Maine

Reporter's Privilege Compendium

Author

Sigmund D. Schutz, Esq.
Katherine J. Mail, summer law clerk, University of Michigan Law School, class of 2021
Preti, Flaherty, Beliveau & Pachios LLP
P.O. Box 9546
One City Center
Portland, ME 04112-9546
(207) 791-3000
www.preti.com

Last updated June 16, 2020

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I. Introduction: History & Background

On April 18, 2008, Maine Governor John Baldacci signed into law “An Act to Shield Journalists' Confidential Sources”—Maine’s first statutory reporters’ privilege. The statute is codified at 16 M.R.S.A. § 61. Before then, the reporter's privilege had reached the Maine Supreme Judicial Court twice. In 1990 the Court addressed access to non-confidential outtakes in a criminal proceeding and adopted the balancing test propounded by the First Circuit in Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 6 Media L. Rep. 2057 (1st. Cir. 1980). See In re Letellier, 578 A.2d 722, 17 Media L. Rep. 2169 (Me. 1990). 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." Id. at 726.

In the Supreme Judicial Court's other decision on the subject, State v. Hohler, 543 A.2d 364, 365, 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."

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II. Authority for and source of the right

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A. Shield law statute

Maine's shield law, 16 M.R.S.A. § 61, provides a qualified privilege against compelled disclosure of confidential sources of information, information that identifies confidential sources, and confidential information obtained from a source. The statute does not include any protection for non-confidential information.

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B. State constitutional provision

The Maine Supreme Court has not recognized state constitutional protection for journalist’s sources. The Court held that “. . . we can find no basis in language or history to differentiate a claim of privilege under the Maine Constitution from a claim of privilege advanced under the First Amendment.” In re Letellier, 578 A.2d 722, 726, 17 Media L. Rep. 2169 (Me. 1990). The Court rested its decision on the provisions of the First Amendment of the United States Constitution, not Article I, § 4 of the Maine Constitution, which provides that "no laws shall be passed regulating or restraining the freedom of the press."

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C. Federal constitutional provision

The Maine Supreme Court embraced the First Circuit's analysis in Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583 (1st. Cir. 1980). In that case, the First Circuit held that “courts must balance the potential harm to the free flow of information that might result against the asserted need for the requested information.” Id. at 596. The Maine Supreme Court referred to that holding in In re Letellier, 578 A.2d 722, 17 Med. L. Rptr. 2169 (Me. 1990), a criminal case in which the Court assessed reporters privilege by “balanc[ing] the competing societal and constitutional interests 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." Id. at 726. In a footnote, the Court acknowledged that the assessment may be different in civil cases. Id. at 725 n.7.

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D. Other sources

In Maine, court rules and rules of evidence do not provide a basis for a reporters’ privilege. In re Letellier, 578 A.2d 722, 724, 17 Media L. Rep. 2169 (Me. 1990).

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III. Scope of protection

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A. Generally

The shield law, 16 M.R.S.A. § 61, creates a qualified privilege against compelling a journalist to disclose the identity of a confidential source, any information used to identify a confidential source, or any information obtained from the confidential source by the journalist while acting in a journalistic capacity.

With regard to non-confidential sources, the Maine Supreme Court has ordered the disclosure of non-confidential outtakes sought by a grand jury in a criminal prosecution. See In re Letellier, 578 A.2d 722, 17 Media L. Rep. 2169 (Me. 1990). Applying the First Circuit's “balancing test,” the Maine Supreme Court ordered the disclosure of un-broadcast portions of a videotape, specifically noting the absence of a confidential source and the fact that the information was sought by a grand jury. Id.; see also State v. Hohler, 543 A.2d 364, 15 Media L. Rep. 1611 (1988) (no reporters privilege against testifying in a murder trial about highly relevant, non-confidential, previously published information).

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B. Absolute or qualified privilege

The privilege is qualified. The shield law, 16 M.R.S.A. § 61, provides that a judicial, legislative, administrative or other body with the power to issue a subpoena may not compel a journalist to testify about, produce or otherwise disclose or adjudge the journalist in contempt for refusal to testify about, produce or disclose:

A. The identity of a confidential source of any information;

B. Any information that could be used to identify a confidential source; or

C. Any information obtained or received in confidence by the journalist acting in the journalistic capacity of gathering, receiving, transcribing or processing news or information for potential dissemination to the public.

Notably, the statutory privilege only applies to confidential sources. A court may compel disclosure of the identity of a confidential source or information if the court finds, after the journalist has been provided notice and the opportunity to be heard, that the party seeking the identity of the source or the information has established by a preponderance of the evidence, in all matters, whether criminal or civil, that:

The identity of the source or the information is material and relevant;
The identity of the source or the information is critical or necessary to the maintenance of a party's claim, defense or proof of an issue material to the claim or defense;
The identity of the source or the information is not obtainable from any alternative source or cannot be obtained by alternative means or remedies less destructive of First Amendment rights; and
There is an overriding public interest in the disclosure.

In addition, in a criminal investigation, there must be reasonable grounds to believe that a crime has occurred; and in a civil action or proceeding, there must be a prima facie cause of action. 61 M.R.S.A. 16(2).

With regard to non-confidential sources and information, the Maine Supreme Court has adopted the balancing test set forth in Justice Powell’s concurrence in Branzburg v. Hayes, 408 U.S. 665 (1972). See Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 596 (1st. Cir. 1980) (“[C]ourts must balance the potential harm to the free flow of information that might result against the asserted need for the requested information.”). In In re Letellier, 578 A.2d 722, 17 Media L. Rep. 2169 (Me. 1990), a criminal case, the Court stated it must strike "a proper balance" on a case-by-case basis "between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct." Id. at 726 (deferring to the First Circuit’s analysis). The Court acknowledged that the assessment could be different in civil cases. Id. at 725 n.7.

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C. Type of case

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1. Civil

The shield law, 16 M.R.S.A. § 61, applies to civil actions and proceedings.

In a footnote to its criminal case In re Letellier, 578 A.2d 722, 17 Media L. Rep. 2169 (Me. 1990), the Maine Supreme Court noted that many cases recognizing a privilege "arose in civil actions where the balancing of interests is arguably different than in criminal actions," In re Letellier, 578 A.2d at 725 n.7, suggesting that the Court might be more inclined to quash a subpoena in a civil case than in an action involving a grand jury inquiry into criminal activity.

The Maine Supreme Judicial Court has not decided any civil cases where the reporter’s privilege was a central issue. However, a federal magistrate judge in the District of Maine, applying Maine law, addressed the required showing for civil parties to overcome a motion to quash prior to a deposition – the party seeking discovery must “‘show that it can establish jury issues on the essential elements of its case not the subject of the contested discovery’ before discovery may be compelled.” See Levesque v. Doocy, 247 F.R.D. 55, 57 (D. Me. 2007) (quoting Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 597 (1st Cir. 1980)). Furthermore, the reasoning in In re Letellier relied heavily on a civil case heard by the First Circuit. See Letellier, 578 A.2d at 726 (deferring to the reasoning in Bruno & Stillman, Inc., 633 F.2d 583).

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2. Criminal

The shield law, 16 M.R.S.A. § 61, applies to criminal investigations or prosecutions.

The Maine Supreme Court does not differentiate between subpoenas sought by prosecutors or defense counsel. See In re Letellier, 578 A.2d 722, 17 Media L. Rep. 2169 (Me. 1990).

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3. Grand jury

Although "grand juries" are not expressly mentioned in the shield law statute, it does apply to any "judicial, legislative, administrative or other body with the power to issue a subpoena." 16 M.R.S.A. 61(1).

In re Letellier, 578 A.2d 722, 17 Media L. Rep. 2169 (Me. 1990) involved the disclosure of non-confidential outtakes to a grand jury. The outtakes were sought by a subpoena issued by the District Attorney. In ordering disclosure, the Court emphasized the importance of grand jury proceedings, which the Court described as "a unique body guaranteed by both the United States and Maine Constitutions to play an historically vital role in our criminal justice system." Id. at 728–29.

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D. Information and/or identity of source

The shield law statute applies to both confidential information and the identity of a confidential source. 16 M.R.S.A. § 61(1).

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E. Confidential and/or nonconfidential information

The shield law statute applies only to confidential sources and information. 16 M.R.S.A. § 61(1).

In the few pre-shield law cases dealing with non-confidential information, the court has found that the balancing test weighs in favor of disclosure absent a showing of appreciable burden of disclosure on freedom of the press. In re Letellier, 578 A.2d 722, 17 Media L. Rep. 2169 (Me. 1990) involved the forced disclosure of non-confidential outtakes. Throughout the decision, the Court noted that the information sought was not confidential and did not involve a confidential source, suggesting that confidential source or confidential information might have been treated differently. E.g., id. at 728 (holding that disclosure would pose a “very low burden on WCSH-TV and its reporter”). See also State v. Hohler, 543 A.2d at 366 (“Hohler fails to persuade us that any substantial burden would be imposed on the news gathering process if a reporter is called upon to testify concerning non-confidential, published information.”).

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F. Published and/or non-published material

There is no privilege for published material. The privilege afforded by the shield law statute is waived "if the journalist voluntarily discloses or consents to disclosure of the protected information." 61 M.R.S.A. § 16(4).

In State v. Hohler, 543 A.2d 364, 365, 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." (emphasis added). Although that holding was narrowly tailored to the facts of Hohler, the Court’s repeated emphasis on the information’s previous publication leaves little doubt that published information will not be considered privileged in future cases.

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G. Reporter's personal observations

The shield law applies to "[a]ny information obtained or received in confidence by the journalist acting in the journalistic capacity of gathering, receiving, transcribing or processing news or information for potential dissemination to the public." 16 M.R.S.A. § 61(1)(C). The statute distinguishes between information obtained or received in a journalistic capacity and information obtained or received in a personal capacity.

No Maine Supreme Judicial Court case concerning non-confidential information has explicitly recognized this distinction.

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H. Media as a party

Maine's courts have not addressed this issue.

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I. Defamation actions

Maine's courts have not addressed whether there is a "libel exception" (and thus no privilege). There are no cases where a court has allowed entry of judgment against a media defendant, or instructed the jury that it should presume that there was no source, or declared a presumption of actual malice based on the media's assertion of a privilege and unwillingness to produce sources or protected information.

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IV. Who is covered

The shield law applies to a "journalist." 16 M.R.S.A. § 61. That term is not defined by statute, nor have the courts addressed the term’s definition or scope.

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A. Statutory and case law definitions

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