NEWS MEDIA UPDATE · ELEVENTH CIRCUIT · Confidentiality/Privilege · July 18, 2005
First Amendment, not shield law, protects magazine writer
July 18, 2005 · Sports Illustrated is not protected by Alabama’s reporter’s shield law from disclosing a confidential source, but is protected by the First Amendment because a libel plaintiff did not make reasonable efforts to discover the source through other means, the U.S. Court of Appeals in Atlanta (11th Cir.) ruled Friday.
The state law, providing “any newspaper, radio broadcasting station or television station” absolute protection from attempts to reveal their confidential sources, does not apply to magazines, the court ruled.
Former University of Alabama Football Coach Mike Price sued Sports Illustrated and reporter Don Yaeger for libel over a May 2003 article alleging that Price had sex with two dancers he met at a Florida strip club. Yaeger based the story on a confidential source who claimed to be one of the two dancers. Price denies the allegation. He originally sued in state court, but Sports Illustrated had the case moved to federal court.
After the Supreme Court of Alabama refused to answer whether a magazine is covered by the protections of the state shield law, U.S. District Judge C. Lynwood Smith of Birmingham ruled that it is not. He also ruled that Price had overcome the qualified privilege provided by the First Amendment and ordered Yaeger to reveal his source.
A three-judge panel of the Court of Appeals reversed on the First Amendment question, ruling that in order to breach that qualified privilege, Price must show that he had substantial evidence the story was false, he had a compelling need to know the identity of the source, and he was unable to find a reasonable alternative means of discovering the source. Judge Edward Carnes wrote that Price’s sworn denial and the heightened burden of proof required by his status as a public figure satisfied the first two requirements.
But because Yaeger stated in the article that his source was one of the two women Price allegedly had sex with, and because he named one of the women in the article and identified two others subsequently, Price must depose those three women and a roommate also identified by Yaeger as a source, the court held. Only if the source is not identified after all four testify can Yaeger be called to testify and compelled to reveal his source.
“The [First Amendment] requires ‘reasonable efforts’ at alternative means of discovery, not every effort and not efforts for which there is a high probability of futility. In this area it is reasonable to require that a party beat the bushes, but it is not reasonable to require him to pull up every tree, bush, and blade of grass by the roots,” Carnes wrote.
Carnes also noted that Sports Illustrated‘s attorney would be ethically required to alert the court if Yaeger’s source lied under oath and denied being the source.
The court upheld the ruling regarding the shield law. “It seems to us plain and apparent that in common usage ‘newspaper’ does not mean ‘newspaper and magazine,'” Carnes wrote. “There are some meanings so plain that no further discussion should be necessary, but sometimes judges and lawyers act like lay lexicographers, love logomachy, and lean to logorrhea. And so it is here.”
Media organizations, including The Reporters Committee for Freedom of the Press, filed a friend-of-the-court brief on behalf of Sports Illustrated in the case.
(Price v. Time, Inc., Media Counsel: Scott Smith, Bradley Arant Rose & White, Birmingham, Ala.) — GP