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Tennessee Supreme Court Has Two Chances to Reshape Fair Report Privilege in the Volunteer State

Fair Report Privilege in Flux

By Paul R. McAdoo

For more than sixty-years the Tennessee Supreme Court has been silent regarding the fair report privilege, allowing the state's Court of the Appeals to develop the contours of this vital affirmative defense. This year, the Tennessee Supreme Court took up the issue in Funk v. Scripps Media, Inc. and is poised to issue its first opinion since 1956. There is also a pending application for review by the court in another fair report privilege case, Burke v. Sparta Newspapers. These two cases are an important opportunity for the court to clarify the contours of the privilege in Tennessee for reporters and the courts.

In the nineteenth century, the court repeatedly discussed defamation privileges, including the fair report privilege, and found that express or common law malice defeated the privilege. The Court of Appeals has inconsistently applied this precedent. Some opinions cite to these older cases and continue to include express malice as a means for defeating the privilege, while other opinions note that "at one time the fair report privilege required an absence of malice," but "subsequent Tennessee cases do not require it." The issue in Funk is what direction should Tennessee take on this issue.

Funk, Nashville's district attorney, who is suing Scripps' local station for defamation, asserts that the nineteenth century precedent is binding and should be reaffirmed by the Tennessee Supreme Court because of the long-held precedent and, among other things, the express malice component "places an important check on an increasingly freewheeling press in the age of the twenty-four-hour news cycle."

Scripps focused on the Court of Appeals cases that found express malice is no longer a component of the privilege and argued that, nationally, the modern trend, as reflected in other state supreme court decisions, is consistent with the Court of Appeals decisions finding that the express malice component of the privilege should be excised from it.

A group of fourteen national media organizations filed an amicus brief in support of Scripps arguing three things: (1) under U.S. Supreme Court cases like Garrison v. Louisiana, it is unconstitutional to include express malice as an element of a defamation claim or as a means for defeating a defense; (2) under Cox Broadcasting v. Cohn and its progeny, it is unconstitutional to impose liability for truthful speech based on lawfully acquired information about a matter of public concern and express malice plays no role in that analysis, and (3) based on Tennessee precedent, the requirement is illogical and against the public policy in favor of free speech. The Court held oral argument in the case in early October 2018 but has yet to issue its opinion in the case.

The Burke case involves a different aspect of Tennessee's fair report privilege. In overturning the grant of summary judgment in the trial court, the Court of Appeals held that the privilege did not apply to a one-one-one, official, on-the-record interview with a sheriff's public information officer for two reasons. First, the Court held that the agency rationale justifying the privilege was not applicable to interviews that are not open to the public. As a result, the privilege did not apply. Second, the Court of Appeals took issue with the attribution to the source for the story. The defendant newspaper used the deputy's name and his role in the case, lead investigator, to identify the source, but did not include that he was also the public information officer. The court held that this failure would also defeat the privilege. This was the first time a Tennessee appellate court had held that there was an attribution requirement.

Sparta Newspapers filed an application for review with the Tennessee Supreme Court arguing that the ruling "improperly narrow[s] Tennessee's longstanding fair report privilege and that [the ruling is] directly contrary to the purpose and spirit of this crucial protection for speech about government actions."

Another, largely overlapping group of fourteen national media organizations filed an amicus brief in support of Sparta Newspapers' petition and, if review is granted, on the merits. Among other things, the amici argued that the ruling was inconsistent with the public supervision rationale supporting the privilege, which they argued, relying upon Judge Sack's treatise, "is considered the paramount interest justifying the fair report privilege." The amici also argued that the court's strict attribution requirement impinged on the newspaper's editorial discretion and the court's application of the requirement was inconsistent with the precedent it relied upon. A separate amicus brief was filed by the Tennessee Association of Broadcasters in support of Sparta Newspapers' application as well discussing the importance of the privilege for reporting and the cases from other states that reach contrary results. As of November 25, 2018, the Court has not ruled on Sparta Newspapers' application.

With Funk and Burke, the Tennessee Supreme Court has an opportunity to bring the fair report privilege into the modern era of defamation law. At the very least, its rulings on the Funk case and, if it takes it, Burke, will provide additional certainty for journalists working in Tennessee regarding the scope and application of the fair report privilege.

The coalition of national media organizations who were amici in the Funk and Burke cases are represented by Paul R. McAdoo from Aaron & Sanders PLLC in Nashville, TN. Funk is represented by James D. Kay, John B. Enkema, and Michael Johnson from Kay, Griffin, Enkema & Colbert, PLLC in Nashville, TN. Scripps Media is represented by Ronald G. Harris, Jon D. Ross, and William J. Harbison, II from Neal & Harwell, PLC in Nashville, TN. Burke is represented by W.I. Howell Acuff from Cookeville, TN. Sparta Newspapers is represented by Phillip M. Kirkpatrick, Lucian T. Pera, and J. Bennett Fox, Jr. from Adams & Reese's Nashville and Memphis offices. The Tennessee Association of Broadcasters is represented in Burke by Douglas R. Pierce from King & Ballow in Nashville, TN.

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