NYT v. Spears - Reporter Privilege Scope (Certified Question)

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April 10, 2026 Get Citation Alerts Download PDF Add Note

The New York Times Company v. Kai Spears (Certified Question from the U.S. District Court for the Northern District of Alabama: 7:23-cv-00692-ACA).

Supreme Court of Alabama

• Citations: None known
• Docket Number: SC-2025-0370

• Judges: McCool, J.

• Opinion

• Authorities (38)

• Cited By (0)

• Summaries (0)

• Similar Cases (54K)

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Combined Opinion

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,

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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

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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.

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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.
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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

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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

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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

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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

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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.
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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?"

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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
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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,
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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

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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.

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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

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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,

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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

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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),

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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

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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

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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)).
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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-
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---

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.
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Shaw, J., concurs in part and concurs in the result, with opinion,

which Sellers, J., joins.

Mendheim, J., dissents, with opinion.

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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

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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.

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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 __.

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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

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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
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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.

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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