Defamation lawsuits often take strange twists. But one of the strangest yet comes from former Alabama Crimson Tide basketball player Kai Spears’ defamation lawsuit against former New York Times sports reporter Billy Witz (who’s now covering Pennsylvania news and politics for that publication) and that company overall. The federal judge overseeing that case is now asking the Alabama Supreme Court if a state shield law protecting journalists from revealing their sources applies to stories initially published online, which is particularly strange to see for this story, as it also appeared in print.
This all stems from a Times reporting blunder from Witz in 2023. Around the start of the men’s basketball NCAA Tournament that March, Witz was one of many to look at the questions around the Tide and the January shooting of Jamea Harris in Tuscaloosa. But the way he did so has led to this litigation saga.
That shooting saw then-Alabama player Darius Miles and non-player Michael Davis charged with capital murder. (Davis was found guilty last month and sentenced to life in prison; Miles, who was accused of handing his gun to Davis ahead of the shooting, has his trial still pending.) Miles was quickly released from the team, but questions surrounded another player, then-Crimson Tide star Brandon Miller (now with the Charlotte Hornets), who brought Davis that gun, was eventually charged with aiding and abetting, and testified during Davis’ trial.
But what separated Witz’s coverage from others was his claim (citing an anonymous “source familiar with the investigation”) that Alabama walk-on Spears was in Miller’s car at that time. It later came out that it was actually Alabama student manager Cooper Lee in that car. And that led to Spears bashing the Times‘ “complete disregard for the truth,” suing the paper, and getting a correction three months later.
Despite that eventual correction, this lawsuit from Spears (of note, he transferred to Marshall ahead of the 2023-24 basketball season, and his father is Marshall AD Christian Spears, who led a lot of the initial pushback to the Times story) has proceeded. There, Spears is seeking more than $75,000 in damages.
In depositions for that case, Spears’ lawyers’ asked for certain information from Witz, and he declined, saying that information might identify sources and was protected by shield laws. And that’s now led to this unusual print/online debate, as Matt Stahl writes at AL.com. (Of note, that website stems out of The Birmingham News and other papers, but the News published its last print edition in 2023, so “do shield laws cover digital reporters?” is far from an academic question for them.) Here’s more from Stahl’s piece:
“The question the judge wants answered is, does an online publication fall under the privilege?” Evans Bailey, general counsel for the Alabama Press Association, told AL.com. “Because the privilege talks about newspaper, radio broadcasts, television broadcasts. It doesn’t specifically say online or blogs or whatever.”
…U.S. District Judge Annemarie Carney Axon, who is overseeing the defamation lawsuit, requested the state’s highest court clarify whether the law applies to stories published online.
The Times legal team argued the reporter’s privilege applies whether a story was published online or in print.
“While no Alabama court has directly addressed this issue, other courts have considered analogous statutes and have been uniform in holding that they continue to apply in the modern digital world,” NYT attorneys wrote in a brief on April 25.
Spears’ legal team has argued the Alabama law does not apply to stories published online.
“The Alabama statute, of course, contains no such general language which would extend the privilege beyond newspapers, radio broadcasts, and television broadcasts,” attorney Matt Glover wrote in a brief on April 25. “Therefore, this Court… should have ‘little difficulty’ in determining that an online publication is not a “newspaper” within the meaning of Alabama’s shield statute.”
A strange element here is that this individual case has much stronger links to a traditional printed newspaper than just about any other story first published online. Yes, the Times currently has a lot of sports coverage that’s only published online, especially after their July 2023 decision to disband their NYT Sports desk and replace it with coverage from The Athletic (which they’d previously bought in January 2022). That led to the end of NYT Sports as its own thing, and to the reassignment of NYT Sports figures who did stay (including Witz) to other sections of the paper, and to the current printed sports section just taking a selection of The Athletic’s stories.
But that wasn’t the case in March 2023. And Witz’s piece here appeared in the print version of the Times. Thus, comments from Bailey (that Alabama Press Association general counsel) to Stahl here that this is “splitting hairs” have some merit, and the argument from Spears’ legal team that this doesn’t count as a “newspaper article” because it was published online before it hit print seems rather absurd.
However, while this may seem like a bizarre argument in this particular case, there’s a huge potential danger for journalists if it winds up being accepted. If this Alabama court responds to Axon and says stories first published online are not covered by this shield law, that would have huge implications not just for mostly-digital outlets such as AL.com, but also for every TV station, radio station, and newspaper that puts stories online. And if a court decides to go that way on a story so strongly tied to one of the most prominent and established print newspapers in the U.S., that would mean this shield law would cover very few (if any) media members.
There’s no question at this point that Witz and the Times got the facts extremely wrong in this initial report. And the reputational consequences there for Spears are more the province of those involved in this case to argue, as is the debate over if the publication acted with “actual malice” (the public figure defamation standard set in another NYT legal case from 1964).
The source revelation discussion even can see some debate. This is quite a different realm than national security cases (where Times reporters have sometimes even chosen prison over revealing sources), and Witz’s source obviously provided inaccurate information. There’s a potential argument that the publication of this kind of erroneous information here was severe enough to see the responsible source named by the publication and the reporter. (But the counterpoint is that any kind of cracks into promised source anonymity can have wide consequences, and that any kind of source-burning should come from the rolled reporter and their publication rather than outside legal forces.)
In any case, the questioning of Alabama’s shield law’s applicability to stories first published online from both Judge Axon and Spears’ legal team has much broader implications than for this case alone. And the judge’s decision to send that question to the Alabama Supreme Court could mean this bungled Alabama basketball story winds up impacting all kinds of journalism in the state going forward. Thus, this case will be one to watch for many more than just those immediately involved.
[AL.com]