DEFAMATION | Time Inc. may have to reveal sources

Former Alabama football coach Mike Price must depose four women in order to discover the identity of the anonymous sources for a 2003 Sports Illustrated article describing his alleged sexual escapades that supposedly cost him his job. Should he fail to learn their identities, he can compel Time Inc., S.I. 's parent company, to disclose them, the 11th U.S. Circuit Court of Appeals has ruled.

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Former Alabama football coach Mike Price must depose four women in order to discover the identity of the anonymous sources for a 2003 Sports Illustrated article describing his alleged sexual escapades that supposedly cost him his job. Should he fail to learn their identities, he can compel Time Inc., S.I.‘s parent company, to disclose them, the 11th U.S. Circuit Court of Appeals has ruled. Price v. Time, No. 04-13027. A May 12, 2003, Sports Illustrated article detailed an alleged sexual liaison between the married Price and some women in a Florida hotel room. Price claimed that the article and the publicity surrounding it cost him his job at the University of Alabama. The article claimed that, while attending a golf tournament, Price invited an exotic dancer, Destiny, and two unnamed women to his room for “some pretty aggressive sex.” Price repeatedly and under oath denied that the hotel encounters took place, although he acknowledged visiting a strip club. In a deposition, writer Don Yaeger admitted that after the article went to press, he spoke for the first time with a woman his confidential source had identified as one of two women in Price’s hotel room. That woman, as recounted in the opinion, told Yaeger that she was the only one in Price’s room that night and denied having sex with him. Price sought the identities of Yaeger’s anonymous sources and, in December 2003, an Alabama federal judge ordered Time to disclose them. Time appealed to the 11th Circuit. Writing on behalf of the panel, Judge Edward E. Carnes cited a 1980 5th Circuit ruling, Miller v. Transamerican Press, holding that a reporter’s shield privileges could be pierced if a party seeking a reporter’s confidential sources could offer “substantial evidence” that a published statement was untrue and defamatory; that reasonable efforts had been made to discover those confidential identities from alternatives sources; and that the identity of a confidential source was necessary for litigation to go forward. As a public figure, Carnes wrote, Price “has to show actual malice, which means that he must show by clear and convincing evidence that the defendants published the defamatory statements about him either with actual knowledge of their falsity or with reckless disregard for the truth.” Where the only source of the allegedly libelous comments is a confidential source, he added, “the only way to determine recklessness is to examine the reliability of the informant.” Carnes noted that Yaeger, in his deposition, had identified four women with either direct or indirect knowledge of the identity of the writer’s confidential source and who were in a position to confirm or deny the truth of the allegations. None of those women had been deposed under oath, Carnes pointed out, although all four had denied being Yaeger’s source when questioned by Price’s lawyers. “Before we can say that Price has exhausted all reasonable alternative means to discover the identity of the confidential source, he must depose the four women from whom he is most likely to discover” the identity of his source. “Once the confidential source is known,” he added, “the defendants will have no basis for refusing to confirm the source’s identity. The lawsuit can then proceed. If, however, our expectations are not met and for some reason the deposition of the four women does not result in the confidential source being identified, Price will have exhausted all reasonable efforts to obtain her identity by other means and the district court can reinstate its disclosure order.” However, the identity of the source will very likely be discovered through the depositions, whether through direct “testimony of the women or through the ethically compelled disclosures of counsel for the defendants, correcting any material testimony that he knows to be false.”

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