedom and Information Access Clinic at Yale Law School.

Launched in 2018, DocProject enables Yale law students to work under the guidance of seasoned media lawyers to provide pro bono legal advice to documentary filmmakers on issues pertaining to media law, privacy, and the ins and outs of news gathering. The goal is twofold: to provide legal advice to filmmakers, while at the same time providing students with hands-on training in media law.

As Beder put together “How to Sue the Klan,” he consulted frequently with Jennifer Borg, a longtime media lawyer who helps run the program, and one of her student advisers, Aren Torikian ’24 J.D.

“We went over the film with a fine-tooth comb to make sure we could back everything up, that we were not misleading people in any way,” Beder said. “It was amazing to have professionals that we could bounce ideas off of.

“I think a lot of people wouldn’t have participated in the film without knowing we had advisers to ensure we weren’t creating a documentary that’s going to open us up to litigation or worse.”

‘Layer after layer’

DocProject is not designed to meet all of filmmakers’ legal needs. The program does not handle the business side of filmmaking, such as intellectual property, insurance, music licensing, or licensing of third-party footage. (There are other law clinics in the country that do handle those aspects, and DocProject makes those referrals.) Nor does the program handle litigation if a filmmaker does get sued.

It is mostly focused on journalistic concerns and practices with which newer filmmakers may not be familiar.

“A lot of them are first-time filmmakers, journalists transitioning from print to film, or MFA [Master of Fine Arts] students who are working on a film as part of their master’s degree,” said Borg, who is a clinical lecturer and senior research scholar at Yale Law. She runs the program with its founder, Scott Shapiro, the Charles F. Southmayd Professor of Law, and David Bralow, a visiting lecturer in law and general counsel to The Intercept, a nonprofit investigative journalism publication.

Their expertise is in high demand: the program currently has about 10 films on its docket, and Borg is keeping a wait list.

“There’s so much great work out there that we just can’t take because we don’t have the bandwidth,” she said.

Among the many areas DocProject can help with are providing the proper release forms for subjects who appear in the film, and advising on trespass issues, recording rights, defamation laws, rights of privacy, drone regulations, recording in state and national parks, and practicing journalism in privately owned public spaces.

Oftentimes, these issues require considerable research from the law students. Take the 2023 documentary “Pay or Die,” for example. The film, directed by Scott Ruderman and Rachel Dyer, reveals the outrageously high cost of insulin in the U.S. and the devastating impacts on people with diabetes.

In one seemingly innocuous scene, a mother and her daughter travel across the border to Canada from Washington state to buy cheaper insulin. This scene was an immediate red flag for the DocProject team.

“They filmed the border crossing from a long lens camera from a state park,” said Liza Anderson ’24 J.D. “We had to look at [that issue]: can you lawfully film in a state park in Washington? And there are also special regulations about filming border crossings, and about filming Border Patrol agents at work at a border crossing.”

At least half of the students’ work is on issues that the client did not pick up on, or occasionally, that another lawyer didn’t even pick up on, said Torikian.

Another scene in “Pay or Die” shows a woman on the phone with a woman in another state. Both women’s voices can be heard. One of the women is in a state where you need only one person’s consent to record, and the other is in a state where you need both peoples’ consent. Torikian had to sort out which laws applied. A similar scene involving Zoom posed a different set of questions.

“You kind of peel back layer after layer and learn more and more about the unique laws of whatever the state is,” he said.

Navigating complex issues

Filmmaker Brian Hedden was sued by Denver-based Extraction Oil and Gas before his documentary, “Fracking the System,” even came out. The company wanted Hedden to hand over drone footage he’d shot of activists opposing a fracking project about 500 feet from a school playground. The case was eventually settled — and ended up as fodder for the film — but it made Hedden hyper-aware that he needed to be vigilant about not getting sued moving forward.

“I reached out to DocProject with a rough cut,” he said. “They were very excited about the film,” which covers a decade of anti-fracking activism by Boulder County residents, “and I was super excited to discover this help.”

In many instances, the program offered help he didn’t even know he needed. He learned why it was a good idea to blur children’s faces, the legal complexities around using secret recordings, and his need for more robust filming releases.

“They were a huge help in getting the film finished,” Hedden said.

Another filmmaker, Set Hernandez, approached DocProject with very specific needs. Their film, “Unseen,” follows the struggles of Pedro, a blind, undocumented immigrant, as he struggles to navigate everyday life, obtain a college degree, and cope with depression.

DocProject helped Hernandez navigate some thorny issues about editorial independence and the reporters’ privilege. “Those were some of the biggest lessons I  learned from them,” Hernandez said.

Most of the documentaries DocProject takes on are years in the making, meaning the law students who worked on them have graduated before they make their premiere. But Torikian was fortunate enough to see a couple of the films he’s worked on make their premieres this spring.

“It’s a good feeling when you recognize a slight tweak in the movie and you’re like, oh, that tweak was because of us,” he said. “Or, ‘I remember when the film looked like this, and now it looks like that.’ It’s very satisfying.”