The battle between "Gasland" director Joshua Fox and Republicans in the House who support fracking has now turned into a tussle over the First Amendment.
Fox was arrested by Capitol police on Wednesday and charged with unlawful entry when he attempted to videotape a congressional hearing on the controversial practice of hydraulic fracturing, or fracking, a method of extracting deposits of natural gas which Fox criticized in his Oscar-nominated film.
The arrest, it turns out, was no surprise to anyone. Fox and "Gasland" co-creator Matthew Sanchez claim they had been trying to get permission or credentials for most of the two previous days. In fact, they claim they have tried and failed to get credentials for similar hearings for a year and a half. Those credentials are issued by the House Radio-Television Correspondent's Galleries. Fox approached the office of Rep. Andy Harris (R-Md.), an outspoken proponent of fracking who was chairing Wednesday’s hearing before a subcommittee of the House Science, Space and Technology Committee, and asked permission. He claims he did not hear back from Harris' office.
"Mr. Fox called Mr. Harris' office around 8 p.m. the night before the hearing, well after normal office hours. We've not received any communication from Mr. Sanchez," wrote Ryan Nawrocki, a spokesperson for Rep. Harris, in an email late Friday. He also clarified that Fox was welcome to stay at the hearing, he simply didn't have the right credential to videotape.
Without having obtained the proper credential, Fox went to the hearing, set his camera and tried to start videotaping. He considered it an act of civil disobedience.
“This is part of a pattern of obstruction of us and documentary filmmakers in general in Congress that should not continue,” said Fox, interviewed by phone on Thursday.
Harris and Fox could not be further apart on the issues around fracking. "Gasland" contains a discussion of problems in the town of Pavilion, Wyo., where the EPA spent years investigating contaminated and still-undrinkable ground water and found evidence to connect it with fracking. The hearing chaired by Harris was stacked with gas and oil lobbyists and was meant to specifically attack these EPA findings. Afterward, Harris issued a press release criticizing the EPA for using “junk science” in its investigation in Pavilion.
House hearings are open to the public, although media representatives who are working and recording are credentialed.
“We have permission [to take video],” Fox continued. “We have permission granted to us by the Bill of Rights. Just because we’re not a typical Hill reporting outfit, they should not be allowed to obstruct us.”
For the past year and a half, Fox and Sanchez have been hiring reporters who do have credentials to stand behind their cameras, while the filmmakers sit in the audience. When he found himself without a credential – again – on the night before this hearing, Fox went on the offensive.
“The night before, when they were obstructing us, I happened to be on [New York City radio station] WBAI for a full hour that night, and also on Facebook. And our fans, or people concerned with fracking, or people concerned about media, filled up [Rep. Harris’] voicemail. They knew we were on our way and they were preparing to do something,” Fox said.
Party bias played a part in the arrest. Rep. Brad Miller (D-N.C.), the ranking Democrat on the subcommittee, asked if the hearing could be delayed for a week in order to deal with the credentialing issue, but he didn't have the votes to prevail over the committee chair. He also asked to have Fox and his cameras returned to the meeting, which also failed.
Ironically, much of this episode was captured on cellphone video made by other observers or possibly even congressional staffers.
“I’m taping, and meanwhile, everyone who works for Congress is taping this thing going down!” he said with a laugh. “They’re not getting arrested. There’s a clear double standard going on here, right? That’s why we have YouTube video of me getting arrested all over the TV right now. I didn’t shoot that video.”
Fox is due in court on the unlawful entry charges on Feb 15. And he believes he will be allowed to record future hearings.
“I don’t think they have a choice. I’d like to see them keep me out of a congressional hearing now,” he said. “All of this is a lesson: You have to exercise your constitutional rights in order to have them.”
[For the record, 12:00 p.m., Feb 6: An earlier version of this post did not include comments from a spokesperson for Rep. Andy Harris, who replied to interview requests after deadline. Also, an earlier version of this post had several errors. It said Rep. Brad Miller was from California, but he represents North Carolina. The piece also stated that Fox was arrested after walking into the hearing, but it was only the videotaping that violated committee rules and was cause for arrest. Anyone can attend the hearing. Also, the earlier piece said that now infamous footage of flammable gas bursting from water faucets, used in the film "Gasland," were from Pavilion, Wyoming. Those images were from Colorado and were not linked to oil and gas activity.]