Price v. Time, Inc., No. 04-13027.

• Decision Date: 15 July 2005
• Docket Number: No. 04-13027.
• Citation: 416 F.3d 1327
• Parties: Michael B. PRICE, Plaintiff-Appellee, v. TIME, INC., Don Yaeger, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

416 F.3d 1327

Michael B. PRICE, Plaintiff-Appellee, v. TIME, INC., Don Yaeger, Defendants-Appellants.

No. 04-13027.

United States Court of Appeals, Eleventh Circuit.

July 15, 2005.

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Scott Burnett Smith, Gary C. Huckaby. Kimberly Bessiere Martin, Bradley, Arant, Rose & White, LLP, Huntsville, AL, for Defendants-Appellants.

Stephen D. Heninger, Heninger, Burge, Vargo & Davis, LLP, Birmingham, AL, for Price.

Laura R. Handman, Davis Wright Tremaine, LLP, Washington, DC, for Amicus Curiae, ABC, Inc.

Appeal from the United States District Court for the Northern District of Alabama.

Before CARNES and PRYOR, Circuit Judges, and FORRESTER^*, District Judge.

CARNES, Circuit Judge:

In the Spring of 2003 Mike Price was head coach of the University of Alabama's Crimson Tide football team. Given the near-fanatical following that college football has in the South, the head coach at a major university is a powerful figure. However, as Archbishop Tillotson observed three centuries ago, "they, who are in highest places, and have the most power . . . have the least liberty, because they are most observed."¹ If Price was unaware of that paradox when he became the Crimson Tide's coach, he learned it the hard way a few months later in the aftermath of a trip he took to Pensacola, Florida.

While in Pensacola to participate in a pro-am golf tournament Price, a married man, visited an establishment known as "Artey's Angels." The name is more than a little ironic because the women who dance there are not angels in the religious sense and, when he went, Price was not following the better angels of his nature in any sense. Scandal ensued, and as often happens in our society, litigation followed closely on the heels of scandal.

Out of that litigation came this interlocutory appeal about whether Sports Illustrated magazine and one of its writers are protected under Alabama law or by the federal Constitution from being compelled to reveal the confidential source for an article they published about Price and his activities in Pensacola. The Alabama law question centers around that state's shield statute, Ala.Code § 12-21-142; more specifically, the question is whether the word "newspaper" in the statutory phrase "newspaper, radio broadcasting station or television station" ought to be construed to include Sports Illustrated magazine. The federal constitutional question involves application of the First Amendment qualified reporter's privilege, which in this case comes down to one factor: whether Price has made all reasonable efforts to discover the identity of the confidential source in ways other than by forcing Sports Illustrated and its writer to divulge it. For reasons we will explain, we conclude that Sports Illustrated is not a newspaper for purposes of Alabama's shield law, but we also conclude that Price has not yet exhausted all reasonable efforts to discover through other means the identity of the confidential source.

I.

Don Yaeger is a reporter for Sports Illustrated, a weekly magazine published by Time, Inc., which contains sports-related features, reports, opinions, and advertisements. The issue of Sports Illustrated which hit the newsstands on May 8, 2003 (but actually bore the date of May 12, 2003) contained an article written by Yaeger entitled, "Bad Behavior: How He Met His Destiny At A Strip Club." The "he" in the title refers to Price, and the "Destiny" reference is a double-entendre playing off the stage name of one of the strippers at Artey's Angels. The Sports Illustrated article itself recounts allegations of boorish behavior and sexual misconduct by Price in the months following his ascension to the position of head football coach at the University of Alabama. The article indicates that it relies on confidential sources for the most salacious parts of its content.

One of the incidents described in the article involves sexual advances Price allegedly made, shortly after he was hired in late 2002, towards some unnamed female students in a bar and at an apartment complex in Tuscaloosa, Alabama, where the University is located. The parties refer to this as "the Tuscaloosa incident." We need not detail any of the historical or procedural facts concerning this part of the article. At oral argument Price's counsel informed us that since the district court's order was entered he has uncovered by other means the identity of the confidential sources for the reporting about the Tuscaloosa incident. As the parties acknowledge, this development renders academic the issue of whether the district court's order compelling the defendants to disclose these particular confidential sources is proper, and as a result we should vacate as moot that part of the district court's order. That is what we will do.

Price has not yet discovered the identity of the confidential source for the article's reporting on "the Pensacola incident," so that part of the district court's disclosure order is not moot. The article states that shortly after arriving in Pensacola, Florida on the afternoon of April 16, 2003, Price went to a strip club called "Artey's Angels." It says that he spent most of his time with a dancer named Lori "Destiny" Boudreaux, who is quoted in the article as saying that Price bought her drinks, tipped her $60 for "semiprivate" dances, and touched her inappropriately during those dances, which was against the house rules. Price told Destiny² that he had a room at a hotel in town and that he wanted her to meet him there later that night.

The article also alleges that Price visited Artey's a second time, later on the same day, after he had left the golf tournament's sponsor dinner early. The article says that while sitting at the bar in Artey's, Price was "kissing and fondling a waitress until a reminder from the deejay prompted him to stop." It describes how he continued to buy several hundred dollars worth of drinks and dances until about midnight, and finally invited two dancers back to his hotel room where the three of them supposedly had sex. The article includes this description of what allegedly occurred at Price's hotel room:

At about midnight [after leaving the club] Price headed back to the hotel. He eventually met up with two women, both of whom he had earlier propositioned for sex, according to one of the women, who agreed to speak to SI about the hotel-room liaison on the condition that her name not be used. The woman, who declined comment when asked if she was paid for the evening, said that the threesome engaged "in some pretty aggressive sex." She said that at one point she and her female companion decided to add a little levity to the activity: "We started screaming `Roll Tide!' and he was yelling back, `It's rolling baby, it's rolling.'"

On May 3, 2003, five days before the article was published, Yaeger called Price to get his response to the allegations about the Pensacola incident. Yaeger asked Price if it was true that "both Jennifer (Eaton) and `Destiny,'" two exotic dancers from Artey's Angels, "met [him] back at the hotel" after he left the club. Price expressed surprise at the allegations and asked Yaeger who had told him that. Price denied having sex with any woman in his hotel room that night. He said the allegations were "[c]ompletely not true." When asked if he had invited anyone back to his hotel room, Price said "[a]bsolutely not." Although Price initially declined to comment when Yaeger asked if he had awakened the next morning with "at least one woman," Price did tell Yaeger "[t]hat story you heard is completely false." When told by Yaeger that Jennifer and Destiny claimed he had paid them $500 plus a "healthy" tip for sex, Price responded: "Well, someone bought `em, bought `em off because it's a lie. A flat lie."

On May 6, 2003, only two days before the magazine appeared on the newsstands, Yaeger went on the popular radio show of Paul Finebaum, a sportswriter in Birmingham, Alabama to discuss the upcoming article. Yaeger told listeners about Price's alleged hijinks in Tuscaloosa and Pensacola. The parties agree that the statements Yaeger made on the radio show are not materially different from what he said in the article.

Based on Yaeger's comments on the Finebaum show and the published article, Price sued Yaeger and Time, which is Sports Illustrated's publisher and parent company, in Alabama state court for libel, slander, and outrageous conduct. The defendants removed the lawsuit to federal court based on diversity jurisdiction.

In his complaint Price labels as "false and defamatory" most of the allegations in the Sports Illustrated article. He does admit visiting Artey's Angels once while in Pensacola for the golf tournament, but he denies everything else. In his complaint and under oath during a deposition Price vehemently denies having sex with anyone mentioned in the article.

Price's complaint avers that the defendants "knew or had reason to know" of the "falsity and lack of verified or factual support" for Yaeger's story, and that they published the account of the incidents in Tuscaloosa and Pensacola "knowing of its sensationalizing sting and falsity with malice by intent and/or reckless disregard for the truth in an effort to increase sales and profit to the[ir] benefit." The defendants, according to Price, "created this sensational and provocative article in a malicious effort to publish untruths that were assigned to purported anonymous sources and without a full and fair investigation into the truth or veracity of the [facts in the article] in an effort to get the story to press as quickly as possible regardless of its truth and defamatory content so it would explode into the newsstands." In other words, Price claims that the defendants maliciously defamed him either by lying about having a confidential source, or by relying exclusively on a confidential source that they knew, or should have known, to be untrustworthy.

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