Television station must give interview tape to prosecutors

FIFTH CIRCUIT–The First Amendment does not protect a television station from a federal prosecutor’s subpoena for nonconfidential outtakes from a videotaped interview with a criminal defendant, the federal Court of Appeals in New Orleans (5th Cir.) held in late February.

Writing for a unanimous three-judge panel, Judge Patrick Higginbotham held that the U.S. Supreme Court’s landmark reporter’s privilege decision in Branzburg v. Hayes provided no protection for the media except in cases in which a subpoena is used to harass a reporter.

“Short of such harassment, the media must bear the same burden of producing evidence of criminal wrongdoing as any other citizen,” he added.

Higginbotham wrote that the media’s interest in protecting nonconfidential outtakes from disclosure was too minimal to overcome the prosecutor’s interest in obtaining the outtakes.

“We perceive no basis for holding that the public interest in law enforcement … is insufficient to override the consequential, but uncertain, burden on news gathering” resulting from requiring reporters to comply with subpoenas, Higginbotham wrote.

The appellate court’s holding reversed the decision of a federal District Court in New Orleans, which granted WDSU’s motion to quash the prosecutor’s subpoena in July 1996.

The subpoena sought nonbroadcast segments from an interview between WDSU reporter Taylor Henry and defendant Frank Smith, who is on trial for arson. The prosecutor served the subpoena after obtaining the permission of Attorney General Janet Reno, as required by Justice Department guidelines.

After Smith learned that he was a suspect in the investigation of two successive fires that destroyed the warehouse where he worked in New Orleans, he contacted WDSU and claimed that he had information about the cause of the fires. In the interview with Henry, Smith claimed that he overheard co-workers plotting to set the second fire, an allegation he later repeated in interviews with a local fire department superintendent and agents of the Bureau of Alcohol, Tobacco and Firearms.

The trial court held that, because Smith had been interviewed by government officials, the information sought from WDSU would be merely cumulative and therefore protected by a qualified reporter’s privilege. However, the appellate court decided that, because the privilege did not protect the outtakes sought by the subpoena, the station must release them whether or not they were cumulative. (United States v. Smith; Media Counsel: Mary Ellen Roy, New Orleans)