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Gibney attached. Everyone involved had a clear sense of the risks: HBO Documentary Films president Sheila Nevins has said she had "probably 160 lawyers" vetting the film, a number I was told is exaggerated, but not by much. "I'm sure that HBO's legal tab is considerable;' Wright said. "I knew they would come after me;' Wright said of writing his book. "It was to be expected that there would be legal as­ saults-and there were:' He had no reserva­ tions about entrusting Gibney with his book: "We're kindred spirits:' Gibney was willing and well-prepared. The secrecy Wright maintained while writing his book-he used disposable cell phones and encrypted email, for example-was imperative for Gibney, as well. The moviemaker avoided shooting his sources in their homes, and was careful not to be seen arriving at an interview location at the same time as a subject, lest they be photographed together. Wright was critical in persuading some of his key sources to appear on camera, in the series of interviews that structure the film. "It was very hard [to shape the narrative] because the book is so rich;' Gibney said. "Originally I was hoping to do much more." The book details the church's two major Behind the scenes on Alex Gibney's Sundance eras: that led by its founder, L. Ron Hub­ bard, and that led by Hubbard's successor, hit Going Clear: Scientology and the Pris_on of Belief David Miscavige. "So many stories had to be cut. illtimately, we opted for a structure that tried to tell that story in brief, but through BY MICHELLE ORANGE the tales of individuals:' In the film, eight central figures-among them filmmaker Paul Haggis and several former members of the church's executive FILMMAKER ALEX GIBNEY reward stance when it co.mes to lawsuits;' body, including Marty Rathbun and Mike had turned down an opportu­ and find it ea.5ier to stay quiet, ,Gibney said. Rinder-function as credible, first-person nity to make a Scientology docu­ Yet Gibney and writer Lawrence Wright conduits for an otherwise vast and incred­ mentary in the past. It didn't have together formed the public faces of ible story. Gibney conducted some q,f his seem worth the hassle. new feature Going Clear: Scientology and own research to help support this approach, The prolonged silence of the the Prison ofBelief Friends since their first building up the story of Sara Northrup, Hub­ media and other would-be crit­ collaboration (Gibney's documentary adap­ bard's first wife. ics, for fear of the hefty lawsuits tation of Wright's 2006 one-man play, My Rinder, at least, "jumped at the chance" and other harassments for Trip to Al Qaeda), Gibney has again adapted to participate. In his role working with which Scientology is famous, is one of Wright's works. This time, it's the Miscavige, Rinder witnessed, suffered, and in part due to a flaw in the U.S. legal system. 450-page investigation into the church of participated in all manner of abuse and "If you have deep pockets, you can use Scientology: its founder, its following, and harassment before leaving the church in the legal process as a kind of punishme!lt;' its madness. 2009. Having recently watched Mea Maxima Gibney told me. In the wake of the 1991 Time Wright's book, a meticulous portrait of Culpa, Gibney's 2012 expose of abuses within cover story on the church, titled "The Thriv­ a cult's formation and the mysteries of cult the Catholic Church, when Wright called 0 ing Cult of Greed and Power;' Scientology faith, changed Gibney's mind; the scope asking for his help, Rinder understood that en :i: filed a $416 million defamation suit against and vehemence of Scientology's threat Gibney's Oscar-winning imprimatur, along u. ,.0 the magazine; the case dragged out for had finally made speaking out a necessity. with that of HBO, would help the story reach a:~ years, and cost Time Warner several million Shortly after the book's 2013 publication, an even larger audience. As Going Clear :::> 0 in legal fees. "Sometimes people take a risk- HBO commissioned the documentary with illustrates, the church treats certain of its (.)

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exiles to aggressive surveillance and harass­ harshest scrutiny. "I think it's time;' Gibney ensuing 20 years, Scientology amassed ment; Rinder once found a camera hidden in explained. "We really call out Tom Cruise­ a fortune estimated at $3 billion. When · a birdhouse on his property. But he refuses not to victimize him but just to make him asked ifthe film might prompt the IRS to to stop talking. "I could have walked away aware of his responsibility:' According to take another look at Scientology, Gibney and hidden and lived a hermit's life of peace the film, under the church's auspices Cruise sighed: "I sure hope so:' and quiet. But I didn't feel like that was the enjoys protection, the procurement of girl­ Journalist Tony Ortega, who functions responsible thing to do:' friends, and gifts rendered by what Wright as a voice of the media in Going Clear, Gibney looked for a way to reflect the calls "near-slave labor:' suspects Gibney's hope will be realized: importance of speaking out as it occurs both The pressure is strategic: "The celebri­ "It's going to take an enormous amount of within Scientology (through extensive part­ ties inside Scientology who are being used pressure from the government or the me­ therapy, part-interview sessions known as to promote Scientology are the people who dia or the public. But recently we've seen "auditing''), and within the film itself. "My own have the most responsibility for demanding some stirrings that the IRS may be inter­ filmmaking process .. .is a question-and-answer reform inside the church;' said Wright. ested again. This film could push that:' process;' Gibney said. The documentary's Perhaps most disappointing to Gibney A related but more abstract concern, visual reference to auditing-which uses a was the. refusal of every major network to for Gibney, involves understanding the machine called an "e-meter;' imbued with reli­ license their Scientology-related footage for process by which a person sacrifices their gious significance, to measure an interviewee's use in the documentary. "We used it any­ money, their wellbeing, their dearest rela­ responses-''was a formal device. It was a way way, via fair use;' Gibney said. "But I found tionships, and finally their dignity in order of giving the film an aesthetic focus:' that staggering:' The same networks had no to remain faithful to the church. "One of Not all potential subjects were as eager problem licensing footage for MeaMarima. the things that was most important about as Rinder. Those who wouldn't speak to Culpa. To Wright, it's "an indication of the Larry's book is this idea of the prison of Gibney, including Katie Holmes and Nicole residual chilling effect that the church still belief. Rather than.do ail attack on Sci­ Kidman, were prevented from doing so by casts over our reporting community;' entology, [I wanted] to understand what non-disclosure agreements, he suspects. "I Another of the film's ambitions is to people got out of it, and how they then reached out to Katie, but I wasn't able to shed light on the scandal of how Scientol- -, got imprisoned by a kind of blind faith," get her to talk. Through her reps she said ogy came to be considered a religion at Gibney said. "Understanding that actu­ she wanted to talk but couldn't. Same thing all. In the early '90s, under the threat of ally made the whole story deeper, more with Nicole." Both women, of course, were a ruinous tax audit, Miscavige devised a human, but also more universal, because I once married to Tom Cruise, who along campaign to cow the IRS into granting think all of us get blinded by certain belief with Miscavige and fellow Scientology Scientology the tax-exempt status that all systems that allow us to do things that we figurehead John Travolta, receives the film's federally recognized religions enjoy. He de­ might not otherwise do:' ployed a barrage of Contemplating how otherwise normal, . lawsuits designed healthy Americans might willingly submit to hamstring the to years of suffering in "the hole;' the IRS, as well as facility where Scientologists suspected of hunts for informa­ giving offense are effectively incarcerated "Scientology has achilling effect tion that might and sentenced to hard labor, the com­ publicly embar­ parison Gibney draws from his own work rass the agency. is not to the Catholic Church but to his only if you accept being chilled." 2005 examination of corporate corruption, Enron: The Smartest Guys in the Room. INDIE LAW

Former Enron employees, he said, "some actual damage, impugn integrity or imply of whom did sort of appalling things ... and criminality or perversity. Cause for action ex­ told the most tremendous lies;' described ists only around a false statement of fact, not starting out telling very small lies, and STAYING opinion. Also, if the false fact was rendered then slightly larger lies, inching closer to a about a public figure, it must be shown that moral line. "And then maybe [they would] the false statement was made with "malice:' nudge the line, and then they would look Under the landmark case of New York Times back and realize the line was miles behind CLEAR v. Sullivan, "malice" exists when the state­ them. I think that's how it works:' ment is made either with knowledge that it is Going Clear works by opening a con­ The First Amendment false, or with reckless disregard as to whether versation that Gibney and Wright hope can help protect you and it is false. If, as HBO touts, 160 attorneys will continue until Scientology is held to reviewed Going Clear, you can be certain the account. "The point is, it's time to stop your documentary from bulk of their time was devoted to attempting being afraid of Scientology;' said Wright. lawsuits-for the most part to verify every statement rendered in the film. "There's a chilling effect only if you ac­ ~ Don't Violate National Security. cept being chilled, and if you don't, there Historically, the only time courts permit the are even more people who are willing to BY DAVID ALBERT PIERCE, ESQ . government to outright censor a work is write straightforwardly about it:' So that when national security is at stake. This can the next time someone makes a Scientol­ lead to both civil and criminal penalties. ogy documentary, more will be willing to speak, and fewer bodies will refuse to IF THERE'S ONE thing both ~ Know the Difference Between Report­ cooperate. "That would be a step forward." Alex Gibney and Scientology age and Partieipation. Documentarians Shortly after the film's January premiere, should agree upon, it's the value must not aid, abet or encourage illegal con­ an eight-minute video popped up on You­ of the First Amendment: freedom duct to occur for the benefit of the camera Tube, designed to refute the claims made of speech, religion, and the press When documentarians become investigators, by Going Clear. The tone is incredulous, (in addition to the freedom to ethical issues can arise over what should be even sneering; the video, produced under assemble and petition the govern­ turned over to law enforcement. Of course, if Scientology's "Freedom Media & Ethics" ment). The constitutional right you are working in conjunction with law en­ banner, calls Gibney "HBO's propagandist - that permits Scientology to act in forcement to expose criminality, you should in chief;' and compares parts of Going the name of its religion without comply with law enforcement guidelines. Clear to Nazi propaganda. Everything government interference is the same consti­ ~ Clear Copyrights as Often as Pos­ about the church's rebuttal fits the film's tutional right that permits Gibney and co. to sible. If a copyright holder is hostile to the portrayal, from the menacing language to publicly e~awine those acts. subject of your documentary, fair use may the fixation on real estate to the pagodas A documentary can take a critical look at be adopted as a means of using the amount of cash it must have taken to make this a subject without its consent. This occurs of a work necessary to convey your film's ad the number one Google search result with impunity because documentarians have message. Remember, though, that fair use is for all relevant keywords. Separate videos substantial First Amendment protections not a type of consent; it's a defense to claims have been made which criticize the film's derived from those accorded to the press. raised in litigation. Want to avoid litigation? sources, including Haggis and Rathbun. Al­ Though any disgruntled,.entity can sue a Avoid reliance on fair use. most certainly, there has never before been documentarian, winning that !awsuit is an Fair use best practices are a complex a movie that has been on the receiving end entirely different story. That said, for mov­ concept, for which skilled clearance counsel of so much offensive maneuvering- before iemakers who would like to avoid lawsuits should be consulted. The Stanford·Copyright it even premiered. and the costs associated with having them and Fair Use website (fairuse.stanford.edu) For Rinder, it's all worth it. Going Clear, fought, here are seven tips to keep you in the is dedicated to informing the public about he believes, "is going to embolden a lot of clear- particularly when you have a volatile what the law permits in the balance between people to feel it's safe to speak and safe to subject who might be out for your blood: the First Amendment and protection of report. The more voices there are speaking ~ Read the Society of Professional Jour­ copyrighted proprietary works. out about the abuses, the less likely the nalists' Code of Ethics. The First Amend­ abuses are to continue:' ~ Remember, Controversy Breeds Con­ ment may permit you to say whatever you I asked Rinder what his life is like now, troversy. Litigation risks are always height­ like, but ethically speaking, should you? The clear of the church but devoted to exposing ened when your film acquires a reputation watchwords of the SPJ Ethics Code (spj.org/ its abuses, birdhouse cameras be damtled. of being an "expose:' The more controversial ethicscode.asp) are (a) seek truth, (b) mini­ He paused, his eyes widening for a moment. your subject, the more you should consider mize harm, (c) act independently/disclose "Happy;' he replied. MM whether incidental uncleared items really conflicts of interest, and (d) be accountable need to be in the shot. If it's not part of the and transparent. Going Clear: Scientology and the Prison of story, consider removing or pixelating, in Belief opened in selected theaters on March 13, ~ Avoid Defamation Lawsuits. Do not the interest of avoiding having an otherwise and premiered on HBO on March 29, 2015. communicate false statements that can cause neutral party become a disgruntled one. MM

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