The producers and distributors of Retrograde, a documentary following the final nine months of America’s 20-year war in Afghanistan, are claiming First Amendment protections in a bid to dismiss a lawsuit faulting them for the killing of one of the title’s subjects by the Taliban.
At the heart of the lawsuit: The death of Omar, a member of a group of Afghan minesweepers tasked with protecting Green Berets in the region who was allegedly tracked down from a scene in Retrograde. In a close-up, the camera pans to him as another member of the National Mine Reduction Group voices concerns of being found by the Taliban when he returns to civilian life. A clip from that segment of the documentary later spread like wildfire on TikTok in Afghanistan.
Earlier this year, Omar’s wife and child, who were extracted from the country, sued Disney and director Matthew Heineman’s Our Time Projects for wrongful death and negligence. They accused the documentary’s producers of exploiting Omar’s identity for “commercial gain while knowingly placing him in grave danger” and failing to adhere to industry standards regarding the protection of people appearing in documentaries filmed in war zones.
The case spotlights thorny questions involving the responsibilities of journalists and documentarians who must balance telling a truthful and compelling narrative with the potential dangers their subjects face for cooperating.
In a Monday filing, Our Time says it was engaging in protected speech to further reporting on the U.S.’s withdrawal from Afghanistan, a matter of significant public importance involving a chaotic end to the longest war in the country’s history.
Retrograde explores the consequences of the U.S. government’s decision to pull military support for Afghanistan. Fallout from the withdrawal involved the Taliban gaining access to the former government’s records, which led to the killings of hundreds of Afghans who supported opposing forces. Our Time was the only documentary crew with clearance to embed with the U.S. military, which reviewed and approved the documentary for release, throughout this time.
“With up close footage, the Documentary shows rather than tells about the U.S.’s withdrawal and the impact on those left behind,” writes Nicholas Jampol, a lawyer for Our Time, in the filing. “This is quintessential on-the-ground war zone reporting protected by the First Amendment.”
Imposing liability on producers or documentarians for the actions of third parties, in this case the Taliban, will have a chilling effect on war time reporting moving forward, argue Retrograde‘s producers, which declined to comment. This, in turn, will limit publicly available information, particularly in situations in which there’s little access to closed-door decisions by the government.
A major issue in the lawsuit involves whether the documentarians should’ve blurred Omar’s face. Retrograde‘s producers respond that there’s no duty to do so, even in instances when promises were made to obscure the identities of subjects. Regardless, Our Time says it obtained consent to film Omar and all other U.S. and Afghan servicemembers and contractors.
And while the estate claims that Omar, who was tortured before his death, was identified by the Taliban because of the documentary, Retrograde‘s producers say he was found through other means. This includes employment records and other military intelligence, which were used to track down hundreds of other Afghans killed for fighting alongside the U.S. military.
Last year, National Geographic quietly removed the documentary from its platforms after The Washington Post published a story exploring whether the feature put some of its subjects in danger, with the title no longer appearing on Disney+ or Hulu. The Radio Television Digital News Association later rescinded a prestigious journalism award to the documentary, citing background information it received over the “filmmaking process” following publication of the Post’s article.
