Does the New York Times have to reveal its source for a story that wrongly alleged former Alabama basketball player Kai Spears was at the scene of a murder?

A federal judge is asking the Alabama Supreme Court to decide if the state’s shield law protects reporters who publish stories online.

“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.”

Spears sued the Times in 2023 after reporter Billy Witz published an article that cited an unnamed source who named Spears as a passenger in the car that delivered the gun used in the death of Jamea Harris. The lawsuit said The Times “published false and damaging information” that led to death threats against Spears.

As the lawsuit has played out, lawyers for both sides have fought over whether the Times is covered by Alabama’s shield law that protects reporters from having to reveal their sources.

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.”

The lawsuit stems from a story Witz wrote identifying Spears as a passenger in UA basketball star Brandon Miller’s car on Jan. 15, 2023. That’s the day Harris, a 23-year-old Birmingham mother, was shot and killed near the Strip in Tuscaloosa with a gun that arrived at the scene in the car Miller was driving.

The gun belonged to Alabama basketball player Darius Miles, per court testimony. Miles had left his gun in Miller’s car and got it back shortly before the shooting. Miles gave the gun to his friend Michael Davis, who shot into the Jeep that carried Harris. A jury last month found Davis guilty of capital murder. Miles was also charged with capital murder and does not have a trial date set yet.

The NYT story, which relied on unnamed sources, was wrong about Spears having been a passenger. Cooper Lee, who was a student manager at the time, later came forward as the passenger in question. Neither Lee nor Miller, who now plays in the NBA, were charged with a crime.

The Times later corrected the story, which Spears immediately refuted. He eventually sued the Times for defamation, seeking upwards of $75,000 in damages. As part of the lawsuit, Witz was questioned in a deposition, and “refused to answer certain questions on advice of counsel,” saying that doing so would require him to disclose privileged information that could identify confidential sources, according to the judge’s order from March.

In April, Judge Axon ordered both sides to file briefings addressing whether the state’s shield laws apply to stories published online, an issue Spears did not originally raise.

In addition, Axon asked the Alabama Supreme Court to rule on whether that state’s shield statute protects all information that could be used to identify sources.

The New York Times has argued that information including “travel records, meeting locations, times of calls, expenses, pictures taken by—but not of—the source, documents provided by the source, and any similar records that can be pieced together to identify the source,” are privileged information, while Spears argued such an application of the state’s shield law is overly broad.

Bailey, the press association lawyer, said other states have determined that the shield privileges do apply to online stories and publications, but the question hasn’t been raised in Alabama. He also noted the Witz story was published in print, calling the question of whether the source shield law applies, “A really strange splitting of hairs.”

“A lot of these statutes were enacted before the internet was even a thing,” Bailey said. “But also, the statute comes from, they’re sort of derived from, in every state, this First Amendment notion that the freedom of the press shouldn’t be infringed. And when you’re looking at privileges and statutes that talk about this, you want to interpret them broadly, because you’re talking about a constitutional right.”

Bailey pointed out that the Alabama Supreme Court is not required to make a ruling on the matter. He brought up former Alabama football coach Mike Price’s libel lawsuit against Sports Illustrated following the end of his brief tenure in Tuscaloosa. In that case, a federal judge asked the state supreme court to decide whether the privilege extended to magazines.

The Alabama Supreme Court opted not to rule on that matter, and a federal appeals court determined the privilege did not apply to SI. The magazine and Price later settled the suit.

Bailey said the case could have a chilling effect on journalism in Alabama, should the state court determine the source shield laws do not apply to online stories.

“Everybody’s sources (would be) subject to discovery,” Bailey said. “They (could) be subpoenaed to come and testify, and you don’t have a way to stop them. I mean, it’s basically a court looking over your shoulder for every source you talk to, and you have no way to keep them out, and you won’t know until the article is published that you’ve got to give them up.”

The Alabama Supreme Court docketed the request from the federal judge on May 27 and has not yet set a hearing on the issue.