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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[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.”).

Knoxville News Sentinel, Reporter Jamie Satterfield Win Dismissal of Defamation Lawsuit

By Daniel A. Horwitz:

In a unanimous opinion issued on March 27, 2020, the Tennessee Court of Appeals has affirmed a ruling dismissing, in full, a defamation case filed by convicted felon Michael Benanti against the Knoxville News Sentinel and reporter Jamie Satterfield. Benanti had alleged that the defendants defamed him by falsely reporting that the FBI suspected Benanti of committing additional crimes beyond those with which he had been charged, including murder. Finding that Benanti was a libel-proof plaintiff as a result of his extensive criminality, however, the Tennessee Court of Appeals affirmed the trial court’s order dismissing his lawsuit in full.

“To establish a prima facie case of defamation in Tennessee, the plaintiff must establish that: 1) a party published a statement; 2) with knowledge that the statement is false and defaming to the other; or 3) with reckless disregard for the truth of the statement or with negligence in failing to ascertain the truth of the statement.” Sullivan v. Baptist Mem’l Hosp., 995 S.W.2d 569, 571 (Tenn. 1999) (citing Restatement (Second) of Torts § 580 B (1977); Press, Inc. v. Verran, 569 S.W.2d 435, 442 (Tenn. 1978)). In order to recover for defamation, however, a plaintiff must have a reputation to begin with. Accordingly, a “libel-proof plaintiff” cannot maintain a defamation claim. See generally David L. Hudson, Jr., Shady Character: Examining the Libel-Proof Plaintiff Doctrine, 52 Tenn. B.J. 14 (2016).

In Benanti v. Satterfield, et al., the plaintiff did not dispute his extensive criminality. Instead, he “argue[d] that being known as a suspected murderer is worse than being known as a convicted bank robber, kidnapper, and carjacker.” Rejecting Benanti’s claim outright, the Tennessee Court of Appeals concluded that Benanti lacked a reputation because his “reputation as a violent criminal has been established in the public eye” given that he had been “accused, and ultimately convicted, of multiple violent felonies, including kidnapping and armed bank extortion,” and that “[b]y his own admission, plaintiff’s criminal activities were widely publicized.” In a novel ruling that creates favorable precedent for defamation defendants, the Tennessee Court of Appeals further held that because Benanti was convicted of several serious offenses that severely tarnished his reputation after his claim of defamation arose, Benanti’s “subsequent convictions make that issue moot.”

Read the Tennessee Court of Appeals’ unanimous opinion in Benanti v. Satterfield, et al., 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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First-Ever Anti-SLAPP Petition In Tennessee Granted in Lawsuit Regarding Negative Yelp Review

By Daniel A. Horwitz:

On July 1, 2019, the Tennessee Public Participation Act—Tennessee’s first meaningful anti-SLAPP statute—took effect. The statute dramatically expanded the scope of speech that receives heightened legal protection in Tennessee. It also equips people targeted by Strategic Lawsuits Against Public Participation (“SLAPP-suits”) with important tools to secure the dismissal of meritless claims early on in litigation. Perhaps most importantly, the TPPA allows prevailing defendants to get their full attorney’s fees paid by a losing plaintiff if a petition to dismiss is granted. Previously, prevailing defendants were (generally) only able to recover a maximum of $10,000 under Tennessee’s frivolous lawsuit statute, and they were only eligible to do so if a plaintiff failed to state a claim upon which relief could be granted.

Several defendants quickly benefited from the TPPA’s added protections after the statute took effect, resulting in plaintiffs quickly dropping defamation claims or providing additional bases for dismissal in speech-based lawsuits that were ultimately dismissed on other grounds. Today, however, in a ruling by Wilson County General Sessions Judge Barry Tatum, the first-ever petition to dismiss a plaintiff’s claims under the Tennessee Public Participation Act has been granted.

The case arose out of a lawsuit filed by Dr. Kaveer Nandigam and his corporation, Nandigam Neurology, PLC, against Kelly Beavers regarding a negative Yelp review. After Ms. Beavers took her father to see Dr. Nandigam and had a terrible experience, she exercised her First Amendment right to leave a negative review on Yelp!, a popular consumer review website. Dr. Nandigam quickly threatened to sue her if she did not remove the review, and ultimately, he did sue her for defamation and false light invasion of privacy regarding it when she refused.

After Dr. Nandigam dismissed and then refiled his lawsuit against her, Ms. Beavers filed an immediate Petition to Dismiss the Plaintiffs’ claims under the TPPA. Earlier this morning, her petition was granted. Thus, pending a potential appeal to the Tennessee Court of Appeals, all of the Plaintiffs’ claims against her have been dismissed with prejudice.

“This is a huge win for Kelly Beavers and the First Amendment, and it’s a huge loss for Dr. Nandigam and anyone else who would abuse the legal process to promote censorship of honest, critical consumer reviews,” said Daniel Horwitz, a speech defense lawyer who represented Ms. Beavers. Ms. Beavers’ claims for attorney’s fees and sanctions against both Dr. Nandigam and his attorney, Bennett Hirschhorn, remain pending.

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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Tennessee Supreme Court Restricts Fair Report Privilege, Holds That It Does Not Apply to “Nonpublic, One-On-One Conversations” Between Government Sources and Journalists

By Daniel A. Horwitz:

In a significant setback for journalists and Tennessee’s free press, the Tennessee Supreme Court ruled in Burke v. Sparta Newspapers, Inc., 592 S.W.3d 116, 124 (Tenn. 2019), that the fair report privilege—a critical source of immunity that protects members of the news media from being subjected to frivolous lawsuits that arise out of accurate reports of governmental proceedings—”applies only to public proceedings or official actions of government that have been made public.”  As a result, the court held, the fair report privilege does not apply to accurate reports of “nonpublic, one-on-one conversation[s]” with governmental sources, which can now serve as the basis for defamation lawsuits.  The predictable result of the Tennessee Supreme Court’s decision is that journalists will now be reticent to report on private conversations with governmental sources, because those conversations—unlike news reports based on other sources of information—carry a significantly higher risk of litigation and liability.

The fair report privilege is an exception to the common law rule that “a person who repeats the defamatory statements made by another is also liable for defamation.” Funk v. Scripps Media, Inc., 570 S.W.3d 205, 211 (Tenn. 2019) (citing VI Matthew Bacon with Henry G. William and Bird Wilson, A New Abridgment of the Law 238–39 (Philadelphia, Philip H. Nicklin 1813)).  Of note, that outdated common law rule is in serious tension with, at minimum, modern First Amendment jurisprudence, which does not permit civil liability merely for repeating false statements made by others.  See, e.g., Higgins v. Kentucky Sports Radio, LLC, 951 F.3d 728, 739 (6th Cir. 2020) (“Merely repeating potentially false reviews generated by other users may be in bad taste. But it cannot by itself constitute defamation. And good thing too. If it could, any news article discussing a tendentious Twitter exchange could land its author in front of a jury. That would make the authors of the First Amendment cringe.”).  The common law of defamation aside, however, in the interest of “allowing the media and others to be the eyes and ears of the members of the public,” Lewis v. NewsChannel 5 Network, L.P., 238 S.W.3d 270, 285 (Tenn. Ct. App. 2007), the fair report privilege has long been recognized in Tennessee as a critical source of immunity that enables journalists to publish “fair and accurate reports of official actions or proceedings, even if the report included false and defamatory statements made during the official proceeding, so long as the reports were ‘not made solely for the purpose of causing harm to the person defamed.'” Funk, 570 S.W.3d at 212 (citing Restatement (First) of Torts § 611 (1938)).  A separate justification for the privilege is that “newspapers should be allowed to report on publicly accessible information.”  Id. at 211 (citing David Elder, Defamation: A Lawyer’s Guide § 3:1 (July 2018 update)).

Restricting the scope of the fair report privilege as it applies in Tennessee, in Burke, 592 S.W.3d at 124, the Tennessee Supreme Court held that applying the privilege “to nonpublic, one-on-one conversations would constitute a departure . . . from the rationale on which the privilege is based[.]”  Id.  Accordingly, the court held, “the fair report privilege encompasses only public proceedings or official actions of government that have been made public.”  Id. (citing Lewis, 238 S.W.3d at 285).  Offering a practical justification for its holding, the court further stated that:

“Records are generated of public proceedings or official actions of government that have been made public. Any report on a public proceeding or official action of government that has been made public can be compared to the record. By this comparison, judges and lawyers can readily determine whether such a report is fair and accurate and entitled to the protection of the privilege. On the other hand, lawyers, judges, and litigants would have no objective means of determining the fairness and accuracy of a report derived from a nonpublic, one-on-one conversation. Only the parties would know what was said during the conversation. In such circumstances, every assertion of the fair report privilege would require testimony from the parties to the conversation and an assessment of their credibility in the context of litigation to determine whether the report was fair and accurate.”

Id. at 123–24.

The consequences of the Tennessee Supreme Court’s holding in Burke will be immediate and concerning.  Paired with the fact that most public officials do not have immunity from defamation lawsuits for statements made in their official capacity, see, e.g., Burns v. State, No. E2018-02174-COA-R9-CV, 2019 WL 6341041, at *1 (Tenn. Ct. App. Nov. 26, 2019) (“Having considered the certified question of whether the absolute privilege afforded to state officials for statements made in the course of their official duties, as recognized in Jones v. State, 426 S.W.3d 50 (Tenn. 2013), extends to district attorneys general, we determine that the privilege does not apply”), both journalists and governmental sources, including Public Information Officers, now need to worry about being subjected to frivolous but costly lawsuits arising out of truthful reports that tarnish someone’s reputation.  The context of Burke itself—a multiyear lawsuit that arose out of a journalist’s undisputedly accurate report of statements conveyed to her by a Public Information Officer of a sheriff’s department about a man who was accused of misappropriating money from a youth football league (and who had also “been previously indicted in Smith County ‘for allegedly stealing $11,000 . . . from a youth football league last fall,'” see Burke, 592 S.W.3d at 118, a fact that arguably left him libel-proof)—leaves little doubt that such lawsuits can and will occur.  Fortunately, however, due to the recently enacted Tennessee Public Participation Act, such lawsuits will at least be shorter lived than they were before.

Read the Tennessee Supreme Court’s unanimous opinion in Burke v. Sparta Newspapers, Inc., 592 S.W.3d 116 (Tenn. 2019), 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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The “Tennessee Public Participation Act,”⁠ Tennessee’s First-Ever Meaningful Anti-SLAPP Law⁠, Takes Effect Today

By Daniel A. Horwitz:

If you woke up this morning feeling freer to speak your mind, there’s a reason: A little-noticed law with huge free speech benefits takes effect today. As of July 1, 2019, the “Tennessee Public Participation Act”—Tennessee’s first-ever meaningful Anti-SLAPP law—became effective and affords those who are sued for their speech a host of critical legal benefits.

Because litigation is often prohibitively expensive, bad actors can often intimidate critics into silence by threatening or filing baseless speech-based lawsuits asserting claims like defamation (libel or slander), false light invasion of privacy, business disparagement, or other questionable torts. When faced with the prospect of having to spend tens (if not hundreds) of thousands of dollars in legal fees to defend one’s legal right, for instance, to leave an unfavorable review of a business, self-censorship can also become an extremely attractive proposition. The result of such self-censorship is to undermine both individuals’ right to free speech and the public’s right to hear and receive information.

It is important to note that the overwhelming majority of defamation and other speech-based lawsuits are not filed because a person has suffered an actual legal injury. Instead, their purpose is to punish people for lawfully exercising their right to speak freely about a topic that the suing plaintiff wants to censor. Given the cost of litigation, historically, such lawsuits have also been disturbingly effective.

To provide a counterbalance to the financial threat posed by bogus defamation lawsuits, laws aimed at deterring “Strategic Lawsuits Against Public Participation” (Anti-SLAPP laws) afford speakers a number of significant legal protections, all of which are critical to safeguarding free speech and promoting the free exchange of information and ideas. First, Anti-SLAPP laws help deter bad actors from filing baseless lawsuits against people for lawfully exercising their free speech rights in the first place. Second, the best Anti-SLAPP laws provide people who are sued for exercising their First Amendment rights an efficient and expeditious means of getting frivolous speech-based lawsuits dismissed quickly. Third, Anti-SLAPP laws commonly provide a mechanism to punish abusive litigants and attorneys who file baseless defamation claims with significant monetary sanctions. Fourth, Anti-SLAPP laws frequently give people who are sued for exercising their free speech rights the right to recoup whatever attorney’s fees and court costs they incurred for having to defend against a meritless speech-based lawsuit.

Happily, beginning today, Tennessee now boasts an Anti-SLAPP law that affords speakers all of these benefits. Until today, Tennessee only had a limited Anti-SLAPP law that was narrowly restricted to statements made to government agencies.  Fortunately, though, earlier this year, Tennessee enacted the “Tennessee Public Participation Act” to protect Tennesseans’ right to free speech, which became effective July 1, 2019.  Thus, from today onward, the Randy Rayburns and Linda Schipanis and Bari Hardins of the world can now wield a powerful protective weapon against bad actors’ efforts to censor and intimidate them through frivolous speech-based lawsuits.

The Tennessee Public Participation Act has dramatically expanded the scope of speech that receives heightened legal protection in Tennessee. Under the Act, every “communication made in connection with a matter of public concern”—a term that is defined broadly and expressly encompasses statements involving issues of “health or safety” and “community well-being”—”that falls within the protection of the United States Constitution or the Tennessee Constitution” will come within the ambit of the law’s protection. In other words: Most statements made by citizens within the State of Tennessee—including social media posts and blog posts—now receive heightened protection against speech-based lawsuits, including defamation lawsuits, false light invasion of privacy lawsuits, or lawsuits that assert claims such as “defamation by implication or innuendo.”  Defendants who are sued for claims such as “abuse of process” or “malicious prosecution” will frequently enjoy heightened protection under the Tennessee Public Participation Act as well.

Censorship has always been rampant, and it comes in many forms—from firing people who speak out about misconduct in the workplace to libel and slander lawsuits. More than anything, in recent years, the permanence of the internet combined with the reach and speed of social media have made it more attractive than ever to try to censor others through the legal system before harmful information—whether accurate or not—reaches every corner of cyberspace. The good news is that the Tennessee Public Participation Act will now afford significant protection to people who speak out about topics like abuse and other important issues. The text of the law appears below.

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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The Tennessee Public Participation Act (Effective July 1, 2019):

20-17-101. This chapter shall be known and may be cited as the “Tennessee Public Participation Act.”

20-17-102. The purpose of this chapter is to encourage and safeguard the constitutional rights of persons to petition, to speak freely, to associate freely, and to participate in government to the fullest extent permitted by law and, at the same time, protect the rights of persons to file meritorious lawsuits for demonstrable injury. This chapter is consistent with and necessary to implement the rights protected by Article I, §§ 19 and 23, of the Constitution of Tennessee, as well as by the First Amendment to the United States Constitution, and shall be construed broadly to effectuate its purposes and intent.

20-17-103. As used in this chapter:

(1) “Communication” means the making or submitting of a statement or document in any form or medium, including oral, written, audiovisual, or electronic;

(2) “Exercise of the right of association” means exercise of the constitutional right to join together to take collective action on a matter of public concern that falls within the protection of the United States Constitution or the Tennessee Constitution;

(3) “Exercise of the right of free speech” means a communication made in connection with a matter of public concern or religious expression that falls within the protection of the United States Constitution or the Tennessee Constitution;

(4) “Exercise of the right to petition” means a communication that falls within the protection of the United States Constitution or the Tennessee Constitution and:

(A) Is intended to encourage consideration or review of an issue by a federal, state, or local legislative, executive, judicial, or other governmental body; or

(B) Is intended to enlist public participation in an effort to effect consideration of an issue by a federal, state, or local legislative, executive, judicial, or other governmental body;

(5) “Legal action” means a claim, cause of action, petition, cross-claim, or counterclaim or any request for legal or equitable relief initiated against a private party;

(6) “Matter of public concern” includes an issue related to:

(A) Health or safety;

(B) Environmental, economic, or community well-being;

(C) The government;

(D) A public official or public figure;

(E) A good, product, or service in the marketplace;

(F) A literary, musical, artistic, political, theatrical, or audiovisual work; or

(G) Any other matter deemed by a court to involve a matter of public concern; and

(7) “Party” does not include a governmental entity, agency, or employee.

20-17-104.

(a) If a legal action is filed in response to a party’s exercise of the right of free speech, right to petition, or right of association, that party may petition the court to dismiss the legal action.

(b) Such a petition may be filed within sixty (60) calendar days from the date of service of the legal action or, in the court’s discretion, at any later time that the court deems proper.

(c) A response to the petition, including any opposing affidavits, may be served and filed by the opposing party no less than five (5) days before the hearing or, in the court’s discretion, at any earlier time that the court deems proper.

(d) All discovery in the legal action is stayed upon the filing of a petition under this section. The stay of discovery remains in effect until the entry of an order ruling on the petition. The court may allow specified and limited discovery relevant to the petition upon a showing of good cause.

20-17-105.

(a) The petitioning party has the burden of making a prima facie case that a legal action against the petitioning party is based on, relates to, or is in response to that party’s exercise of the right to free speech, right to petition, or right of association.

(b) If the petitioning party meets this burden, the court shall dismiss the legal action unless the responding party establishes a prima facie case for each essential element of the claim in the legal action.

(c) Notwithstanding subsection (b), the court shall dismiss the legal action if the petitioning party establishes a valid defense to the claims in the legal action.

(d) The court may base its decision on supporting and opposing sworn affidavits stating admissible evidence upon which the liability or defense is based and on other admissible evidence presented by the parties.

(e) If the court dismisses a legal action pursuant to a petition filed under this chapter, the legal action or the challenged claim is dismissed with prejudice.

(f) If the court determines the responding party established a likelihood of prevailing on a claim:

(1) The fact that the court made that determination and the substance of the determination may not be admitted into evidence later in the case; and

(2) The determination does not affect the burden or standard of proof in the proceeding.

20-17-106. The court’s order dismissing or refusing to dismiss a legal action pursuant to a petition filed under this chapter is immediately appealable as a matter of right to the court of appeals. The Tennessee Rules of Appellate Procedure applicable to appeals as a matter of right governs such appeals.

20-17-107.

(a) If the court dismisses a legal action pursuant to a petition filed under this chapter, the court shall award to the petitioning party:

(1) Court costs, reasonable attorney’s fees, discretionary costs, and other expenses incurred in filing and prevailing upon the petition; and

(2) Any additional relief, including sanctions, that the court determines necessary to deter repetition of the conduct by the party who brought the legal action or by others similarly situated.

(b) If the court finds that a petition filed under this chapter was frivolous or was filed solely for the purpose of unnecessary delay, and makes specific written findings and conclusions establishing such finding, the court may award to the responding party court costs and reasonable attorney’s fees incurred in opposing the petition.

20-17-108.  Nothing in this chapter:

(1) Applies to an enforcement action that is brought in the name of the state or a political subdivision of this state by the attorney general, a district attorney general, or a county or municipal attorney;

(2) Can result in findings or determinations that are admissible in evidence at any later stage of the underlying legal action or in any subsequent legal action;

(3) Affects or limits the authority of a court to award sanctions, costs, attorney’s fees, or any other relief available under any other statute, court rule, or other authority;

(4) Affects, limits, or precludes the right of any party to assert any defense, remedy, immunity, or privilege otherwise authorized by law;

(5) Affects the substantive law governing any asserted claim;

(6) Creates a private right of action; or

(7) Creates any cause of action for any government entity, agency, or
employee.

20-17-109. This chapter is intended to provide an additional substantive remedy to protect the constitutional rights of parties and to supplement any remedies which are otherwise available to those parties under common law, statutory law, or constitutional law or under the Tennessee Rules of Civil Procedure.

20-17-110. If any provision of this chapter or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this act that can be given effect without the invalid provision or application, and to that end the provisions of this act are declared to be severable.