Warning: Fair Report Privilege may not protect news organizations from inaccurate PIO statements in Tennessee

The Tennessee Court of Appeals released its opinion yesterday in JEFFERY TODD BURKE v. SPARTA NEWSPAPERS, INC., 2018 WL 3530839, at *3 (Tenn. Ct. App. July 23, 2018), a defamation case in which the Plaintiff (“Burke”) “acted as the middleman between a local youth football league and a fundraising company, which provided cookie dough for use in fundraising.”  A local newspaper reported the story based on information provided by the Sheriff’s public information officer, but some of the facts were wrong.  The Court held that the “fair report privilege” does not necessarily include a private, one-on-one interview with a public information officer as an official action.

The Expositor, a Sparta-based publication, reported in 2014 that:

[a]fter the football league gave him approximately $16,000 from pre-sales of cookie dough, Mr. Burke failed to turn the funds over to the fundraising company. And the football league never received the cookie dough. The article also reported that Mr. Burke was arrested in White County on January 24, 2014, and then released on bond.  The article further noted that Mr. Burke had previously been indicted on similar charges in Smith County, Tennessee.

JEFFERY TODD BURKE v. SPARTA NEWSPAPERS, INC., 2018 WL 3530839, at *1 (Tenn. Ct. App. July 23, 2018).

It appears to be undisputed that the reporter got her information from a detective, who also serves as the public information officer (“PIO”) for the White County Sheriff’s Office, before publication.  The Plaintiff, Burke, sued, claiming that the article about him was wrong in three ways.  To wit, the suit apparently alleged that the paper was wrong about: (1) the amount of money involved; (2) the fact that the cookie dough was never delivered; and (3) the fact that Mr. Burke never delivered the collected funds to the fundraising company. “According to Mr. Burke, his performance under the contract “was delayed,” but the cookie dough was ultimately delivered more than two months before the case against him was presented to the grand jury.”

At trial, the newspaper prevailed on summary judgment by invoking the “Fair Report Privilege.”  This is a defense to a defamation claim that basically says that you cannot be liable for defamation if your reporting is a fair and accurate summation of a proceeding.  Traditionally, it applied to judicial proceedings, but has been expanded to include other public proceedings.

The Court noted that:

The privilege is qualified rather than absolute. Langford v. Vanderbilt Univ., 318 S.W.2d 568, 574 (Tenn. Ct. App. 1958). For the privilege to apply, the report must be “a fair and accurate summation of the proceeding.” Smith, 944 S.W.2d at 625. The report must be “fair” in the sense that it exhibits “balance and neutrality.” Id. The report should not be “slanted or spun to convey an impression materially different from what took place,” SMOLLA, supra, § 8:75, or include “defamatory observations or comments” by the reporter. Lewis, 238 S.W.3d at 284.

Burke, 2018 WL 3530839, at *3.

I’m going to paste the Court’s analysis here in a large chunk because the distinction between proceeding and source is most interesting to me as it applies to the privilege:

In our view, the interview given by Detective Isom was not itself an official action, official proceeding, or public meeting within the scope of the fair report privilege. Our courts have not extended the fair report privilege so far as to include a private, one- on-one interview as an official action. The requirement that official actions or proceedings be open to the public serves the underlying rationale behind the privilege, allowing the press to be “the eyes and ears of the members of the public who would have been able to witness the proceeding or obtain the information.” (internal citation omitted).

The cases cited by the trial court overlook the distinction between reports of official actions or proceedings on the one hand and sources within the government on the other. 2 RODNEY A. SMOLLA, LAW OF DEFAMATION § 8:67 (“In both policy and doctrine a key distinction exists between reports of official government action and reports of information provided by official government actors.”). The public supervision rationale behind the privilege, “that the reporter acts as the ‘eyes and ears’ of the public in reporting on a proceeding or summarizing a public document,” has no application “when a reporter merely publishes a story based in whole or in part on government sources.” Id. As one commentator explained, “[r]eporting what the prosecutor or law enforcement officer said to a reporter outside the courtroom during an interview is simply the routine use of a source.” Id.

Certainly, reporters use sources for information on an official action, official proceeding, or official meeting. See DAVID A. ELDER, DEFAMATION: A LAWYER’S GUIDE § 3.2 Westlaw, (database updated July 2018) (referring to secondary or indirect sources as an “accepted and justified custom and usage of the mass media”). And the fair report privilege may still apply “where a reporter who purports to report on an official proceeding does not have personal knowledge of the proceeding but instead relies on an intermediary who does.” Bufalino v. Associated Press, 692 F.2d 266, 271 (2d Cir. 1982). But where reliance was placed on a responsible, trustworthy, and knowledgeable source, the privilege extends only to the source’s account of the official action, official proceeding, or official meeting.

Burke, 2018 WL 3530839, at *6.

Here is where the Court clarifies the distinction:

Applying this principle to the article concerning Mr. Burke, the fair report privilege would extend to information provided by Detective Isom that was public and involved official actions or proceedings, e.g., the fact of Mr. Burke’s arrest and the details of the grand jury indictment. See Duncan, 1992 WL 136172, at *1; Tenn. Code Ann. § 40-13-111 (2012); RESTATEMENT (SECOND) OF TORTS § 611 cmt. h (“An arrest by an officer is an official action, and a report of the fact of the arrest or of the charge of crime made by the officer in making or returning the arrest is . . . within the conditional privilege . . . .”). But the article went beyond official actions and proceedings. It included information about whether the cookie dough ordered through Mr. Burke was ever delivered and about whether the fundraising company received any funds. The article also included informal remarks on the strength of the case and what “lessons” might have been learned from the incident by the participants in the youth football program. Such details fall outside the scope of the privilege. See Lewis, 238 S.W.3d at 286 (concluding that the fair report privilege did not apply because defendant’s story “contained [both information gathered from a press release and] other information regarding . . . details . . . that did not come from the press release”); RESTATEMENT (SECOND) OF TORTS § 611 cmt. h (“[S]tatements made by the police or by the complainant or other witnesses or by the prosecuting attorney as to the facts of the case or the evidence expected to be given are not yet part of the judicial proceeding or of the arrest itself and are not privileged under [the fair report privilege].”).

Even if we were inclined to extend the scope of the fair report privilege to all communications, formal or informal, public or private, of police public information officers or spokespersons, we conclude that the fair report privilege should not apply here. To rely on the fair report privilege, the article should be written in such a manner that an average reader can “understand the article (or the pertinent section thereof) to be a report on or summary of an official document or proceeding.” Dameron v. Washington Magazine, Inc., 779 F.2d 736, 739 (D.C. Cir. 1985). To accomplish this, “[i]t must be apparent either from specific attribution or from the overall context that the article is quoting, paraphrasing, or otherwise drawing upon official documents or proceedings.” Id at 739; see also Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 254 (4th Cir. 1988) (liability avoidance requires proper attribution of the report to the original source); ELDER, supra, § 3.3 (reasonable identification of source is a precondition to reliance on the fair report privilege).

Burke, 2018 WL 3530839, at *7. (emphasis added).

To summarize, the Court of Appeals appears to be saying that news organizations should not assume that just because a PIO tells them something, they have a good defense to a defamation action.  If the PIO says something about the strength of the case or adds opinions about deterrence, etc., it probably does not fall under this privilege and journalists would be wise to not simply rely on such statements as truth.

I think the opinion is unclear, however, about its objection to the PIO reciting the facts of the case.  As you can see above, the Court found that “the article went beyond official actions and proceedings. It included information about whether the cookie dough ordered through Mr. Burke was ever delivered and about whether the fundraising company received any funds.”  These particular facts may very well have been part of an indictment or information, which I think this Court would have found to be a public document.

You can read the entire opinion here.

WTVF and Scripps win Court of Appeals battle over TN reporting privileges

The Tennessee Court of Appeals entered an interlocutory Order today, granting a preliminary victory to WTVF and Scripps in their ongoing litigation with Nashville District Attorney Glenn Funk.  In so doing, the Court narrowed the parameters of the doctrine known as the “Fair Report Privilege” to provide more protection for journalists.  The Court also clarified how the Fair Report Privilege works when both it and Tennessee’s reporter’s shield are invoked by a news organization/journalist.

Here is what it means for the litigation:  Other than public records upon which WTVF’s Phil Williams relied, Funk cannot get access to Williams’ investigative files.  So, this is a nice win for the station (and reporting, in general).  This particular sliver of the larger dispute was over Funk’s discovery requests to WTVF and the station’s refusal to turn over certain material pertaining to its sources.  The trial court had ordered the station to turn the material over and the station appealed to the Court of Appeals to protect them from having to do it.

Here is what it means for the law:  If a news organization wants to defend against a defamation suit by claiming it was just reporting what was said at a city council meeting or what was alleged in a pleading, it will have to disclose those “sources,” but doing so will not require that news organization to turn over its investigative files or waive the protection of the shield law.

To thumbnail the background, Funk is suing the station, ownership group and reporter for defamation based on some other lawsuits about which Phil Williams had reported on WTVF.  Because Funk is a public figure, he has to prove actual malice in order to prevail.

In requesting the “source” materials from the station, he claimed he needed them to show actual malice.  In defending against these requests, the station raised two defenses.  First, the station said that everything Phil Williams reported came from public records or meetings and was therefore protected by Tennessee’s Fair Report Privilege.  Second, the station argued that Tennessee’s shield law protected it from being compelled to reveal its sources.

At the trial court level, these defenses got somewhat muddled and the Court of Appeals was left to separate the conflated issues.

To understand this, you have to start with the shield law.  Simply put, it basically protects a journalist from disclosing his source, unless the reporter blames the source for the material he publishes. Tenn. Code Ann. § 24-1-208(b).  If you blame your source (i.e., I was just reporting what my source told me), then you arguably have to disclose your source.

The Fair Report Privilege works a little differently.  It is a defense to a claim of defamation.  In essence, you (the journalist) are not defaming someone if your report is “of a public proceeding or official actions of government that have been made public, is a fair and accurate summary of the proceedings, and is balanced and neutral.  (Note:  The Court “amended” its earlier ruling in the Grant v. The Commercial Appeal, 2015 WL 5772524 (Tenn. Ct. App. 2015) case to remove the requirement that the report not be made with actual malice).

Because the Fair Report Privilege is actually a defense based on your source (i.e., I was just reporting what happened at the meeting, or what was said in the lawsuit), it comes very close to conflicting with the shield law.  Funk wanted to use this conflict to say the station could not rely on the shield law at all.  The Court noted in its Order today that:

We find that the trial court’s construction of subsection (b) of the statute results in the exemption’s swallowing up the protection that subsection (a) provides to media defendants whenever disclosure of a source is sought.  In most, if not all, cases, a news gatherer is going to rely on a “source of information” as the basis for his or her publication or broadcast.  According to the trial court’s ruling, any time a news gatherer defends a defamation claim by invoking the fair report privilege, the news gatherer loses the entire protection provided under section (a) of the Shield Law and must disclose every source collected, whether used in the story or not.

The Court resolved this apparent conflict the following way:

We believe a better interpretation would be to allow a media defendant to assert the fair report privilege while also subjecting to disclosure only the sources the media defendant identifies as the basis for the story.  In other words, once a news gatherer asserts the fair report privilege, the protections of section (a) of the Shield Law come into play to protect sources. To the extent that under the fair report privilege the news gatherer must indicate the source of the news report, that source loses its protected status under section (b) of the Shield Law and must be disclosed.  If “the source of any allegedly defamatory information” is one or more documents, the document(s) must be produced to the claimant.  This is the only way a court can compare the alleged source with the publication or broadcast to determine whether the news gatherer is, in fact, entitled to assert the fair report privilege as a defense to the claim for defamation, i.e., whether the publication or broadcast was a fair and accurate report of the proceeding or document and whether the report was balanced and neutral.

Other than the person or document(s) the news gatherer identifies as the source(s) of his or her publication or broadcast, however, section (a) of the Shield Law protects the news gatherer from having to produce any other information or documents from his or her investigative files.  The trial court’s order granting Mr. Funk’s motion to compel the Defendants to describe their investigations and produce all documents they obtained or relied on in their investigations of the two news stories is contrary to this interpretation of the statute.  Thus, we find the trial court erred when it granted Mr. Funk’s motion to compel.

(emphasis added).

Makes sense, right?  In layman’s terms, if WTVF wants to say it was just reporting what was said at a public meeting or in some other lawsuit, it has to disclose those sources, but doing so does NOT require WTVF to turn over its files or produce any non-public documents that may have contributed to the reporting.

You can read the Order here.

NYT reports how non-competes limit salary growth

The New York Times ran an overview piece on restrictive covenants this past weekend that provides an interesting read.  The piece is not focused on journalists and really only touches on the legal arguments at play, but does a great job of describing how these covenants limit an employee’s power to grow his income.

By giving companies huge power to dictate where and for whom their employees can work next, noncompetes take a person’s greatest professional assets — years of hard work and earned skills — and turn them into a liability.

“It’s one thing to have a bump in the road and be in between jobs for a little while; it’s another thing to be prevented from doing the only thing you know how to do,” said Max Burton Wahrhaftig, an arborist in Doylestown, Pa., who in 2013 was threatened by his former employer after leaving for a better-paying job with a rival tree service. He was able to avoid a full-blown lawsuit.

Click here to read the article.

Colorado newspaper threatens to sue over “fake news” accusation

NPR has a story about the dispute between the Daily Sentinel in Grand Junction, CO and a state senator who accused the paper of publishing “fake news.”  Evidently, the paper is consider suing for defamation (but has not yet filed suit).

A news outlet publishes a story that a Republican politician dismisses as “fake news.” Sounds familiar, right?

But in this case, there’s a twist. The Grand Junction Daily Sentinel in Colorado is accusing state Sen. Ray Scott of defamation and threatening to sue. If filed, legal experts said it would be the first suit of its kind, potentially setting a legal definition for what is considered fake news and what is not.

There are many reasons such an action may not be a satisfying endeavor for the paper, but it is an interesting concept because, in essence, the accusation has the effect of undermining the legitimacy of the paper’s product (which would arguably have a deleterious effect on its business).

Read the NPR.org article here.

Trump wins Twitter defamation action in NY

A New York judge has tossed a suit that claimed Donald Trump defamed a guest TV commentator in his tweets.

Trump’s “tweets about his critics, necessarily restricted to 140 characters or less, are rife with vague and simplistic insults such as ‘loser’ or ‘total loser’ or ‘totally biased loser,’ ‘dummy’ or ‘dope’ or ‘dumb,’ ‘zero/no credibility,’ ‘crazy’ or ‘wacko’ and ‘disaster,’ all deflecting serious consideration,” Jaffe wrote.

Read the rest of this article in the ABA Journal.

Ohio Supreme Court rules dashcam videos not protected by “investigatory proceedings” exception

Earlier this month (December 2016), the Ohio Supreme Court determined that the Cincinnati Enquirer’s request for police dashcam videos pursuant to that state’s open records act should have been honored.  The Ohio State Highway Patrol had initially denied immediate disclosure, citing a “confidential law-enforcement investigatory records” exception to the statute.

Specifically, the OSHP told the Enquirer:

The dashboard camera video that you requested is part of an open criminal case that pertains to a law enforcement matter of criminal, quasi-criminal, civil, or administrative nature and whose release would create a high probability of disclosure of specific investigatory work product. Such records are not public records pursuant to ORC 149.43(A)(1)(h) and (A)(2)(c), the confidential law enforcement investigatory records exception to the public records laws.

Analyzing Ohio precedent, the Court noted that, “[t]o justify their refusal to provide the recordings to the Enquirer, respondents have the burden to show that the withheld records fall squarely within a statutory exception. . . . We strictly construe these exceptions against the public-records custodian.”  In this case, the Court found that “[f]or this exception to apply, respondents must therefore establish that each of the withheld recordings ‘pertains to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature’ and that its release would create a high probability of disclosure of specific confidential investigatory techniques or procedures or specific work product.”  While the Court found that the dashcam videos meet the first part of the exception (that they are of a criminal, quasi-criminal, civil, or administrative nature), they did not meet the second part.

The Court found that a small portion of the dashcam recordings did probably contain investigatory work product that probably fit into the exception (and therefore could be withheld), but that general withholding is not appropriate.

We therefore decline to adopt an interpretation of the investigative-work-product exception that would shield from disclosure all dash-cam recordings in their entirety merely because they contain potential evidence of criminal activity that may aid in a subsequent prosecution. And we also decline to adopt a per se rule subjecting all dash-cam recordings to disclosure notwithstanding the applicability of any exception. Instead, the recordings at issue here illustrate that a dash-cam recording, as a whole, may not easily fall in or outside the exception. Rather, the three recordings contain images that have concrete investigative value specific to the prosecution of Teofilo that may be withheld, but also contain images that have little or no investigative value that must be disclosed. A case-by-case review is necessary to determine how much of the recordings should have been disclosed.

You can read the opinion here.

CA appellate court finds Title VII case not protected by state anti-SLAPP law

In an interesting, but probably predictable development, a California state appeals court found that a former CNN employee’s discrimination case against the news network can proceed, reversing a lower court’s decision that the network was protected by that state’s anti-SLAPP statute.

You can read the opinion here.

SLAPP stands for Strategic Lawsuit Against Public Participation. Wikipedia defines SLAPP lawsuits as “intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition” and that definition is pretty considered with everyone else’s definition.   The California appeals court, in this case, relies on precedent and describes them as follows:  “The quintessential SLAPP is filed by an economic powerhouse to dissuade its opponent from exercising its constitutional right to free speech or to petition. The objective of the litigation is not to prevail but to exact enough financial pain to induce forbearance.”  Wilson v. CNN, et al, No. B264944 (Cal. Ct. App. Dec. 13, 2016)(internal citation omitted).

States like California have adopted anti-SLAPP statutes which aim to shift the financial risk to the person filing the suit.  Basically, if you have been served with a SLAPP statute, you can file an anti-SLAPP motion to strike the case because it involves ostensibly public speech.  The person who sued you then needs to show that they are more likely than not to prevail.  If they lose, many anti-SLAPP statutes let the Defendant collect attorney’s fees.

In this California case, the Plaintiff sued CNN for age and race-based discrimination.  At the trial court level, CNN claimed the lawsuit was a SLAPP suit and that “because CNN is a news provider, all of its staffing decisions regarding plaintiff were part of its editorial discretion and so inextricably linked with the content of the news that the decisions themselves are acts in furtherance of CNN‘s right of free speech that were necessarily ̳in connection‘ with a matter of public interest news stories relating to current events and matter[s] of interest to CNN‘s news consumers.”  The trial court agreed and punted the case.

It’s an interesting strategy, but ultimately did not survive scrutiny.

The appeals court went the other way, ruling this week that, “we reject defendants‘ characterization of their allegedly discriminatory and retaliatory conduct as mere ―staffing decisions in furtherance of their free speech rights to determine who shapes the way they present news. The press has no special immunity from generally applicable laws. . . . As previously noted, ―[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute.  Moreover, the statute does not automatically apply simply because the complaint refers to some protected speech activities.” (internal citations omitted).

Journalism prof describes “lost generation” of journalists

From CJR’s piece about Scott Reinardy:

I don’t use this word lightly, but I would call it an organizational depression that’s occurring. There has been so much loss in those newsrooms. Journalists don’t necessarily just lose jobs, they lose careers and some real self-identity.

I had many journalists who broke down and cried, who were so genuinely upset about what had happened to the profession they loved so dearly. It was really troubling.

Judge rules city agency must move faster on records requests

From the Nashville Post:

In a significant victory for open records proponents across the state, Metro Nashville has lost a lawsuit over the amount of time its police department takes to respond to and fulfill open records requests.

Read more…

Correction/retraction theory

I recently read a case that had been filed against several media groups in Mississippi, but has since been “removed” (transferred) to federal court by the Defendants. Ignoring the merits of the case, the allegations describe circumstances that occur so frequently and in so many newsrooms that I thought I would use it as a peg to briefly discuss the issue of running corrections/retractions and the legal strategy behind them.

The alleged facts of this case are these:

  • According to the Complaint, in July 2015, a television station in Mississippi broadcast a picture of the Plaintiff along with his name, and announced that he was wanted by local law enforcement for burglary, sexual assault and sexual battery. (Needless to say, the Plaintiff claims they identified the wrong guy.)
  • Following the broadcast, [Plaintiff] received numerous telephone calls from family members, friends, and coworkers advising [Plaintiff] that he was wanted for charges of burglary and sexual battery and/or sexual assault.
  • In the following days, Plaintiff faced threatening and/or embarrassing remarks and public ridicule in relation to [Plaintiff’s] alleged criminal activity, including the loss of his employment.
  • Or or about July 15, 2015, [Plaintiff] was arrested for the erroneous alleged crimes.
  • Or or about July 27, 2015, after [Plaintiff] had already spent approximately one (1) week in jail, the City dismissed all charges against him on the basis that he had been misidentified.

To be absolutely clear, none of the Defendants has filed an answer. We (I) do not know whether the news organizations ran the Plaintiff’s picture and name because that is what they were given by the local law enforcement authorities or whether it was just a newsroom mistake.

I am, however, going to hijack these facts and use them for my purposes: namely, to discuss what typically happens when stations make mistakes and why there is legal benefit to running a correction (other than the moral determination that it is the right thing to do).

In most tort cases (defamation is a tort), a plaintiff has to prove actual damages in order to make a claim.

To establish a prima facie case of defamation, the plaintiff must prove that (1) a party published a statement; (2) with knowledge that the statement was false and defaming to the other; or (3) with reckless disregard for the truth of the statement or with negligence in failing to ascertain the truth of the statement.

However, “the basis for an action for defamation, whether it be slander or libel, is that the defamation has resulted in an injury to the person’s character and reputation.” To be actionable, the allegedly defamatory statement must “constitute a serious threat to the plaintiff’s reputation.” Damages from false or inaccurate statements cannot be presumed; actual damage must be sustained and proved.

Thus, Tennessee courts have held that a plaintiff in a libel action must be able to show that his or her standing in the community and his public reputation for character has been injured by the inaccurate statement and, further, must have suffered real or actual damages due to that loss of standing or reputation.

Davis v. The Tennessean, 83 S.W.3d 125, 128 (Tenn.Ct.App. 2001)(emphasis added).

You can see from the sections of the case that I’ve cited that proving actual damage is a key part of bringing a succesful defamation action.  In other words, it is possible that someone negligently makes a false statement about you and that you cannot successfully bring a case against them because you cannot prove that you have actually been damaged by the false statement.

So, how do we prove actual damage?

There are all sorts of different strategies Plaintiff’s lawyers have deployed to prove actual damages in defamation cases, and I will not get into them here.

The point is that once you run a correction, you are arguably putting a stop to the accrual of that Plaintiff’s damages.  This means that even if a Plaintiff can prove that you negligently published a false statement about him and that he was damaged, the amount of damage should be controlled, or limited, by the fact that at some point you began to publish that you made a mistake and that the truth is whatever it is.

I cannot understate the value of this concept.   The Digital Media Law Project (“DMLP”) has an excellent article on the law of defamation.  Click here:  link.

The DMLP also briefly addresses the fact that at least one state (Arizona) has created a “retraction” statute that seeks to control the accrual of damages.  In Arizona, an allegedly damaged party must – by statute – demand a retraction (before filing suit) or else his damages are limited.  You cannot just wait around, suffer damages, and sue for an astronomical amount.

Other than just doing the right thing, this is one of the reasons media lawyers have always advised their clients to run corrections.  It is a “mitigation” concept:  Even if they did make a mistake, and they are going to be held liable, by taking steps to get it right, they can actually control the scope of that liability.