Judge Allows Lawsuit to Proceed Against ‘S-Town’ Podcast Makers

The producers of the 2017 podcast S-Town have lost their bid to dismiss a lawsuit against them filed on behalf of the estate of John McLemore, the protagonist of the series, AL.com reports.

On Friday, U.S. District Judge Scott Coogler ruled against Serial Productions, LLC, the company behind S-Town, which tried to have the lawsuit dismissed on the basis of the First Amendment, arguing that because it was a journalistic endeavor, it shouldn’t be treated as a “commercial product.” McLemore’s estate disagrees, and is demanding profits from the podcast, as well as compensatory damages and a ban on using McLemore’s likeness.

Filed by Craig Cargile, the administrator of McLemore’s estate, the lawsuit essentially argues that the podcast violates the state of Alabama’s right of publicity, which makes it illegal to use someone’s name and image for commercial purposes without their consent for up to 55 years after their death.

The estate argues that because McLemore died by suicide in 2015, two years before the podcast premiered, he was not able to consent to certain details about his life being featured in a commercial product — i.e., the podcast — including intimate details about his mental health issues and his sex life, the latter of which McLemore had specifically asked producer Brian Reed to keep off the record. McLemore’s estate is demanding profits from the podcast, as well as compensatory damages.

Launched in 2017, S-Town tells the story of McLemore’s relationship with producer Brian Reed, whom he contacts to look into an unsolved murder in his hometown of Woodstock, Alabama. The podcast examines the troubled and charismatic McLemore’s life and death, including his struggles with mental illness and his life as a queer man in a small Southern town, specifically an affair he had with a married man (a detail that McLemore had specifically requested that Reed keep off the record).

When S-Town was released, it became a huge success, and has been downloaded 80 million times since its debut. (It was reportedly optioned for a film adaptation, though S-Town tells Rolling Stone that there is no deal with S-Town or Serial Productions.) But it also attracted a great deal of criticism, with some commenters arguing that it was “morally indefensible” for its exploitation of its central subject. McLemore’s estate apparently agreed, filing suit against the producers of S-Town for airing details about McLemore’s personal life that were not “matters of legitimate public concern, nor were these matters that McLemore contacted Reed to investigate or write about.” (John McLemore’s mother, Mary Grace McLemore, is the estate’s heir, according to the New York Times.)

For their part, the producers of S-Town have argued that because the podcast is a work of journalism, it should be “specifically exempted under the Act as a public interest documentary work.” Under Alabama law, the right to publicity act exempts “public interest works and artistic works,” such as movies, TV shows, or radio programs; it does not, however, exempt the use of a name or image for commercial purposes without the subject’s consent. In his suit, Cargile alleged that S-Town was in violation of the right to publicity act because the podcast ran ads for companies like Squarespace and Blue Apron, thereby using McLemore’s name and image for commercial purposes. In his ruling, Coogler was skeptical of this argument, writing that “S-Town arguably falls within the Act’s artistic work exemption” as a work of journalism; however, he could not “conclusively determine” that was the case without assessing whether the ads actually used McLemore’s name and likeness for commercial purposes.

In an email to Rolling Stone, S-Town producer Julie Snyder expressed confidence that the judge would rule in the podcast’s favor upon hearing the ads.

You can read the ruling in full below.

Correction: Due to an editing error, this story previously stated that the lawsuit claimed the podcast violated McLemore’s right to privacy. It violated his right to publicity. It has also been updated to incorporate comment from S-Town, as well as to clarify that Alabama’s “right of publicity” only applies to commercial products, not works of journalism.