The Price of Privilege

A libel lawsuit in Alabama against Sports Illustrated magazine highlights the importance of an inclusive definition of ‘news media’

From the Spring 2004 issue of The News Media & The Law, page 17.

By Kirsten Murphy

In its May 12, 2003, edition, Sports Illustrated magazine featured a story about then-University of Alabama football coach Mike Price. Titled “Bad Behavior: How He Met His Destiny at a Strip Club,” the article recounts Price’s activities during a golf trip one month earlier in Pensacola, Fla., where he allegedly asked a dancer named “Destiny” to join him back at his hotel.

According to a woman who spoke to SI writer Don Yaeger under a promise of confidentiality, she and another woman had sex with Price, who is married, in his hotel room. The article also reported that Price, 58, had been warned about his public behavior by Alabama Athletic Director Mal Moore, also according to an anonymous source. Yaeger further quoted unidentified University of Alabama female students who described an incident in which Price propositioned them at his condominium complex.

After only six months as coach of the Crimson Tide, before having coached a single regular-season game there, Price was fired by the university over the allegations in the article.

In June 2003, Price filed a $20 million libel lawsuit against Sports Illustrated, Time, Inc., the parent company of the magazine, and Yaeger. He claimed that the article led to the loss of his seven-year, $10 million contract. In an effort to prove his case, Price asked Judge C. Lynwood Smith of U.S. District Court in Birmingham, Ala., to order the defendants to reveal the names of the confidential sources quoted in the article.

Attorneys for Time argued that the state’s shield law, which is one of the few in the country to offer reporters absolute protection against compelled disclosure of sources, protects it from being forced to reveal confidential information. The company’s problem, however, was that the law — which expressly protects those working “on behalf of a newspaper, radio station or a television station” — does not mention the word “magazine.”

The case highlights the problem courts and legislatures face when deciding who merits protection as a journalist. Courts have struggled with these definitions over the years, often in cases involving Internet and freelance reporters.

The trend in courts in addressing First Amendment issues, where the question of the scope of protection is not clearly defined, has been to include “nontraditional” members of the media under the umbrella of protection against compelled disclosure. But when the issue is one of interpreting a specific statute, courts have less leeway in determining how the law applies to different types of reporters, and many state legislatures have been slow to keep up with the changing world of mass communications.

Is the Price Right?

In Price v. Time, Judge Smith ruled in December 2003 that the failure of the statute to specifically mention magazines indicates that they are not covered under the law. “If the [Alabama] legislature had intended for the scope of the statutory privilege to include magazines and other media, it could have done so clearly and unequivocally,” said Smith, who ordered Time to reveal the names of the confidential sources by Dec. 19.

After deciding that the shield law did not apply, Smith then examined the additional protections of the qualified privilege under the First Amendment and found that Price had met a three-part test used to determine whether a reporter may be compelled to reveal information. The test requires a plaintiff to prove that the information sought is relevant to the case; the information cannot be obtained by alternative means; and there is a compelling need for the information.

Time appealed the ruling, asking Smith to certify an appeal to the U.S. Court of Appeals in Atlanta (11th Cir.). However, on Feb. 3, Smith issued an opinion asking the Alabama Supreme Court to answer the question of whether the state shield law covers magazine reporters.

A request by a federal court for clarity of a state law is permitted in most states. It allows a federal court applying state law to ask the state’s high court to decide the issue so that the case may proceed in federal court.

However, on April 1, the Alabama Supreme Court declined to answer the question of whether magazine reporters are covered under the state shield law. Although state courts have discretion to decide whether to answer such certified questions, denials are somewhat rare.

“Usually state courts are fans of certification,” said Jonathan Nash, a law professor at Tulane University in New Orleans, La. “Judges on both sides like it. It gives federal judges a chance to avoid making mistakes about state law, and it gives the state court judges an opportunity to say ‘this is our law.’ ”

Courts may refuse to answer a question of state law for several reasons, such as when the court finds that the factual record in the case is not sufficiently developed, or when a similar case is working its way through the state courts. The Alabama Supreme Court gave no reason for denying the case.

Nonetheless, Time’s attorneys are likely to continue their pursuit of an appeal in the Eleventh Circuit.

“Under Price’s reasoning, a reporter for the Cleburne News could assert the privilege . . . but a reporter from Newsweek could not, even though both are published weekly, simply because Newsweek is printed on glossy paper,” Time’s attorneys argued in an October 2003 motion filed in federal court. “No rational reason exists to conclude that the Alabama legislature intended to discriminate among newsgathering outlets.”

Alabama is joined by two states — Ohio and Kentucky — in failing to explicitly mention magazines in their state shield law definitions. In Pennsylvania, although most mediums may be covered, the shield law requires that a journalist must work for a newspaper or magazine “of general circulation” to be covered under the law.

Making a Federal Case Out of it

On several occasions, the U.S. Supreme Court has addressed the issue, albeit obliquely, of who should be defined as a journalist. In deciding the 1938 case Lovell v Griffin, the court held that “The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest.

“The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.”

In the only Supreme Court case to directly address the existence of a qualified reporter’s privilege under the Constitution, Branzburg v. Hayes (1972), the court recognized the difficulty of defining a member of the news media, noting that “liberty of the press is the right of the lonely pamphleteer just as much as the large, metropolitan publisher.”

Several federal appeals courts have addressed the issue and decided to embrace a broad definition of who qualifies as a member of the news media, for the purpose of applying a qualified privilege. Courts have protected documentary film-makers, authors of technical publications, and gossip columnists.

In 1987, in von Bulow v. von Bulow, the U.S. Court of Appeals in New York City (2nd Cir.) created a definition of those protected by the reporter’s privilege, drawing a line based on the intent of the newsgatherer. To qualify for the privilege, the court said, a person must demonstrate an intent to use the material sought to disseminate information to the public and show that such intent existed at the inception of the newsgathering process.

In Shoen v. Shoen, the U.S. Curt of Appeals in San Francisco (9th Cir.) relied on the von Bulow definition in deciding in 1993 that an investigative book author was covered by the privilege. The court reasoned that the medium of communication is irrelevant to deciding who merits protection under the First Amendment. “We see no principled basis for denying the protection of the journalist’s privilege to investigative book authors while granting it to more traditional print and broadcast journalists. What makes journalism journalism is not its form, but its content,” the court wrote.

Yet courts have drawn the line in cases involving the gathering of information for personal or entertainment purposes. For example, the federal Court of Appeals in Philadelphia (3rd Cir.) held in the 1998 case In re Madden that a professional wrestling promoter was an entertainer by his own admission, “disseminating hype, not news.”

Equal Protection: An Argument for Inclusion?

Although some federal courts have been generous in their definitions of who merits protection under the First Amendment, state statutes — intentionally or not — may sometimes exclude “nontraditional” or new forms of media.

One argument for granting different members of the media privileged protection is that exclusion violates the First Amendment requirement that speakers receive equal protection under the law. The First Amendment prohibits laws that discriminate against speakers when the discrimination is based on the message or viewpoint that the speaker is trying to communicate.

Arguing discrimination against a medium of communication is a more difficult task, but not an impossible one, says First Amendment scholar and University of Minnesota law professor Adam Samaha.

“Even if states do get leeway, that doesn’t absolve them from providing a justification for a law that discriminates against a type of media,” he said. “Line-drawing must be valid.”

Some would argue that states are providing a privilege, through the creation of shield laws, that is not constitutionally required. And yet, said Samaha, “Even with a gratuitous benefit, you still need some justification for discrimination.” u