BIRMINGHAM, Ala. (WIAT) — Nearly two years since first going to court, the case involving the makers of a popular podcast set in Woodstock, Alabama and the estate of its central figure is now moving in a new direction.
Earlier this month, U.S. District Judge Scott Coogler ordered that the case involving “S-Town” head for mediation, where the creative team behind the podcast and the lawyers representing the estate of John B. McLemore will attempt to resolve the case out of court.
The podcast tells the story of McLemore, his life in Woodstock and his suicide in June 2015. The podcast, which was created by “This American Life” producer Brian Reed, was released in March 2017 and has been downloaded millions of times around the world.
As of Wednesday, “S-Town” had been downloaded over 92.5 million times.
Dennis Bailey, an attorney representing the “S-Town” team who is also legal counsel of the Alabama Press Association, said that mediation was decided on by Coogler.
“The mediation is part of the original order of the court, which is a standard practice,” Bailey said. “It’s just part of the customary actions in a civil case where you’re encouraged to mediate.”
Bailey said that through mediation, a third-party will be chosen to lead the session and facilitate between both parties to try and settle the case.
In July 2018, Craig Cargile, administrator of McLemore’s estate, filed a lawsuit against the “S-Town” team, which is also involved in the popular radio shows and podcasts “This American Life” and “Serial,” claiming the show revealed intimate details about McLemore’s life without his consent.
“McLemore never gave consent to Reed of the other defendants to use his indicia of identity for purposes of advertising or selling, or soliciting purchases of, products, goods, merchandise or services,” Cargile’s attorneys wrote in the initial complaint. “Additionally, McLemore never gave consent to Reed or the other defendants to broadcast the intimate details of his sexual orientation, and experiences, depressed thoughts, suicidal tendencies financial affairs, physical and mental health issues and his interpersonal relationships with friends, family members and sexual partners.”
Cargile, who is now a district judge in Bibb County since filing the lawsuit, specifically cited Alabama’s Right of Publicity Act, which states a person’s identity can’t be used to sell merchandise or endorse products without their permission to do so.
However, the legal team representing the “S-Town” makers claim their work is protected under the First Amendment and was exempt from the state’s Right of Publicity Act because it was a work of journalism.
“The creation and distribution of S-Town is exactly the type of constitutionally-protected speech the Alabama legislature took great pains to exclude from liability under the Act,” the response stated.
Bailey said he had no idea if the case could be settled through mediation.
“I wouldn’t even speculate if this can be resolved,” he said.
In a motion filed Wednesday, both parties announced they had selected Tom Woodall as a mediator. No date for the mediation has been set.
Coogler subsequently wrote that if no agreement can be reached, the case will go to trial on January 28, 2021.
Attempts to reach attorneys Richard Raleigh and Cooper Shattuck, who represent Cargile, were not successful Thursday.