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.