Tennessee Supreme Court Rules Malice Does Not Defeat Fair Report Privilege, News Media May Not Be Compelled to Disclose Protected Information

March 13, 2019

The Tennessee Supreme Court ruled today that the fair report privilege provided to journalists cannot be defeated by either express or actual malice. The decision came in an appeal arising out of a defamation action that Davidson County District Attorney General Glenn Funk filed against Scripps Media, Inc. and reporter Phil Williams.

In February 2016, NewsChannel 5, a subsidiary of Scripps Media, Inc., broadcast two news reports about a lawsuit that Nashville developer David Chase had filed in state court the year before in which he claimed that certain members of Nashville law enforcement had plotted together to have him unjustly prosecuted in 2015.  The reports described the contents of depositions taken as part of this lawsuit that referenced a deal Mr. Funk had made with Mr. Chase in 2015 to dismiss what Mr. Chase alleged were unjust criminal charges.

After the reports aired, Mr. Funk sued Scripps Media, Inc. and Mr. Williams, claiming that that he had been defamed.  Scripps Media, Inc. and Mr. Williams denied the defamation claim, citing as one ground for their denial a legal doctrine called the fair report privilege.  This privilege allows any person or organization to report on official acts and proceedings and protects the individual or organization from defamation claims so long as the reports of official acts and proceedings are fair and accurate.

Mr. Funk argued that Scripps Media, Inc. and Mr. Williams could not rely on the fair report privilege because of their ill will, or malice, toward him.  He asked the trial court to compel them to disclose all of the sources and the documents they had considered when investigating the two news reports so that he could establish malice and contradict their defense.

The trial court agreed with Mr. Funk and ordered the defendants to provide him with the materials they had reviewed in producing the reports.  The trial court also held that these materials were not protected by another Tennessee law, known as the news media shield law.  The trial court allowed the parties to appeal its rulings on these legal questions immediately.  The Court of Appeals overturned the trial court’s order.   From that decision, Mr. Funk appealed, and the Supreme Court heard the case.

In its opinion, the Supreme Court adopted the modern approach to the fair report privilege and ruled that the privilege can no longer be defeated by showing malice.  The Supreme Court explained that, so long as reports of official acts and proceedings are fair and accurate, the fair report privilege applies.

The Supreme Court agreed with Mr. Funk that raising the fair report privilege as a defense triggers the exception to Tennessee’s media shield law.  But the Supreme Court held that the courts below had interpreted the exception too broadly.   The shield law exception allows a court to compel media defendants to identify the sources of any information alleged to be defamatory; however, the Supreme Court clarified that the exception does not authorize a court to compel media defendants to disclose the actual information that the sources provided.

The Supreme Court sent the case back to the trial court for further proceedings to determine if the reports were fair and accurate and whether the information was obtained from an official action or proceeding. There is also a question regarding whether the information was under seal at the time it was reported.

To read the opinion in Glenn R. Funk v. Scripps Media, Inc., authored by Justice Cornelia A. Clark, go to the opinions section of TNCourts.gov.