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 Of note, that outdated common law rule is in serious tension with, at minimum, modern First Amendment jurisprudence, which does not permit civil liability merely for repeating false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.
|