TV station must turn over portions of unaired interview

Tuesday, February 24, 1998

NEW ORLEANS (AP) — The First Amendment does not protect a television station from having to give prosecutors the unaired portions of its interview with an arson suspect, a federal appeals court ruled Monday.

The case involves former WDSU television reporter Taylor Henry’s interview with Frank Smith of New Orleans. After learning that he was a suspect in the $200 million fire at the MacFrugal’s warehouse, Smith contacted WDSU and said he had information implicating others.

After Smith was arrested on Aug. 2, 1996, WDSU aired a brief portion of its interview with Smith.

Smith also discussed the case with New Orleans fire chief Warren McDaniels and with the Federal Bureau of Alcohol, Tobacco anf Firearms, giving slightly conflicting accounts, according to the 5th Circuit opinion.

WDSU fought a subpoena ordering it to turn over unused portions of the interview. A federal district judge agreed to quash the subpoena, ruling that reporters possess “a qualified privilege not to divulge nonconfidential information in criminal cases.”

A three-judge panel of the 5th U.S. Circuit Court of Appeal disagreed in a Monday ruling.

The opinion noted that WDSU was not seeking protection against having to reveal a confidential source. It rejected WDSU’s argument that forcing the turnover of the unaired interview would have a chilling impact on reporters’ willingness to report the news or save archival material.

“There is little reason to fear that on-the-record sources will avoid the press simply because the media might turn over nonconfidential statements to the government,” Judge Patrick Higginbotham added.

WDSU officials were not available for comment Monday evening.

The trial for Smith, charged with arson, has been on hold pending appeals. He remains in federal custody.