Tennessee Justices Weigh Malice Standard for Defamation

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.

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 the subject of the reporting.

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.

When the case appeared before Tennessee’s highest court, Courthouse News and several other news organizations including the Associated Press filed an amicus brief supporting Scripps and Williams.

They urged the justices overturn precedent on the state’s fair report privilege, which holds that the privilege can be overcome by establishing express malice.

Enkema, Funk’s attorney, said in court Thursday that the Tennessee law regarding the applicable standard of malice was established in 1871.

“If we’re in a state that doesn’t allow express malice to defeat privilege,” Enkema said, “then what prevents a reporter from having someone he knows go to some public proceeding and start making crazy allegations and then going and reporting on it? I think that is the whole origin of the jurisprudence in Tennessee, is there should be some check.”

Enkema said that a requirement to establish actual malice to overcome the fair reporting privilege “is license for an unscrupulous reporter to go report anything and everything which he or she can classify as a public proceeding no matter whether it is in a courtroom in Williamson County … and can use that to destroy someone’s life.”

The justices expressed concern that by allowing officials who sue reporters for defamation to prove the lower standard of express malice, they could be granted free reign to go through the reporter’s text messages, emails and even voting history in search of expressions of ill will.

Enkema claimed about half the states in the nation use express malice for their fair reporting laws.

Attorney Ron Harris, the lawyer arguing for Scripps, said courts across the country have confused express and actual malice.

Harris said, “We think it’s important, your honors, to confirm what the court of appeals said, that the actual malice is not a component of the fair report privilege.”

“But if we adopt that standard, Mr. Harris,” Chief Justice Jeffrey Bivins asked, “to Mr. Enkema’s point, what check is there for a reporter if you do have an unscrupulous reporter that wants to go and dig and dig. What’s the check and balance there?”

“The check comes from the elements of the fair report privilege itself,” Harris replied. “You’re not going to be shielded, the reporter is not going to be shielded, by the privilege, if his report contains a false statement of fact regarding what actually occurred during the proceeding.”

Harris also added the privilege does not extend to an account that’s one-sided, garbled or if the reporter makes a defamatory statement on their own.

While Enkema argued before the judges, Justice Lee asked if the policy he was advocating for would be akin to shooting the messenger.

“I think you should shoot the messenger if the only reason that these are being published is based upon ill will,” Enkema replied.

“Even if they’re fair and accurate?” Bivins asked.

“Even if they’re fair and accurate. That’s been the law in Tennessee for over 100 years,” Enkema said.

It is unclear when the Tennessee Supreme Court will issue a ruling in the case.

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