High court rejects claim of First Amendment privilege for TV outtakes

PORTLAND — Brushing aside claims of First Amendment privilege, Maine’s highest court Friday rejected a Portland television station’s attempt to withhold portions of a videotaped news interview sought by a prosecutor as evidence in a criminal investigation.

After meeting with lawyers, WCSH-TV officials ruled out an appeal to the U.S. Supreme Court and decided to turn over the tapes, News Director Mike Carque said.

“We feel that if we did appeal, we would lose,” said Carque. “It would just be a waste of time and money.”

Carque had said earlier that the station would take the case to the U.S. Supreme Court if it didn’t prevail at the state level, and York County District Attorney Mary Tousignant said earlier Friday that she was anticipating an appeal.

In its unanimous decision, the Maine Supreme Judicial Court dismissed the station’s assertion that First Amendment guarantees of a free press established a “qualified privilege” to protect the portions of the interview with Biddeford Police Commissioner Denis Letellier that were not broadcast.

The justices said it was essential that a York County grand jury be given the opportunity to view the full 12-minute tape as part of its investigation into allegations that Letellier used his position to get a motor vehicle charge against his son reduced.

The station had turned over the 2 1/2 minutes of the Feb. 21 taped interview with reporter John Impemba that appeared on the air, but withheld the unused portions, known as outtakes.

The court based its ruling on a 1972 decision by a divided U.S. Supreme Court that said a “a proper balance” must be struck on a case-by-case basis between freedom of the press and the obligation of all citizens to provide relevant testimony about criminal conduct.

In the case of the Letellier outtakes, the Maine justices agreed, the balancing act was an easy one.

“The public interest in the integrity of the Biddeford police and city officials and in the effectiveness of the York County grand jury proceedings far outweighs any discernible impairment that the required production of the nonconfidential Letellier videotape outtakes might conceivably cause to the First Amendment interests asserted by Impemba and WCSH-TV,” Chief Justice Vincent L. McKusick wrote for the court.

Following the ruling, Carque called the opinion a victory for reporters and the media because it established in Maine law the need for a balancing test in determining what information must be handed over to prosecutors.

The court dismissed the station’s assertion that Tousignant’s subpoena was merely a “fishing expedition” and that surrender of the tapes would have a “chilling effect” on the news gathering process by inhibiting potential sources from coming forward in the future.

“The district attorney’s request is both limited and focused, seeking only the videotape of an interview voluntarily given by a public figure who never requested that the news reporter maintain any degree of confidentiality,” McKusick wrote.

The 17-page opinion agreed with Tousignant’s argument that the Letellier tape was a unique piece of evidence that cannot be duplicated and must be viewed in its entirety, if only to establish its context.