Davidson County Chancery Court Judge Rules in Favor of School Board Members, Invalidates Censorship Clause in Ex-MNPS Director Shawn Joseph’s Severance Agreement

In an order issued earlier this afternoon, Davidson County Chancery Court Judge Ellen Hobbs Lyle ruled in favor of Plaintiffs Amy Frogge, Fran Bush, and Jill Speering, who earlier this year sued Metro and ex-MNPS Director Shawn Joseph over the legality of the School Board censorship clause contained in Joseph’s severance agreement.  In a Memorandum Order, Chancellor Lyle struck down the censorship clause as unconstitutional on multiple grounds and permanently enjoined its enforcement.

Among other things, the clause prohibited elected School Board members even from truthfully criticizing “Dr. Joseph and his performance as Director of Schools.”  Upon review of it, Chancellor Lyle ruled that the clause violated the Plaintiffs’ First Amendment rights, unlawfully prohibited them from speaking honestly with their constituents, and violated established Tennessee public policy.  As a result, the clause was invalidated as unenforceable.  Metro and Joseph will additionally be required to pay the Plaintiffs’ “reasonable costs and attorney’s fees,” which have been pledged to charity.

“This is a landmark victory on behalf of both elected officials’ free speech rights and citizens’ right to hear from their elected representatives,” said attorney Daniel Horwitz, who represented all three Plaintiffs.  “Metro and Joseph should be ashamed of their efforts to gag elected officials and prevent them from speaking honestly with their constituents about issues of tremendous public importance, and their illegal attempt to do so should serve as a costly warning to other government officials to think twice before violating the First Amendment.”

Daniel Horwitz is a free speech lawyer who represents clients across Tennessee.  If you would like to purchase a consultation from him, you can do using the form below.

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Tennessee congressional candidate’s $800,000.00 SLAPP-suit dismissed mere days after filing

Yet another SLAPP-suit has been dismissed in Tennessee—this one a mere 12 days after filing.  Once again, the rapid dismissal was made possible by the Tennessee Public Participation Act—Tennessee’s relatively new anti-SLAPP statute—which affords defendants targeted by bogus speech-based lawsuits a wealth of powerful tools to secure (or negotiate) prompt dismissals, recover their attorney’s fees, and obtain sanctions.

In this case, Plaintiff Trevor Adamson—a current congressional candidate—sued three community activists who had criticized his organizing skills on Facebook.  Unable to handle their innocuous criticism, he sued them for “not less than $300,000” in supposed compensatory damages and an additional half a million dollars in punitive damages.  Adamson also sought a facially unlawful injunction prohibiting his critics from “publishing, disseminating, or posting on social media, or Internet site [sic], or through the use of any written or digital media of any type any reference to any events pertaining to Mr. Adamson’s private life, whether the same are believed by the Defendants to be truthful or otherwise.”

A cursory review of Adamson’s lawsuit revealed that not a single statement over which he had sued was even plausibly defamatory—an essential requirement to avoid dismissal.  Worse, the allegations underlying his SLAPP-suit were flagrantly baseless.  For example, one of Adamson’s claims was premised upon a defendant expressing concern that Adamson had said “he was happy that violent counter-protestors showed up at an action that was centering LGBTQ+ people.”  Despite claiming, under penalty of perjury, that that assertion was “false,” though, in a subsequent Facebook screed bereft of self-awareness, Adamson acknowledged that he had, in fact, said “I’m kind of happy they showed up,” that he had provided specific context for why he was happy, and that he had even secretly recorded the conversation.  The fact that Adamson’s fiancée had repeatedly pledged that Adamson would file a defamation lawsuit before Adamson’s asserted (and similarly sworn) claims of damages based on his “serious mental injury” and need for professional treatment could have been realized also did not help matters.  See, e.g., McMillin v. Realty Executives Assocs., Inc., No. E2018-00769-COA-R3-CV, 2019 WL 1578704, at *4 (Tenn. Ct. App. Apr. 12, 2019) (issuing sanctions where a plaintiff “filed and maintained an action for slander when he either knew or should have known that he suffered no damages and that such a claim was, therefore, without merit.”).

Faced with the prospect of an anti-SLAPP petition, Adamson filed notice of his intent to dismiss all of his claims barely a week after filing them and was ordered to pay the costs of the lawsuit.  Accordingly, out of the $800,000.00 that Adamson sought, he recovered nothing, he paid for the privilege of losing, and he obtained no relief from his SLAPP-suit—a frequent tactic used by thin-skinned plaintiffs to stifle legitimate criticism—at all.  The vindicated Defendants’ claims for fees and sanctions remain pending.

“Gert, Karl, and Deborah are pleased that this comically bogus SLAPP-suit filed by an image-obsessed congressional candidate with a history of disturbing behavior has been dismissed immediately,” said attorney Daniel Horwitz, who represented the Defendants.  “Adamson and others who seek to stifle protected speech through baseless litigation would be wise to avoid abusing the litigation process again in the future.”

Daniel Horwitz is a free speech lawyer who represents clients across Tennessee.  If you would like to purchase a consultation from him, you can do using the form below.

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Tennessee Court of Appeals Affirms Outright Dismissal of Fired Credit Union CEO’s Defamation, Whistleblower Claims

By Daniel A. Horwitz:

In February 2018, Janet Tidwell—the CEO of Holston Methodist Federal Credit Union—was fired following an audit.  According to Ms. Tidwell, she was actually terminated because she confronted the Chairman of the credit union’s Board of Directors and the Chair of its Supervisory Committee about the Board being out of compliance with its bylaws.  Several months after Ms. Tidwell was fired, the Board Chairman also (allegedly) reported at a special board meeting that the credit union’s income had been negative for 2017, even though it was not.  Whatever the reason for Ms. Tidwell’s termination, in an email to the credit union’s members announcing her departure, the credit union’s Board of Directors stated:

For over 62 years our members have put their trust in our staff, including the leadership provided by our Board of Directors and our management team, to serve their financial needs. Today, HMFCU Board of Directors would like to continue to earn that trust by announcing the departure of Janet Tidwell as CEO.

Over the years Holston Methodist Federal Credit Union has provided trustworthy service to thousands of members with a wide range of financial needs. We are dedicated to maintaining that trust and high quality service for many years to come. We remain firm in our Mission Statement, “To be a safe and sound credit union which provides unique, beneficial service to the membership in the spirit of mutual and authentic caring.”

Ms. Tidwell ultimately sued the credit union, the Board Chairman, and the Chair of its Supervisory Committee regarding the above events, asserting several claims.  First, she claimed that her firing violated the Tennessee Public Protection Act—Tennessee’s whistleblower and retaliatory discharge law.[1]  Second, Ms. Tidwell alleged that the email announcing her departure defamed her and placed her in a false light.  Third, Ms. Tidwell alleged that the Chairman’s report about the credit union’s income defamed her and placed her in a false light as well.  After all of her claims were dismissed in the trial court for failure to state any legally cognizable claim for relief, she appealed to the Tennessee Court of Appeals, which similarly held that every claim in Ms. Tidwell’s lawsuit must be dismissed outright as a matter of law.

As to her whistleblower claim, the Court of Appeals observed that Ms. Tidwell did not “allege that she reported her employer’s alleged wrongdoing to anyone besides [the credit union’s Board Chairman and the Chair of its Supervisory Committee].”[2]  Such a defect is fatal to a whistleblower claim, however, which requires a report to someone other than the alleged wrongdoer.  As the Tennessee Supreme Court explained in Haynes v. Formac Stables, Inc.:

[T]he public policy underlying [Tennessee’s] whistleblower protections precludes relief for an employee who merely reports unlawful activity to the person responsible, even when that person is the manager, owner, or highest authority within the company.

* * * *

When an employee reports wrongdoing only to the wrongdoer—who is already aware of his or her own misconduct—there has been no exposure of the employer’s illegal or unsafe practices.  Such an employee necessarily fails to ‘blow the whistle’ in a meaningful fashion because the employee has made no ‘effort[ ] to bring to light an illegal or unsafe practice.’[3]

Consequently, Ms. Tidwell’s retaliatory discharge claim was dismissed for failure to state a claim.

The Court of Appeals easily dispatched Ms. Tidwell’s defamation and false light claims as well.  Regarding the allegedly defamatory email, the Court explained:

[T]he email is not capable of conveying a defamatory meaning. First, the statements are factually true because Plaintiff was indeed departing the credit union, and Plaintiff does not allege that any part of the email is false. See Stones River Motors, 651 S.W.2d at 719. Second, the words of the email are not reasonably construable as holding Plaintiff up to public hatred, contempt, or ridicule. Davis, 2015 WL 5766685 at *3. Accordingly, we conclude that no cause of action for libel arises from Plaintiff’s allegations concerning the email announcement of her departure from the credit union.

For the same reason, the email could not be considered “highly offensive to a reasonable person,” either—a requirement to sustain a false light claim.[4]  Further, the theory underlying Ms. Tidwell’s false light claim—that because the statements in the email were the same as those that had been used by a different credit union after its executive was convicted of theft, the email implied that she was a criminal—was something known only to one of the people she was suing.  As a consequence, the Court of Appeals held that “a recipient of the email announcement at issue here could not have understood that similar misconduct was being imputed to Plaintiff,” and thus, “[t]he statements in the email announcement are not susceptible to inferences that would cast Plaintiff in a false light.”[5]

Last, as to the statements made during the specially called Board meeting several months after Ms. Tidwell’s termination, the Court of Appeals found that this theory of liability was not cognizable, either, for multiple reasons.

First, as previously, the statement could not be construed as a serious threat to Ms. Tidwell’s reputation.

Additionally, the Court of Appeals explained:

[T]o constitute “publication” or “publicity,” which are essential elements of libel and false light invasion of privacy[, i]t is well settled that “communication among agents of the same corporation made within the scope and course of their employment relative to duties performed for that corporation are not to be considered as statements communicated or publicized to third persons.”[6]

Here, however, because “members of the credit union, the Board, Defendant Shell as Chairman of the Board, the Supervisory Committee, and Defendant Lee as Chair of the Supervisory Committee, were business associates in the “‘need to know’ pipeline[,]” the Court of Appeals held that “the communication of the information contained in the audit report to individuals within the credit union does not constitute a “publication” or “publicity.”[7]

Taken together, the Court of Appeals’ opinion in Tidwell v. Holston Methodist Federal Credit Union represents a refreshingly thorough and skeptical review of frivolous speech-based tort claims.  Beyond its solid analysis, several aspects of the opinion are commendable.  To begin, the Court of Appeals reaffirmed the material difference between defamation claims and claims for defamation by implication or innuendo, which are distinct but are nonetheless frequently conflated.  See id. at n.2 (“In her brief, Plaintiff argues that a ‘defamation by implication or innuendo claim’ purportedly arises from the email announcement. Such a claim was not presented to the trial court and is not pleaded in Plaintiff’s amended complaint, so we will not consider it.”).  Further, the Court of Appeals refused to allow the Plaintiff to alter her allegations during appeal through novel argumentation in order to avoid dismissal and trigger costly discovery—a frequent tactic in SLAPP-suits as well.  See id. at n.6 (“Plaintiff now alleges for the first time that Defendant Shell, through the Board, presented the findings of the audit report to the Holston Conference at large. Plaintiff cannot craft new allegations on appeal.”).  Further still, and perhaps most importantly, by appropriately finding that, notwithstanding a plaintiff’s allegations of reputational harm, a statement must clear a high bar of objective severity in order to be libelous and survive a motion to dismiss, the Court of Appeals has helped guard against future SLAPP-suits going forward, which now trigger an automatic award of attorney’s fees when dismissed for failure to state a claim as a result of the Tennessee Public Participation Act—Tennessee’s new anti-SLAPP statute.

Read the Court of Appeals’ unanimous opinion in Tidwell v. Holston Methodist Credit Union, et al., authored by Judge John W. McClarty, here.

Daniel Horwitz is a free speech lawyer who represents clients across Tennessee.  If you would like to purchase a consultation from him, you can do using the form below.

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[1] See Tenn. Code Ann. § 50-1-304(b).

[2] JANET TIDWELL v. HOLSTON METHODIST FEDERAL CREDIT UNION, ET AL., No. E2019-01111-COA-R3-CV, 2020 WL 3481537 (Tenn. Ct. App. June 25, 2020).

[3] Haynes v. Formac Stables, Inc., 463 S.W.3d 34, 40 (Tenn. 2015) (quoting Collins v. AmSouth Bank, 241 S.W.3d 879, 885 (Tenn. Ct. App. 2007)).

[4] The Tennessee Court of Appeals has never held directly that the “reasonably construable as holding Plaintiff up to public hatred, contempt, or ridicule” standard required to sustain a defamation claim and the “highly offensive to a reasonable person” standard required to sustain a false light claim are identical, though it frequently considers the requirements in tandem.  See, e.g., Loftis v. Rayburn, No. M2017-01502-COA-R3-CV, 2018 WL 1895842, at *8 (Tenn. Ct. App. Apr. 20, 2018) (“For the reasons we found the statements in Mr. Myers’ article fail to imply a defamatory meaning, we also find they are not susceptible to the requisite inferences casting Mr. Loftis in a false light.  See West, 53 S.W.3d at 645 n.5. We do not believe a reasonable person would be justified, in the eyes of the community, of being seriously offended and aggrieved by the statements at issue.”).

[5] Tidwell, 2020 WL 3481537.

[6] Id. (quoting Woods v. Helmi, 758 S.W.2d 219, 223 (Tenn. Ct. App. 1988) (interpreting Freeman v. Dayton Scale Co., 19 S.W.2d 255 (Tenn. 1929))).

[7] Id.

Second-Ever Anti-SLAPP Petition Granted Under the Tennessee Public Participation Act, $26,500.00 in Attorney’s Fees and Sanctions Awarded to Prevailing Defendant

The second-ever anti-SLAPP petition filed under the Tennessee Public Participation Act (TPPA)—Tennessee’s new anti-SLAPP statute—has officially been granted, accompanied by the largest fee-shifting award ($26,500.00) ever awarded in a defamation case filed in Tennessee.  The final order—granted by Davidson County Circuit Court Judge Joe P. Binkley—comes on the heels of a February 2020 ruling by Wilson County General Sessions Judge Barry Tatum granting the first-ever petition to dismiss a plaintiff’s claims under the TPPA.

The ruling comes after a bizarre set of circumstances in which a Nashville man, Carl Vonhartman, sued a woman, Kortni Butterton, who had rejected him on a dating app after she called 911, sought an order of protection against him, and testified at the order of protection hearing.  In response to the lawsuit, the woman filed a 361-page, 18-exhibit TPPA Petition to Dismiss all of Mr. Vonhartman’s claims and sought an award of attorney’s fees and sanctions regarding them.  In advance of the scheduled hearing on the petition, Mr. Vonhartman stipulated “that his Complaint failed to state any cognizable claim for relief against the Defendant,” that Ms. Butterton’s TPPA petition should be granted, and that “judgment shall be entered in favor of the Defendant against the Plaintiff in the amount of twenty-six thousand and five hundred dollars ($26,500.00)—inclusive of all available claims for attorney’s fees, discretionary costs, and sanctions—pursuant to Tennessee Code Annotated § 20-17-107(a), Tennessee Code Annotated § 20- 12-119(c), and Tennessee Code Annotated § 4-21-1003(c).”  A formal notice that the $26,500.00 judgment had been paid and received in full was filed with the court by Daniel A. Horwitz, Ms. Butterton’s attorney, yesterday afternoon.

“Ms. Butterton is pleased to have prevailed spectacularly against this shameful SLAPP-suit and to receive an unprecedented $26,500.00 in attorney’s fees and sanctions from the man who unsuccessfully sued her,” said Horwitz.  “Tennessee’s new anti-SLAPP statute makes bogus lawsuits like this one extremely costly for those who seek to intimidate others through the legal process, so let this outcome serve as a stark warning to anyone else who is thinking about making the same mistake.”

“This case should also send a clear message to anyone who believes they are in danger,” Horwitz added.  “If you believe someone is going to hurt you, do not be afraid to seek help, and do not let fear of a bogus lawsuit deter you from protecting yourself.  Anyone can file a frivolous lawsuit, but in the event that that happens, rest assured that the law will protect you.”

Selected case documents and media coverage of the case appear below.

Selected Case Documents:

Plaintiff’s Complaint

Defendant’s Motion and TPPA Petition to Dismiss and Exhibits A–R

Final Order and Entry of Judgment for Attorney’s Fees, Costs, and Sanctions

Notice of Satisfaction of Judgment

Selected Media Coverage:

-WSMV: Court orders payment in dating app case

-WSMV: Lawsuit filed against woman who requested order of protection

-TechDirt: Anti-SLAPP Law Turns Bogus Defamation Lawsuit Into A $26,500 Legal Bill For The Plaintiff

 

Daniel Horwitz is a free speech lawyer who represents clients across Tennessee.  If you would like to purchase a consultation from him, you can do using the form below.

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Defending Against Malicious Prosecution Claims in Tennessee

By Daniel A. Horwitz:

Malicious prosecution is a civil tort claim that plaintiffs can bring against defendants who unsuccessfully initiated prior legal proceedings against them.  “In order to establish the essential elements of malicious prosecution, a plaintiff must prove that (1) a prior suit or judicial proceeding was instituted without probable cause, (2) [the] defendant brought such prior action with malice, and (3) the prior action was finally terminated in [the] plaintiff’s favor.”[1]  Thus, in theory, malicious prosecutions claims may be available to a party whenever they prevail in a legal proceeding that was initiated against them.  In practice, however, defendants who are sued for malicious prosecution have several powerful defenses available to them that often make defending against malicious prosecution claims a simple matter.

People can be sued for malicious prosecution based most forms of legal proceedings that do not go their way.  For example, people can be sued for malicious prosecution for filing an unsuccessful civil lawsuit.[2]  They can also be sued for malicious prosecution for initiating an unsuccessful administrative complaint to a regulatory agency.[3]  Prompting or maintaining an unsuccessful criminal prosecution can result in a malicious prosecution lawsuit as well,[4] although a criminal investigation that is not followed by a subsequent prosecution does not qualify.[5]

Despite the theoretical availability of malicious prosecution claims following virtually all legal proceedings, though, establishing the tort’s underlying elements and overcoming each of the (many) defenses and immunities that are available is another matter.  Tennessee’s courts have also instructed that there is “a heavy burden of proof on the plaintiff in malicious prosecution actions in establishing malice and lack of probable cause[,]”[6] because Tennessee public policy dictates that “the reporting of valid complaints, if supported by probable cause to believe they are true, should not and will not be inhibited.”[7]

 

Element #1: Probable Cause

For purposes of a malicious prosecution claim, “[p]robable cause exists where the party that instituted the underlying proceedings had a reasonable belief in the existence of facts supporting his or her claim and a reasonable belief that those facts made out a legally valid claim.”[8]  Further, “[t]he reasonableness of the party’s belief is an objective determination made in light of the facts and circumstances at the time the underlying proceedings were initiated.”[9]  Thus, evidence that comes to light only after a legal proceeding has been initiated is irrelevant to whether probable cause existed in the first instance.  In the same vein, “[t]ermination of the prior proceeding in Plaintiff’s favor has no bearing on whether probable cause existed at the time prosecution was initiated, and, where relevant, the jury shall be specifically so instructed.”[10]

Moreover, as relevant in many malicious prosecution cases that arise out of unsuccessful civil lawsuits, “[t]he defendant in a malicious prosecution lawsuit may establish the existence of probable cause by demonstrating that he or she relied on the advice of counsel in initiating the underlying proceedings.”[11]  Of note, in addition to advice provided by privately retained counsel, “[t]he district attorney general is counsel whose advice can constitute a defense to a malicious prosecution action” as well.[12]  “To establish probable cause through reliance on the advice of counsel, the defendant must prove three elements: (1) that the attorney’s advice was sought in good faith, (2) that the defendant disclosed all material facts relating to the case in his possession and all facts that could have been ascertained by reasonable diligence, and (3) that the case was commenced pursuant to the attorney’s advice.”[13]  Critically, “If the elements of advice of counsel have been established, the fact that the attorney’s advice was unsound or erroneous is immaterial and does not defeat the defense.”[14]

Additionally, absent fraud or express malice, a previous judicial determination of probable cause generally establishes—by itself—that probable cause to initiate the proceeding existed[15] (unsurprisingly, a judgment in favor of the original plaintiff is generally conclusive as to probable cause as well[16]).  Sometimes referred to as the “interim adverse judgment rule,”[17] this restriction essentially ensures that if a previous court determined that a legal proceeding should move forward against someone based on the evidence presented, then a subsequent malicious prosecution claim is barred.  This rule frequently operates to foreclose malicious prosecution claims based on criminal proceedings that have been indicted by a grand jury, for example, which is a routine occurrence.  Specifically, Tennessee’s courts have held, “an indictment by a grand jury equates to a finding of probable cause,”[18] and thus, “a grand jury’s indictment creates a rebuttable presumption that probable cause to institute the criminal proceeding existed unless the indictment was procured by fraud or by a defendant who did not believe in the guilt of the plaintiff.”[19]

The interim adverse judgment rule does not apply when a person maintains a proceeding after learning that it is baseless, however.  Specifically, Tennessee’s courts have explained, “even though one has probable cause to initiate criminal charges, there can be liability for the malicious continuation of a criminal proceeding.”[20]  Even then, though, “the private person must take an active part in continuing or procuring the continuation of criminal proceedings” in order to be liable in a subsequent malicious prosecution lawsuit.[21]

 

Element #2: Malice

The second element of a malicious prosecution claim that a plaintiff must establish to prevail is that the “defendant brought [a] prior action with malice[.]”[22]  To prove malice, a plaintiff must “demonstrate[] an improper motive.”[23]  Further, Tennessee’s courts have explained:

“The absence of probable cause raises a rebuttable presumption of malice. Kerney v. Aetna Cas. & Sur. Co., 648 S.W.2d 247, 252 (Tenn. Ct. App. 1982). Malice may be inferred from the absence of probable cause, or from want of reasonable grounds for prosecution as the circumstances appeared to the prosecutor or as they would have appeared to a person of ordinary circumspection and diligence. Perry v. Sharber, 803 S.W.2d 223, 225 (Tenn. Ct. App. 1990); Peoples Protective Life Ins. Co. v. Neuhoff, 56 Tenn. App. 346, 407 S.W.2d 190 (1966). Ill will or personal hatred need not be shown. Kelley v. Tomlinson, 46 S.W.3d 742, 746 (Tenn. Ct. App. 2000). Any improper motive is sufficient to constitute malice when malicious prosecution is charged. Lawson v. Wilkinson, 60 Tenn. App. 406, 447 S.W.2d 369 (Tenn. Ct. App. 1969).”[24]

As with probable cause, however, there is also “a heavy burden of proof on the plaintiff in malicious prosecution actions in establishing malice . . . .”, because Tennessee’s courts have made clear that “the reporting of valid complaints, if supported by probable cause to believe they are true, should not and will not be inhibited.”[25]

 

Element #3: Prior Termination in the Plaintiff’s Favor

The third and final element of a malicious prosecution claim—that “the prior action was finally terminated in [the] plaintiff’s favor”[26]—is also deceptively difficult to establish in many cases.  “When a criminal case concludes with a judgment of acquittal or a civil case ends with a judgment of no liability against the defendant after a trial on the merits, such a judgment is almost always deemed final and favorable to the defendant for malicious prosecution purposes.”[27]  Where other outcomes result, however, whether a prior proceeding terminated in the Plaintiff’s favor for purposes of a subsequent malicious prosecution claim is far murkier, due in part to conflicting guidance arising from an out-of-date Tennessee Supreme Court decision that has not yet been expressly overruled.[28]

Despite some previous confusion on the matter, the Tennessee Supreme Court has made clear that “a judgment that terminates a lawsuit in favor of one of the parties must address the merits of the suit rather than terminating the suit on procedural or technical grounds.”[29]  As such, a previous termination based on—for example—a voluntary non-suit without prejudice[30] or even with prejudice,[31] a settlement,[32] and other non-merits resolutions[33] all preclude a subsequent malicious prosecution claim.

 

Defenses to Malicious Prosecution

Even in the rare case in which a plaintiff can satisfy all three elements of a malicious prosecution claim, several defenses are available that may nonetheless preclude liability, some of which are set forth below.

First, malicious prosecution claims are subject to a short statute of limitations in Tennessee: Just one year.[34]  Of note, however, “an action for malicious prosecution cannot be maintained until the termination of the original action in the plaintiff’s favor, and the cause of action does not accrue until that point.”[35]  The statute of limitations also is “not tolled by the period for appeal.”[36]

Second, virtually all malicious prosecution lawsuits are subject to the heightened protections available under the Tennessee Public Participation Act (TPPA)—Tennessee’s new anti-SLAPP statute—because malicious prosecution claims almost necessarily arise from a defendant’s “exercise of the right to petition.”  Consequently, as courts in other jurisdictions have noted, anti-SLAPP statutes like the TPPA “potentially may apply to every malicious prosecution action, because every such action arises from an underlying lawsuit, or petition to the judicial branch.”[37]

Third, all malicious prosecution lawsuits—again nearly without exception—are subject to the protections of the Tennessee Anti-SLAPP Act of 1997.  Decades ago, the General Assembly enacted the Tennessee Anti-SLAPP Act of 1997 “to provide protection for individuals who make good faith reports of wrongdoing to appropriate governmental bodies.”[38]  The statute recognizes that “[i]nformation provided by citizens concerning potential misdeeds is vital to effective law enforcement and the efficient operation of government.”[39]  Additionally, in enacting the Tennessee Anti-SLAPP Act of 1997, the General Assembly determined

“that the threat of a civil action for damages in the form of a “strategic lawsuit against political participation” (SLAPP), and the possibility of considerable legal costs, can act as a deterrent to citizens who wish to report information to federal, state, or local agencies. SLAPP suits can effectively punish concerned citizens for exercising the constitutional right to speak and petition the government for redress of grievances.”[40]

With respect to the immunity afforded by the Tennessee Anti-SLAPP Act of 1997, Tennessee Code Annotated § 4-21-1003(a) additionally provides that subject to the strictures of § 4-21-1003(b), which lays out the relevant mental state required to qualify for immunity under the Tennessee Anti-SLAPP Act of 1997:

“Any person who in furtherance of such person’s right of free speech or petition under the Tennessee or United States Constitution in connection with a public or governmental issue communicates information regarding another person or entity to any agency of the federal, state or local government regarding a matter of concern to that agency shall be immune from civil liability on claims based upon the communication to the agency.”

Fourth, in cases involving reports of criminal misconduct, an additional conditional privilege—either the public interest privilege, the common interest privilege, or both—will frequently be available.  Because “[t]he interests of the public in preventing crime and punishing criminals outweigh the interest of any plaintiff concerning statements of accusation,” as long as an accusation is made in good faith and without express malice, statements made to law enforcement are protected by the conditional “public interest privilege.”[41]  Under the public interest privilege, a publication is privileged from liability

“if the circumstances induce a correct or reasonable belief that

(a) there is information that affects a sufficiently important public interest, and (b) the public interest requires the communication of the defamatory matter to a public officer or a private citizen who is authorized or privileged to take action if the defamatory matter is true.”[42]

Separately, “Tennessee courts have recognized a common interest privilege as [another] type of conditional privilege.”[43]  More specifically:

“Our Supreme Court has described the communications covered by a conditional privilege as follows:

‘Qualified privilege extends to all communications made in good faith upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty to a person having a corresponding interest or duty; and the privilege embraces cases where the duty is not a legal one, but where it is of a moral or social character of imperfect obligation. . . . The rule announced is necessary in order that full and unrestricted communication concerning a matter in which the parties have an interest or a duty may be had. It is grounded in public policy as well as reason.’”[44]

Given all of these barriers—the difficulty of establishing the elements of malicious prosecution in the first place, and the many available defenses, including immunities, that apply to malicious prosecution claims even when liability could otherwise be established—few malicious prosecution claims are successful.  Indeed, many of them result in expensive consequences for the plaintiffs who file them.  As such, although defending against a malicious prosecution lawsuit competently requires significant expertise, most defendants who are sued for malicious prosecution can rest (comparatively) comfortably, assured in the knowledge that most such claims are unlikely to be successful.

Daniel Horwitz is a free speech lawyer who represents clients across Tennessee.  If you would like to purchase a consultation from him, you can do using the form below.

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[1] Roberts v. Fed. Exp. Corp., 842 S.W.2d 246, 247–48 (Tenn. 1992) (citing Christian v. Lapidus, 833 S.W.2d 71, 73 (Tenn.1992); Lewis v. Allen, 698 S.W.2d 58, 59 (Tenn.1985)).

[2] See, e.g., Preston v. Blalock, No. M2014-01739-COA-R3-CV, 2015 WL 3455384, at *1 (Tenn. Ct. App. May 29, 2015).

[3] See, e.g., Kauffman v. A. H. Robins Co., 448 S.W.2d 400, 403 (1969) (“It is our view that the ‘prior judicial proceeding’ need not be conducted in a ‘court’ in the strict technical and legal sense; but that certain administrative proceedings are at least ‘quasi-judicial’ to the extent that they may be the basis for a malicious prosecution action, provided all the requisite elements of such an action are both alleged and proved.”); Lewis v. Allen, 698 S.W.2d 58, 60 (Tenn. 1985) (“[A]ny administrative tribunal or body duly established to conduct investigations or investigatory hearings and to make adjudicatory findings that may adversely affect legally protected interests of persons subject to its jurisdiction will satisfy the first element of a malicious prosecution action.”).

[4] Wykle v. Valley Fid. Bank & Tr. Co., 658 S.W.2d 96, 98 (Tenn. Ct. App. 1983) (citing Prosser on Torts, 4th Ed., P. 836); Hatfield v. Cleveland Bank & Tr. Co., No. 03A01-9506-CV-00209, 1995 WL 621003, at *3 (Tenn. Ct. App. Oct. 24, 1995).

[5] Pagliara v. Moses, No. M201802188COAR3CV, 2020 WL 838482, at *5 (Tenn. Ct. App. Feb. 20, 2020) (“A criminal investigation by law enforcement is neither a judicial proceeding nor a quasi-judicial administrative proceeding with the authority ‘to make adjudicatory findings that may adversely affect legally protected interests of persons subject to its jurisdiction.’ See Lewis, 698 S.W.2d at 60. A criminal investigation by law enforcement, without a subsequent prosecution, does not have an adjudicatory function.”).

[6] Kauffman, 448 S.W.2d at 404 (citing Lipscomb v. Shofner, 33 S.W. 818 (Tenn. 1896)).

[7] Id. See also Himmelfarb v. Allain, 380 S.W.3d 35, 41 (Tenn. 2012) (“The threat of a malicious prosecution action may reduce the public’s willingness to resort to the court system for settlement of disputes. We decline to adopt a rule that would deter litigants with potentially valid claims from filing those claims because they are fearful of a subsequent malicious prosecution action.”) (internal citation omitted).

[8] Preston, 2015 WL 3455384, at *4.

[9] Id. (emphasis added) (citing Roberts, 842 S.W.2d at 248).

[10] Roberts, 842 S.W.2d at 249.

[11] Preston, 2015 WL 3455384, at *5 (citing Sullivan, 678 S.W.2d at 911). See also Cooper v. Flemming, 84 S.W. 801, 802 (1904) (stating that the purpose of the advice of counsel defense is to “establish the existence of probable cause”).

[12] See Spicer v. Thompson, No. M2002-03110-COA-R3-CV, 2004 WL 1531431, at *25 (Tenn. Ct. App. July 7, 2004) (citing Cooper, 84 S.W. 801), perm. to app. denied (Tenn. Dec. 20, 2004).

[13] Preston, 2015 WL 3455384, at *5 (citing Abernethy v. Brandt, 120 S.W.3d 310, 314 (Tenn.Ct.App.2002) (in turn citing Cooper, 84 S.W. at 802)).

[14] Preston, 2015 WL 3455384, at *5.

[15] See, e.g., Crowe v. Bradley Equip. Rentals & Sales, Inc., No. E2008-02744-COA-R3-CV, 2010 WL 1241550, at *5 (Tenn. Ct. App. Mar. 31, 2010) (“Regarding the malicious prosecution claim, an indictment by a grand jury equates to a finding of probable cause.” (citing Parks v. City of Chattanooga, No. 1:02-CV-116, 2003 WL 23717092, at *4 (E.D. Tenn. Dec. 15, 2003), aff’d, 121 F. App’x 123 (6th Cir. 2005))), no app. filed; Gordon v. Tractor Supply Co., No. M201501049COAR3CV, 2016 WL 3349024, at *10 (Tenn. Ct. App. June 8, 2016) (“[A] grand jury’s indictment creates a rebuttable presumption that probable cause to institute the criminal proceeding existed unless the indictment was procured by fraud or by a defendant who did not believe in the guilt of the plaintiff.”), no. app. filed.

[16] Christian, 833 S.W.2d at 74 (“a judgment in favor of the original plaintiff is conclusive of probable cause, unless procured by fraud.”).

[17] Plumley, 164 Cal. App. 4th at 1053 (“This presumption—referred to by some authorities as the ‘interim adverse judgment’ rule—is subject to an exception where the underlying victory was obtained by fraud or perjury.”).

[18] See, e.g., Crowe, 2010 WL 1241550, at *5 (“Regarding the malicious prosecution claim, an indictment by a grand jury equates to a finding of probable cause.” (citing Parks, 2003 WL 23717092, at *4)).  See also Bovat v. Nissan N. Am., No. M2013-00592-COA-R3CV, 2013 WL 6021458, at *3 (Tenn. Ct. App. Nov. 8, 2013) (“The Williamson County Grand Jury independently issued the indictment of stalking. An indictment by a grand jury equates to a finding of probable cause.”) (citing Crowe v. Bradley Equip. Rentals & Sales, Inc., No. E2008–02744–COA–R3–CV, 2010 WL 1241550, at *5 (Tenn.Ct.App. Mar.31, 2010); see Parks v. City of Chattanooga, No. 1:02–CV–116, 2003 WL 23717092, at *4 (E.D.Tenn. Dec.15, 2003) (citing State v. Hudson, 487 S.W.2d 672, 674 (Tenn.Crim.App.1972))).

[19] Gordon, 2016 WL 3349024, at *10

[20] Pera v. Kroger Co., 674 S.W.2d 715, 722 (Tenn.1984).

[21] Bovat v. Nissan N. Am., No. M2013-00592-COA-R3CV, 2013 WL 6021458, at *3 (Tenn. Ct. App. Nov. 8, 2013).

[22] Preston, 2015 WL 3455384, at *4.

[23] Id. (citing Wright Med. Tech, 135 S.W.3d at 582).

[24] Brown v. Bushnell, No. M201701124COAR3CV, 2018 WL 2447049, at *2 (Tenn. Ct. App. May 31, 2018), appeal denied (Sept. 14, 2018)

[25] Kauffman, 448 S.W.2d at 404 (citing Lipscomb, 33 S.W. 818). See also Himmelfarb, 380 S.W.3d at 41 (“The threat of a malicious prosecution action may reduce the public’s willingness to resort to the court system for settlement of disputes. We decline to adopt a rule that would deter litigants with potentially valid claims from filing those claims because they are fearful of a subsequent malicious prosecution action.”) (citation omitted).

[26] Roberts, 842 S.W.2d at 248.

[27] Meeks v. Gasaway, No. M2012-02083-COA-R3CV, 2013 WL 6908942, at *4 (Tenn. Ct. App. Dec. 30, 2013) (citing Christian v. Lapidus, 833 S.W.2d at 74).

[28] Compare Christian, 833 S.W.2d at 74(“we are persuaded, and now hold, that abandonment or withdrawal of an allegedly malicious prosecution is sufficient to establish a final and favorable termination so long as such abandonment or withdrawal was not accompanied by a compromise or settlement, or accomplished in order to refile the action in another forum.”) (emphasis added), with Himmelfarb v. Allain, 380 S.W.3d 35, 40 (Tenn. 2012) (“Pursuant to Tennessee Rule of Civil Procedure 41.01(2), a voluntary dismissal is an adjudication on the merits of the case only if the order states that it is an adjudication on the merits, or if the plaintiff has twice previously voluntarily dismissed actions based on or including the same claim.”) (emphasis added).

[29] Himmelfarb v. Allain, 380 S.W.3d 35, 38 (Tenn. 2012) (emphasis added) (citing Parrish v. Marquis, 172 S.W.3d 526, 531 (Tenn.2005)).

[30] Id. at 40 (“we conclude that a voluntary nonsuit without prejudice is not a favorable termination for purposes of a malicious prosecution claim.”).

[31] Fit2Race, Inc. v. Pope, No. M201500387COAR3CV, 2016 WL 373313, at *5 (Tenn. Ct. App. Jan. 29, 2016) (“We conclude that the Himmelfarb Court’s rationale applies equally whether a case is dismissed with or without prejudice.”).

[32] Meeks v. Gasaway, No. M2012-02083-COA-R3CV, 2013 WL 6908942, at *6 (Tenn. Ct. App. Dec. 30, 2013) (“This holding excluding termination by compromise and settlement as a favorable termination was a restatement of the rule long applied by a line of prior Tennessee cases, that a party that settled a claim was precluded from filing a later action for malicious prosecution based on that same claim.” (citing Foshee v. Southern Finance & Thrift Corp., 967 S.W.2d 817, 819 (Tenn.Ct.App.1997); Landers v. Kroger Co., 539 S.W.2d 130, 133 (Tenn.Ct.App.1976); Martin v. Wahl, 66 S.W.2d 608 (Tenn.Ct.App.1933); Bowman v. Breeden, 1988 WL 136640 (Tenn.Ct.App. Dec. 20, 1988)).

[33] Roberts v. Champs-Elysees, Inc., No. M200801577COAR3CV, 2009 WL 1507670, at *5 (Tenn. Ct. App. May 28, 2009) (“the termination of an action in favor of a party, sufficient to sustain a subsequent malicious prosecution action brought by that party, must be more than a mere procedural disposition of the action, but must in some manner “reflect on the merits” of the action.”).

[34] Selker v. Savory, No. W2001-00823-COA-R3CV, 2002 WL 1905312, at *2 (Tenn. Ct. App. Aug. 13, 2002) (“Section 28-3-104(a) states that claims for malicious prosecution ‘shall be commenced within one (1) year after the cause of action accrued.’”).

[35] Gray v. 26th Jud. Drug Task Force, No. 02A01–9609–CV–00218, 1997 WL 379141, at *2 (Tenn. Ct. App. July 8, 1997) (citing Dunn v. State of Tenn., 697 F.2d 121, 127 (6th Cir. 1982)).  See also Moffitt v. McPeake, No. W201601706COAR3CV, 2017 WL 4513568, at *2 (Tenn. Ct. App. Oct. 10, 2017).

[36] Selker, 2002 WL 1905312, at *3.

[37] Jarrow Formulas, Inc. v. LaMarche, 74 P.3d 737, 741 (Cal. 2003).

[38] Tenn. Code Ann. § 4-21-1002(a).

[39] Id.

[40] Tenn. Code Ann. § 4-21-1002(b).

[41] Pate, 959 S.W.2d at 576.

[42] Id. (quoting Restatement (Second) of Torts § 598 (1977)).

[43] See McGuffey v. Belmont Weekday School, No. M2019- 01413-COA-R3-CV, 2020 WL 2754896, at *15 (Tenn. Ct. App. May 27, 2020).

[44] Id. (citing S. Ice Co. v. Black, 189 S.W. 861, 863 (Tenn. 1916)). See also Trotter v. Grand Lodge F. & A.M. of Tenn., No. E2005-00416-COA-R3-CV, 2006 WL 538946, at *7 (Tenn. Ct. App. Mar. 6, 2006); Pate, 959 S.W.2d at 576.

Not With a Bang, But With a Whimper: Strip Club and Valet Parking Company’s SLAPP-Suit Against Neighbors, Councilman Ends Quietly After Total Loss in Five Separate Courts

By Daniel A. Horwitz:

Déjà Vu Showgirls is a strip club located on Church St. in Nashville.  In an effort to enhance its customer experience, one of the services that Déjà Vu (briefly) provided its customers was valet parking: A service that ticked off its adjacent neighbors when its valet contractor—a company called “The Parking Guys”—trespassed on its neighbors’ property, parked vehicles in neighboring businesses’ parking lots without permission, obstructed road access, and blocked their ingress and egress.  The fact that Déjà Vu carried on its disruptive valet parking operation both without a valid permit to operate and outside of permitted hours didn’t help matters, either, leading to a permanent valet permit for the strip club being denied by city officials.

Unsatisfied that it could not continue to provide valet services to its customers, Déjà Vu and its valet contractor convinced themselves that they had been the victims of an elaborate anti-stripper conspiracy.  Thus, to vindicate their (imaginary) victimization, Déjà Vu and The Parking Guys took to state and federal court, where they sued Metro’s Traffic and Parking Commission, Metro Councilman Freddie O’Connell, and two of Déjà Vu’s neighbors—Linda Schipani and Lee Molette—asserting laughably ridiculous claims.  The claims that Déjà Vu and The Parking Guys filed against their neighbors over absolutely immunized testimony that their neighbors had given to the Traffic and Parking Commission, in particular, were legally baseless for approximately half a dozen reasons, and all of them repeatedly failed accordingly.

When the dust settled, Déjà Vu lost essentially the same claims before one Commission and the following five separate courts:

  1. The Davidson County Chancery Court, which denied all claims and held further that: “The Petitioner asserts before this Court that the Councilman and others who spoke against the permit are actually opposing the permits due to the adult nature of the Déjà Vu business, but the administrative record contains no evidence that this is the case, and indeed the record reflects the Petitioner did not raise this concern to the Commission.”
  2. The Tennessee Court of Appeals, which affirmed the Chancery Court’s denial, ordered The Parking Guys to pay Schipani’s appellate costs, and held further that “there was material evidence to support the Commission’s decision, and that its decision was not arbitrary.”
  3. The Tennessee Supreme Court, which kept the Tennessee Court of Appeals’ decision in place and denied any further effort to appeal in state court;
  4. The U.S. District Court for the Middle District of Tennessee, which also dismissed all claims alleged due to the Plaintiffs’ failure even to state a legally cognizable claim for relief; and
  5. The U.S. Court of Appeals for the Sixth Circuit, which similarly affirmed the District Court’s dismissal of all claims alleged on the basis that—as Mrs. Schipani emphasized in her briefing—“[t]he complaint does not allege membership in a protected class, or that there was any discriminatory animus on account of class membership. . . .  In fact, the complaint contains no indication of any class membership at all.  Plaintiffs therefore failed to state a claim under § 1985 against any of the defendants in their complaint.”

The deadline to appeal to the U.S. Supreme Court having expired yesterday, Déjà Vu’s SLAPP-suit and its utterly failed efforts to sue its Councilman and neighbors over testimony that the strip club did not like have officially come to an ignominious end.  Said Schipani’s attorney:

“Deja Vu has lost the same case so many times it’s difficult to keep up, but the end result is always the same: Complete vindication for Linda Schipani—who will continue to be a successful, respected businesswoman despite the best efforts of her misbehaving neighbor—and a total loss for Déjà Vu, which has become synonymous with frivolous litigation and failure.  Déjà Vu and its contractors should take this resounding loss as a lesson and stop filing baseless SLAPP-suits against their neighbors for exercising their First Amendment rights going forward.”

Daniel Horwitz is a free speech lawyer who represents clients across Tennessee.  If you would like to purchase a consultation from him, you can do using the form below.

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Fired Preschool Teacher Loses Defamation, False Light Claims Against Church Preschool Due to Common Interest Privilege, Absence of Damages

By Daniel A. Horwitz:

Kelly Love McGuffey began working for the Belmont United Methodist Church in December 2007, where she was employed as a preschool teacher.  During an evacuation drill in January 2015, a child was left in the bathroom in the classroom where Ms. McGuffey and another teacher worked.  Following the incident, Ms. McGuffey was terminated.  In an email sent to parents of the children in Ms. McGuffey’s classroom, the preschool also stated: “[Ms. McGuffey] will not be working for Belmont Weekday School any longer due to a supervision mistake during a fire drill.”

After her termination, Ms. McGuffey sued the Church preschool for (among other things) defamation and false light based on the email at issue.  The case reached trial, and following which the Davidson County Circuit Court granted a directed verdict in favor of the preschool as to both claims and dismissed them.  In a unanimous opinion issued on May 27, 2020, the Tennessee Court of Appeals affirmed the Circuit Court’s dismissal.

With respect to her defamation claim, the question presented was whether Ms. McGuffey had presented sufficient evidence to enable her claim to reach a jury.  In Tennessee, to establish a prima facie case of defamation. a plaintiff must prove that: (1) the defendant published a statement with (2) “knowledge that the statement is false and defaming” to the plaintiff, or with “reckless disregard for the truth of the statement,” or “negligence in failing to ascertain the truth of the statement.”[1]  Even if a publication would otherwise be considered defamatory, however—an issue of law that the preschool (curiously) did not contest—there are a number of circumstances in which a defendant is privileged to make a defamatory statement and cannot be held liable for doing so.  Legislators and litigants, for example, are absolutely immunized from defamation suits under specified circumstances.

More commonly, however, a “conditional” or “qualified” common interest privilege will permit a defendant to make a defamatory statement under circumstances when a communication is made in good faith based on a legal interest or duty.  The purpose of this allowance is to prevent liability under circumstances “where the interest which the defendant is seeking to vindicate or further is regarded as sufficiently important to justify some latitude for making mistakes.”[2]  Thus, the Tennessee Supreme Court has held that:

[A] [q]ualified privilege extends to all communications made in good faith upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty to a person having a corresponding interest or duty; and the privilege embraces cases where the duty is not a legal one, but where it is of a moral or social character of imperfect obligation. Newell on Libel & Slander (5th Ed.) § 493; Odgers (5th Ed.) p. 227; Townsend (4th Ed.) 299; Chambers v. Leiser, 43 Wash. 285, 86 Pac. 627, 10 Ann. Cas. 270. The rule announced is necessary in order that full and unrestricted communication concerning a matter in which the parties have an interest or a duty may be had.  It is grounded in public policy as well as reason.[3]

The common interest privilege is frequently invoked with respect to “communications between employees or agents of the same business or corporation,”[4] and it has been applied to negate defamation claims in several cases.[5]  It is not, however, restricted to corporate communications, and upon review, the Tennessee Court of Appeals sensibly held that “the common interest privilege [applies] to school communications with parents.”[6]  Consequently, to overcome the privilege, Ms. McGuffey was obligated to demonstrate that the preschool acted with actual malice in sending the email at issue to parents.  Because, during her case-in-chief, Ms. McGuffey failed to “point to any evidence that [the preschool] did not send the email at issue in good faith,”[7] however, the Court of Appeals affirmed the Circuit Court’s directed verdict against her.

The Court of Appeals also determined that a directed verdict was proper for a separate reason: Ms. McGuffey’s failure to prove damages.  In Tennessee:

To make out a claim for defamation, a plaintiff must prove that “the defamation resulted in injury to the person’s character and reputation.” Brown, 428 S.W.3d at 50. In a defamation suit, damages cannot be presumed; rather, a plaintiff must sustain and prove actual damages. Id. at 51 (citing Davis v. The Tennessean, 83 S.W.3d 125, 128 (Tenn. Ct. App. 2001)). As to damages, “‘the issue is whether the record contains any material evidence of impairment of reputation and standing in the community, personal humiliation, or mental anguish and suffering.’” Id. (quoting Murray v. Lineberry, 69 S.W.3d 560, 564 (Tenn. Ct. App. 2001)).[8]

As to damages, Ms. McGuffey introduced the testimony of a school parent, who testified that she was shocked by the school’s action toward Ms. McGuffey.  The parent also testified, however, that she remained so comfortable with Ms. McGuffey that she continued to employ Ms. McGuffey as a babysitter after the preschool terminated her.  Thus, the Court of Appeals concluded, “Ms. McGuffey failed to establish that the [email] at issue actually caused harm to her reputation and standing in the community. Reduced earnings alone is not sufficient.”[9]  Notably, Tennessee courts’ scrutiny of unproven damages claims represents a welcome trend in Tennessee’s defamation jurisprudence.  See, e.g., McMillin v. Realty Executives Assocs., Inc., No. E2018-00769-COA-R3-CV, 2019 WL 1578704, at *4 (Tenn. Ct. App. Apr. 12, 2019) (affirming sanctions award against a plaintiff who “filed and maintained an action for slander when he either knew or should have known that he suffered no damages and that such a claim was, therefore, without merit.”).

With respect to Ms. McGuffey’s false light claim, the Court of Appeals “concluded that Ms. McGuffey’s false light claims fail for much the same reasons as her defamation claims.”[10]  For reasons that are increasingly difficult to justify, Tennessee law occasionally permits false light claims to move forward even where overlapping defamation claims fail as a matter of law.[11]  However, Tennessee courts have recognized that “there is a significant and substantial overlap between the torts of defamation by implication or innuendo and false light invasion of privacy,”[12] and as a consequence, false light claims and defamation claims typically—thought not uniformly—rise and fall together.  Thus, in Ms. McGuffey’s case, the Court of Appeals held that because “the reasoning discussed above with respect to defamation and the common interest privilege applies with respect to the false light claim” as well, and because she “failed to establish the element of damages necessary for a claim of false light invasion of privacy,” Ms. McGuffey’s false light claim was properly dismissed for the same reasons.

Read the Court of Appeals’ unanimous opinion in KELLY LOVE MCGUFFEY V. BELMONT WEEKDAY SCHOOL ET AL., authored by Judge Andy Bennett, here.

Daniel Horwitz is a free speech lawyer who represents clients across Tennessee.  If you would like to purchase a consultation from him, you can do using the form below.

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[1] Sullivan v. Baptist Mem’l Hosp., 995 S.W.2d 569, 571 (Tenn. 1999) (citing RESTATEMENT (SECOND) OF TORTS § 580 B (1977), and Press, Inc. v. Verran, 569 S.W.2d 435, 442 (Tenn. 1978)). In this context, “‘[p]ublication’ is a term of art meaning the communication of defamatory matter to a third person.” Quality Auto Parts Co., Inc. v. Bluff City Buick Co., Inc., 876 S.W.2d 818, 821 (Tenn. 1994); Brown v. Christian Bros. Univ., 428 S.W.3d 38, 50 (Tenn. Ct. App. 2013).

[2] Pate v. Serv. Merch. Co., 959 S.W.2d 569, 576 (Tenn. Ct. App. 1996) (citing W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 115, at 825 (5th ed.1988)).

[3] S. Ice Co. v. Black, 189 S.W. 861, 863 (Tenn. 1916); see also Trotter v. Grand Lodge F. & A.M. of Tenn., No. E2005-00416-COA-R3-CV, 2006 WL 538946, at *7 (Tenn. Ct. App. Mar. 6, 2006); Pate, 959 S.W.2d at 576.

[4] Pate, 959 S.W.2d at 576 (citing Woods v. Helmi, 758 S.W.2d 219 (Tenn.App.1988); Southern Ice Co., 136 Tenn. 391, 189 S.W. 861).

[5] See, e.g., Woods, 758 S.W.2d at 223; Evans v. Amcash Mtg. Co., No. 01A01–9608–CV–00386, 1997 WL 431187, at *4–5 (Tenn. Ct. App., filed Aug 1, 1997); Perry v. Fox, No. 01A01–9407–CV–00337, 1994 WL 715740, at *2 (Tenn. Ct. App., filed Dec. 21, 1994); Dickson v. Nissan Motor Mfg. Corp., U.S.A., 1988 WL 9805, at *7 (Tenn. Ct. App., filed Feb. 10, 1988).

[6] KELLY LOVE MCGUFFEY V. BELMONT WEEKDAY SCHOOL ET AL. Additional Party Names: Belmont United Methodist Church, Jean Voorhees, Weekday Children’s Ministries Comm., No. M2019-01413-COA-R3-CV, 2020 WL 2754896, at *16 (Tenn. Ct. App. May 27, 2020).

[7] See id. at *17.

[8] Id. (emphasis added).

[9]  Id.

[10] Id. at *18.

[11] Patterson v. Grant-Herms, No. M2013-00287-COA-R3CV, 2013 WL 5568427, at *1 (Tenn. Ct. App. Oct. 8, 2013) (“We affirm the grant of summary judgment on the defamation claim and reverse the grant of summary judgment on the claim for invasion of privacy; we remand the case for further proceedings.”).

[12] Loftis v. Rayburn, No. M201701502COAR3CV, 2018 WL 1895842, at *9 (Tenn. Ct. App. Apr. 20, 2018).

Clumsy court ruling allows SLAPP-suit to move forward against State Representative John Mark Windle

By Daniel A. Horwitz:

State Representative John Mark Windle represents the constituents of Tennessee House District 41.  District 41 is home of the now-shuttered Jamestown Regional Medical Center, which closed last year following a series of financial and legal issues.  Among those issues were substantial federal tax liens, which “show the IRS is after more than $474,000 in unpaid taxes associated with the hospital’s owner.

Following the hospital’s closure, in this interview with WATE Channel 6 news, Rep. Windle made several cutting comments about Seamus Lagan, the hospital’s part owner and the CEO of its corporate owner, Rennova Health.  In particular, Rep. Windle stated:

“It’s not fair for people who have children in high school and college and have bills to pay for some thief to come into Tennessee and take these people’s money and mistreat them . . .  Unfortunately, an Irish gangster was allowed to buy the Jamestown Regional Medical Center.  Since that time, he has constantly cheated the employees and mismanaged the hospital to such degree that it’s no longer viable.  He didn’t pay federal income tax withholding, he didn’t pay unemployment compensation, as he’s required to by both federal and state law . . .  He’s simply a thief and should be prosecuted.”[1]

Displeased with the comments that Rep. Windle had made about him, Lagan sued Windle for defamation and false light invasion of privacy in the United States District Court for the Middle District of Tennessee.  Of some note, Lagan’s Complaint—which sought “in no event an amount less than One Hundred Thousand Dollars ($100,000.00)”—was also filed on June 28, 2019, just three days before Tennessee’s new anti-SLAPP statute took effect.

Lagan ultimately filed an Amended Complaint,[2] which Rep. Windle promptly moved to dismiss on two grounds: (1) that Lagan had failed to state a cognizable claim for defamation, and (2) that Lagan’s lawsuit was barred by absolute legislative immunity.  In a Memorandum Opinion issued on May 13, 2020, District Court Judge Waverly Crenshaw denied the motion and allowed the lawsuit to move forward.

With respect to Rep. Windle’s claim that none of the statements over which he had been sued was capable of conveying a defamatory meaning as a matter of law, Judge Crenshaw held that the far more serious statements at issue—those about Lagan being a “gangster” and a “thief” who “should be prosecuted”—were not actionable as defamation, because they were “the classic type of ‘loose, figurative or hyperbolic’ language protected by the First Amendment.”[3]  Even so, Judge Crenshaw declined to dismiss Lagan’s defamation claim because:

“Rep. Windle went further and equated Lagan with JRMC and suggested they are one. . . . Rep. Windle asserted that Lagan owns and controls JRMC, that Lagan cheated JRMC employees, that Lagan mismanaged JRMC by not paying its taxes or employee benefits, all of which caused the closure of JRMC. For now, it is Lagan’s averments that control the Court’s analysis and he avers that he was not part of the hospital’s management team and was only a mere 1% stock owner. Maybe Rep. Windle will be proven right when the facts he relied upon are disclosed, but for now at this preliminary stage, the Court must take as true that Lagan is not JRMC and JRMC is not Lagan. As a result, dismissal is not legally required.”[4]

This ruling is inexplicable.  Both under Tennessee law and in common parlance, a principal can be deemed responsible for the acts of its agents,[5] and Lagan admitted that he was a part owner of the embattled hospital and also the CEO of its corporate owner.  Further, Rep. Windle’s statements regarding the hospital’s financial mismanagement—which Judge Crenshaw held were capable of conveying a defamatory meaning—are self-evidently more innocuous than the statements regarding Lagan being a “gangster” and a “thief” who “should be prosecuted,” which Judge Crenshaw (correctly) held were not.

Judge Crenshaw additionally held that Rep. Windle was not protected by absolute legislative immunity regarding the statements over which he was sued.  Rejecting this defense, his Memorandum Opinion states:

“Indeed, Rep. Windle is entitled to legislative immunity for comments made as part of the legislative function. [sic]  Issa v. Benson, 420 S.W.3d 23, 26 (Tenn. Ct. App. 2013), which encourages the unencumbered exercise of legislative speech and debate.  Miller v. Wyatt, 457 S.W.3d 405, 409 (Tenn. Ct. App. 2014). But, legislative immunity is not all encompassing. Id. at 410.  It applies only to remarks relating to the official’s “legitimate legislative function,” Issa, 420 S.W.3d at 426, 428, which depends on the nature and scope of the statement.  Id. at 428; see Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998).[6]

Lagan has alleged facts that plausibly suggest Rep. Windle was not acting in his legislative capacity.  The Verified Amended Complaint alleges that Rep. Windle’s comments were made directly to the press outside of the legislative process.  In other words, Lagan plausibly pleads that Rep. Windle’s comments had nothing to do with the deliberative legislative process.  Construing the Verified Amended Complaint in the light most favorable to Lagan, as required, Rep. Windle’s motion to dismiss must be denied.”

This ruling, too, is inexplicable.  To begin, legislative immunity extends far beyond mere “legislative speech and debate” as intimated.  Instead, given “the importance of legislators freely speaking their minds,”[7] the absolute legislative privilege “attaches to all actions taken ‘in the sphere of legitimate legislative activity’”[8] and applies broadly to all statements made by a legislator that “relat[e] to matters within the scope of [the legislator’s] authority.”[9]  Here, given that the very interview over which Rep. Windle was sued expressly identifies him as a State Representative who had been “receiving numerous calls from constituents” regarding the hospital closure, and given further that Lagan’s own Complaint appended as an exhibit and expressly incorporated a letter to the Tennessee Department of Labor and Workforce Development regarding the hospital that was printed on Rep. Windle’s official stationary, the notion that his statements did not relate to matters within his role as a legislator is farcical.

Because Rep. Windle’s Motion to Dismiss was denied, the lawsuit against him moves forward.  Thus, he will now be subjected to discovery—an expensive and frequently abusive and intrusive process—regarding the statements over which he has been sued.  Worse, Judge Crenshaw ordered that Rep. Windle could not move to dismiss Lagan’s lawsuit on summary judgment until he first comes to the settlement table.  See May 13, 2020 Order, Case 2:19-cv-00050, Doc. #46 (“the parties are directed to engage in at least two attempts to resolve this case, one of which must take place before any other dispositive motion may be filed.”).  The predictable result is that elected officials across—at minimum—the State of Tennessee will now be more inclined than they were before to self-censor and refrain from candid discussion of issues that are important to their constituents out of fear of personal liability and concern that judges will allow transparent SLAPP-suits like Seamus Lagan’s to go forward against them.

Read District Judge Waverly Crenshaw’s Memorandum Opinion denying Rep. Windle’s Motion to Dismiss For Failure to State a Claim here.

Daniel Horwitz is a free speech lawyer who represents clients across Tennessee.  If you would like to purchase a consultation from him, you can do using the form below.

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[1] See SEAMUS LAGAN, Plaintiff, v. JOHN MARK WINDLE, Defendant., No. 2:19-CV-00050, 2020 WL 2494457, at *1 (M.D. Tenn. May 13, 2020).

[2] The filing of Lagan’s Amended Complaint arguably enabled Representative Windle to seek dismissal under Tennessee’s now-in-effect anti-SLAPP statute, see Barrett v. Chesney, No. W201401921COAR9CV, 2015 WL 5679922, at *5 (Tenn. Ct. App. Sept. 28, 2015) (“An ‘amended complaint,’ complete in itself without adoption or reference to original, supersedes and destroys the original complaint as a pleading[.]”); Shell v. Williams, No. M2013-00711-COA-R3CV, 2014 WL 118376, at *2, n. 4 (Tenn. Ct. App. Jan. 14, 2014) (same), though a Tennessee Public Participation Act Petition to dismiss was not filed.

[3] Lagan, 2020 WL 2494457, at *2 (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 21 (1990)).

[4] Id.

[5] See, e.g., White v. Revco Disc. Drug Centers, Inc., 33 S.W.3d 713, 723 (Tenn. 2000).

[6] Lagan, 2020 WL 2494457, at *2 (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 21 (1990)).

[7] Cornett v. Fetzer, 604 S.W.2d 62, 63 (Tenn. Ct. App. 1980).

[8] Bogan v. Scott-Harris, 523 U.S. 44, 54, 118 S. Ct. 966, 972, 140 L. Ed. 2d 79 (1998)

[9] Cornett, 604 S.W.2d at 64 (emphasis added).

Tennessee Court of Appeals: You (Still) Can’t Sue People For What They Say During Judicial Proceedings

By Daniel A. Horwitz:

Because they are protected by the absolute litigation privilege, litigants and their lawyers cannot be sued for defamation over what they say during the course of judicial proceedings.  Tennessee law does not recognize any exceptions to this rule,[1] which is designed to ensure that participants in judicial proceedings can speak freely without fear of retaliatory lawsuits.  Although Tennessee law has categorically and continuously forbidden such claims for nearly two centuries,[2] though, the reminder that such lawsuits are impermissible is somehow still necessary in countless cases year after year, including a recent decision out of the Tennessee Court of Appeals.

In 2016, Rodney Kilgore—the owner of Monteagle Wrecker Service—was embroiled in a lawsuit against the Tennessee Highway Patrol (THP).  The THP was represented by attorneys Dawn Jordan and Rebecca Lyford, both of whom worked at the Tennessee Attorney General’s Office.

During the discovery phase of Mr. Kilgore’s lawsuit, the THP’s attorneys sought to take the deposition of Gregory Ruth, one of Kilgore’s former drivers.  Days before Mr. Ruth’s deposition was scheduled to take place, someone torched a business owned by Mr. Ruth’s children.  According to Ms. Jordan, the torching occurred “after one of Mr. Kilgore’s emissaries told Mr. Ruth to ‘watch out’” for what was said in the case.

Ms. Jordan was Not Impressed, and she made it clear that she suspected the events were connected.  As a result, the morning before Mr. Ruth’s deposition was scheduled to occur, she sent the following email to Mr. Kilgore’s lawyers:

Good morning, Art and Rusty.

In case you have not already heard, someone torched Greg Ruth’s children’s business, R & R Road Service Wednesday night. This came after one of Mr. Kilgore’s emissaries told Mr. Ruth to “watch out” for what said [sic] in this case. The timing does not seem to be coincidental.

This is serious. I hope that your clients were not involved in this act. As you know, that would be federal witness intimidation, which is a crime even in a civil case. That said, we will be asking for a full investigation from the TBI and the US Attorney’s Office.

We have no intentions of stopping our discovery efforts in this matter. In fact, they will be stepped up. All future depositions, including the ones that WILL take place tomorrow, and will be held at a secure location with metal detectors and officers in attendance.

We look forward to the motion hearing this afternoon.

Dawn Jordan

Minutes later, Ms. Lyford followed up with an additional email, stating:

Gentlemen,

Given what has happened, I am attempting to find a location with a metal detector for everyone who will show up at the depositions tomorrow. I am calling the Winchester Federal courthouse now.

Mr. Kilgore was not impressed, either.  Accordingly, he decided to sue for defamation over Ms. Jordan’s and Ms. Lynford’s emails.  Eventually, the case reached the Tennessee Court of Appeals.

Upon review, a unanimous panel of the Tennessee Court of Appeals concluded that the emails at issue were protected from suit by the absolute litigation privilege.  Because it is an “absolute” privilege—meaning that no amount of creative pleading can overcome its application—the litigation privilege provides “complete immunity” and “is not defeated by [a] defendant’s malice, ill-will, or improper purpose in publishing [a] defamatory communication.”  See Simpson Strong-Tie Co., Inc. v. Stewart, Estes & Donnell, 232 S.W.3d 18, 22 (Tenn. 2007).  Thus, to invoke the privilege and end a lawsuit outright, a defendant need only establish that the statement over which they have been sued:

(1) Was made “in the course of a judicial proceeding,” see Jones v. Trice, 210 Tenn. 535, 542, 360 S.W.2d 48, 52 (1962), or else, was “preliminary to proposed or pending litigation,” see Myers v. Pickering Firm, Inc., 959 S.W.2d 152, 161 (Tenn. Ct. App. 1997), and

(2) Was “pertinent or relevant to the issue involved in said judicial proceeding.” Jones, 360 S.W.2d at 52.

Applying these factors to the emails sent by Ms. Jordan and Ms. Lyford, the Tennessee Court of Appeals easily determined that they were protected by the litigation privilege, given that they were both made during the course of the federal litigation and were relevant to it.[3]  See Kilgore v. State, No. E2018-01790-COA-R3-CV, 2019 WL 6002126, at *7–*8 (Tenn. Ct. App. Nov. 13, 2019).  Specifically, the Court noted:

In the case at bar, when the Emails were sent by Ms. Jordan and Ms. Lyford to [Mr. Kilgore]’s counsel, the federal litigation had already been initiated by [Mr. Kilgore], and the litigation had entered the discovery phase with a deposition scheduled for the next day.

* * * *

[I]n this case, “the arranging for and preparation for depositions and any communications relating thereto” were part of the discovery process and were therefore made in the course of a judicial proceeding, specifically the federal litigation related to this case.

Id.

Accordingly, Mr. Kilgore’s defamation claim was dismissed, and the case is over for good.  Despite the case’s flagrantly absent merit in light of Tennessee’s absolute litigation privilege, however, this is nowhere near the first time that such a claim has clogged Tennessee’s court system, and it undoubtedly won’t be the last.

Read the Tennessee Court of Appeals’ unanimous decision in Rodney Kilgore v. State of Tennessee, authored by Judge Thomas R. Frierson II, here.

Daniel Horwitz is a free speech lawyer who represents clients across Tennessee.  If you would like to purchase a consultation from him, you may do using the form below.

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[1] While some other jurisdictions inquire into a speaker’s motivations when determining whether the litigation privilege applies, see, e.g., Dickinson v. Cosby, 17 Cal. App. 5th 655, 682, 225 Cal. Rptr. 3d 430, 454–55 (Ct. App. 2017), Tennessee does not, see Graham v. Archer, No. E2016-00743-COA-R3-CV, 2017 WL 3432687, at *3 (Tenn. Ct. App. Aug. 10, 2017) (“For the absolute privilege to apply, the statement must meet two criteria: (1) It must be in the course of a judicial proceeding, and (2) it must be pertinent or relevant to the issue involved in said judicial proceeding. Whether a statement is relevant or pertinent to the issue involved is a question of law for the court.”) (cleaned up); Unarco Material Handling, Inc. v. Liberato, 317 S.W.3d 227, 238 n.17 (Tenn. Ct. App. 2010) (noting that unlike an absolute privilege, a conditional privilege “is not absolute for it ‘may be defeated if the defamatory publication was made with malice, ill-will, or for an improper purpose.’”) (citing Simpson Strong-Tie Co. v. Stewart, Estes & Donnell, 232 S.W.3d 18, 22 (Tenn. 2007)).  Consequently, as long as there is a “real nexus between the attorney’s conduct and litigation under consideration,” id. at 238, the absolute litigation privilege applies.

[2] See Lea v. White, 36 Tenn. 111, 114 (1856), Cooley v. Galyon, 109 Tenn. 1, 70 S.W. 607, 607 (1902).

[3] Indeed, Mr. Kilgore’s counsel apparently conceded as much.  See Kilgore v. State, No. E2018-01790-COA-R3-CV, 2019 WL 6002126, at *7 (Tenn. Ct. App. Nov. 13, 2019) (noting that Mr. Kilgore’s counsel “acknowledg[ed] that the Emails were ‘somewhat related to the overarching legal proceeding’”).

Tennessee Court of Appeals to Public Officials: Get Ready For Loads of Libel Lawsuits

By Daniel A. Horwitz:

Nearly all of Tennessee’s public officials should purchase libel insurance to protect themselves from baseless defamation lawsuits regarding statements that they make on the job.  That’s the clear message that a panel of Tennessee’s Court of Appeals has sent to public employees across the state in Burns v. State, No. E2018-02174-COA-R9-CV, 2019 WL 6341041 (Tenn. Ct. App. Nov. 26, 2019), a recent decision that will carry predictable and wide-ranging consequences.

In December 2015, an Ooltewah, Tennessee teenager was viciously raped with a pool cue in what was described as a high school basketball team-related “hazing incident.”  The victim suffered serious injuries and required emergency surgery.  The rape also resulted in a slew of criminal charges against both the assailants and several of the team’s coaches, who had allegedly failed to report it in compliance with mandatory reporting statutes.

During early criminal proceedings, Gatlinburg Police Department Detective Rodney Burns provided disturbing testimony regarding the attack, contending, among other things, that it was not rape, but just “something stupid kids do.”  The presiding judge characterized the detective’s testimony as “troubl[ing],” which can fairly be described as an understatement.  As the Times Free Press reported:

“Detective Rodney Burns with the Gatlinburg Police Department testified Monday about his investigation into the Dec. 22 attack, saying it was not sexual in nature. He said those accused of rupturing the boy’s bladder and colon with a pool cue received no sexual gratification during the attack, arguing that what happened wasn’t sexual assault.

‘There was no rape or torture, no screams of anguish,’ Burns said. Later, he testified that the victim’s screams caused the perpetrators to run out of the room and alerted the coaches something was wrong.

While on the stand, Burns also testified that the three adults charged in this case each handled the situation correctly and were cooperative during his investigation. He said this case has been blown out of proportion.”

The Chattanoogan added:

“Detective Burns in his testimony before Juvenile Court Judge Rob Philyaw said the case ‘appeared to be kids being kids – a hazing thing. It was something stupid that kids do and shouldn’t have been done.’

He praised the action of the three defendants, saying they were very helpful in handling of the case.

He said attacks against three other players on the team were not charged as rapes, but as assaults, because their clothing was not penetrated as in the case of the 15-year-old who was seriously injured. He said all were clothed and the case did not involve ‘sexual gratification.'”

Significantly, Judge Philyaw was not the only individual who expressed concern about Detective Burns’ testimony, which caused an international uproar.  Instead, given apparent “differences between the detective’s testimony and what he wrote in an earlier report,” Hamilton County District Attorney Neal Pinkston asked the Tennessee Bureau of Investigation to investigate whether Detective Burns had committed perjury. 

On February 18, 2016, Pinkston’s office issued a public statement explaining that: “General Pinkston believes Detective Burns perjured himself in Hamilton County Juvenile Court on Monday, February 15. That’s the only reason he asked the TBI to investigate. He swore an oath to prosecute crimes, no matter who commits them.”  Burns was ultimately indicted for two counts of aggravated perjury by a Hamilton County Grand Jury, though the charges were later dropped.

Unhappy with District Attorney Pinkston’s statements about him, Detective Burns filed a claim for libel with the Division of Claims Administration.  Burns’ libel lawsuit asserted that he had been damaged by the publication of Pinkston’s allegedly defamatory statements accusing him of perjury, and he demanded that the State of Tennessee pay him $300,000.00 in damages as a consequence.  See Tenn. Code Ann. § 9-8-307(a)(1)(R) (Supp. 2019) (affording the Claims Commission “exclusive jurisdiction to determine all monetary claims against the state based on the acts or omissions of ‘state employees’” with regard to “[c]laims for libel and/or slander where a state employee is determined to be acting within the scope of employment.”).  Seeking to have the case thrown out immediately, the State of Tennessee moved to dismiss Burns’ libel claim on the basis that District Attorney Pinkston was absolutely privileged to make allegedly defamatory statements during the course of his official duties. 

The State’s defense was based on the Tennessee Supreme Court’s decision in Jones v. State, 426 S.W.3d 50 (Tenn. 2013), which had recognized such a privilege for cabinet-level officials in an effort to shield such officials from frivolous lawsuits and enable them to spend their time serving the public free from concerns about defamation litigation.  (Somewhat inexplicably, lawyers representing the State also apparently failed to raise the long-recognized and clearly applicable litigation privilege as a defense, which affords litigants absolute immunity from defamation liability for “statements made in the course of judicial proceedings.”  See Jones v. Trice, 360 S.W.2d 48, 51 (Tenn. 1962).)  Upon review of a narrow certified question of law as to whether the Tennessee Supreme Court’s holding in Jones applied more broadly to other public employees, a unanimous panel of the Tennessee Court of Appeals held that the absolute privilege recognized in Jones was restricted to high-ranking officials only, and that District Attorneys like Pinkston were not permitted to invoke it.  Specifically, the Court explained:

The State posits that for the public policy reasons that initially engendered the Executive Official Privilege, district attorneys general should enjoy absolute immunity, arguing specifically that the absolute privilege would facilitate (1) the need for district attorneys general to communicate while exercising their duties without fear of facing litigation, (2) the public’s right to be informed regarding the prosecution of crimes and the activities of the district attorney’s office, and (3) the need for district attorneys general to focus their time on official duties without spending time defending defamation lawsuits. The State’s argument in this regard reflects our Supreme Court’s recognition of “the tension that exists between two competing social commodities: reputation and information.” See Funk, 570 S.W.3d at 211; see also Jones, 426 S.W.3d at 56 (“We recognize that in some cases, the application of an absolute privilege to cabinet-level state officials may leave aggrieved individuals without a remedy.”). See generally Barr v. Matteo, 360 U.S. 564, 571 (1959). However, in Jones, our Supreme Court determined that this balance weighed toward the commodity of information only insofar as the Court adopted absolute immunity for “cabinet-level executive officials.” See Jones, 426 S.W.3d at 58.

* * * *

In support of its position, the State relies in part on a handful of state appellate decisions from other jurisdictions wherein those states have extended an absolute official privilege to district attorneys general. See Bianchi v. McQueen, 58 N.E.3d 680, 702 (Ill. App. Ct. 2016); Foster v. Pearcy, 387 N.E.2d 446, 449 (Ind. 1979); Sims v. Barnes, 689 N.E.2d 734 (Ind. Ct. App. 1997); Candelaria v. Robinson, 606 P.2d 196, 199 (N.M. Ct. App. 1980); Pickering v. Sacavage, 642 A.2d 555, 559 (Pa. Commw. Ct. 1994); O’Connor v. Donovan, 48 A.3d 584, 592 (Vt. 2012). As the State acknowledges, these authorities constitute persuasive rather than controlling authority for Tennessee state courts. Having considered these authorities, we are not persuaded that this minority view should sway us from the confines of the Tennessee Supreme Court’s adoption of the Executive Official Privilege as limited to cabinet-level or high-ranking state executive officials. See Jones, 426 S.W.3d at 56 n.7 (“We do not decide in this case whether the privilege of absolute immunity extends beyond cabinet-level officials.”).

See Burns v. State, No. E201802174COAR9CV, 2019 WL 6341041, at *10-12 (Tenn. Ct. App. Nov. 26, 2019) (emphasis added).  The Court took care to emphasize, however, that despite the State’s apparent failure to assert them, several other outcome-determinative defenses might well apply.[1]

The Court of Appeals’ decision in Burns carries significant, immediate, and predictable consequences.  Specifically, because it is now clear that virtually no public officials qualify for the absolute privilege that immunizes from suit statements made during the course of their official duties, the risk of being subjected to defamation lawsuits is significantly heightened.  Worse, such lawsuits—which are almost uniformly meritless but can nonetheless be ruinously expensive—generally will not be subject to the heightened protections available under the newly enacted Tennessee Public Participation Act, which expressly does not apply to any “governmental entity, agency, or employee.”  See Tenn. Code Ann. § 20-17-103(7).  Accordingly, all governmental employees should seriously consider purchasing libel insurance to protect themselves in the event that they are sued in their individual (rather than official) capacities for statements made during the course of their official duties, particularly if their roles include sharing information about alleged criminal conduct, misconduct investigations, or suspected abuse.

Read the Tennessee Court of Appeals’ unanimous decision in Burns v. State of Tennessee, authored by Judge Thomas R. Frierson II, here.

Daniel Horwitz is a free speech lawyer who represents clients across Tennessee.  If you would like to purchase a consultation from him, you may do using the form below.

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Payment for: 20-Minute Phone Consultation

Amount: $150.00

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[1] See Burns v. State, No. E201802174COAR9CV, 2019 WL 6341041, at *12 (Tenn. Ct. App. Nov. 26, 2019) (“Finally, within this interlocutory appeal, the State has at no time requested certification of a question as to whether district attorneys general in Tennessee should be afforded a conditional privilege as state officials. See Simpson Strong-Tie Co., 232 S.W.3d at 22 (“[A] qualified or conditional privilege is one that may be defeated if the defamatory publication was made with malice, ill-will, or for an improper purpose.”).  We will therefore issue no holding in this decision concerning whether district attorneys general should be afforded a conditional privilege due to their status as state officials.  See Tenn. R. App. P. 9; In re Bridgestone/Firestone, 286 S.W.3d at 902. We note that depending on the situation, other privileges or immunities may apply to protect a district attorney general’s statements made within the scope of his or her official duties as a prosecutor, such as absolute prosecutorial immunity for “conduct intimately associated with the judicial process,” see Morton v. State, No. M2008-02305-COA-R3-CV, 2009 WL 3295202, at *3 (Tenn. Ct. App. Oct. 13, 2009), or the absolute immunity of the litigation privilege for “statements made in the course of judicial proceedings,” see Jones v. Trice, 360 S.W.2d 48, 51 (Tenn. 1962). We emphasize that within the parameters of this interlocutory appeal, we have reached no conclusion as to whether General Pinkston made the statements at issue within the scope of his official duties.”).