I. Introduction: History & Background

On April 18, 2008, Maine Governor John Baldacci signed into law “An Act to Shield Journalists' Confidential Sources.” The statute is effective July 18, 2008 and is codified at 16 M.R.S.A. 61. Prior to that time, the reporter's privilege has reached the Maine Supreme Judicial Court twice. In the most recent opinion to address the issue, In re Denis Letellier, 578 A.2d 722, 17 Med.L.Rptr. 2169 (Me. 1990), the Court essentially adopted the balancing test propounded by the First Circuit in Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 6 Med.L.Rptr. 2057 (1st. Cir. 1980). The Court held, "The First Amendment . . . requires that we balance the competing societal and constitutional interest on a case-by-case basis, weighing any possible injury to the free flow of information against the recognized obligation of all citizens to give relevant evidence regarding criminal conduct." Consequently, non-confidential sources and outtakes enjoy what amounts to a qualified privilege.

In the Supreme Judicial Court's only prior decision on the subject, State v. Hohler, 364 A.2d 364, 15 Media L.Rep. 1611 (1988), the Court refused to recognize any "qualified privilege for a reporter to refuse to testify concerning non-confidential, published information obtained from an identified source."