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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.