“None of these ‘mysteries’ are matters of legitimate public concern”
July 18, 2018 4:28 PM   Subscribe

S-Town, the controversial hit podcast, is being sued for exploitation
S-Town, which chronicled the life and death of an enigmatic, eccentric Alabama man named John B. McLemore, has been downloaded nearly 80 million times since its release in March 2017. It’s a deeply provocative and genre-elevating series that explores the intersection of geopolitical issues and individual identity in the life of one man. But it also raises questions about privacy invasion, consent, and at what point good storytelling crosses a line into exploitative journalism.

Because McLemore died in 2015, two years before S-Town was released, he never learned how many people would be moved by his story — or have a voice in the controversy surrounding his role in the podcast. And now his estate is suing the podcast for profiting off his identity without his consent.
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posted by not_the_water (47 comments total) 14 users marked this as a favorite
 
I'm confused.

He's dead.
He doesn't have surviving brand identity or intellectual property or children that could be harmed.

I'm confused.
posted by Glomar response at 4:32 PM on July 18, 2018


Good to know that it's okay to out the partners of atheists, but the calculus would have been different if he'd believed in an afterlife. WTF?
posted by hoyland at 4:33 PM on July 18, 2018 [11 favorites]


It's easy for me to be smug because I strongly dislike this sort of podcast, independent of any ethical questions, but god that article has made me angry.
posted by hoyland at 4:34 PM on July 18, 2018 [8 favorites]


I'm on MetaFilter-record somewhere as praising S-Town as something that moved me greatly and thinking telling an important story about a complex person who isn't represented in very many places. But my initial response to this headline was "good" and reading the article didn't change my mind.
posted by MCMikeNamara at 4:44 PM on July 18, 2018 [7 favorites]


I went into S-Town not knowing a thing about it and tapped out basically as soon as I realized it wasn’t scripted because it seemed exploitative and horrible.

That there might not have been consent is the icing on the shitty cake.
posted by uncleozzy at 4:49 PM on July 18, 2018 [6 favorites]


by publicizing details of McLemore’s life that McLemore had asked to remain off the record — specifically, one detail connected to his identity as a semi-closeted queer man in a small Southern town. The podcast also dives deep into major hidden elements of McLemore’s life, treating many of them as dramatic plot reveals.

This is a shitty thing to do and let us not forget how grantland.com, good fucking riddance, treated a trans woman’s identity in the same manner after she killed herself because the grantland reporter threatened to out her, then posthumously went ahead and did so.
posted by nikaspark at 4:59 PM on July 18, 2018 [32 favorites]


The podcast is built on fairly extensive interviews with McLemore, in which he'd talk about all sorts of things. It's hard to believe he didn't give consent for those interviews to be used in reporting.

Moreover, it's not entirely clear who are the executors of his estate. Is it the cousins? They didn't come off very well in the podcast.
posted by Merus at 5:07 PM on July 18, 2018 [5 favorites]


And third, since McLemore is an atheist, he doesn’t believe in afterlife repercussions, so according to his own belief, he’s dead and buried and can’t be hurt by any of this information.

I think its an ethical error to think that a person cannot be harmed after death if they don't believe in an afterlife. Our interests and goals commonly extend beyond our own lives, so how well our lives went (even our own happiness) can be affected by things that happen after we die.

John B would have to be more than an atheist who doesn't believe in an afterlife for us to say that things happening after his death can't harm him; he would have to think something like "After I die, none of this matters anymore" or "I don't care about my interests after I'm worm food." And even if he did (and he may have -- been a while since I listened to the show), given his mental illness, its not clear we should value those statements above the indications that he did want to have some sort of lasting impact.

That being said, I loved S-town and have no moral hangups about the revelation of John B's sexuality, in part because the show was so good it was worth it, and in part because I didn't get the sense that he would be opposed to the revelation in this context, although neither of those are good reasons.
posted by Hume at 5:16 PM on July 18, 2018 [7 favorites]


I've just started listening to it. I'm not sure whether to keep on. I am extremely interested in stories about crimes, particularly murders, where everybody knows who did it and also knows why they haven't been arrested. But then there's this.
posted by Countess Elena at 5:21 PM on July 18, 2018


I listened to the whole series back when it was all the rage, and really don't feel like I'm a better person for having done so. I'm not sure the lawsuit has merit from a legal point of view, but I kind of feel like it's a valid complaint from an ethical point of view.
posted by jferg at 5:25 PM on July 18, 2018 [9 favorites]


It strikes me as rather unfair to have such extensive off-topic conversations remain “on the record”. The human need to be known and heard is so deep, especially in the socially isolated, that it is trivially exploited by investigators and interviewers... but rarely as extensively. This is a clear violation of reasonable boundaries to me, particularly when we get to outting other living people.

The voyeur in me is certainly curious, but I shan’t feed a system which encourages the wholesale extirpation of a persons secrets and their packaging as a product.

If the Reed really believes understanding another person is an important thing to do perhaps he should focus on making friends and talking to people he wouldn’t otherwise without an ulterior motive of profit, product or notoriety.
posted by Matt Oneiros at 5:26 PM on July 18, 2018 [6 favorites]


Seeing as how everything is problematic i say listen to it with a critical ear for understanding the nuance.
posted by nikaspark at 5:26 PM on July 18, 2018 [5 favorites]


I've somehow never heard of this podcast, but as an atheist I'd say their argument based on his lack of religious belief is grade-A bullshit. Offensive, even.
posted by brundlefly at 5:28 PM on July 18, 2018 [17 favorites]


I think it was kind of a shitty, exploitative take on a guy who wasn't around to defend himself. Turning someone's suicide into a plot twist is disgusting. And you know there was a point where a bunch of producers were sitting around a conference room trying to find a nice way to say, "This genius outcast killed himself – do you think we can get a corporate sponsor for this?"
posted by roger ackroyd at 5:44 PM on July 18, 2018 [10 favorites]


Downloaded nearly 80 millions times. But I’m wondering how many of us noped right out earlt on? Because I thought it was just me, but it seems there are actually many of us.
posted by Nancy_LockIsLit_Palmer at 5:49 PM on July 18, 2018 [6 favorites]


Hell if I know on the ethics of this, since the dude was dead and seemed to be actively participating in media activities until he killed himself. Had he not killed himself, I'm sure we wouldn't have found out these details that the guy didn't want outed, but after death, I dunno. There's not much you can do from beyond the grave to stop someone from wondering and looking.

I'm not sure who this hurts either since his mom is very old and the cousins...um, yeah, did not come off as awesome. I suspect this is their doing.
posted by jenfullmoon at 6:01 PM on July 18, 2018 [3 favorites]


It’s really good that this is happening. This podcast in particular was so irresponsible, and if it has a chilling effect on the true crime podcast genre, that’s a positive; it’s a tremendous amount of hamfisted privacy invasion masquerading as journalism - and undermining it. Sue away.
posted by Miko at 6:09 PM on July 18, 2018 [14 favorites]


With regard to questions about grounds for a lawsuit, from TFA it looks like the estate definitely has standing, and it doesn’t matter that he’s dead:

“However, a press release from McLemore’s estate claims that the podcast failed to get any kind of written consent from McLemore before embarking on its deep dive into his life. If the estate’s allegations are accurate, the podcast could be in violation of a right of publicity law enacted by the state of Alabama in 2015 that explicitly entitles an individual to protect against the exploitation of their likeness or identity for up to 55 years after their death.”
posted by Miko at 6:11 PM on July 18, 2018 [3 favorites]


For a scripted, comedy version check out This Sounds Serious.
posted by robocop is bleeding at 6:34 PM on July 18, 2018 [9 favorites]


I listened to the whole of S-Town when it came out; it was OK, but nothing special (in the way that, say, Serial was special). I was driving to work and school and back one day a week, and it made for good listening in Seattle traffic.

I admit I didn’t read the article, so I may be missing something, but I do wonder...how is this different than someone writing a biography? Biographers often reveal things after their subjects’ death they hid in life; they don’t always have permission or authorization; they (potentially) make a profit by doing so. I suppose now no one can write a biography of Harper Lee.
posted by lhauser at 6:51 PM on July 18, 2018 [3 favorites]


There is often a gap between professional ethics, as understood within a profession (journalism, law and medicine come to mind) and prevailing moral sensibilities. Just because an estate can't assert a decedent's privacy rights posthumously, or because journalism doesn't see a problem with this, doesn't mean that people have to like it or accept it.

I'm reminded of (ugh) David Frum's observation linked in the megathread today: "America is a very legalistic society, in which public discussion often deteriorates into lawyers arguing about whether any statutes have been violated." That's an important question, but it's not the end of the discussion by far.
posted by snuffleupagus at 7:02 PM on July 18, 2018 [6 favorites]


First, biographies are usually about people for whom there is a strong argument that they are a public figure. Defamation law considers people who are public figures differently. The argument here is that the subject was in no way a public figure. Second, biographers do work to get the consent of an estate, and if they don’t, they can be liable to be sued. “Unauthorized” biographers need to be able to prove that the information they are relating was publicly available and that it is reasonably true. Those who don’t bother risk suits, just like these producers.
posted by Miko at 7:05 PM on July 18, 2018 [6 favorites]


From what I remember, John's cousins only came off badly because, for most of the podcast, we were only getting second hand information that Tyler, or whoever, would tell Brian Reed. And Brian Reed seemed to take anything he was told at face value.

When we finally got to hear from the cousins directly, they sounded perfectly reasonable.
posted by riruro at 7:14 PM on July 18, 2018 [4 favorites]


Those who don’t bother risk suits, just like these producers

Who's privacy interest are they claiming was injured? John's, or the surviving family members? Under common law and most state law your privacy interest dies with you. Here's a 2016 law review article on the topic.
posted by snuffleupagus at 7:20 PM on July 18, 2018 [1 favorite]


I listened to the whole thing when it hit, largely because everybody was talking about it, and I remember at the time feeling sort of queasy about the way the narrative was composed. Not enough to turn it off, but there were a bunch of times (like towards the end when it got into details of the McLemore's personal sexuality) where I felt like Fred Savage in The Princess Bride: "Jeezus, grandpa Brian Reed, why are you telling me this?!?"

Speaking as an agnostic without anything that I would call afterlife beliefs, Reed's defense on grounds of McLemore's atheism is some weak and stupid shit indeed. That statement alone took me from indifferent to actively wanting to see him get the book thrown at him.
posted by Strange Interlude at 7:33 PM on July 18, 2018 [2 favorites]


If the estate’s allegations are accurate, the podcast could be in violation of a right of publicity law enacted by the state of Alabama in 2015 that explicitly entitles an individual to protect against the exploitation of their likeness or identity for up to 55 years after their death.”

IANAL but I am pretty familiar with this area of law in my line of work and 'exploitation' in this context means advertising goods or services. A podcast is not a 'commercial exploitation' - even if it is part of a for-profit enterprise - it's editorial. You don't need permission to publish someone's likeness editorially if what you are publishing is true. That's how journalism and magazines and documentaries and biographies work.

If you read the actual law (PDF) it says exactly this and has a specific fair-use carve out for "radio program or the like". So in my non-lawyer opinion the estate seems to have a pretty thin case. The first amendment is awfully broad in this country.

(Actually this law is so fucking Alabama because the unique thing here is they gave a specific exception for sporting events. Roll tide!)

biographers do work to get the consent of an estate, and if they don’t, they can be liable to be sued.

They are liable if they publish slander or libel, not for publishing a biography without permission. Libel and slander aren't protected speech obviously, 'unauthorized' biographies certainly are.
posted by bradbane at 8:55 PM on July 18, 2018 [6 favorites]


Not defending S-Town because the whole time I listened to it I was like - why are you telling me this? Where the fuck is this going? I figured there must be some plot twist coming that would explain why they were going into all this stuff but nope....
posted by bradbane at 9:01 PM on July 18, 2018 [4 favorites]


They are liable if they publish slander or libel, not for publishing a biography without permission. Libel and slander aren't protected speech obviously, 'unauthorized' biographies certainly are.

Defamation claims are also reputational and so traditionally do not transfer to the estate on death, as a personal right. (Likewise, pain and suffering in personal injury cases that are pending when the plaintiff dies, which tends to surprise people.) Property rights (like licensing) do. Thus authorized vs. unauthorized biography -- that's under an estate's control. There's a flavor of that in the AL law -- it takes a part of a living person's privacy interest and treats it as transferable property interest that endures for a while after death, with respect to certain publications.

But, note the prominent 1st Am carve-out.
posted by snuffleupagus at 9:14 PM on July 18, 2018


I listend to S***Town and felt just as icky after finishing it as I did after listening to the first season of Serial. To me both podcasts seem to be exploiting people's pain and tragedy just so someone else can talk in their "ThisAmericanLife" voice, and get some sponsors and a little noterietty. It doesn't seem like good journslism. It seems gross.
posted by WalkerWestridge at 9:18 PM on July 18, 2018 [19 favorites]


It does. At least Serial involved an actual prosecution.
posted by snuffleupagus at 9:22 PM on July 18, 2018 [1 favorite]


My instincts on what the law should be start small scale: In general if you interact with someone they can talk about it. I think people should use judgment (so criticize S-town all you want) but I don't like the idea of people stopping other people from discussing or commenting on true things done by a person. I know I'm breaking in a different direction than many people here but I find it this weird commodification of the public space: "Oh, you need to shut up because you're stepping on how I want to present myself."

--------

I'd be curious about lawyers who know this area clarifying things. I'm often surprised by stuff. I think there's a specific rule about movies based on someone's life story but in general true things can't be copyrighted.

Invasions of privacy seems to be a private law tort but I don't think any of this covers S-town. Certainly they aren't getting listeners *because* McLemore was famous.

There's a flavor of that in the AL law -- it takes a part of a living person's privacy interest and treats it as transferable property interest that endures for a while after death, with respect to certain publications.

But not including documentary shows or radios--I mean my reading is that like Bradbane's it's about advertising. One immediate driver for the law seems to have been passed in part to clarify when you could use a dead person's likeness in your campaign. Einstein is OK but Satchel Paige isn't.

“Unauthorized” biographers need to be able to prove that the information they are relating was publicly available

That's not right, is it? Certainly not for a public figure. If I talk to someone I can put their story in my unauthorized autobiography, even if it's not "publicly available."

I obviously can't steal your private papers but if legitimately learn what they say I can report it.
posted by mark k at 10:16 PM on July 18, 2018 [3 favorites]


Also, to clarify, when I mention "public space" above my feeling is it's pretty broad (practically speaking, not talking legally.) Basically any group of people who aren't committed to keeping something private. Getting embarrassed drunk at a party is a "public" act for me even if it's a sort of small work party.
posted by mark k at 10:20 PM on July 18, 2018


Traditionally defamation claims are also reputational and do not transfer to the estate on death. Property rights (like licensing) do. Thus authorized vs. unauthorized biography

Authorized vs unauthorized is a book marketing term, not a legal one, I'm not following what this has to do with intellectual property or defamation. You can't defame someone with the truth. You don't need consent to publish the truth, even if that truth is harmful. And your life story is not you or your heirs intellectual property.

When estates 'sell' or 'authorize' a story they are selling access, not permission.

I myself have on occasion lied, misrepresented my intentions, and in general done whatever I had to do to get access to rich and powerful people - so that I could publish their likeness for a negative or critical story against their wishes. It is my sincerest hope that those stories irreparably harmed their reputation or businesses. I don't ask people to sign consent releases in these cases, because I don't have to. Fuck 'em.

An example that comes to mind that doesn't involve public figures would be the #metoo lists and call outs - private individuals with reputations harmed on purpose in public. I don't think anyone here would argue that privacy or defamation laws somehow make those stories unlawful or unethical to publish. They're not - if they're true.
posted by bradbane at 10:23 PM on July 18, 2018 [6 favorites]


Huh. I listened and it didn't register as exploitive to me given how much the subject sought out and seemed to want an audience. Also, he's dead. I'm not sure where the lines are ethically about doing a piece of writing about an individual, but S Town didn't cross a line for me. I experienced it as admiring.
posted by latkes at 10:32 PM on July 18, 2018 [10 favorites]


I think there's a specific rule about movies based on someone's life story but in general true things can't be copyrighted.

A movie is a commercial product. A documentary or educational film is not. Commercial vs editorial.
posted by bradbane at 10:39 PM on July 18, 2018


I listened to all of S-Town when it was on and it got more unsettling as the series progressed. I suspect that they have something on tape somewhere that their lawyers cleared as John giving permission to broadcast, but it still came off as exploitative of the subject and somewhat ghoulish.
posted by arcticseal at 3:27 AM on July 19, 2018 [3 favorites]


Authorized vs unauthorized is a book marketing term, not a legal one, I'm not following what this has to do with intellectual property or defamation.

I guess we're talking about why it's not an invasion of privacy, defamation or violation of the estate's rights (which I agree it is not), in part because of the legal action discussed in TFA.

It's a marketing term with a legal flavor. The actual legal term would be "licensing." The estate has certain licensing rights having to do with what you might call the decedent's persona. (For convenience, that's not a term of art.) Which are (intellectual) property rights. Somewhat enhanced beyond the default by that AL statute when it comes to use of the dead person's indicia of identity for a (non-journalistic) commercial purpose, etc.

You can't defame someone with the truth. You don't need consent to publish the truth, even if that truth is harmful. And your life story is not you or your heirs intellectual property.

Correct as to a living person. Defenses to defamation of a dead person are irrelevant here because reputational harms offend a personal right that does not transfer to the estate.

People are still free to find this distasteful.

It is my sincerest hope that those stories irreparably harmed their reputation or businesses. I don't ask people to sign consent releases in these cases, because I don't have to. Fuck 'em.

There's the gap between a profession's understanding of its own ethics and how it plays at large. From my cheap seat, I wouldn't want journalistic ethics to forbid this kind of reporting across the board, but that doesn't mean that every story that can be written should be.
posted by snuffleupagus at 4:24 AM on July 19, 2018 [1 favorite]


For those who find this an interesting rabbit hole, there's a 2017 book on the topic titled "Defaming the Dead" available online. (I can't vouch for it, but it looks promising.)
posted by snuffleupagus at 6:07 AM on July 19, 2018 [1 favorite]


I didn't really get the fuss over S-Town. I listened to the whole of it in one day and thought that there wasn't much *there* there. And what was there was exploitive and a lot of it felt unnecessarily salacious for the audience's benefit. When I had listened to it all it felt like I had seriously violated this guy's privacy, dead or not.
posted by 41swans at 8:48 AM on July 19, 2018 [5 favorites]


I got maybe two episodes in, when it seemed clear it was a podcast in search of a story, any story! like maybe Reed blew his whole budget on getting down there and had to record something.
posted by touchstone033 at 9:23 AM on July 19, 2018 [3 favorites]


"social media" not to mention just general humans have not done a good job on the care and feeding of others when telling a person's story. I'm sure someone has master/PhD work on the issues of 'InterNet fame' with so many things like star wars kid, alex from target, and the airplane seating twitter-er who's story has brought that kind of thing up.

Before the airplane-tweet articles pointing out issues and helping to codify this being something people are looking at I'd have no good answer for the under 18 girl tied to my life with her mother's outing her on Facebook. I don't have a 'good' answer but I now have something better than a shrug and meh for her. The ongoing drama of a 'nobody' who put out a press release about how they were gonna let the internet tell them what to do for a year and the resulting less than one month into the effort posting of a social media blackout and going dark isn't going to be too useful in trying to navigate the symplegades of social media - beyond "don't do it!".

(And thanks for the defame the dead link - the use of the legal term in the title and memory of the poster being in law has me looking forward to reviewing that PDF.)
posted by rough ashlar at 10:13 AM on July 19, 2018


I can see this both ways. In support of the producers, I would agree that based on what we know of JBM from the podcast, he killed himself to escape depression, and believed that he would no longer exist in any way beyond worm food. He did not believe he was going to heaven, nor hell, nor to be reincarnated in some way. I agree with this view of death, and within this framework anything I want kept secret while alive is fair game once I'm dead. Why would I care at all if I'm dead?

In support of the family, I could imagine wanting my secrets kept if they would be disturbing to my family. I don't have any secrets like that, but if I did, I could imagine I'd want them kept until my family had also passed. Their lawsuit makes the case, in my interpretation, that they were harmed by hearing JBM's secrets, and that he would not have wanted to harm his family this way.

I'm curious to see how the courts decide this one. If JBM had said, "Please don't tell anybody this, even after I'm dead, my family would be hurt if they knew," then this would be fairly clear. But who goes around saying such things! Especially if you don't want to tip people off that you're about to kill yourself.
posted by a_curious_koala at 10:13 AM on July 19, 2018 [1 favorite]


I could imagine wanting my secrets kept if they would be disturbing to my family. I don't have any secrets like that, but if I did, I could imagine I'd want them kept until my family had also passed.

And obviously some people have thought of such - the author Samuel Langhorne Clemens with his statements about how one of his works could only be published 100 years after his death.

The ability to have an always on camera/microphone is going to create a clash there seems to be no good framework to capture those who arn't hip on being captured. Created as a product for a memory-aid that processes the raw feed into data to help early stage alzheimer's will just hand wave at the idea of capturing and processing those who otherwise qualify as 'background'. Because getting permission up front would kill such a product.
posted by rough ashlar at 10:23 AM on July 19, 2018


When we finally got to hear from the cousins directly, they sounded perfectly reasonable.

I thought so too until we got to the part about the nipple rings. Then I started giving them side-eye again.

Huh. I listened and it didn't register as exploitive to me given how much the subject sought out and seemed to want an audience.

Yeah, THIS. I think JBM liked the attention, though I doubt he would have wanted to go quite that far down the rabbit hole had he been alive. And it sounded like Reed was curious about his sorta-friend (and yeah, that making a story out of this would help his career some) so there he went.
posted by jenfullmoon at 5:58 PM on July 19, 2018


I drove across the country and listened to Risk! (which I had a meh/hate opinion of) and heard the long teasers for this approximately 100 times, and couldn't skip because I was driving.

The odds that I'd ever listen to it after that went to zero.
posted by bongo_x at 6:03 PM on July 19, 2018


For a scripted, comedy version check out This Sounds Serious.

Also check out The Onion's "A Very Fatal Murder" for the same.
posted by AlSweigart at 7:33 PM on July 19, 2018 [1 favorite]


You're right, I got out of my depth with my comment and it was poorly thought out. I do think S-Town is an ethical fail (I was about to say a journalistic fail, but this is not really journalism), and one that's really likely to keep happening as long as these models are celebrated. I feel similarly about much "true crime" work - for example, the terrible "On the Inside" from Reply All. There's an important notion in reporting of significance - and S-Town's subjects did not have significance, try as they might. The show ended up being voyeuristic as a result, essentially a carnival freak show that relied on class, educational and regional differences for a lot of its impact, with few/no new, big takeaways that could be argued as serving the public interest. I think the family and estate (including John's mother) is right to push back and perhaps avail themselves of some of the significant revenue from 40 million downloads generated by milking McLemore's story.

Also, it should make absolutely no difference to law or ethics what someone felt about the afterlife. It's ridiculous to even suggest that some kind of fair legal arrangement could ever come from that.
posted by Miko at 4:31 AM on July 20, 2018 [2 favorites]


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