Eleventh Circuit Does Not Extend Alabama State Shield Law To Magazine Reporters

Plaintiff Michael Price, the head coach of the University of Alabama's football team, sued Time Inc., the publisher of Sports Illustrated, and a writer named Don Yaeger for libel, slander, and outrageous conduct for an article Yeage wrote in Sports Illustrated. The article alleged that Price had paid for and engaged in "aggressive sex" with two strippers in a Pensacola hotel room. The lawsuit was filed in state court and removed to federal court based on diversity jurisdiction.PROCEDURAL POSTURE

In its first set of interrogatories, plaintiff asked defendants to reveal the source of information about the Pensacola incident. Defendant objected, relying on both an Alabama statute (Ala. Code § 12-21-142) that shields reporters from being compelled to reveal their sources and the First Amendment. Plaintiff then moved to compel the information and the district court granted plaintiff's motion because magazines are not newspapers and plaintiff had sufficiently overcome the First Amendment privilege protecting reporters' sources. The court may also have been skeptical of Yaeger’s fact-checking, as during his deposition, Yaeger testified that there was merely a “pretty solid chance” that his source’s information was completely accurate. The court then sua sponte reconsidered the motion and certified the motion to compel for interlocutory appeal to the Alabama Supreme Court. The Alabama Supreme Court declined to hear the case and the district court allowed plaintiff's motion to compel. The district court then granted defendants’ motion to certify for interlocutory appeal. The Eleventh Circuit determined that the Alabama shield statute does not cover newspapers but that plaintiff had not made a sufficient showing to overcome the privilege granted to reporters by the First Amendment.

STATUTE SHIELD STATUTE

The Eleventh Circuit first considered the legislative history of the Alabama statute. The law was passed in 1935 to “safeguard and protect the professional confidence of newspaper[s] and newspapermen” and was then extended in 1949 to apply to radio broadcast and television station reporters. The Court interpreted the statute very narrowly and focused its inquiry into the “plain meaning” of the word “newspaper.” It consulted five different sources of information to determine that a magazine is not a newspaper and therefore is not covered by the shield law.

The first source the Court consulted were thesauruses that did list newspapers and magazines as synonymous. The Court, however, disregarded this concurrence because thesauruses are too broad in their synonymizing and do not attempt to define words. The Court then consulted legal and general dictionaries and found that both distinguished between magazines and newspapers based on publication schedule and the type of paper used by each publication. The Court also found these distinctions confirmed by encyclopedias. The Court then turned to trade usage and noted that magazines and newspapers have separate awards and trade associations. Finally, the Court asked defendants directly during oral argument if Sports Illustrated was a newspaper and defendants answered in the negative. For these reasons the Court held that magazines are not newspapers, and because the statute must be interpreted narrowly, found that the Alabama shield statute did not apply to Sports Illustrated, a magazine.

The Court also noted that the Alabama legislature has used both the words “magazine” and “newspaper” in twenty other statutes, which the Court took as proof that magazines were intentionally excluded from the protection of the shield law. The Court also dismissed defendants’ argument that giving protection to newspaper but not magazine reporters would violate the Equal Protection clause of the Constitution: in the Court’s view, there is only one clear interpretation of the statute and Equal Protection concerns are only used to pick one competing interpretation over another. The Court also explained its unwillingness to construe the shield law broadly by noting the lack of a reporter’s privilege in common law.

FIRST AMENDMENT ISSUE

The Court then considered the First Amendment issue. The Court relied on Miller v. Transamerican Press, Inc. modified on reh'g, 628 F.2d 932 (5th Cir. 1980) and found that though reporters are protected from revealing confidential sources, “the privilege is not absolute.” The privilege can be pierced if the party seeking the source presents “substantial evidence” [1] that the challenged statement is factually untrue and defamatory, and, [2] that the party has made reasonable efforts to discover the information from another source and no other reasonable source is available, and, [3] that the identity of the source is necessary to proper preparation and presentation of the case.

In this case, the Court found that the first requirement was met because plaintiff’s own testimony that the incidents in Pensacola never occurred, though potentially “self-serving”, was substantial evidence that the allegations in the article were false and defamatory. The Court also found that plaintiff met the third requirement because in defamation cases public figures such as Price must show that the defamatory statements were published with “actual malice.” To do this, plaintiff must show that defendants had actual knowledge or reckless disregard of the statement’s falsity. The Court held that the credibility of defendants’ source must be examined in court since it will “illuminate the defendant’s state of mind” about publishing the article.

The Court then considered the second element of the Miller test and held that plaintiff had not undertaken enough efforts at obtaining the source’s identity through other reasonable means. In this case, there were only four potential sources for the article and plaintiff had not deposed any of these individuals under oath. Plaintiff represented to the Court that it had talked with all four of these women, but the Court noted that statements from these sources were not in the record, and so could not be considered. The Court allayed plaintiff’s fear the sources would lie by noting that defendants would be under an ethical obligation to inform the district court that a witness’s sworn testimony was false. Defendants’ argument that plaintiff must depose all seventeen people interviewed for the article was rejected by the Court because the Miller test only requires “reasonable efforts” and only four of the interviewees are the potential source used in the article.