Media Outlets Urge Tennessee Justices to Overturn Malice Standard

NASHVILLE, Tenn. (CN) – A lawyer representing a Nashville TV station filed court papers agreeing with a coalition of national news outlets urging the Tennessee Supreme Court to overturn a precedent that could punish journalists in the Volunteer State for reporting truthful information.

In Tuesday’s response to the amici curiae brief filed by Courthouse News and 13 other media organizations, Ronald Harris of the Nashville-based firm Neal & Harwell fought back against the argument that reporters in Tennessee can be punished for truthful speech.

“If plaintiff’s position is adopted, a news reporter could be held liable for fairly and ‘totally’ accurately reporting on a public proceeding or action if he has express malice towards a person mentioned in the report,” Harris wrote in his brief. “Such a position would allow for…liability for defamation even if the reporters were fair and accurate.”

In 2016, Nashville District Attorney Glenn Funk sued NewsChannel 5 reporter Phil Williams after he reported that a real estate developer accused the district attorney of extortion and blackmail. Funk’s libel lawsuit in Davidson County seeks $200 million in damages from Williams and the Scripps-owned news station.

The fair report privilege generally protects journalists if they get their information from a document, official or public meeting, citing where they got the information, even if they publish something that is defamatory. The story by Williams and NewsChannel5 was based on a lawsuit the developer filed in neighboring Williamson County.

The fair report privilege can sometimes be defeated if a plaintiff can prove the journalist published false statements with malice.

The question before the Tennessee Supreme Court in the interlocutory appeal is what kind of malice Funk needs to establish in order to prove defamation.

Funk argues that he only needs to prove express malice, which refers to the willful and premeditated intent to harm another.

But Williams and NewsChannel5 argue Funk most prove actual malice, a higher stand that, when applied to cases involving the press, means the DA needs to prove the reporter and news outlet disregarded the truth when they published the story.

On May 21, Courthouse News and other media organizations including The Associated Press, CNN, Gannet, Reporters Committee for Freedom of the Press and Sinclair Broadcast Group filed an amici curiae, or friend-of-the-court, brief in the case.

The coalition argued the Tennessee Supreme Court should overturn its precedent on the state’s fair report privilege, which holds that the privilege can be overcome by establishing express malice.

“Express malice’s role in the fair report privilege is a relic of time and should be overturned because it is inconsistent with the First Amendment, is illogical, and undercuts Tennessee’s public policy in favor of the robust discussion of public affairs,” the amici curiae brief states.

The media groups also noted that the U.S. Supreme Court has rejected express malice as a component of a defamation claim or defense, finding that it would have a chilling effect on speech.

“Permitting a showing of express malice to overcome the fair report privilege treats speakers differently based solely upon their intent and motivation,” the brief states. “If a partisan political pundit publishes truthful information about a political opponent based on government records or proceedings for the purpose of harming the political opponent, that could be sufficient to defeat the fair report privilege. But a reporter with no axe to grind against the politician who publishes the same information could successfully rely upon the fair report privilege. This is not only illogical, it is also unconstitutional.”

Harris’ response to the brief on behalf of Williams and NewsChannel 5 agreed with the coalition’s argument that express malice should not be a component of the fair report privilege in a defamation or false light case.

“The requirement that the report be fair and accurate protects the subjects of such reports and would allow for liability where the reporting did not meet that standard,” the response states.

John Enkema of Kay Griffin, who represents Funk in the case, did not respond Friday to a request for comment on the court filings.

The Tennessee Supreme Court has yet to schedule oral arguments in the case.

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