Price v. Time, Inc.

In the Spring of .2003 Mike Price was head coach of the University of Alabama’s Crimson Tide- football team. Given the near-fanaticab following that college football has in the South, the head coach at a major university is a powerful figure. However, as Archbishop Tillotson observed three centuries ago, “they, who are in highest places, and have the most power ... have the least liberty, because they are most observed.”1 If Price was unaware of that paradox when he became the Crimson Tide’s coach, he learned it the hard way a few months later in the aftermath of a trip he took to Pensacola, Florida.

While in Pensacola to participate in a pro-am golf tournament Price, a married man, visited an establishment known as “Artey’s Angels.” The name is more than a. little ironic because the women who dance there are not angels in the religious *1330sense and, when he went, Price was not following the better angels of his nature in any sense. Scandal ensued, and as often happens in our society, litigation followed closely on the heels of scandal.

Out of that litigation came this interlocutory appeal about whether Sports Illustrated magazine and one of its writers are protected under Alabama law or by the federal Constitution from being compelled to reveal the confidential source for an article they published about Price and his activities in Pensacola. The Alabama law question centers around that state’s shield statute, Ala.Code § 12-21-142; more specifically, the question is whether the word “newspaper” in the statutory phrase “newspaper, radio broadcasting station or television station” ought to be construed to include Sports Illustrated magazine. The federal constitutional question involves application of the First Amendment qualified reporter’s privilege, which in this case comes down to one factor: whether Price has made all reasonable efforts to discover the identity of the Confidential source in ways other than by forcing Sports Illustrated and its writer to divulge it. For reasons we will explain, we conclude that Sports Illustrated is not a newspaper for purposes of Alabama’s shield law, but we also conclude that Price has not yet exhausted all reasonable efforts to discover through other means the identity of the confidential source.

I.

Don Yaeger is a reporter for Sports Illustrated, a weekly magazine published by Time, Inc., which contains sports-related features, reports, opinions, and advertisements. The issue of Sports Illustrated which hit the newsstands on May 8, 2003 (but actually bore the date of May 12, 2003) contained an article written by Yae-ger entitled, “Bad Behavior: How He Met His Destiny At A Strip Club.” The “he” in the title refers to Price, and the “Destiny” reference is a double-entendre playing off the stage name of one Of the strippers at Artey’s Angels. The Sports Illustrated article itself recounts allegations of boorish behavior and sexual misconduct by Price in the months following his ascension to the position of head football coach at the University of Alabama. The article indicates that it relies on confidential sources for the most salacious parts of its content.

One of the incidents described in the article involves sexual advances Price allegedly made, shortly after he was hired in late 2002, towards some unnamed female students in a bar and at an apartment complex in Tuscaloosa, Alabama, where the University is located. The parties refer to this as “the Tuscaloosa incident.” We need not detail any of the historical or procedural facts concerning this part of the article. At oral argument Price’s counsel informed us that since the district court’s order was entered he has uncovered by other means the identity of the confidential sources for the reporting about the Tuscaloosa incident. As the parties acknowledge, this development renders academic the issue of whether the district court’s order compelling the defendants to disclose these particular confidential sources is proper, and as a result we should vacate as moot that part of the district court’s order. That is what we will do.

Price has not yet discovered the identity of the confidential source for the article’s reporting on “the Pensacola incident,” so that part of the district court’s disclosure order is not moot. The article states that shortly after arriving in Pensacola, Florida *1331on the afternoon of April 16, 2003, Price went to a strip club called “Artey’s Angels.” It says that he spent most of his time with a dancer named Lori “Destiny” Boudreaux, who is quoted in the article as saying that Price bought her drinks, tipped her $60 for “semiprivate” dances, and touched her inappropriately during those dances, which was against the house rules. Price told Destiny2 that he had a room at a hotel in town and that he wanted her to meet him there later that night.

The article also alleges that Price visited Artey’s a second time, later on the same day, after he had left the golf tournament’s sponsor dinner early. The article says that while sitting at the bar in Artey’s, Price was “kissing and fondling a waitress until a reminder from the deejay prompted him to stop.” It describes how he continued to buy several hundred dollars worth of drinks and dances until about midnight, and finally invited two dancers back to his hotel room where the three of them supposedly had sex. The article includes this description of what allegedly occurred at Price’s hotel room:

At about midnight [after leaving the club] Price headed back to the hotel. He eventually met up with two women, both of whom he had earlier propositioned for sex, according to one of the women, who agreed to speak to SI about the hotel-room liaison on the condition that her name not be used. The woman, who declined comment when asked if she was paid for the evening, said that the threesome engaged “in some pretty aggressive sex.” She said that at one point she and her female companion decided to add a little levity to the activity: “We started screaming ‘Roll Tide!’ and he was yelling back, ‘It’s rolling baby, it’s rolling.’ ” .

On May 3, 2003, five days before the article was published, Yaeger called Price to get his response to the allegations about the„ Pensacola incident. Yaeger asked Price if it was true that “both Jennifer (Eaton) and ‘Destiny,’ ” two exotic dancers from Artey’s Angels, “met [him] back at the hotel” after he left the club. Price expressed surprise at the allegations and asked Yaeger who had told him that. Price denied having sex with any woman in his hotel room that night. He said the allegations were “[c]ompletely not true.” When asked if he had invited anyone back to his hotel room, Price said “[a]bsolutely not.” Although Price initially declined to comment when Yaeger asked if he had awakened the next morning with “at least one woman,” Price did tell Yaeger “[t]hat story you heard is completely false.” When told by Yaeger that Jennifer and Destiny claimed he had paid them $500 plus a “healthy” tip for sex, Price responded: “Well, someone bought ’em, bought ’em off because it’s a lie. A flat lie.”

On May 6, 2003, only two days before the magazine appeared on the newsstands, Yaeger went on the popular radio show of Paul Finebaum, a sportswriter in Birmingham, Alabama to discuss the upcoming article. Yaeger told listeners about Price’s alleged hijinks in Tuscaloosa and Pensacola. The parties agree that the statements *1332Yaeger made on the radio show are not materially different from what he said in the article.

Based on Yaeger’s comments on the Fi-nebaum show and the published article, Price sued Yaeger and Time, which is Sports Illustrated’s publisher and parent company, in Alabama state court for libel, slander, and outrageous conduct. The defendants removed 'the lawsuit to federal court based on diversity jurisdiction.

In his complaint Price labels as “false and defamatory” most of the allegations in the Sports Illustrated article. He does admit visiting Artey’s Angels once while in Pensacola for the golf tournament, but he denies everything else. In his complaint and under oath during a deposition Price vehemently denies having sex with anyone mentioned in the article.

Price’s complaint avers that the defendants “knew or had reason to know” of the “falsity and lack of verified or factual support” for Yaeger’s story, and that they published the account of the incidents in Tuscaloosa and Pensacola “knowing of its sensationalizing sting and falsity with malice by intent and/or reckless disregard for the truth in an effort to increase sales and profit to the[ir] benefit.” The defendants, according to Price, “created this sensational and provocative article in a malicious effort to publish untruths that were assigned to purported anonymous sources and without a full and fair investigation into the truth or veracity of the [facts in the article] in an effort to get the story to press as quickly as possible regardless of its truth and defamatory content so it would explode into the newsstands.” In other words', Price claims that the defendants maliciously defamed him either by lying about having a confidential source, or by relying exclusively on a confidential source that they knew, or should have known, to be untrustworthy.

In his first set of interrogatories, Price asked the defendants to identify the confidential sources who furnished the information upon which the article’s statements about the Tuscaloosa and Pensacola incidents were based. They objected, asserting that Alabama’s shield statute, Ala.Code § 12-21-142, and the First Amendment qualified reporter’s privilege protected them from having to reveal the sources’ identities. Price moved to compel answers to his interrogatory and thereby force the defendants to disclose the identities of the confidential sources.

In the meantime, Price continued with discovery, taking a number of depositions. In Yaeger’s deposition, he testified that he had only one source for the Pensacola incident and she told him that she had met Price at Artey’s Angels and then had gone back to Price’s hotel room the night of April 16, 2003. According to Yaeger, his source told him that Jennifer and Destiny were the two women who had “aggressive sex” with Price that night in Pensacola, and she also told him that Price had paid each of the two women $500 for their services. This part of Yaeger’s deposition testimony was consistent with what he had told Price on May 3, 2003, the one time they had spoken before the article was published.

Some of Yaeger’s deposition testimony, however, is not so good for the defense side on the actual malice issue. The chronology of publication is this: Yaeger sent the article to Sports Illustrated’s headquarters in New York for publication on May 5, 2003; it went to press at midnight on that date; and it was out on the newsstands on May 8, 2003. Yaeger testified that on May 6, 2003, which was after the *1333article had gone to press, he spoke for the first time with Jennifer, the woman his confidential source had identified as one of the two women in Price’s hotel room in Pensacola. Jennifer told him that she was the only woman in Price’s hotel room that night, and she denied having sex — aggressive or otherwise — with Price.

Yaeger also testified that later on the same day after interviewing Jennifer, he went back to his confidential source. He asked his source if it was possible that instead of Jennifer another dancer at Ar-tey’s, Tracy Brigalia, was one of the two women in the room with Price. The confidential source “indicated that it might have been somebody other than Jennifer.” Two days later, on May 8, the day the magazine went on the newsstands, Yaeger interviewed Nicole Saldano for the first time. She was Tracy’s roommate,- and she told Yaeger that Tracy had been in Price’s hotel room on the night in question, but Nicole wasn’t sure if the two had sex.

Explaining why he conducted the interviews with Jennifer and Nicole — after the magazine went to press — Yaeger claimed that it was “about trying to make sure that we were right,” and “if we were following up with a second story, we wanted to make sure that we had correct information to make corrections, if necessary.” However, nowhere in the record before us does Yae-ger offer any explanation for his failure to check his sensational story with those two witnesses before it was too late to make any corrections. In any event, as a result of his interviews with Jennifer and Nicole, Yaeger became unsure of his confidential source’s version of events, the version reflected in the article that had been published. Yaeger testified in his deposition that he now believes “that the confidential source was in the room, and I believe there is a pretty solid chance that Tracy Brigalia was in the room.”

Yaeger’s “pretty solid chance” version not only varies from what his confidential source initially told him, it also differs from what Destiny said in a tape-recorded conversation. Between the first and second days of Yaeger’s deposition, Price’s counsel telephoned Destiny and asked her about the allegations. She told counsel: ‘Yeah, it wasn’t me [in the hotel room], I know for a fact. I know for definite sure. Jennifer, yeah, and Tracy, yeah. I know— I know they were in the room. I mean, I don’t know for a fact, but I heard it from their mouths, so.” After hearing the tape recording of that conversation played at his deposition, Yaeger responded that Destiny had not been telling the complete truth in it.

After hearing argument and considering Yaeger’s deposition testimony, the district court concluded that Alabama’s shield law did not apply to magazine reporters like Yaeger, and that Price had made a sufficient showing to overcome the First Amendment qualified reporter’s privilege that the defendants had asserted. Price v. Time, Inc., No. Civ.A. CV03S1868S, 2003 WL 23273874, at *2-6, 6-9 (N.D.Ala. Dec.8, 2003). Based on those conclusions, the court granted Price’s motion to compel the defendants to answer Price’s interrogatories seeking the identity of the confidential sources. Id. at *9-10.

Thereafter, the district court reconsidered, stayed its initial order, and certified to the Alabama Supreme Court the following state law question: “Does the exemption from disclosing sources of information found in Alabama Code § 12-21-142 apply to a person ‘engaged in, connected with or employed on any [magazine], while engaged in a news-gathering capacity’?” *1334Price v. Time, Inc., 304 F.Supp.2d 1294, 1309 (N.D.Ala.2004) (alteration in original). The district court explained that certification was appropriate because there was “no clear, controlling, precedents in the decisions of the Supreme Court of Alabama on this issue, and its significance extends beyond this case.” Id. at 1297; see also Blue Cross & Blue Shield of Ala., Inc. v. Nielsen, 116 F.3d 1406, 1413 (11th Cir.1997) (“The final arbiter of state law is the state supreme court, which is another way of saying that Alabama law is what the Alabama Supreme Court says it is.”).

To the disappointment of the district court (and this one as well), the Alabama Supreme Court declined to answer the certified question, as it had every right to do and has done on occasion before. See Nielsen, 116 F.3d at 1413. That left the district court with no choice but to answer the state law question itself, which it had already done in its initial order and opinion. The court vacated its original order granting Price’s motion to compel, but issued a new one reaching the same result. In an opinion accompanying its new order the court expanded on the reasoning it had earlier given for rejecting the defendants’ contentions that the identities of the confidential sources were protected from disclosure by Alabama’s shield law and by the First Amendment.

The district court then granted the defendants’ motion to certify the two privilege issues for interlocutory appeal under 28 U.S.C. § 1292(b), and a panel of this Court granted an application permitting the appeal. The district court has stayed all proceedings in the case pending our decision.

II.

We review de novo the district court’s determination of state law. Salve Regina Coll. v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991); Overseas Private Inv. Corp. v. Metro. Dade County, 47 F.3d 1111, 1113 (11th Cir.1995). The goal of a federal court deciding a state law issue is to resolve it the same way the state’s highest court would. Ernie Haire Ford, Inc. v. Ford Motor Co., 260 F.3d 1285, 1290 (11th Cir.2001). Our review of the federal constitutional privilege issue is also de novo. See In re Grand Jury Matter No. 91-01386, 969 F.2d 995, 997 (11th Cir.1992); In re Grand Jury Proceedings 88-9 (MIA), 899 F.2d 1039, 1042 (11th Cir.1990). The exception to our statements about de novo review is that we review only for clear error any subsidiary fact findings the district court made in the course of its rulings. See Miller v. Transamerican Press, Inc., 621 F.2d 721, 726 (5th Cir.), modified on reh’g, 628 F.2d 932 (5th Cir.1980) (per curiam)3; see also Wilson v. Minor, 220 F.3d 1297, 1301 (11th Cir.2000).

At oral argument Price acknowledged that what Yaeger said on the Finebaum radio show added nothing material to what is contained in the magazine article. And, as we’ve already noted, Price has discovered the identity of the confidential sources for the Tuscaloosa incident. The combined effect of these developments is to narrow this appeal to the state and federal law privilege issues involving the confidential source for the part of the magazine article describing the Pensacola incident. Does Alabama’s shield statute or the First Amendment qualified reporter’s privilege *1335protect, the defendants from being compelled to reveal the confidential source for the statements made in the Sports Illustrated article about Price’s alleged sexual shenanigans in Pensacola?

III.

We take up the state shield law first, because it bestows an absolute privilege which, if applicable, would end the matter. State privilege defenses have full force and effect in federal court in diversity jurisdiction cases by virtue of Fed.R.Evid. 501.4 If the Alabama courts would apply that state’s shield law in this case if it had not been removed to federal court, then we must apply it; if they would not, then we must not. Our task is to decide whether Alabama’s courts would apply the shield law to magazine reporters and publishers.

The statute in question was originally enacted in 1935 with the express purpose of “safeguarding] and protecting] the professional confidence of newspaper and newspapermen.” 1935 Ala. Acts 649. Fourteen years later, the Alabama Legislature extended the privilege to radio broadcast and television station reporters. 1949 Ala. Acts 548. Magazines and magazine reporters were not mentioned in the original statute or the 1949 amendment, and the statute has not been changed since then. This is what it has said for the past fifty-six years:

No person engaged in, connected with or employed on any neivspaper, 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.

Ala.Code § 12-21-142 (emphasis added). Is the magazine Sports Illustrated covered by the statutory phrase “any newspaper, radio, broadcasting station or television station” so that the article about Price published in that magazine was published in “any newspaper”?

In construing this statute we begin where we believe the Alabama Supreme Court would, which is looking for legislative intent in the plain meaning of the statutory language. As that Court has explained, “[t]he fundamental rule of construction is to ascertain and effectuate the intent of the Legislature as expressed in the statute,” League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167, 169 (1974), and “[i]f possible, the intent of the legislature should be gathered from the language of the statute itself,” Clark v. Houston County Comm’n, 507 So.2d 902, 903 (Ala.1987) (per curiam). “When the language of a statute is plain and unambiguous ... courts must enforce the statute as written by giving the words of the statute their ordinary plain meaning — they must interpret that language to mean exactly what it says .... ” T.B. v. State, 698 So.2d 127, 130 (Ala.1997).

*1336“In determining the meaning of a statute,” the Alabama Supreme Court has said that it “looks to the plain meaning of the words as written by the legislature.” DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275 (Ala.1998). The Court gives words their ordinary meaning and does not impart its own views as the intent of the legislature:

Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.

IMED Corp. v. Sys. Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992), quoted in Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998).

The defendants do not quarrel with the primacy of the plain meaning rule when it comes to statutory construction in Alabama courts. They quibble instead with the proposition that “any newspaper” plainly does not include their magazine. The United States Supreme Court and this Court have recognized on many occasions that the word “any” is a powerful and broad word, and that it does not mean “some” or “all but a few,” but instead means “all.” E.g., United States v. Gonzales, 520 U.S. 1, 5, 117 S.Ct. 1032, 1035, 137 L.Ed.2d 132 (1997); United States v. Alvarez-Sanchez, 511 U.S. 350, 358, 114 S.Ct. 1599, 1604, 128 L.Ed.2d 319 (1994); CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1223 (11th Cir.2001); Coronado v. Bank Atl. Bancorp, Inc., 222 F.3d 1315, 1321-22 (11th Cir.2000); Merritt v. Dillard Paper Co., 120 F.3d 1181, 1185-86 (11th Cir.1997). While the scope of the “any” adjective is plenty wide to sweep in all of the noun category that follows, it ordinarily does not sweep beyond that category. The term “any dog” does not mean “any dog or cat” unless a cat is a dog. Likewise, the term “any newspaper” does not mean “any newspaper or magazine,” unless a magazine is a newspaper. So, we are back where we started, looking for the plain meaning of the word “newspaper.”

It seems to us plain and apparent that in common usage “newspaper” does not mean “newspaper and magazine.” There 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. And so it is here. The lawyers representing the defendants insist that “newspaper” means more than newspaper, the more being magazine. They cite two dictionaries and a couple of thesauri in support of their position. Their dictionary cites are fair enough' — we’ll get to them later — because dictionaries are sometimes cited to and by courts, including the Alabama Supreme Court. The thesauri cites are another matter.

The defendants cite Roget’s 21st Century Thesaurus in Dictionary Form 573 (1992), and Merriam-Webster’s Collegiate Thesaurus 505 (1988), because those books list magazine as one synonym of “newspaper.” To begin with, the defendants are guilty of selective synonymizing. Most thesauri don’t list magazine as a synonym for “newspaper.” See, e.g., The Penguin Roget’s College Thesaurus in Dictionary Form 464 (2001); The Oxford American Thesaurus of Current English 499 (1999); Roget’s International Thesaurus 399 (5th ed.1992).

More fundamentally, a thesaurus is not a dictionary. It does not purport to define *1337words but instead suggests synonyms and antonyms. A synonym is not a definition because words that are similar can, and ■ often do, have distinct meanings. To illustrate the problems with the definition-by-thesauri approach, we note that the listing of “newspaper” that the defendants cite from Roget’s 21st Century Thesaurus in Dictionary Form, supra, also indicates that “scandal sheet” is a synonym of “newspaper.” Id. at 573. We doubt that most publishers of newspapers or magazines would define their product as a scandal sheet. Another example of the perils of using a thesaurus to define can be found when one looks up “lawyer.” Among the listed synonyms in one thesaurus are “fixer,” “mouthpiece,” “ambulance chaser,” and “shyster.” Roget’s International Thesaurus, supra, at 422-23. We doubt that counsel would concede that those synonyms define lawyers.

The use of dictionaries to define words used in statutes is, of course, a more accepted and more defensible approach to determining the plain meaning of statutory language. Dictionaries have been employed for that purpose by the Alabama Supreme Court from time to time, and that Court has used both general purpose dictionaries and legal dictionaries. See, e.g., Webb Wheel Prods., Inc. v. Hanvey, — So.2d —, —, 2005 WL 1316997, *8, (Ala. June 3, 2005) (per curiam) (using Black’s Law Dictionary to determine the “plain meaning” of an Alabama statutory term); Northcom, Ltd. v. James, 848 So.2d 242, 246-47 (Ala.2002) (same); Yu v. Stephens, 591 So.2d 858, 860 & n. 1 (Ala.1991) (same); Pardue v. State, 797 So.2d 409 (Ala.2000) (using Merriam Webster’s Collegiate Dictionary to define an Alabama statutory term); Bassett v. Newton, 658 So.2d 398, 401 (Ala.1995) (using Webster’s New World Dictionary of the American Language to define an Alabama statutory term); Williams v. Water Works & Gas Bd., 519 So.2d 470, 471 (Ala.1987) (using Ballentine’s Law Dictionary to determine the “plain and usual meaning” of an Alabama statutory term); Darby v. State, 516 So.2d 786, 788 (Ala.1987) (using Webster’s Third New International Dictionary to define an Alabama statutory term); O’Neal v. Macon County Bd. of Educ., 484 So.2d 401, 402-03 (Ala.1986) (using Ballen-tine’s and Black’s to define an Alabama statutory term). Accordingly, we will look at both types of dictionaries to determine the “natural, plain, ordinary, and commonly understood meaning” of the word “newspaper.” Nielsen, 714 So.2d at 296.

A review of legal dictionaries yields a result that is not helpful to the defendants’ position that Sports Illustrated is a newspaper. In its most recent edition, Black’s defines “newspaper” as “[a] publication for general circulation, usu. in sheet form, appearing at regular intervals, usu. daily or weekly, and containing matters of general public interest, such as current events.” Black’s Law Dictionary 1069 (8th ed.2004). Ballentine’s has a similar definition. Bal-lentine’s Law Dictionary 848 (3d ed. 1969) (“A publication appearing at regular, or almost regular, intervals at short periods of time, as daily or weekly, usually in sheet form, and containing news .... ”). This definition of “newspaper” tends not to cover Sports Illustrated, which is not in sheet form but instead is stapled and bound into individual pagés, as magazines usually are.

The defendants do not cite Black’s, Bal-lentine’s, or any other legal dictionary for their position that the magazine is a newspaper. Instead, they cite two general dictionaries. One of those dictionaries defines the word “newspaper” as including “a *1338paper that is printed and distributed daily, weekly, or at some other regular and usu. short interval and that contains news, articles of opinion (as editorials), features, advertising, or other matter regarded as of current interest.” Webster’s Third New International Dictionary of the English Language Unabridged 1524 (1993), cited in Appellants’ Br. at 32. A problem with this definition is that it is not entirely clear to us a magazine is “a paper.” If it is not, the definition would not cover Sports Illustrated magazine.

The other non-legal dictionary that the defendants cite defines “newspaper” as: “A printed, now usually daily or weekly, publication containing the news, commonly with the addition of advertisements and other matters of interest.” 10 Oxford English Dictionary 376 (2d ed.1989), cited in Appellants’ Br. at 32. That helps the defendants some, but the problem here is cherrypicking. As one court has explained, “[gjiving determinative weight to one dictionary’s definition of a term, when other dictionaries define the term in a quite different manner, may very well exceed the bounds of the permissible.” Theiss v. Principi, 18 Vet.App. 204, 211 (2004) (quotation omitted). That is what we have here. The most recent edition of the OED defines “newspaper” as: “A printed publication, now usually issued daily or weekly, consisting of folded unstapled sheets and containing news, freq. with the addition of advertisements, photographs, articles, and correspondence .... ” Oxford English Dictionary Online (draft rev. 2005), at http://dictionary.oed.com. Of course, Sports Illustrated does not consist of folded unstapled sheets. Instead, it is, as another dictionary defines “magazine”: “[A] periodical (generally published weekly, biweekly — once every two weeks— monthly, or bimonthly), 7” x 10” or other dimension smaller than a full-size newspaper, usually printed on coated, or shiny, paper .... ” Webster’s New World Dictionary of Media and Communications 354 (rev. ed.1996). Incidentally, that same definition goes on to list Sports Illustrated as an example of a magazine. Id.

Although the defendants cite only modern dictionaries and neither party suggests that the definition of “newspaper” has changed since the legislature used the term, we have checked dictionaries in existence at the time the statute was enacted in 1935 to see if there has been any change in the meaning of “newspaper” since then. See Amoco Prod. Co. v. S. Ute Indian Tribe, 526 U.S. 865, 873-74, 119 S.Ct. 1719, 1724, 144 L.Ed.2d 22 (1999); State Dep’t of Revenue v. Sonat, Inc., 690 So.2d 412, 418 (Ala.Civ.App.1997). We have done so because changes in the definition of a key term over the years can affect our understanding of the intent of the legislature at the time of enactment, which is what counts. See generally League of Women Voters, 290 So.2d at 169. In this case, the key definition has not changed from the time the Alabama shield statute was enacted in 1935. The 1933 edition of Black’s Law Dictionary, for instance, defined a newspaper as “a publication in numbers, consisting commonly of single sheets, and ’published at short and stated intervals, conveying intelligence of passing events.” Black’s Law Dictionary 1241 (3d ed.1933). Similarly, the definition of newspaper in the 1930 edition of Ballentine’s was the same then as it is now. See Ballentine’s Law Dictionary 867 (1st ed.1930).

Moving from dictionaries, other reference works also define “newspaper” in ways that exclude Sports Illustrated. The Cambridge Encyclopedia 779 (4th ed.2000), and The Penguin Encyclopedia *13391083 (rev.2d ed.2004), define “newspaper” as “[a] regularly published account of recent events” that is “printed, usually by offset lithography, on large sheets, folded once and inserted one within another, and published at daily, weekly, or (occasionally) monthly frequencies.” The Encyclopedia Americana defines “newspaper” as “an unbound publication issued at regular intervals that seeks to inform, explain and interpret, influence, and entertain.” 20 The Encyclopedia Americana International Edition 278 (1999). Unlike a newspaper, Sports Illustrated is bound and is not printed on large sheets.

In any event, the plain meaning, the common understanding, of the term “newspaper” need not be confined to a duel of dictionaries or a rumble of reference works. See 2A Normal J. Singer, Sutherland on Statutes and Statutory Construction § 46:2 (6th ed. 2005) (“[I]t should be noted that dictionary definitions do not necessarily reflect the legislature’s intention in enacting statutes.”). There is also the generally accepted usage in the trade. Alabama courts have looked to the common understanding of the industry when deciphering terms in a statute. See State Dept. of Revenue v. Delta Air Lines, Inc., 549 So.2d 1352, 1354 (Ala.Civ.App.1989).

The common understanding of the publishing industry clearly is that magazines like Sports Illustrated are not newspapers. Consider the Pulitzer Prize in Journalism, which is the nation’s most prestigious prize for newspaper content. See Mauldin v. Comm’r of Internal Revenue, 60 T.C. 749, 751, 1973 WL 2602 (1974) (recognizing the Pulitzer Prize as “journalism’s highest honor”). It is awarded to “material appearing in a United States newspaper published daily, Sunday or at least once a week during the calendar year.” Journalism Guidelines for Pulitzer Prizes, at http://www.pulitzer.org. The Pulitzer guidelines do not define “newspaper,” probably because those in the business do not need to define the term that defines their business. They know what a newspaper is. And the eighty-eight year history of the Pulitzer Prize awards to newspapers shows what one is, and is not. None of the more than 650 Pulitzer Prize awards for “material appearing in a United States newspaper” published at least once a week has ever been awarded to Time, Newsweek, or U.S. News & World Report, the nation’s three largest weekly magazines. And none has ever gone to Sports Illustrated, which is also a weekly. The reason is plain: magazines are not recognized in the journalism category of the Pulitzer Prize,' because that category is restricted by the rules to newspapers, and weekly magazines are not newspapers.

The magazine industry has its own Pulitzer-like award — the National Magazine Awards, or “Ellies,” sponsored by the American Society of Magazine Editors. “Any magazine edited, published, and sold in the U.S. is eligible” for an Ellie. Rules of Eligibility for National Magazine Awards, at http://www.magazine.org/ Editorial/National_Magazine_Awards/ Rules_for_Eligibility. “To be considered a magazine, a publication must be issued at regular intervals at least four times a year and must be distributed or sold independently of other publications. Newspaper supplements, in-house company publications, newsletters, and foreign-language publications are not eligible.” Id. In the forty-year history of the Ellies, the big three — Time, Newsweek, and U.S. News & World Report — have won twenty National Magazine Awards. See National Magazine Awards Database of Past Winners *1340and Finalists, at http://www. magazine.org/Editorial/National_Magazine _Awards/searchable_ Database. Sports Illustrated itself has won nine. See id. By contrast, the Wall Street Journal, the Washington Post, and the New York Times, have never won the magazine industry’s highest honor. See id. The reason is plain: the industry recognizes that newspapers are not magazines.

Industry recognition of the distinct meaning of “newspaper” and “magazine” shows in more than the award of prizes; it shows, too, in trade association membership. The Newspaper Association of America was formed in 1992, by the merger of seven associations, including the American Newspaper Publishers Association which was founded in 1887, almost fifty years before the enactment of the Alabama shield law. NAA Introduction, at http://www.naa.org/docpage.cfm. The NAA “is a nonprofit organization representing the $55 billion newspaper industry and over 2,000 newspapers in the United States and Canada.” NAA Membership, at http://www.naa.org/member-ships.cfm. It represents newspapers with a combined total of about ninety percent of all newspaper circulation in the country, including the Wall Street Journal, the Washington Post, and the New York Times. Id.; see also Amici Br. at A4. Tellingly, the Newspaper Association of America does not include within its membership Time, Newsweek, or Sports Illustrated. See NAA Membership, supra.

They all belong to a separate group, the Magazine Publishers of America, which was formed in 1919 — sixteen years before the enactment of the Alabama shield law— as the “premier trade association for the consumer magazine industry.” Membership for Magazine Publishers of America, at http://www.magazine.org/ membership/index.cfm; MPA Membership Directory, at http://members. magazine.org/scriptcontent/index_member _directory.cfm. This association’s membership includes “magazine publishers in the U.S. and abroad.” Membership for Magazine Publishers of America, supra; see also Amici Br. at AS.

The point is that magazines are not members of the Newspaper Association of America, and newspapers are not members of the Magazine Publishers Association. Both associations predate (counting the NAA as a direct descendent of the American Newspaper Publishers Association) the Alabama shield statute; the publishers of the two different types of publications organized separately well before the enactment of the statute. When it comes to organizing the publishing industry, publishers recognize what is what and which is which. They know that a magazine is not a newspaper.5

There is another way to find out whether Sports Illustrated is a newspaper within the plain, ordinary, everyday, common sense meaning of that term, and that is to ask it. At oral argument we asked counsel whether his client, Sports Illustrated