‘S-Town’s’ Treatment of Its Main Character Was Riveting. But Was It Unlawful?

https://www.nytimes.com/2018/07/20/arts/s-town-podcast-lawsuit-john-b-mclemore.html

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The podcast “S-Town” was an immediate hit when it was released in the spring of 2017. Millions of people downloaded it; they processed what they heard about the eccentric, sometimes obsessive life of its central character; they were riveted. But some came to believe that they never should have heard the man’s story in the first place.

After all — and this should no longer count as a spoiler — the man, John B. McLemore, died before the podcast came out, and some critics argued that he did not consent to the public airing of intimate details of his private life.

“This use of real life as drama feels exploitative,” Aja Romano wrote of “S-Town” on Vox.

“Morally indefensible,” said Gay Alcorn in The Guardian.

“Was the Art of ‘S-Town,’” an Atlantic headline wondered, “Worth the Pain?”

The qualms that critics raised form the foundation of a lawsuit that Mr. McLemore’s estate filed this month in Alabama Circuit Court against “S-Town” and its associates. The suit’s existence raises an interesting question: Even if “S-Town’s” treatment of Mr. McLemore was at times unethical, was it ever actually unlawful?

In the lawsuit, lawyers for the estate argue that the podcast’s producers exploited Mr. McLemore — specifically by airing salacious details about his sexual orientation, depression and mental health issues without his consent — to make money. They seek profits from the podcast, an injunction barring people associated with it from using Mr. McLemore’s likeness in the future and other damages.

Julie Snyder, an executive producer of “S-Town,” said in a statement: “We’re reviewing the lawsuit and I won’t comment on it specifically other than to say it lacks merit.”

“‘S-Town’ is produced consistent with the highest journalistic standards and we intend to defend against this lawsuit aggressively,” she added.

Should the show be worried? We talked with several experts to try to understand what they said is a muddy and often misunderstood area of law. But first, a little background.

In case you are not one of the more than 83 million people who have downloaded “S-Town,” there are a few details about the seven-part podcast that might help you understand the estate’s complaint.

This whole thing started when Mr. McLemore contacted the podcast’s host, Brian Reed, in 2012 about a person he believed had gotten away with murder. In October 2014, Mr. Reed went to Mr. McLemore’s hometown, Woodstock, Ala. — the place Mr. McLemore called “S-Town,” using a crude four-letter word — and soon discovered that there was no homicide.

On June 22, 2015, Mr. McLemore killed himself at age 49. Listeners discover this at the end of the podcast’s second episode. The remaining five episodes are devoted mostly to what “S-Town” calls “an unearthing of the mysteries of one man’s life.”

Mr. Reed eventually discovers that among other things, Mr. McLemore had multiple complicated and sometimes intimate relationships with men, and that he engaged in a body-modification ritual he called “church” in which he would ask a young male friend to tattoo his chest and re-pierce his nipples.

“None of these ‘mysteries’ are matters of legitimate public concern, nor were these matters that McLemore contacted Reed to investigate or write about,” the lawsuit says. “Instead, they generally involved the most private matters of McLemore’s life.”

To try to understand whether any of these disclosures were actually unlawful, let’s start by clearing up what this case is and is not.

Lawyers for the estate say they are bringing their claims under the Alabama Right of Publicity Act, a claim of unjust enrichment and other counts. (In a statement, the estate’s administrator said Mr. McLemore’s mother, Mary Grace McLemore, is the estate’s heir.)

An expert who reviewed the lawsuit, Derigan Silver, confirmed it is not a case of libel or invasion of privacy. Multiple experts, including Mr. Silver, said those kinds of cases would be very unlikely to succeed because the dead do not have reputations to damage and people lose the right to privacy when they die.

The Alabama Right of Publicity Act, however, gives Mr. McLemore’s estate publicity rights for up to 55 years following his death, the estate’s lawsuit says, and experts agreed that publicity rights can be inherited. In effect, the estate believes it is entitled to the money that “S-Town” generates.

About 30 states have “right of publicity” laws, said David Horowitz, the executive director of the Media Coalition, an association that protects First Amendment rights. Alabama’s law took effect in 2015. In essence, it seeks to prohibit the use of an individual’s persona for commercial use without that individual’s consent, experts said.

In an email, Rich Raleigh, one of the lawyers for the estate’s administrator, said that “the act appears to be directly applicable” to their client’s situation. But Mr. Silver, an associate professor in the Department of Media, Film and Journalism Studies at the University of Denver, said that is not so.

The Alabama Right of Publicity Act, like similar laws, includes an exemption for artistic uses of a person’s likeness. Alabama’s law lists uses such as “audiovisual work, motion picture, film, television program, radio program or the like.” A podcast would appear to fit under that umbrella, experts said, adding that it makes no difference if the podcast sells advertisements.

However, this can be counterintuitive and confusing, even to judges, experts said. Movies make money, so they might appear to be “commercial.” But legally in these cases, experts said, “commercial” does not simply mean “for profit.” Instead, Alabama’s statute defines commercial use as being for trade or advertising purposes. Think of a television advertisement for a local car dealership or a Coca-Cola product endorsement, the experts said.

“When you write a story about somebody in The New York Times, The New York Times makes money,” Mr. Silver said. “But that doesn’t mean the person can sue you for profiting off their image or likeness.”

“This is a baseless claim,” he continued. “They either don’t understand what the statute is designed to prevent or they’re hoping for some novel ruling or they’re just hoping to scare ‘S-Town.’”

Chip Stewart, a journalism professor at Texas Christian University, said the estate “has a client who feels hurt and wants damages.”

“So they found a law that on its face might plausibly support a claim,” he said.

“I get why people feel hurt, and I get why other people might feel sympathy for them,” Mr. Stewart added. “I just don’t think it makes for a very good legal case.”

Echoing many of the podcast’s critics, Mark Grabowski, an associate professor of communications at Adelphi University, said, “You could make an argument the podcaster exploited this otherwise private guy.”

To bolster that argument, he pointed to a principle in the code of ethics for the Society of Professional Journalists: Minimize harm.

“That means be respectful, tasteful and sensitive, especially with nonpublic figures who lack media savvy,” he said.

Ms. Snyder said on Thursday that the “S-Town” team “entered into the story with John’s full participation.”

“He knew that the story we were interested in was going to be about him and his community and his relationship with that community,” she continued. “After John died, we continued reporting with the participation of John’s family and close friends.”

Allen Bearden, a friend and colleague of Mr. McLemore’s who was a character in “S-Town,” agreed, calling the lawsuit “absurd” and noting that Mr. Reed is an investigative reporter. “Why should he be persecuted for doing his job?” he asked in an interview on Thursday.

Not only was Mr. McLemore well aware that the podcast was turning its focus to him, he was O.K. with it, Mr. Bearden said, and he would have wanted the story to be true and complete.

“John would have been satisfied with the end product,” Mr. Bearden said. “I don’t think John would have wanted it any different.”