Rel: April 10, 2026
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA OCTOBER TERM, 2025-2026
_________________________
SC-2025-0370 _________________________
The New York Times Company
v.
Kai Spears
Certified Questions from the United States District Court for the Northern District of Alabama
(Case No. 7:23-cv-00692-ACA)
McCOOL, Justice.
Pursuant to Rule 18, Ala. R. App. P., the United States District
Court for the Northern District of Alabama ("the district court") has
certified two legal questions to this Court. Those questions stem from an SC-2025-0370
action that Kai Spears has commenced in the district court against The
New York Times Company ("The Times").
Facts and Procedural History
In the early morning hours of January 15, 2023, Jamea Harris was
shot and killed during an exchange of gunfire in Tuscaloosa. Harris's
death received national media attention because three members of the
University of Alabama's men's basketball team, including Darius Miles
and Brandon Miller, were allegedly involved in the shooting. Specifically,
Miller, at the request of Miles, allegedly "br[ought] the gun that killed
Harris to the scene of the shooting," and Miles then allegedly gave the
gun to Michael Davis, who shot and killed Harris. Miles and Davis were
subsequently charged with capital murder. Miller was present, in his
car, when the shooting occurred, and another person associated with the
basketball team was with Miller in his car. It is now undisputed that
that person was Cooper Lee, but, at all times relevant to this case, Lee's
identity was unknown to the parties.
During the investigation into Harris's murder, a detective
discovered that there was "an unidentified passenger in Miller's car" at
the time of Harris's murder. A confidential source later told Billy Witz,
2 SC-2025-0370
a reporter with The Times, that Spears, another player on the basketball
team, was the unidentified person in Miller's car. The parties refer to
that confidential source as "Source A." A second confidential source,
whom the parties refer to as "Source B," told Witz that " 'someone with
Alabama was in the car.' "
Given the information he received from Source A and Source B,
Witz reached out to Spears to confirm whether he was in fact the
unidentified person in Miller's car at the time of Harris's murder.
However, Spears declined to comment because the University of Alabama
had instructed the members of its men's basketball team not to speak to
the media about Harris's murder. Witz then contacted Spears's father,
"who unequivocally stated that his son was not the unidentified
passenger" in Miller's car. Nevertheless, Witz told Spears's father that
The Times planned to publish an article identifying Spears as the
unidentified passenger in Miller's car unless Spears agreed to an
interview, which Spears refused to do.
On March 15, 2023, at 8:10 p.m., The Times published an online
article, authored by Witz, which stated that "[a] person familiar with the
case," who had "spoke[n] on condition of anonymity," had identified
3 SC-2025-0370
Spears as the unidentified passenger in Miller's car at the time of
Harris's murder. The next day, The Times published Witz's article in its
traditional newspaper. The following day, "Source B told Witz that he
was 'likely wrong' that Spears was in the car with Miller," but,
nevertheless, The Times "issued a statement that it … stood by its
reporting."
In May 2023, Spears sued The Times in the district court, alleging
that The Times had "fail[ed] to use reasonable care in publishing and
disseminating untrue statements about his presence at a crime scene and
publicizing highly offensive false statements despite harboring serious
doubts as to the reliability of its source and/or the source's information."
In conjunction with his complaint, Spears "has moved to compel the
production of documents, to lift redactions on documents produced in
response to his request for production, and to compel information
redacted or withheld in The Times's responses to interrogatories." The
Times has opposed Spears's discovery requests, arguing that § 12-21-142,
Ala. Code 1975, provides it with a privilege to withhold the requested
information. It is this dispute over discovery that led the district court
to certify the two questions to this Court.
4 SC-2025-0370
Discussion
The two certified questions both seek an answer regarding the
scope of § 12-21-142 -- a type of statute that is commonly referred to
around the country as a "shield statute." Section 12-21-142 states:
"No person engaged in, connected with or employed on any newspaper, radio broadcasting station or television station, while engaged in a news-gathering capacity, shall be compelled to disclose in any legal proceeding or trial, before any court or before a grand jury of any court, before the presiding officer of any tribunal or his agent or agents or before any committee of the Legislature or elsewhere the sources of any information procured or obtained by him and published in the newspaper, broadcast by any broadcasting station, or televised by any television station on which he is engaged, connected with or employed."
For ease of reference, we will refer to the privilege afforded by § 12-21-
142 as the "reporter's privilege," though the statute, as written, is not
necessarily limited to people who are employed in that capacity.1
Although our shield statute has existed since 1935, it does not appear
that Alabama's appellate courts have yet been called upon to address it.
1Section 12-21-142 applies to any person who is "engaged in, connected with or employed on any newspaper, radio broadcasting station or television station, while engaged in a news-gathering capacity." In most instances, the people "engaged in a news-gathering capacity" will likely be reporters or journalists, but they need not necessarily be. 5 SC-2025-0370
I. First Certified Question
The first question certified by the district court asks:
"Is the identity of a source, whose information is published online by a corporation that also publishes a newspaper, protected from compelled disclosure by a court?"
Although we initially accepted this certified question, we now decline to
answer it. See Stewart Title Guar. Co. v. Shelby Realty Holdings, LLC,
83 So. 3d 469 (Ala. 2011) (declining to answer a certified question that
the Court had initially accepted).
The first certified question seeks an answer regarding whether a
corporation that publishes a newspaper can be compelled to disclose the
identity of a source of information when the corporation publishes that
information in an online article, rather than in a traditional newspaper.
However, the answer to that question is irrelevant in this particular case.
Although The Times first published the information provided by Source
A in an online article, it is undisputed that The Times republished that
same information just hours later in its traditional newspaper.
Consequently, Spears has chosen to concede that § 12-21-142 protects the
identity of Source A. Indeed, Spears states in his brief to this Court that
he "made no argument to the district court, and does not intend to argue
6 SC-2025-0370
to this Court, that [§ 12-21-142] would be inapplicable under these facts."
Spears's brief, p. 42. See also id., p. 9 ("Spears … conced[ed] that because
The Times had also published the defamatory article in print, [§ 12-21-
142] did apply [with respect to Source A's identity]."). Spears's concession
therefore makes the answer to the first certified question irrelevant in
this case -- a point The Times essentially conceded during oral arguments
before this Court.
"In order for this Court to consider a certified question from a federal court, the question must be, among other things, 'determinative of [the underlying] cause.' Rule 18(a), Ala. R. App. P.; see Greene v. Massey, 384 So. 2d 24, 27-28 (Fla. 1980) (refusing to answer a certified question that would not be 'determinative of the cause'); Committee Comments, Rule 18, Ala. R. App. P. (noting that 'Rule 18 is based upon the Florida Appellate Rules, § 4.61 [now Fla. R. App. P. 9.150, which allows certification of a question if the "answer is determinative of the cause"]'). This requirement correctly leads us to view the question presented in its proper context, lest our answer resemble an opinion on an abstract point of law irrelevant to the underlying case. See, e.g., Smith v. Alabama Dry Dock & Shipbuilding Co., 293 Ala. 644, 651, 309 So. 2d 424, 429 (1975) (stating that '[i]t has long been the law of this State that courts will not decide moot, abstract or hypothetical questions')."
Palmore v. First Unum, 841 So. 2d 233, 235 (Ala. 2002) (emphasis added).
Thus, although we initially accepted the first certified question, we now
decline to answer it because doing so would not have any impact on the
7 SC-2025-0370
proceedings pending in the district court. See Stewart Title Guar. Co.,
83 So. 3d at 472 (declining to answer a certified question because doing
so would "necessitate [this Court's] fashioning a broad rule with the
possibility that it would have no application to the particular facts
presented").
In its certification order, the district court noted Spears's concession
regarding the first certified question, but the court reasoned that
"concessions of law are not binding on the court, so th[is] issue must be
decided." We have no dispute with the district court's conclusion that a
party is not free to concede the answer to a legal question, but a party is
free to choose which legal issues to raise, or, stated differently, is free to
waive legal issues (other than jurisdictional issues). In this case, Spears
has not conceded the answer to the first certified question; indeed, he
expressly states in his brief to this Court that he has "never conceded
that [§ 12-21-142] applies to online articles." Spears's brief, p. 42.
Instead, Spears has conceded that the answer to the first certified
question will have no bearing on this particular case because The Times
also published Source A's information in its traditional newspaper. In
8 SC-2025-0370
other words, Spears chose to waive the legal issue raised by the first
certified question, which he was free to do.
Before moving to the second certified question, we note that,
although there is no dispute that the identity of Source A is protected by
§ 12-21-142, there is a dispute regarding whether the identity of Source
B is protected by the statute. That dispute exists because the parties
disagree regarding whether the information provided by Source B was
"published in the newspaper." Id. In short, The Times argues that
Source B's identity is protected by the statute because, it says, the
information that he or she gave to Witz "provided 'partial confirmation' "
of the information provided by Source A. The Times's reply brief, p. 39.
Spears argues in response that only one source is mentioned in The
Times's article, which is undisputedly Source A, and that, as a result,
Source B's information, even if it confirmed or corroborated Source A's
information, was not actually published by The Times.
However, answering the first certified question would not resolve
the parties' dispute over Source B's anonymity. It is true that this Court
may rephrase a certified question "in order to address the 'basic issue
implicated by th[e] question,' " Holcim (US), Inc. v. Ohio Cas. Ins. Co., 38
9 SC-2025-0370
So. 3d 722, 726 (Ala. 2009) (citation omitted), but the basic issue
implicated by the first certified question is simply whether § 12-21-142
applies to online publications by a newspaper, not whether information
that confirms or corroborates published information is protected by the
statute. This Court will not create an altogether new certified question
under the guise of "rephrasing" the question actually certified by the
district court.2 See Allen v. Dameron, 187 Wash. 2d 692, 702, 389 P.3d
487, 491 (2017) (declining to "reformulate the certified questions"
because doing so would have actually resulted in "the court …
answer[ing] a completely different question"); Potter v. City of Lacey, 3
Wash. 3d 328, 331 n.1, 550 P.3d 1037, 1039 n.1 (2024) (" '[W]e have the
authority to reformulate certified questions,' " but "we generally decline
to answer a question that is completely different from the one posed by
the federal court." (citation omitted)); and Hampton v. City of Chicago,
2Moreover, we note that the parties do not suggest that we should
resolve the dispute regarding Source B's anonymity. In fact, The Times is adamant that we should not resolve that dispute because it has not been presented to this Court via a certified question from the district court, and, although Spears has provided a brief argument on the issue, he states that he has done so only because he is "unsure whether the issue regarding the identity of Source B is appropriate for this Court's review given the specific framing of the certified questions." Spears's brief, p. 68. 10 SC-2025-0370
248 N.E.3d 553, 557, 478 Ill. Dec. 928, 932 (2024) ("The appellate court
may limit or rephrase a certified question, though review is generally
confined to the issue presented in the certified question."). Rather, if the
district court feels that any additional certified questions are necessary,
it may submit them to this Court pursuant to Rule 18. See Heatherwood
Holdings, LLC v. First Com. Bank, 61 So. 3d 1012, 1026 (Ala. 2010)
(noting, after declining to answer two certified questions, that the
certifying court could "submit any remaining questions to this Court
under Rule 18").
II. Second Certified Question
The second question certified by the district court asks:
"Does the Shield Statute protect any and all information that could lead to the identification of a source whose identity is protected from compelled disclosure under Alabama's Shield Statute?"
During oral arguments before this Court, The Times suggested that the
second certified question should be rephrased to add "reasonably" after
"could." We agree and rephrase the question as follows:
"Does the Shield Statute protect any and all information that could reasonably lead to the identification of a source whose identity is protected from compelled disclosure under Alabama's Shield Statute?"
11 SC-2025-0370
See Holcim, 38 So. 3d at 726 (noting that this Court may rephrase a
certified question "in order to address the 'basic issue implicated by th[e]
question' " (citation omitted)).
The Times argues that § 12-21-142 "provides an absolute privilege
against the disclosure of both a confidential source's name and also other
information that could reasonably lead to the identification of the
source." The Times's brief, p. 21 (emphasis in original). In support of its
interpretation, The Times argues that "the privilege would be
meaningless if it did not protect contact information, personal data, or
descriptive details that, individually or in combination, would narrow the
pool of potential sources to the point where their identity could be
discerned." Id., pp. 21-22. Spears argues in response that § 12-21-142
must be interpreted strictly and narrowly and therefore "does not extend
to 'any and all information' " that " 'could' ultimately 'lead to the
identification' of the source." Spears's brief, p. 43. Thus, the issue before
this Court is one of statutory interpretation.
Our interpretation of § 12-21-142 is governed by the following
principles:
" ' "The cardinal rule of statutory interpretation is to determine and give effect to the 12 SC-2025-0370
intent of the [L]egislature as manifested in the language of the statute. Gholston v. State, 620 So. 2d 719 (Ala. 1993). Absent a clearly expressed legislative intent to the contrary, the language of the statute is conclusive. Words must be given their natural, ordinary, commonly understood meaning, and where plain language is used, the court is bound to interpret that language to mean exactly what it says."
" 'Ex parte State Dep't of Revenue, 683 So. 2d 980, 983 (Ala. 1996). " ' "If a statute is not ambiguous or unclear, the courts are not authorized to indulge in conjecture as to the intent of the Legislature or to look to consequences of the interpretation of the law as written." ' " Ex parte Morris, 999 So. 2d 932, 938 (Ala. 2008) (quoting Gray v. Gray, 947 So. 2d 1045, 1050 (Ala. 2006), quoting in turn Ex parte Presse, 554 So. 2d 406, 411 (Ala. 1989)).' "
Swindle v. Remington, 291 So. 3d 439, 457 (Ala. 2019) (quoting Slagle v.
Ross, 125 So. 3d 117, 123 (Ala. 2012)). Rather,
" 'it is our job to say what the law is, not to say what it should be. Therefore, only if there is no rational way to interpret the words as stated will we look beyond those words to determine legislative intent. To apply a different policy would turn this Court into a legislative body, and doing that, of course, would be utterly inconsistent with the doctrine of separation of powers.' "
Ex parte Pfizer, Inc., 746 So. 2d 960, 964 (Ala. 1999) (citation omitted).
In addition, "[a]t common law, a reporter did not have a privilege
to withhold the identity of a confidential source of information, and a
court could compel disclosure in proceedings before a court, grand jury, 13 SC-2025-0370
or other governmental body." Price v. Time, Inc., 416 F.3d 1327, 1342
(11th Cir. 2005) (citing Branzburg v. Hayes, 408 U.S. 665, 685 (1972)).
Section 12-21-142, on the other hand, expressly provides a reporter's
privilege and has therefore modified the common law. That fact is
significant to our analysis because this Court has previously explained
that " '[s]tatutes in derogation or modification of the common law are
strictly construed' and are 'presumed not to alter the common law in any
way not expressly declared.' " State v. Grant, 378 So. 3d 576, 580 (Ala.
2022) (citation omitted). Thus, we must interpret § 12-21-142 strictly so
as not to intrude upon the common law any further than the Alabama
Legislature expressly did with the language of the statute. See Grant,
378 So. 3d at 581 (noting that " 'statutes are construed in reference to the
principles of the common law; and it is not to be presumed that there is
an intention to modify, or to abrogate it, further than may be expressed' "
(citation omitted)). Furthermore, whether in derogation of the common
law or not, privileges against disclosure are " 'in derogation of the search
for truth' " and, as a result, should be "narrowly construe[d]." Ex parte
Mardis, 628 So. 2d 605, 607 (Ala. 1993) (citation omitted). See also
United States v. Nixon, 418 U.S. 683, 710 (1974) (noting that privileges
14 SC-2025-0370
against disclosure are not "expansively construed, for they are in
derogation of the search for truth").
With these principles of statutory interpretation in mind, we turn
to the language of § 12-21-142. As noted, that statute provides certain
people with a privilege to withhold, i.e., they cannot be compelled to
disclose, "the sources of any information … published in the newspaper."
At the risk of stating the obvious, we hold that this language clearly
authorizes any such person to withhold the name of any such source. We
further hold that, to achieve that end, this language also necessarily
protects any information that would inevitably reveal the identity of a
confidential source because the disclosure of such information would, for
all intents and purposes, be equivalent to disclosing the source's name.
See Black's Law Dictionary 925 (12th ed. 2024) (defining "inevitable" as
"[c]ertain to occur; impossible to prevent or avoid"). By way of example
only, such "source-identifying" information might typically include, but
is not necessarily limited to, a source's residential address, telephone
number, email address, and social-media accounts. Indeed, although his
concession is not controlling, we note that Spears has conceded that § 12-
21-142 protects such "source-identifying" information.
15 SC-2025-0370
To be clear, by holding that § 12-21-142 protects any information
that would inevitably reveal the identity of a confidential source, we do
not mean to imply that it will always be readily apparent whether certain
information meets this standard. "Inevitable" is not the same as
"obvious," and, in cases in which a dispute arises, it will be the trial court
that is best suited to sort things out. In some instances, it will be obvious
from the face of the information that its disclosure would inevitably
reveal the identity of a confidential source. In other instances, the
information, when considered in a vacuum, might not appear to be
information that would inevitably reveal the identity of a confidential
source, but, when that information is considered in the context of the
specific case or is combined with other information, it might become
apparent that disclosure would inevitably reveal the identity of the
source. As with other privileges, the one claiming the reporter's privilege
bears the burden of demonstrating that the disclosure of certain
information would inevitably reveal the identity of a confidential source,
Ex parte Tucker, 66 So. 3d 750, 753 (Ala. 2011), and trial courts are fully
capable of resolving such questions, which will necessarily be fact-driven.
See Lynch v. Hamrick, 968 So. 2d 11, 14 (Ala. 2007) (noting that
16 SC-2025-0370
questions regarding a privilege are " ' "question[s] of fact to be determined
by the trial court from the evidence presented" ' " (citations omitted)).
With that said, the question posed by the second certified question,
as rephrased, is whether § 12-21-142 protects "any and all information
that could reasonably lead to the identification of a source whose identity
is protected from compelled disclosure." (Emphasis added.) Thus, the
real issue that this Court must decide is whether the reporter's privilege
extends beyond information that would inevitably reveal the identity of
a confidential source. For reasons we will provide, we hold that the
reporter's privilege does not extend that far, and, thus, we answer this
question in the negative.
By its plain language, § 12-21-142 protects only "sources of …
information," which, in its strictest and narrowest sense, does not protect
"any and all information" that, in the hands of a resourceful recipient,
"could reasonably lead" to the discovery of the identity of a confidential
source. (Emphasis added.) Indeed, information that could lead to the
discovery of the identity of a confidential source will not necessarily do
so. Thus, if we were to interpret § 12-21-142 as broadly as The Times
does, we would risk creating protection for information that the statute,
17 SC-2025-0370
on its face, does not protect. And, if the Legislature had wanted § 12-21-
142 to provide such broad protection, it "knew how to draft a statute to
reach that end" and could have easily done so. Ex parte Jackson, 614 So.
2d 405, 407 (Ala. 1993).
In fact, we note that several other jurisdictions have shield statutes
that expressly protect not only the identity of a confidential source but
also any information that could potentially lead to the discovery of the
identity of the source. For example, Delaware's shield statute protects
any information that "would substantially increase the likelihood that [a]
source of … information will be discovered." Del. Code Ann. tit. 10, §
4323(a) (emphasis added). Hawaii's shield statute goes a little further,
providing protection for any "information that could reasonably be
expected to lead to the discovery of the identity of the source." Haw. Rev.
Stat. § 621-31(a)(1) (emphasis added). Maine's shield statute is even
broader, protecting "[a]ny information that could be used to identify a
confidential source." Me. Stat. tit. 16, § 61.1.B. (emphasis added).
Connecticut (Conn. Gen. Stat. § 52-146t(b)), Washington (Wash. Rev.
Code § 5.68.010(1)(a)), and Wisconsin (Wis. Stat. § 885.14(2)2.) all have
shield statutes that protect any information that "would tend to" reveal
18 SC-2025-0370
the identity of a confidential source, which at least arguably provides a
basis for interpreting the statutes broadly. See Republic of Kazakhstan
v. Does 1-100, 192 Wash. App. 773, 786, 368 P.3d 524, 530 (2016)
("declin[ing] to read [Washington's shield statute] … narrowly," based on
the fact that the statute "protects against the disclosure of any
information that would tend to identify a source" -- language that the
court interpreted as being "very broad").
These shield statutes from other jurisdictions demonstrate the ease
with which our Legislature could have drafted § 12-21-142 with language
that protects any information that "could reasonably lead" to the
discovery of the identity of a confidential source. Indeed, Hawaii's shield
statute uses almost that exact language. However, the Legislature did
not use such language in § 12-21-142, and this Court has previously
explained that " ' "[i]t is not proper for [this Court] to read into [a] statute
something which the [L]egislature did not include although it could have
easily done so." ' " State v. Blane, 985 So. 2d 384, 387 (Ala. 2007)
(citations omitted). "Rather, th[is] Court 'will presume more modestly'
that 'the [L]egislature says what it means and means what it says,' "
Oklahoma v. Castro-Huerta, 597 U.S. 629, 642 (2022) (citation omitted),
19 SC-2025-0370
and "we presume that the Legislature specifically chose each word" -- or
did not choose certain words -- "for a reason." Scott v. Alabama Dep't of
Revenue, [Ms. SC-2025-0013, June 13, 2025] ___ So. 3d ___, ___ (Ala.
2025). In other words, this Court is duty-bound "to give effect to [§ 12-
21-142] exactly as it is written," Tolar Constr., LLC v. Kean Elec. Co.,
944 So. 2d 138, 152 (Ala. 2006) (emphasis added), and, as written, § 12-
21-142 provides a privilege to withhold only "the sources of any
information … published in the newspaper." (Emphasis added.)
Construed strictly and narrowly, that language protects only information
that would inevitably reveal the identity of a confidential source, not "any
and all information" that "could reasonably lead" to the discovery of the
identity of the source. (Emphasis added.)
We acknowledge The Times's argument that courts in some
jurisdictions have held that the shield statutes in those jurisdictions
protect any information that "could" or "may" lead to the discovery of the
identity of a confidential source, despite the fact that those statutes do
not contain the type of language found in the shield statutes cited above.
See, e.g., Castellani v. Scranton Times, L.P., 598 Pa. 283, 310, 956 A.2d
937, 954 (2008) (holding that Pennsylvania's shield statute "prohibits the
20 SC-2025-0370
compelled disclosure of a confidential source's identity, or any
information which could expose the source's identity" (emphasis added));
Rosato v. Superior Ct. of Fresno Cnty., 51 Cal. App. 3d 190, 218, 124 Cal.
Rptr. 427, 445 (1975) (holding that California's shield statute "extends
not only to the identity of the source but to the disclosure of any
information, in whatever form, which may tend to reveal the source of
the information" (emphasis added)); In re April 7, 1999 Grand Jury
Proceedings, 140 Ohio App. 3d 755, 763, 749 N.E.2d 325, 332 (2000)
(holding that Ohio's shield statute protected information that "could very
likely have led to appellant's source" (emphasis added)); and Tavoulareas
v. Piro, 93 F.R.D. 35, 39, 40 (D.D.C. 1981) (holding that the District of
Columbia's shield statute protects information that "may lead plaintiffs
to confidential sources" and that disclosure is therefore not required if
the information sought will "seriously threaten to divulge a source"
(emphasis added)). According to The Times, the caselaw from those
jurisdictions provides a useful guide for this Court's interpretation of
§ 12-21-142, and it urges us to follow suit.
As a threshold matter, we find the Pennsylvania and California
caselaw to be of little relevance here because the courts of those
21 SC-2025-0370
jurisdictions have expressly stated that they interpret their respective
shield statutes liberally and broadly, whereas we are interpreting § 12-
21-142 strictly and narrowly. See In re Taylor, 412 Pa. 32, 40, 193 A.2d
181, 185 (1963) (holding that Pennsylvania's shield statute "must be
liberally construed in favor of the newspapers"); and Rosato, 51 Cal. App.
3d at 217, 124 Cal. Rptr. at 445 (holding that California's shield statute
must "be given a broad rather than narrow construction"). More
significantly, though, this Court's role is to give effect to the intent of the
Legislature as expressed in the language of § 12-21-142. Regardless of
how courts in other jurisdictions have interpreted the shield statutes in
those jurisdictions, nothing in the plain language of § 12-21-142 reflects
an intent by the Legislature to protect any information that "could
reasonably lead" to the discovery of the identity of a confidential source.3
3To be clear, when we speak of the Legislature's intent, we are concerned only with its intent as expressed in the language of § 12-21- 142. We are not concerned with the subjective intent of individual legislators when they enacted § 12-21-142, i.e., what any individual legislators thought the statute would cover. " '[W]ords and text are chosen to embody intentions and thus replace inquiries into subjective mental states. … [T]he text is the intention of the authors or of the framers.' " Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, Introduction p. 30 n.97 (Thomson/West 2012) (quoting Charles Fried, Sonnet LVX and the "Black Ink" of the Framers' Intention, 100 Harv. L. Rev. 751, 759 (1987)). 22 SC-2025-0370
And, as we have already explained, if the Legislature had wanted to
provide such broad protection, it could have easily drafted § 12-21-142 to
that effect, just as the legislatures in other jurisdictions have done.
We also acknowledge The Times's argument that public-policy
considerations favor a broader interpretation of § 12-21-142. Perhaps
they do and perhaps they do not, but that is not a question for this Court
to decide. "[I]t is well established that the [L]egislature, and not this
Court, has the exclusive domain to formulate public policy in Alabama,"
Boles v. Parris, 952 So. 2d 364, 367 (Ala. 2006), and " 'it is our job to say
what the law is, not to say what it should be.' " Ex parte Pfizer, 746 So.
2d at 964 (emphasis added; citation omitted). Thus, if public-policy
considerations do favor a broader reporter's privilege -- and we are not
suggesting either that they do or do not -- the appropriate place for The
Times to raise that argument is with the Legislature.4
4As a final point, we are not persuaded by The Times's attempt to
draw a parallel between the reporter's privilege and the government's privilege to withhold the identity of a confidential informant who has assisted in the investigation of criminal activity. See Rule 509(a), Ala. R. Evid. (providing that the government "has a privilege to refuse to disclose the identity of a person who has furnished to a law enforcement officer information relating to or assisting in an investigation of a possible violation of law"). Citing Ex parte Pugh, 493 So. 2d 393 (Ala. 1986), The Times contends that this Court has "extend[ed] the [confidential- 23 SC-2025-0370
*****
For the foregoing reasons, the short answer to the second certified
question, as rephrased, is "no" -- § 12-21-142 does not "protect any and
all information that could reasonably lead to the identification of a source
whose identity is protected from compelled disclosure." Rather, the plain
language of § 12-21-142 provides that the reporter's privilege protects
only "the sources of any information … published in the newspaper," and
we therefore hold that this privilege applies only to information that
would inevitably reveal the identity of a confidential source. That is the
holding that most narrowly intrudes upon the common law and is the
only holding that this Court can without question say does not go beyond
the intent of the Legislature as expressed in the language of § 12-21-142.
FIRST QUESTION DECLINED; SECOND QUESTION
ANSWERED.
Stewart, C.J., and Wise, Bryan, Cook, and Parker, JJ., concur.
informant] privilege both to the informant's name and to other information that would 'tend to' identify them." The Times's brief, p. 61 (quoting Ex parte Pugh, 493 So. 2d at 394). However, we do not read Ex parte Pugh as establishing that principle, and, even if it did, we fail to see why that holding would apply here because we are interpreting the language used by the Legislature in § 12-21-142, not the language used by this Court in Rule 509. 24 SC-2025-0370
Shaw, J., concurs in part and concurs in the result, with opinion,
which Sellers, J., joins.
Mendheim, J., dissents, with opinion.
25 SC-2025-0370
SHAW, Justice (concurring in part and concurring in the result).
"In determining the meaning of a statute, this Court looks to the
plain meaning of the words as written by the legislature." DeKalb Cnty.
LP Gas Co. v. Suburban Gas, Inc., 729 So. 2d 270, 275 (Ala. 1998). "If
the language of a statute is not 'plain' or is ambiguous, then -- and only
then -- may a court construe or interpret it to determine the legislature's
intent." Deutsche Bank Nat'l Tr. Co. v. Walker Cnty., 292 So. 3d 317,
326 (Ala. 2019).
I agree with the main opinion that the plain language of § 12-21-
142, Ala. Code 1975, "does not 'protect any and all information that could
reasonably lead to the identification of a source whose identity is
protected from compelled disclosure.' " ___ So. 3d at ___. Reading the
statute in such a way "would risk creating protection for information that
the statute, on its face, does not protect." ___ So. 3d at ___. I concur in
the main opinion to that extent. However, I would arrive at this
conclusion by a different analysis. See Ex parte Ankrom, 152 So. 3d 397,
431 (Ala. 2013) (Shaw, J., concurring in part and concurring in the result)
(noting that, when "[t]he language of [a] Code section is clear[,] there is
26 SC-2025-0370
nothing to construe [and] no need to attempt to divine the 'intent' of the
legislature"). As to the remainder of the opinion, I concur in the result.
Sellers, J., concurs.
27 SC-2025-0370
MENDHEIM, Justice (dissenting).
The parties' discovery dispute concerns the extent to which Ala.
Code 1975, § 12-21-142, might protect "source-identifying information,"
a phrase that does not appear in that statute. The certification order
entered by United States District Court Judge Annemarie Carney Axon
proposed the following certified questions to this Court regarding § 12-
21-142:
"(1) Is the identity of a source, whose information is published online by a corporation that also publishes a newspaper, protected from compelled disclosure by a court?
"Assuming the first question is answered affirmatively, the court certifies this question:
"(2) Does [§ 12-21-142] protect any and all information that could lead to the identification of a source whose identity is protected from compelled disclosure under [that statute]?"
According to the main opinion, Kai Spears waived the legal issue raised
by the first certified question and, "although we initially accepted the
first certified question, we now decline to answer it because doing so
would not have any impact on the proceedings pending in the district
court." __ So. 3d at __.
28 SC-2025-0370
Judge Axon was aware of the legal issues and of the arguments of
Spears and The New York Times Company when she certified her
questions. Judge Axon stated that, "consistent with Alabama precedent
requiring the party asserting an evidentiary privilege to bear the burden
of establishing the privilege applies," she had "ordered supplemental
briefing on an issue Mr. Spears did not raise: whether Alabama's Shield
Statute protects the identity of sources whose information is published
by a newspaper on its website." Judge Axon further rejected the New
York Times's argument that Spears had waived the issue whether the
fact of online publication was pertinent by conceding that physical
publication in the newspaper also had occurred. In her view of the
pertinent privilege law and its application, the fact of separate
publications, one occurring online and another occurring in physical
print, mattered to how she should decide the privilege issue.
Judge Axon did not certify an issue to this Court regarding whether
waiver had occurred or whether waiver was pertinent to what she must
decide. She had already decided those issues before certifying the two
questions to this Court. After accepting both questions, this Court now
expresses disagreement with Judge Axon's decisions as to waiver issues
29 SC-2025-0370
she has not certified, declines to answer the first certified question on
that basis, and proceeds to answer the second certified question that was
expressly conditioned on the "[a]ssum[ption] the first question is
answered affirmatively." However, Judge Axon did not unconditionally
certify the second question to this Court. She sought this Court's opinion
on the second question only if we affirmed that "the identity of a source,
whose information is published online by a corporation that also
publishes a newspaper, [is] protected from compelled disclosure by a
court," an issue that this Court has declined to answer.
Rule 18, Ala. R. App. P., provides for answering certified questions
when our answers to such questions would be
" 'determinative of [the underlying] cause.' Rule 18(a), Ala. R. App. P.; see Greene v. Massey, 384 So. 2d 24, 27-28 (Fla. 1980) (refusing to answer a certified question that would not be 'determinative of the cause'); Committee Comments, Rule 18, Ala. R. App. P. (noting that 'Rule 18 is based upon the Florida Appellate Rules, § 4.61 [now Fla. R. App. P. 9.150, which allows certification of a question if the "answer is determinative of the cause"]')."
Palmore v. First Unum, 841 So. 2d 233, 235 (Ala. 2002).
Our principles of statutory construction are well settled. See, e.g.,
IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So. 2d 344, 346 (Ala.
1992). The privilege in § 12-21-142 applies to protect from disclosure "the 30 SC-2025-0370
sources of any information procured or obtained by [the person connected
with the newspaper] and published in the newspaper." Apart from any
consideration of the issue whether an online publication by a newspaper
would qualify for the privilege, the pertinent language used in § 12-21-
142 is not ambiguous and requires no clarification from this Court. Price
v. Time, Inc., 416 F.3d 1327 (11th Cir. 2005) (addressing the plain
meaning of § 12-21-142, noting that "[t]he use of the term 'newspaper' is
not ambiguous, 416 F.3d at 1342, and stating that "[t]here are some
meanings so plain that no further discussion should be necessary, but
sometimes judges and lawyers act like lay lexicographers, love
logomachy, and lean to logorrhea," id. at 1336.);5 see also McCall v.
Automatic Voting Mach. Corp., 236 Ala. 10, 13, 180 So. 695, 697 (1938)
(noting that even when courts are attempting to adopt a construction of
a statute that would be constitutional, they "are not at liberty … to read
into it and interpolate words which do not appear in the language enacted
by the Legislature" (emphasis omitted)).
5Price was modified on rehearing, see Price v. Time, Inc., 425 F.3d
1292 (11th Cir. 2005), but the modification is not pertinent in this case.
31 SC-2025-0370
Judge Axon made her decisions as to waiver and framed her
certified questions accordingly. After reviewing the parties' submissions
and in light of the plain language of § 12-21-142, I am not convinced that
this Court can provide an answer that would be determinative of the
cause, especially in light of the limited information provided regarding
the disputed discovery issues, see Ex parte Affinity Hosp., LLC, 414 So.
3d 95, 98-99 (Ala. 2024) (discussing the fact-intensive nature of discovery
issues when a statutory privilege is asserted), and the remaining issues
regarding the application of the reporter's privilege under the First
Amendment to the United States Constitution, which the Times also
asserted.6
Accordingly, I respectfully dissent.
6Section 12-21-142 privileges against disclosure only "the sources of
any information procured or obtained." Based on the narrow parameters of that section, it is unclear to me that Spears cannot obtain through discovery whatever information he might be seeking, particularly within the framework applicable to the qualified constitutional privilege for reporters, to the extent that might be applicable. See Herbert v. Lando, 441 U.S. 153, 175-77 (1979); United States v. Capers, 708 F.3d 1286, 1303 (11th Cir. 2013) (describing the circumstances under which a court might compel disclosure of information protected by the constitutional privilege). 32