The S-Town lawsuit podcast is likely going nowhere
I enjoyed talking with Matt Stevens of The New York Times about the lawsuit against the producers of the S-Town podcast filed last week. His story, which also features my friend and Social Media and the Law contributor Derigan Silver from Denver University, accurately sums up what media law folks think about the lawsuit — it’s got zero chance of success.
In short, the family of John B. McLemore, the lead character in the S-Town podcast who committed suicide before it was released, is seeking damages under Alabama’s Right of Publicity law, which was passed in 2015. The law is aimed at product endorsements and other commercial uses of one’s likeness or identity, and allows civil liability for using one’s “indicia of identity…for purposes of advertising or selling, or soliciting purchases of, products, goods, merchandise, or services, or for purposes of fund-raising or solicitation of donations, or for false endorsement, without consent.”
The McLemore estate claims that the podcast’s use of McLemore’s story and voice was a commercial venture because it included ads and sponsorships, despite a pretty clear exception in the Alabama law that permits such uses if the “indicia of identity is in connection with a news, public affairs, or public interest account.” Which the non-fiction podcast undoubtedly is. While S-Town received its fair share of criticism for exploiting McLemore and unduly prying into very private aspects of his life after his death, that is more a matter of ethics than law, and should not expose the podcasters to legal liability.
The lawsuit reminded me of a case with similar facts from about 15 years ago, but regarding a film based on true events rather than a podcast. The families of people portrayed in the movie “A Perfect Storm,” based on real events as documented in Sebastian Junger’s book of the same title, sued Time Warner based on Florida’s right of publicity law. The 11th Circuit (which also includes Alabama) saw a potential First Amendment issue and sent the question back to the Florida Supreme Court regarding its own law to answer one question: Does the phrase “For purposes of trade or any commercial or advertising purpose” in the statute include publications such as a commercial film that does not directly promote a product or service?
The Florida Supreme Court ruled that a film was not the kind of commercial venture that would subject it to liability under the right of publicity law. As the court noted:
“It is urged that motion pictures do not fall within the First Amendment’s aegis because their production, distribution, and exhibition is a large-scale business conducted for private profit. We cannot agree. That books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment. We fail to see why operation for profit should have any different effect in the case of motion pictures.”
The facts are almost identical here. The Alabama and Florida laws are similar enough, and the logic extends easily from movies to podcasts. I would be stunned if this case even makes it far enough for the 11th Circuit to have to go through the motions of dismissing it on similar grounds 15 years later.
Is it possible that the lawsuit finds a friendly judge who doesn’t dismiss it outright, drags on for a couple of years on procedural appeals, and results in a settlement and apology from the podcast producers? Perhaps. Though they are fighting it pretty hard, and I don’t foresee settlement in the future.
