Tennessee Justices Bolster Fair Report Privilege

(CN) – Whether it’s a city council meeting that devolves into a shouting match or dramatic testimony at a criminal trial, the Tennessee Supreme Court ruled Wednesday that journalists in the Volunteer State can report on public proceedings that could damage someone’s reputation without being held liable for defamation.

The five-judge court found the fair report privilege cannot be brushed aside if someone proves that a reporter acted with ill will towards them when they published a story.

“We hold that neither express malice nor actual malice can defeat the fair report privilege,” Justice Cornelia Clark wrote in the 20-page decision. “The privilege can only be defeated by showing that a report about an official action or proceeding was unfair or inaccurate.”

The court took up the questions regarding the state’s law governing the press after Glenn Funk, the district attorney for Nashville, sued NewsChannel 5 and its investigative reporter Phil Williams in 2016.

NewsChannel 5, which is owned by Scripps Media Inc., and Williams published a series of articles based on court documents that alleged the DA extorted money from a man he was prosecuting and blackmailed him into dismissing a case pending against Funk in federal court. Funk’s defamation suit asked the trial court to award him $200 million in damages.

In response, the television station and its reporter asked the judge to issue a summary judgment in the case because the first story they published relied on documents they found in state court.

But Funk disagreed. He said the stories were published maliciously, and he asked the court to compel discovery to show that the reporter and the station acted with malicious intent.

In June, 13 media organizations including Courthouse News filed an amicus brief with the state’s high court in an attempt to sway the judges towards overturning the precedent in Tennessee that threatened the privilege.

According to the brief, under the old standard, a journalist could be held liable for defamation even if they published truthful information about someone based on government proceedings and records because a person bringing a lawsuit only had to prove that the reporter acted with express malice – essentially, ill will.

Instead, the media outlets’ brief asked the high court to ruled that the fair report privilege doesn’t apply if a journalist was proven to have acted with actual malice, or a complete disregard for the truth.

During oral arguments before the court in October, attorney Ron Harris, who represented News Channel 5 and Williams, said there was confusion between express and actual malice.

In its decision Wednesday, the Tennessee Supreme Court noted what it said was a “modern approach” to the fair report privilege, that only the disregard for the truth – actual malice – can erase the fair report privilege.

It’s a position codified in the 1964 U.S. Supreme Court case New York Times v Sullivan.

However, in ruling that no form of malice can defeat the fair report privilege, the Tennessee justices said that approach does not help people who want to hear about events that happened at public proceedings and were not able to attend – particularly in a courtroom.

“We are unpersuaded by the Court of Appeals and federal court decisions that have treated New York Times actual malice as a limitation on the fair report privilege,” Justice Cornelia Clark wrote. “When a statement is made in a judicial proceeding, the statement is worthy of public notice, not only as a result of the contents of the statement, but also because of the context in which the statement was made. If we were to now hold that a reporter’s knowledge of a statement’s falsity could defeat the fair report privilege, it would undermine the purposes of the privilege.”

But according to the court’s decision, it is unclear whether the stories published by NewsChannel 5 fall under the fair report privilege. The ruling noted that the reporting may have included information from documents filed under seal. The justices remanded the case back to the trial court.

Speaking with Courthouse News, Harris said the decision is “important because the public is able to be more informed about what happens in court proceedings and other official actions because the news media can report what happens without being concerned about the liability of being sued for defamation.”

Attorney Paul McAdoo, who wrote the amicus brief, called the ruling a “big win for free speech” in a statement to Courthouse News.

“The court overruled its outdated case law going back to the 19th Century that allowed the fair report privilege to be defeated by a desire to harm another with speech,” he said. “The fair report privilege is a crucial speech protection and this decision strengthened it in Tennessee.”

John Enkema, an attorney representing Funk, did not immediately respond Wednesday to requests for comment.

Coincidently, the ruling came out the same day a group of students from Ball State University in Muncie, Indiana, and Indiana Governor Eric Holcomb had declared as Thank a Journalist Day.

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