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In a libel case involving Sports Illustrated‘s use of confidential sources, a federal judge has asked the Alabama Supreme Court to decide whether Alabama’s press shield law extends to magazines. In December, U.S. District Judge C. Lynwood Smith Jr. ordered a Sports Illustrated writer to reveal anonymous sources to whom the magazine attributed unflattering, scandalous statements about former University of Alabama football coach Michael B. Price’s alleged sexual misbehavior. The coach claims that the article, published in SI’s May 12, 2003, issue, prompted his May 3 termination by the university. He is suing the magazine’s parent company, Time Inc., for defamation. As part of the litigation, Price sought the identities of anonymous sources cited by SI writer Don Yaeger, claiming that he needed to determine the accuracy of the statements and the credibility of the sources. Price’s attorneys argued that this information is critical to determine whether the story was published with malice — which includes knowledge of falsity and reckless disregard for the truth — the standard that public figures such as Price must clear in order to prove defamation. Smith originally agreed to the request, ruling that Alabama’s press shield law does not extend to magazines. This month, in response to a request by Time Inc. for an immediate appeal to the 11th U.S. Circuit Court of Appeals, Smith decided that Alabama’s Supreme Court should consider the case first. Price v. Time, No. 03CV1868 (N.D. Ala. Feb. 3, 2004). In a 31-page order, Smith reiterated his belief that Alabama’s shield law applies only to newspapers, radio and television stations. The law specifically states that no person engaged in news gathering for newspapers, radio or television in Alabama can be compelled to disclose before any court, grand jury or legislative committee the sources of information included in an article or broadcast. The shield law omits any mention of magazines or periodicals. Smith certified the following question to the Alabama Supreme Court: “Does the exemption from disclosing sources of information found in Alabama Code � 12-21-142 [known as the press shield law] apply to a person ‘engaged in, connected with or employed on any magazine, while engaged in a news-gathering capacity?’” Price’s lawyer, Birmingham attorney Stephen D. Heninger of Heninger, Burge, Vargo and Davis, has objected to Time Inc.’s proposed interlocutory appeal and to certification of the question to the Alabama Supreme Court. Gary C. Huckaby, a partner at Bradley Arant Rose & White in Alabama, is defending Time Inc. DIVERTED FROM 11TH CIRCUIT Smith’s decision to seek a state rather than a federal ruling also could lessen the immediate impact of his December ruling in a defamation case pending in Fulton County State Court — Jewell v. Atlanta Journal-Constitution, No. 97-VS0122804-G. A ruling from the 11th Circuit would affect Georgia, as well as Alabama. In that 7-year-old Fulton defamation suit, former Centennial Olympic Park security guard Richard Jewell is seeking the identities of unnamed sources on whom the newspaper based its characterization of Jewell as the probable person behind the 1996 park bombing. Federal authorities subsequently cleared Jewell of any involvement. Eric Robert Rudolph is awaiting trial in Alabama on charges associated with bombings at the park, an Atlanta-area abortion clinic, a Birmingham abortion clinic and an Atlanta nightclub. Fulton State Court Judge John R. Mather has a motion under advisement seeking the identities of the Journal-Constitution‘s sources in light of a 2001 Georgia Court of Appeals ruling establishing conditions that must be met before anonymous news sources have to be identified. That ruling, which the Georgia Supreme Court declined to review, overturned Mather’s order holding two Journal-Constitution reporters in contempt for refusing to identify their sources. The ruling ordered Mather to revisit the issue, using a balancing test that the appellate court outlined in its decision. In ordering SI to name its sources last December, Smith addressed not only the scope of Alabama’s shield law but also the broader question of whether requiring reporters to reveal sources abridges the First Amendment. In doing so, he outlined a balancing test similar to the Georgia appellate court’s that should be applied before a news organization could be compelled to name its sources. Smith specifically noted that the identities of anonymous sources are of particular relevance in a public figure defamation case where malice, as well as falsity, must be proven. FIRST AMENDMENT QUESTION In his most recent order, Smith left the door open for the Alabama Supreme Court to consider the First Amendment questions, as well as state law. In certifying the question, Smith wrote, “There are no clear, controlling precedents in the decisions of the Supreme Court of Alabama on this issue, and its significance extends beyond this case.” He added, “The phrasing of the question is not intended to limit the inquiry of the Supreme Court of Alabama. The Supreme Court is at liberty to consider the problems and issues involved in this case as it perceives them to be in its analysis of the record in this case.”

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