Tennessee Supreme Court Asked to Clarify Fair-Report Privilege

NASHVILLE, Tenn. (CN) – A hard-boiled detective story it wasn’t. The facts underlying a case argued Thursday before the Tennessee Supreme Court started out more as a bake-until-golden-brown tale.

(Angela Major/The Janesville Gazette via AP)

But like popovers in a screaming-hot oven, the story ballooned from a case of a youth football team’s missing cookie dough to one with implications for news outlets in Tennessee, the reporters they employ and the citizens who read them.

Journalists, under the fair report privilege, can report on public meetings, trials and other governmental actions even if some of the statements that were made may be defamatory.

At issue in the case is whether that privilege extends to a reporter for a small Tennessee newspaper speaking one-on-one with the designated public information officer of the local sheriff’s office.

In the summer of 2013, a youth football league in White County decided to fundraise by selling cookie dough. By pre-selling orders of the dough, it raised about $16,000, according to the local newspaper, and turned it over to businessman Jeffery Todd Burke, who said he would get the cookie dough for the football league.

But as summer stretched into early fall, the dough never showed. The football league filed a report with the sheriff’s office.

On Jan. 30, 2014, the newspaper for the small town of Sparta, The Expositor, published a story saying Burke was indicted by a White County grand jury for theft of more than $10,000. The fundraising company that dealt in the cookie dough never obtained the funds, the paper reported at the time.

The Expositor’s reporter, Pamela Claytor, had spoken with Chris Isom, who at the time doubled as a detective and public information officer for the White County Sheriff’s Office. She got most of her information from him.

Later, an attorney for Burke told the newspaper there were inaccuracies with the story. The youth football league got its dough – about two months before his case went before the grand jury — and the amount of money at issue was incorrect, he said.

Burke eventually pleaded guilty to felony theft in four counties, according to an amicus curiae brief. His attorney said he pleaded to lesser charges.

Nevertheless, Burke sued the paper for defamation, arguing his reputation was damaged by the story. The paper argued it was protected by the fair report privilege because speaking with the public information officer was reporting on an official government act.

The trial court agreed and dismissed the suit. The Tennessee Court of Appeals, however, reversed the trial court’s decision last year.

At Thursday’s oral arguments, Philip Kirkpatrick of the Nashville firm Adams and Reese argued for the newspaper and said Isom was authorized to speak for the sheriff’s department.

“If the statement being made is with regard to an official action, including action of the detectives/PIO making a formal statement to press in a private setting, the privilege should apply,” the attorney told the five judges on the Tennessee Supreme Court.

Kirkpatrick said the prevailing reason for the fair report privilege was for the news media to engage in public supervision and help the public monitor the activities of its government.

But the judges seemed skeptical.

“Our job is not to afford a privilege to everything that is good about what journalists do. It’s to look specifically at this privilege and see whether it should be expanded,” Justice Holly Kirby told Kirkpatrick.

Justice Cornelia Clark pressed Kirkpatrick on his statement that public supervision was the prevailing rationale for the fair report privilege. When she asked him how many states adopted that thinking, he did not have an answer.

Nashville attorney Edmund Sauer, with the national firm Bradley, argued on behalf of Burke by saying information subject to the fair report privilege in stories involving arrests is the name of person arrested and the charges brought against them – the only information that was part of the judicial proceedings against Burke at the time. The public information officer, Sauer argued, went beyond that in his statements.

“The basis for the fair report privilege in Tennessee, as in most states, is the public eye rationale,” Sauer said. “It’s the opportunity for the media to report on facts and proceedings that the public could see if it were there.”

Sauer yielded 10 minutes of his allocated 30 minutes to Rodney Smolla, dean at Delaware Law School at Widener University, who at one point told the justices they could rule narrowly in this case.

Smolla said the fair report privilege covers the statements made by a government official in a public setting such as a trial, but if they leave the courthouse and continue to make statements on the sidewalk, the “extraordinary defense” of the fair report privilege would not apply.

Instead, “It’s covered by a plethora of other common-law, constitutional-law defenses,” Smolla said.

On Tuesday, the Tennessee Press Association filed a 14-page amicus brief that said with the confidential nature of many of state law enforcement files, any information agencies elect to share with the news media is useful for citizens in accessing the performance of their local law enforcement agencies.

“Without the ability of working journalists and other news gatherers to rely upon information provided to them by law enforcement officers without a choking restrictive requirement, a formal title or some form of formality of presentation such as a press conference or a press release, the fair report privilege would wither and die and the people of Tennessee and its government would be the loser,” Knoxville attorney Richard Hollow wrote for the Tennessee Press Association.

Last October, the Tennessee Supreme Court heard oral arguments in another challenge to the state’s fair report privilege. It issued a ruling in March affirming the privilege for journalists accurately reporting public events and documents, even if the reporter had an ill intent for the subject they wrote about. Courthouse News joined an amicus brief in support of the news station in that case.

It is unclear when the court will issue a ruling in Burke’s case.

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