Supreme Court Rules Fair Report Privilege Does Not Apply To Nonpublic Interviews

December 5, 2019

The Tennessee Supreme Court ruled today that the fair report privilege does not apply to a nonpublic, one-on-one conversation between a newspaper reporter and a detective of a county sheriff’s department, who also served as the public information officer for the sheriff’s department.

The decision arose out of a defamation action that Jeffrey Todd Burke brought against Sparta Newspapers for an article published in 2014 in The Expositor, a newspaper of general circulation published twice weekly in White County, Tennessee.  In developing the story, the reporter interviewed the detective in a nonpublic, one-on-one conversation. In his lawsuit, Mr. Burke claimed the article published defamatory statements the detective made about Mr. Burke during that interview.   Sparta Newspapers moved for summary judgment based on the fair report privilege.  This privilege protects persons and organizations that report on official acts and proceedings from defamation claims so long as the reports are fair and accurate. Mr. Burke opposed the motion for summary judgment and argued that the nonpublic, one-on-one interview was not an official act to which the privilege applied.

The trial court agreed with Sparta Newspapers and granted summary judgment based on the fair report privilege.  The Court of Appeals reversed the trial court’s decision and held that the private interview was not an official action, official proceeding, or public meeting within the scope of the fair report privilege.  The Supreme Court granted Sparta Newspapers permission to appeal to define the scope of the fair report privilege.

In its opinion, the Supreme Court adopted the approach the Tennessee Court of Appeals has consistently taken and held that the fair report privilege applies only to public proceedings or official actions of government that have been made public.  The Supreme Court explained that limiting the fair report privilege to public proceedings or official actions that have been made public advances the purposes of the privilege, which are enabling the press to be the eyes and ears of the public and facilitating public supervision of official actions and proceedings.

The Supreme Court sent the case back to the trial court for further proceedings on Mr. Burke’s claim and noted that Smyrna Newspapers may raise any other available defenses in the trial court.

To read the unanimous opinion in Jeffrey Todd Burke v. Smyrna Newspapers, Incorporated, authored by Justice Cornelia A. Clark, go to the opinions section of TNCourts.gov