NASHVILLE, Tenn. (CN) – The Tennessee Supreme Court heard arguments Thursday in the case of a Nashville TV station and reporter hoping to overturn a precedent that could punish journalists in the Volunteer State for reporting truthful information.
Broad implications for press freedom in Tennessee were explored by the five justices while they questioned John Enkema, the lawyer representing Nashville District Attorney Glenn Funk, who has filed a $200 million defamation lawsuit against a local journalist and news outlet.
"Let’s say [a] high public official defames people right and left, has no regard for the truth and just lies repeatedly,” Justice Holly Kirby said. “The reporter or collectively a group of reporters would be hamstrung from even reporting it for fear of defamation suits from the subjects of the high federal official's statements. It seems to be a perverse incentive."
Justice Sharon Lee said reporters would “have to be robots” and require them to not have any feelings when reporting major events. She used the example of a reporter covering the confirmation hearings of U.S. Supreme Court nominee Brett Kavanaugh, who perhaps disliked the man and reported the allegations of sexual assault made by Christine Blasey Ford.
The case at issue began in February 2016 when NewsChannel 5, a Nashville TV station owned by the Scripps Media, published an article based on allegations that Funk extorted money from and blackmailed a criminal defendant, real estate developer David Chase.
Investigative journalist Phil Williams based his reporting on records from a lawsuit Chase had filed in nearby Williamson County, including sealed documents. That case alleged a conspiracy by third parties to have Chase charged with assaulting an ex-girlfriend.
In response, DA Funk filed a defamation lawsuit in Davidson County Circuit Court seeking $50 million in compensatory damages and $150 million in punitive damages from Williams and Scripps. He called NewsChannel 5’s story “a garbled and one-sided account of the facts, and contains defamatory observations and comments.”
Moving to dismiss the case, Scripps evoked Tennessee’s fair reporting privilege, which 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 ultimately defamatory.
“This lawsuit is an attempt by an elected public official to silence and intimidate a journalist and news organization that has accurately reported on questionable conduct and judgment by that official,” the 23-page motion to dismiss states.
Scripps and Williams further argued that the NewsChannel 5 report doesn’t contain false and defamatory statements about Funk.
“The [news] story did not state Mr. Funk solicited a bribe, extorted money from a criminal defendant or blackmailed a criminal defendant,” the motion states. “Instead, [it] reported on testimony and allegations that were actually being made in David Chase’s lawsuit in Williamson County. It cannot be disputed that the testimony and allegations quoted in the news story were in fact made in that lawsuit.”
The fair report privilege can sometimes be defeated if a plaintiff can prove the journalist published false statements with malice.