A Magazine Is Not a Newspaper   

An Alabama case shows why crafting a shield law isn’t easy.

As reporter Judith Miller sits in jail, the case for a federal shield law seems more compelling than ever. But who would the law cover? The mainstream media?

Freelancers? Bloggers? "Citizen journalists?"

It's tempting to argue for the broadest possible definition, but Congress is unlikely to adopt language so all-encompassing that anyone with a computer and a modem could claim the privilege. A definition that focuses on function, rather than affiliation, seems like the best way to go. If you're acting like a journalist — gathering information for dissemination to the general public — you're covered.

But as a recent decision by the 11th U.S. Circuit Court of Appeals interpreting the Alabama state shield law demonstrates, it may not be so simple to get the language right.

It began with a libel suit arising from some sensational allegations that are a lot more fun than Patrick Fitzgerald's Valerie Plame investigation. Plaintiff Mike Price for a few brief months held the post of head coach of the University of Alabama's Crimson Tide football team. Shortly after he took the job, Price went on a golfing trip to Pensacola, Florida, where, according to a story by Sports Illustrated reporter Don Yaeger, he visited a strip club called Arety's Angels and afterward invited a couple of exotic dancers back to his hotel room. Yaeger quoted a confidential source as saying that the three indulged "in some pretty aggressive sex," which included the women screaming, "Roll Tide!" and Price replying, "It's rolling, baby, it's rolling."

When Yaeger contacted Price for comment, Price told him allegations that he had sex in the hotel room that night were "completely not true." But Sports Illustrated published the story anyway, and Price sued owner Time Inc. and the reporter.

The case ended up in federal district court. By now, Price had lost his job at Alabama after a university investigation of his activities in Pensacola and elsewhere. He could still challenge specific allegations in Yaeger's story, but as a public figure he would have to prove that they were false and that the defendants knew, or should have known, that they were. Price claimed that the magazine rushed the story to press and that Yaeger either lied about having a confidential source, or acted recklessly by relying on one that he should have known was untrustworthy.

Yaeger testified that he did have a single source for the details about the night in the Pensacola hotel room but wouldn't say who it was. He invoked the Alabama state shield law, which provides absolute protection for sources.

The Alabama law covers people working in a "news-gathering capacity" for "any newspaper, radio broadcasting station or television station." Although there's no dispute that Yaeger was working in a "news-gathering capacity," Price claimed that Sports Illustrated isn't a "newspaper." Therefore, the Alabama Legislature didn't intend to protect its reporters.

Federal judges loathe interpreting state statutes. But after the Alabama Supreme Court declined to construe its own state's law, the district trial judge, and then the Court of Appeals, had to figure it out for themselves. They came to the same conclusion: Sports Illustrated isn't a newspaper.

As Judge Edward Carnes wrote for a unanimous three-judge panel, courts usually try to infer the "plain meaning" of words. He considered dictionary definitions of newspapers. He cited the Pulitzer Prize guidelines, which don't define newspapers, "probably because those in the business do not need to define the term that defines their business. They know what a newspaper is."

Carnes also pointed to 20 other Alabama statutes that include both the words "newspaper" and "magazine," which would be unnecessary, he argued, if the terms were interchangeable. And perhaps most important, he contended that because the shield law creates a special privilege, it should be construed as narrowly as possible, "to make the least, rather than the most, change in the common law."

This cautionary tale underscores the problem with shield laws. When the language doesn't quite work, the only remedy is to ask the legislature to amend the statute. Fortunately for Sports Illustrated, this panel ruled that even though Yaeger isn't covered by the law, he does have a qualified privilege under the First Amendment. Price must question four women Yaeger identified to see whether one of them knows who the confidential source is before he can compel the reporter's testimony.

But there's one more wrinkle to the case. Carnes wrote that if, during the women's testimony, Yaeger's lawyer realizes that one of them is lying under oath, he is duty-bound as an officer of the court to inform the judge. He'll be required to reveal the identity of Yaeger's confidential source in order to fulfill his ethical obligations as a lawyer.

After the string of scandals involving suspect and fabricated sources, editors and lawyers should be asking tough questions about them. But a ruling like this will encourage reporters to be less than candid out of fear that their sources will be revealed against their will, driving yet another wedge between them and management.

Just what we need: another blow to credibility and independence.