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A federal judge in Alabama has ordered a Sports Illustrated writer to disclose his confidential sources in a libel case where the key legal issue parallels one raised in the case of former Olympic Park security guard Richard Jewell. On Dec. 8, U.S. District Judge C. Lynwood Smith Jr. of the Northern District of Alabama ordered writer Don Yaeger to disclose anonymous sources he used in a 2003 story about former University of Alabama head football coach Michael D. Price. Price v. Time, No. 03CV1868 (N.D. Ala. Dec. 8, 2003). Time Inc., Sports Illustrated‘s parent company, is seeking an interlocutory appeal before the 11th U.S. Circuit Court of Appeals in Atlanta of Smith’s order in the $20 million libel case. Price’s attorneys call the appeal a delay tactic. Price has contended in court filings that the story — which he claims was leaked to Alabama’s athletic department officials prior to publication — contributed to his firing last year from the Alabama job. Price, who was hired and fired in the course of four months without ever coaching a game, was dismissed May 3 — nine days before the article’s issue date. The question of disclosing anonymous sources also has been a significant issue in Jewell’s libel case against The Atlanta Journal-Constitution, which is moving into its seventh year of litigation. Jewell, a part-time security guard at Centennial Olympic Park during the 1996 Olympic Games, sued the Journal-Constitution in 1997, about 18 months after the newspaper named him as the focus of the FBI investigation into the July 27, 1996, Olympic Park bombing. That libel suit does not claim that the newspaper’s naming of Jewell as a potential suspect was libelous per se, but it says the newspaper libeled Jewell when it published other allegedly defamatory comments by unnamed sources that unfairly characterized him as the probable bomber. Jewell subsequently was cleared by the U.S. attorney of Georgia’s Northern District and by the FBI. Eric Robert Rudolph is awaiting trial on charges associated with bombings at the park, an Atlanta area abortion clinic, a Birmingham abortion clinic and an Atlanta gay nightclub. Fulton County, Ga., State Court Judge John R. Mather currently has a motion by Jewell’s attorney, L. Lin Wood Jr., under advisement. Wood is seeking to force the Journal-Constitution to reveal anonymous sources for a July 30, 1996, story about Jewell. Mather, who ordered the newspaper in 1999 to reveal its sources, is reconsidering the question in light of a 2001 Georgia Court of Appeals ruling asking him to revisit the issue. Jewell v. Atlanta Journal-Constitution, No. 97-VS0122804-G. If Mather were once more to order the newspaper to disclose its sources, and it refused to do so, the judge again could impose sanctions — which might include fines or jail time — as he did in 1999. In court filings, Wood has asked, instead, that a jury be allowed to infer that the newspaper had no sources and published either with malice or reckless disregard for the truth. THEY WANT NAMES The Alabama case is one of at least three cases, including Jewell, nationwide in which defamation plaintiffs are seeking the names of anonymous sources from media outlets. A federal judge in Washington in October ordered two reporters from The New York Times to name their sources in a defamation case against the U.S. Department of Justice brought by Wen Ho Lee, a scientist at the Los Alamos, N.M., nuclear laboratory, according to court records. The reporters are not defendants in the suit, and the Times has appealed the ruling. In 1999, Times reporters, citing anonymous sources, identified Lee as a suspect in alleged espionage activities then under investigation by the federal government. Lee subsequently was indicted on espionage charges and spent nine months in jail before he was released after pleading guilty to one count of mishandling nuclear weapons data, according to the Times. The Alabama case stems from a May 12 Sports Illustrated story headlined, “Bad Behavior: How He [Price] Met His Destiny at a Strip Club.” The story, according to Judge Smith’s order, included an account of activities that allegedly occurred in April in Pensacola, Fla., where Price was attending a golf tournament. During that visit, Smith’s order said, Price allegedly visited an adult entertainment club, met a stripper with the stage name Destiny, and invited her to his hotel. The article, as recounted in Smith’s order, claimed that although Destiny declined Price’s invitation, the coach subsequently met two women at his hotel, “both of whom he had earlier propositioned for sex, according to one of the women.” The magazine’s anonymous source was quoted in the article as saying that the threesome, including Price, allegedly engaged “in some pretty aggressive sex,” according to Smith’s order. Neither woman was named in the story. The article also included comments from an anonymous source “close to” the University of Alabama’s athletic department who claimed that Price twice had been chastised by the university’s athletic director for “spending time buying drinks for students,” according to Smith’s order. Two anonymous university students also were quoted in the article as claiming that Price had propositioned some female students shortly after he was hired, the order said. SOURCE CREDIBILITY QUESTIONED Price has sought the identity of all those sources. On Tuesday, Price’s attorney, Stephen D. Heninger of Heninger, Burge, Vargo & Davis in Birmingham, claimed that the anonymous statements are false. In court filings, Heninger has named Destiny as the source of the information concerning Price’s hotel room visitors and claimed that she told Yaeger, the story’s author, only that she heard it from someone else. Heninger also suggested that the article attributed some of the dancer’s statements while allowing her anonymity on others. Heninger said his research is not sufficient to prove malice without knowing the identity of the magazine’s sources. “They can always say, ‘You guessed wrong, and we’re not going to tell you who it was,’” he said. He continued, “What was written may not have been what they said.” If those sources’ statements were faithfully recorded, then the issue becomes “whether they were credible sources, whether the story was believable. You have to have some credibility from the source and the subject matter. It’s not just an absolute, free walk if you say someone told you this,” Heninger said. Heninger also said that Yaeger used a Tuscaloosa, Ala., stringer who may have provided the writer with some of the anonymous quotes. The names of those sources — and what Yaeger may have done to verify the accuracy of their reporting — are part of the libel litigation, the lawyer said. Yaeger’s story, the attorney claimed, “had a very heavy impact” on the decision to fire Price “and probably was the balancing factor.” In court filings, Yaeger and Sports Illustrated have denied that the anonymous statements the magazine published about Price were false. They also said that Price cannot prove the article was written or published with malice. The standard of malice or reckless disregard for the truth is required because Price is considered a public figure, according to court filings. So far, the defendants have refused to reveal those sources, claiming they are protected by Alabama’s media shield laws and the U.S. Constitution’s First Amendment. In 2003, Yaeger and the magazine declined to retract any of the anonymous statements that Price has challenged as libelous. Alabama attorney Gary C. Huckaby — a partner at Bradley Arant Rose & White, which is defending Time Inc. — said that First Amendment privilege “was properly applicable in this case. The reason that I say that is that Mr. Price’s counsel had pretty well indicated that he thought he knew who the source was. The essentiality of the information did not seem to be an issue, in my opinion, based on his own declarations.” But Judge Smith disagreed and ordered SI to reveal its sources, stating that magazine articles were exempt from Alabama’s media shield law because it protects only newspapers and radio and television outlets from being compelled by a court to reveal confidential sources. “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,” Smith wrote. THREE-PART TEST But Smith also addressed the broader First Amendment question of whether requiring reporters to reveal sources abridges freedom of the press. Smith called the First Amendment privilege a “qualified” one determined, in part, by the competing interests of a free press and a fair trial. Price said that a plaintiff in a defamation case seeking the identity of anonymous sources must meet a three-part test: one, the information must be relevant to the allegations; two, the information must not be obtainable by alternative means; and three, there must be a compelling need for the information. In the Sports Illustrated case, Smith wrote, “There is no question that the identity of the undisclosed sources is relevant to a determination of the truth or falsity of statements attributed to those sources in the article.” In addition, he wrote, “The court finds that [Price] has sufficiently demonstrated the absence of alternative means to obtain the identity of the confidential source … Even if the plaintiff were able to guess the identity of the confidential source, through a process of elimination or otherwise, nothing requires defendants to confirm that plaintiff’s guess is correct.” The only way Price can establish malice, the judge continued, “is to show that defendants knew the story was false or that it was reckless to rely on the informant. In order to do that, he must know the informant’s identity.” Smith also determined that Price had established a “compelling interest” in the information. “Where, as here, the identity of the source is central to the plaintiff’s proof in a libel action … the courts have compelled disclosure.” The three-part test outlined in Smith’s order parallels the Georgia Court of Appeals ruling in Jewell. It states, “If … a specific allegation of libel is determined to be legally viable, or if it cannot be determined whether the allegation is legally viable given the current state of the record, and if the identity of the sources is either relevant and material in and of itself, or is the only available avenue to other admissible evidence, then the trial court’s balancing test should favor disclosure of the confidential sources.” Wood, Jewell’s attorney, called Smith’s order in the SI case “extremely persuasive because, in effect, it undertakes the same type of balancing test that the Georgia Court of Appeals says Judge Mather must engage in the Jewell case. You have an Alabama case looking at a libel action of a public figure and balancing that plaintiff’s need for evidence to make his case versus the First Amendment … It is not controlling authority. But it is extremely persuasive authority that sources must be disclosed.” Last week, Wood sent a copy of Smith’s order to Mather for his consideration. On Wednesday, Peter C. Canfield, who represents the Journal-Constitution, responded in a letter to Mather. Canfield wrote that the Alabama libel litigation “bears no legal or factual relation to [the Jewell] case.” Canfield also argued that, unlike the Alabama case, the legal standard established by the state Court of Appeals requires the court first to determine whether a plaintiff’s libel claims are viable before it can compel the disclosure of confidential sources. “Apparently, the only record evidence in Price supporting the accuracy of defendant’s publication was the writer’s testimony about what he had been told by the confidential source,” Canfield wrote. “This is in stark contrast to [ Jewell], in which the record is replete with evidence establishing not only that what defendant published was true, but that plaintiff had repeatedly admitted its truth himself, including statements made under oath.” Wood acknowledged that there were some people “at the time who may have believed that Richard planted the bomb and bombed the park, both of which we know to be absolutely false … That’s not libel law. In libel law, if you republish a statement by someone who says, ‘I believe Jewell bombed the park,’ the issue is did he bomb the park? The issue properly analyzed under libel law is: Did you republish a defamatory statement of another?”

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