In a move that appears to be unprecedented, a Baldwin County Circuit Court judge has ordered Lagniappe reporters to turn over private communications with protected sources at the request of an attorney trying to prove there’s a conspiracy to defame his client, Fairhope bar owner Ronan McSharry.
As Lagniappe has reported, the attorney representing McSharry in a civil lawsuit against him filed by a woman he was convicted of assaulting, issued subpoenas seeking to force Lagniappe and Baldwin County Bureau Chief Gabriel Tynes to turn over any and all communications with public officials in Fairhope and other local media figures and attorneys.
The paper objected, citing reporters’ protection under the Alabama shield statute, which guarantees journalists in the state cannot — in any situation — be compelled to disclose the source of any information they gather and published in a newspaper or broadcast on television or radio.
Circuit Judge Clark Stankoski acknowledged it’s a reporter’s “absolute privilege” under the law, but has adopted the argument made by McSharry’s attorney, James Pittman, that shield laws protect the disclosure of sources, but not the information they provide. Pittman has claimed he knows who Lagniappe’s sources are, but is seeking communications with people he believes “have got it in for Mr. McSharry.”
In an order filed Jan. 14, Stankoski also makes a distinction between information that was published and information that was not.
“Alabama’s shield statute specifically protects ‘sources,’ which will be understood and interpreted to include the identity of a source as well as a reporter’s documents, notes and other materials related to an interview,” Stankoski wrote. “This is to be distinguished from the information (email or other tangible documents) itself.”
Stankoski concluded published information would be considered privileged, but he ordered the paper to turn over “all materials and/or documents and/or requested communications that were not published.”
It’s unclear whether any such communications exist at all considering news stories published in Lagniappe were largely derived from public court filings and arrest records from prior criminal charges McSharry has faced in Fairhope. None of those stories cited any anonymous or unnamed sources, and all stories disclosed the sources of the information.
Dennis Bailey, general counsel for the Alabama Press Association (APA), said it is “relatively rare” for legal disputes to arise over unmasking news sources. Though he isn’t representing Lagniappe, Bailey reviewed Stankoski’s Jan. 14 order and said, in his work with APA, he hasn’t seen a similar case make distinctions between published and unpublished materials or the sources of information and the information itself.
In an email last week, Bailey stressed the importance of broadly protecting confidential sources.
“Without the protection of confidential sources many of the most important issues facing this state and country would never have come to light. Alabama recognized this in the 1930s when it adopted a shield law, which protects reporters from being forced to reveal their sources for information,” Bailey wrote. “Because of that statute’s importance, it has been interpreted very broadly to quash subpoenas for reporters’ notes and materials relating to interviews that were part of a published story. Courts have ruled that the statute clearly protects a reporter’s sources of information.”
It’s also important to note the battle over these supposed communications is not being waged in the context of a defamation or libel lawsuit. Instead, the communications of Lagniappe reporters are being sought as part of a civil lawsuit filed against McSharry by Paula DiNardi, who claims the owner of McSharry’s Irish Pub injured her when he pushed her off a stool at a local bar on Nov. 23, 2018.
The incident with DiNardi was clearly captured in security footage for the bar that night, and McSharry was convicted of assault in the resulting criminal case in Fairhope. He has since appealed that conviction.
As Lagniappe reported, John Beck, McSharry’s attorney from his criminal trial in Fairhope Municipal Court, attempted to have the case dismissed based upon alleged interference by Mayor Karin Wilson. Beck claimed meetings between Wilson and DiNardi and text messages in which Wilson referred to McSharry as a “tyrant” who “tarnishes Fairhope” amounted to a “politically motivated” prosecution.
Court records indicate Pittman has also sought to subpoena Wilson as part of his defense in McSharry’s civil lawsuit. However, Lagniappe’s only involvement in McSharry’s criminal or civil case has been reporting on them, as it has reported on countless other cases. Yet, Pittman is seeking the private communications of multiple reporters in hopes of proving actual malice.
Last August, Pittman made similar claims when he accused DiNardi of making “sweeping, unfounded, irrelevant and inadmissible statements in her [lawsuit]” that were “intended to defame Mr. McSharry, to harm his business interests and were intended for use in conjunction with a Lagniappe article.”
In fact, that was the basis for his request to Stankoski to seal some of the case files from the public eye.
The decision to grant the request to seal those documents without a hearing on the merits, as well as other rulings Stankoski has made in the case — one he personally requested from the docket of another judge — has also led the Alabama Supreme Court to intervene and review parts of the case.
Last year, DiNardi’s attorney, David McDonald, filed a petition with the state’s high court requesting a review of some of Stankoski’s previous decisions in the case that seemed to be out of the ordinary. The court agreed to, though it has yet to reach a decision on whether those prior rulings should be overruled.
Read more about Stankoski’s ruling in see Co-Publisher Rob Holbert’s “Damn the Torpedoes” column this week.
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