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Thursday, December 18, 2003

SI Challenges Order to Reveal Sources: Sports Illustrated reportedly will appeal a ruling that the magazine must reveal the confidential sources used in its story about Mike Price last spring. The article, which detailed a night of drinking and visiting strip clubs, resulted in Price’s dismissal from the University of Alabama without ever coaching a game. Price filed suit in September against Time, Inc., the publisher of SI, for defamation and seeks $20 million in damages. The main claim in the suit centers on the story’s allegation that Price had sex with two women in a motel room, a claim based on an anonymous source.

You can read more on the lawsuit here. The suit largely will turn on whether the magazine acted with “actual malice” — that is, whether the story was printed with reckless disregard as to the truth or falsity of the claims (see New York Times v. Sullivan). This 1964 precedent has set an exceedingly high bar for public figures to meet in proving defamation.

The battle over revealing sources is an interesting one. The District Court judge ruled that an Alabama law protecting newspaper, television and radio reporters from being forced to reveal their sources does not extend to reporters for magazines. Attorneys for Time have called this an extremely “narrow reading of the Alabama shield law” and it raises interesting 1st Amendment concerns. Should a magazine receive less protection for its sources than does newspaper, radio or television?

On the one hand, magazines are often “secondary” news sources, re-framing news that has been discovered by one of the “primary” news sources. However, news magazines often perform a vital investigatory function, as they often has the resources and the luxury of time to investigate stories and claims in depth.

Forcing a magazine to give up its sources forms a dangerous precedent and could possibly discourage other sources from coming forward. This is what the Supreme Court had in mind in Cohen v. Cowles Media, when it enforced an estoppel claim against a newspaper for printing a source’s name, after the paper promised not to reveal his identity. This case comes from the other angle- a publication not wanting to reveal a source, but many of the same issues are involved.

Legally, can a law distinguish between different types of publications? The answer seems to be yes, as Playboy does not have the same privileges regarding sources as does the Washington Post. However, where should this line be drawn? The judge in this case seems to be distinguishing between “primary” and “secondary” news sources, but this difference is not always so easy to see. Should Newsweek receive less protection? Should Variety receive more? And where do Internet publications fit into this picture?

If the line drawn is a neutral rule and has an incidental impact on speech, then it most likely will be upheld under O’Brien v. US. If, however, the line targets a certain type of speech, perhaps narrative journalism, then it may not withstand stricter scrutiny and could be overturned.


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