In the last few years, defamation lawsuits have become a common tool for pushing back against coverage of protests, police conduct, and other hot button issues. For many journalists and news organizations, the real impact is not a damages award, it is the cost and stress of defending the case at all. In states without strong anti‑SLAPP protection, that cost can be enough to convince a newsroom to spike or soften stories about powerful people.

At the same time, journalists continue to be arrested or detained while covering demonstrations, and are pushed farther away from the action by “buffer zones” and other restrictions. The legal risk around protest coverage now comes from both sides, criminal and civil.

What anti‑SLAPP laws are supposed to do

SLAPP stands for Strategic Lawsuit Against Public Participation. A classic SLAPP suit is filed less to win on the merits and more to punish or deter speech on matters of public concern. In response, many states have adopted anti‑SLAPP statutes that aim to:

• Allow defendants to file an early motion to strike claims based on protected speech.
• Pause discovery while the court decides whether the plaintiff can show a probability of success.
• Shift fees so that a plaintiff who brings a weak or retaliatory case may end up paying the defendant’s attorney’s fees.

When these statutes work as intended, they give news organizations and individual journalists a way to get out of meritless litigation early, and they change the economics for would‑be plaintiffs who want to sue simply to send a message.

The problem is that protection varies dramatically by state. Some jurisdictions have broad anti‑SLAPP laws that cover almost any reporting or commentary on public issues. Others have narrow provisions, or none at all, leaving local outlets more exposed and making it more attractive to file in those forums.

Why protest coverage is a special target

Protest stories tend to combine several risk factors in one package. They are often fast moving, visually chaotic, and dependent on rapid sourcing from witnesses and social media. They also involve highly motivated subjects, including public officials and businesses, who feel they have a lot to lose when video of a particular encounter or quote goes viral.

Common patterns include:

• Officials or private actors filing defamation claims over descriptions of their conduct at a protest, where facts are contested and video clips may be incomplete.
• Businesses suing over coverage that ties them to a controversial event, even when the reporting is largely accurate but unflattering.
• Individuals claiming misidentification in footage or photos, especially when they are linked to alleged criminal activity or extremist groups.

In an anti‑SLAPP state, a newsroom can often force the plaintiff to show, early on, that the story is false and defamatory in a meaningful way, rather than simply embarrassing or critical. In states without that protection, the case moves forward like any other civil action, with full discovery and all the associated expense.

How “weaponized” defamation works in practice

The mechanics are familiar. A story runs about a protest, a clash with police, a local official’s conduct, or a controversial speech. The reporting relies on a mix of official statements, on the ground observations, and video or stills from bystanders. Within days or weeks, the subject of the story files suit.

Three features stand out in many of these cases:

• The complaint is long on adjectives and short on clear, provably false statements of fact.
• The plaintiff asks for eye catching damages, sometimes in the millions, while knowing full well that the outlet does not have that kind of money.
• The suit becomes a press release in its own right, a way to reframe the narrative and to signal to other reporters that there is a “cost” to future coverage.

Strong anti‑SLAPP procedures do not stop plaintiffs from filing, but they change what happens next. Instead of slogging through months of discovery to get a basic dismissal, the newsroom can file an early motion, point to the public nature of the story, and ask the judge to rule on the legal sufficiency of the claim before anyone spends a fortune on lawyers.

Where those tools are weak or absent, simply defending the case may be enough to drain a small outlet’s budget or to frighten freelancers and students away from similar coverage.

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Recent examples of “weaponized” defamation and legal process

This is not theoretical. In the past year, several cases have illustrated how defamation claims and related legal tools can be used to chill coverage and commentary on public issues.

In Mississippi, the city of Clarksdale and its mayor sued the local Clarksdale Press Register for defamation over an editorial titled “Secrecy, Deception Erode Public Trust.” A chancery judge went so far as to issue a temporary restraining order requiring the paper to remove the editorial from its website, without giving the paper a prior chance to be heard. Press freedom advocates described it as an extraordinary prior restraint by a government plaintiff, and as a clear example of litigation being used to silence criticism rather than to correct any truly false statement.

At the national level, high profile political figures have increasingly turned to large dollar defamation suits against both national and local outlets. Over the past year, Donald Trump has filed or revived sprawling cases against organizations such as The New York Times and various regional papers, often seeking enormous damages and alleging that critical coverage constitutes “fake news” or election interference. Commentators have noted that many of these claims are unlikely to survive the actual malice standard, but they are costly to defend and send an unmistakable signal to other newsrooms about the potential price of aggressive reporting.

Advocacy and protest adjacent reporting have also drawn SLAPP style litigation. In North Dakota, a company pursued a massive defamation case against Greenpeace entities over their statements about a pipeline project and related campaigns. In 2025, a jury returned a verdict reportedly in the hundreds of millions of dollars against the Greenpeace defendants, a result that alarmed press freedom and environmental groups because of the potential chilling effect on future investigative campaigns around energy and infrastructure projects.

Finally, it is worth remembering that not all legal pressure shows up as a defamation complaint. The U.S. Press Freedom Tracker documented dozens of arrests and detentions of journalists covering protests and public events in 2025, with many reporters released without charges, but only after missing deadlines and losing the opportunity to publish key footage. For freelancers and small outlets, the prospect of being handcuffed, having gear seized, and then needing to hire a criminal lawyer can be as effective a deterrent as a civil lawsuit.

Together, these examples show how litigation and legal process can be used as tools to manage or suppress public criticism, even when the underlying claims are weak. They also underscore why it is important for newsrooms to understand their state’s anti SLAPP protections, to document their newsgathering decisions carefully, and to think strategically about corrections and retractions in high conflict coverage.

Practical steps for covering protests and high risk stories

None of this means that journalists should avoid protests or controversial subjects. It does mean that newsrooms should assume that any high profile protest story might end up in a complaint, and plan accordingly. A few habits can make a big difference:

• Be precise in your language. Avoid broad labels for individuals that go beyond what you can support with reporting. Describe observable conduct and sourcing as clearly as you can, and separate fact from opinion.
• Attribute aggressively. If a key allegation comes from a complaint, a public record, or an on the record source, say so plainly. In a later lawsuit, it matters whether you presented a claim as your own assertion of fact or as a fair report of what someone else alleged.
• Save your receipts. Preserve notes, recordings, screenshots, and contemporaneous emails related to protest coverage and other sensitive stories. If a suit is filed, your ability to show how you reported the story, and what you relied on, will matter.
• Think about corrections and clarifications as part of risk management. You have a separate post on correction and retraction strategy for a reason. When you discover an error in a volatile story, a prompt, clear correction can reduce both actual harm and the legal downside, and in some states it can affect the damages analysis.
• Know your state’s anti‑SLAPP law in advance. Before you find yourself served, work with counsel to map out how your jurisdiction’s statute works, who is covered, what timelines apply, and whether you can remove a case to a more protective forum if it is filed in state court.

For journalists on the ground, there is a parallel set of concerns around arrest, detention, and “buffer zones” that keep cameras away from where the story is. Those are often fought in criminal and constitutional litigation rather than through anti‑SLAPP motions, but they are part of the same bigger picture. The more expensive and difficult it becomes to cover protests, the more attractive it is for officials and private actors who would prefer that certain stories never see daylight.

Why this matters for smaller outlets and freelancers

Large national organizations can sometimes absorb the cost of defending weak or politically motivated defamation suits. Smaller outlets, student publications, and freelancers usually cannot. For them, the threat of being dragged into court may be enough to shape what they cover or how far they are willing to push on a difficult story.

That is why the details of anti‑SLAPP statutes, correction and retraction practices, and internal documentation habits matter. They do not eliminate the risk of being sued. They do, however, give you better tools to respond when a story about public conduct turns into a lawsuit designed more to chill speech than to correct the record.

When the FTC rolled out its sweeping rule to ban most non‑compete agreements nationwide, it felt like the main event in the long‑running fight over restrictive covenants. The Texas federal court’s decision tapping the brakes on that rule, and the FTC’s pause on its appeal, mean that, at least for now, the action has shifted back to the states.

For newsrooms, broadcasters, and digital media companies, that state‑level action is not academic. It is already changing which employees can realistically be bound by a non‑compete, where, and on what terms.

A decade ago, it was common to see non‑compete language dropped wholesale into employment agreements for anchors, reporters, producers, and even relatively junior digital staff. States are steadily making that approach harder to defend. Instead of banning non‑competes outright, many legislatures have adopted earnings thresholds: below a certain income level, employers simply cannot enforce a non‑compete at all. Above the threshold, the old questions (reasonableness in time, geography, and scope) still apply, but the universe of employees who even qualify has shrunk.

In Colorado, for example, non‑competes are generally reserved for “highly compensated” workers, and the salary threshold is indexed upward each year. Other jurisdictions, including Washington State, the District of Columbia, Maine, Rhode Island, and Virginia, tie non‑compete enforceability to minimum earnings levels that have ticked up again for 2025–2026.

The practical effect is straightforward: for many rank‑and‑file newsroom employees (producers, photographers, digital content staff), the law itself is now doing what courts often hesitated to do on a case‑by‑case basis. It is declaring them off‑limits for non‑competes.

A second trend is more categorical. Several states have adopted statutes that prohibit non‑competes for low‑wage workers or for specific professions, even without a general income threshold. Healthcare has been a particular focus, with some states barring non‑competes for certain providers outright or sharply limiting duration and geography.

These reforms matter even outside the health‑care context because they show the policy direction: legislators are increasingly skeptical that non‑competes are necessary or fair for workers without significant bargaining power. That skepticism is easy to map onto newsrooms, where younger reporters and digital staff often have little leverage at the point of hire.

Tennessee illustrates this tension well. Under current Tennessee law, non‑competes for licensed healthcare providers have been permitted within fairly tight constraints (two‑year limits, defined geographic scopes), and courts have historically enforced non‑competes more readily in that context than in others. The reform bills inching along in the General Assembly would push sharply in the other direction, broadly prohibiting non‑competes with only narrow carve‑outs.

A smaller but important group of states are moving closer to what the FTC tried to do on a national scale. They are not just tweaking thresholds, they are functionally eliminating non‑competes in most employment contexts, preserving them mainly for the sale of a business or for very narrow categories of highly compensated professionals.

Even where the statutory language is more nuanced, the direction of travel is clear. Over time, more states are treating non‑competes as the exception rather than the rule, and placing the burden squarely on employers to justify them. Tennessee’s proposed legislation would place it firmly in that camp if enacted.

For multi‑state media companies, that fragmentation is a compliance headache. A “standard” non‑compete that might still be viable in one state is simply void in another.

For media employers and employees, these state‑level reforms add an important layer to the FTC story. Even if the federal rule never fully takes effect, the ground has already shifted.

A few practical implications:

Non‑competes become a senior‑talent issue. In threshold states, only a relatively small group of employees (for example, high‑paid anchors, senior executives, or top salespeople) will even clear the statutory earnings bar. For everyone else, non‑competes are increasingly off the table as a matter of law.

Contracts will rely more on other tools. Expect to see more emphasis on confidentiality agreements, trade‑secret protections, and narrow non‑solicitation clauses aimed at clients and key staff, all of which are far less controversial than full non‑competes.

Enforcement decisions become reputational questions. Even where a clause is technically enforceable, stations will have to weigh the optics of suing to keep an anchor or reporter from working in the same market, particularly if neighboring states or competitors have already moved away from non‑competes.

For individual journalists, these developments translate into greater mobility in many states, but the details matter. A reporter who cannot be bound by a non‑compete in State A might still face one if they move to State B, or vice versa.

Tennessee is now very much part of this broader story. Bills pending in the legislature would largely prohibit non‑competes going forward, with limited exceptions, and roll back the relatively generous space Tennessee historically gave to healthcare non‑competes.

Layer that on top of the FTC’s stalled rule, and Tennessee employers face a practical choice: assume that non‑competes are on borrowed time and begin shifting to a model built around confidentiality, non‑solicitation, and stronger internal retention strategies, or double down on existing non‑compete templates and risk having to unwind them later, either because of a federal rule revived on appeal or because state legislation catches up with the reform trend.

For newsrooms, the safer course is to plan for a world where non‑competes are the exception. That does not mean employers lose all protection. It does mean those protections will need to be narrower, more carefully drafted, and more clearly tied to legitimate interests like trade secrets and client relationships.

The FTC’s once‑headline‑grabbing “ban” on noncompetes has quietly collapsed, and we’re back to a familiar patchwork: state law, garden‑variety antitrust, and a more modest FTC focusing on one‑off bad actors rather than rewriting everyone’s employment contracts.

How We Got Here (The Short Version)

In April 2024, the FTC adopted a sweeping rule that would have barred most post‑employment noncompetes nationwide and required employers to notify many current and former workers that their noncompetes were no longer enforceable. The agency grounded the rule in Section 5 of the FTC Act, calling noncompetes an “unfair method of competition” that suppresses wages and worker mobility.

The business community responded the way you would expect: with lawsuits filed in friendly forums and a race to the courthouse to stop the rule before it ever took effect. On August 20, 2024, a federal judge in the Northern District of Texas vacated the rule, holding that the FTC had gone beyond its statutory authority and that this kind of economy‑wide regulation belonged to Congress, not an independent agency. That decision effectively blocked the rule nationwide, and other challenges followed in Florida and elsewhere.

For a time, it looked like the fight would shift to the appellate courts. The FTC noticed appeals to the Fifth and Eleventh Circuits and, under the prior administration, began defending its authority to regulate noncompetes by rule. Then the political winds shifted.

The Trump Administration Hit the Reset Button

When President Trump returned to the White House in January 2025, he elevated Commissioner Andrew Ferguson, who had dissented from the noncompete rule, as FTC Chair. Ferguson had already signaled that, in his view, the FTC lacks the power to impose a one‑size‑fits‑all federal ban on noncompetes.

Within weeks, the agency asked the Fifth and Eleventh Circuits for 120‑day stays of its own appeals “in light of the change in administration” and the new leadership’s intention to reconsider the rule. Both courts granted those stays, pausing the litigation and giving the new Commission time to decide whether it wanted to keep fighting for the rule at all.

By early fall 2025, the answer was clear. In September, the Trump‑led FTC voted to withdraw its appeals, vacate the 2024 Non‑Compete Clause Rule, and walk away from the nationwide ban altogether. Employer‑side alerts described the move bluntly: the FTC had “abandoned” the rule and “closed the chapter” on a federal noncompete ban, at least for now.

What the FTC Is Doing Instead

Abandoning the rule doesn’t mean the FTC has lost interest in noncompetes; it means the agency is returning to more traditional tools.

• First, the Commission has said it will pursue noncompetes case‑by‑case where it sees clear harm: think no‑poach pacts between competitors, restrictions on low‑wage workers who pose no real competitive threat, or industry‑wide practices that look like wage‑fixing by another name.
• Second, the FTC is pairing enforcement with guidance and workshops instead of rulemaking by fiat. The agency has already teed up a 2026 workshop on noncompetes and related restraints to gather testimony from employers, workers, and economists.

In other words, the FTC is still in the noncompete business; it has just swapped a sledgehammer (a national ban) for scalpels (targeted investigations, consent orders, and the occasional test case).

The New Landscape: Back to the States

For employers and employees, the practical effect is that we’re back to where we’ve been heading for a decade: noncompete law is increasingly defined by the states, not by Washington.

Several trends continue:

• Some states (California, Oklahoma, North Dakota and a growing number of imitators in specific contexts) either ban most noncompetes outright or limit them to narrow sale‑of‑business scenarios.
• Others permit noncompetes but restrict them by salary thresholds, notice requirements, or special rules for physicians, broadcasters, and other “public interest” categories.
• Many are layering on wage‑based bans for low‑income workers, reflecting the same concerns that animated the FTC’s rule: that noncompetes should not be used as a blunt instrument against people with little bargaining power.

For multi‑state employers, the result is a more fragmented map than ever. Instead of one federal rule, they face a patchwork of statutes, choice‑of‑law issues, and local public policy exceptions. The FTC’s retreat doesn’t simplify that picture; it just removes the possibility that a nationwide ban will sweep away those differences.

What This Means for Newsrooms and Media Employers

News organizations were watching the FTC’s rule for good reason. Many broadcasters and publishers rely on noncompetes to keep on‑air talent, sales staff, and key newsroom employees from jumping immediately to a competitor across town.

With the federal rule off the table, those contracts now rise or fall on state law:

• In states that disfavor or restrict noncompetes (including rules specific to broadcasters), employers will need to lean more heavily on non‑solicitation clauses, confidentiality agreements, and trade secret protections.
• In jurisdictions more receptive to noncompetes, courts will still expect reasonable limits: a targeted scope, a duration tied to the employer’s legitimate interests, and drafting that does not read like a lifetime ban from the industry.

The FTC may still bring a case if an agreement looks abusive, say, a blanket noncompete for low‑level support staff with no access to sensitive information, but it is no longer trying to police every newsroom or studio through a single rule.

Looking Ahead

Is a federal noncompete ban “dead” in the Trump era? For the moment, yes. The 2024 rule has been vacated, the appeals have been withdrawn, and the current FTC has no appetite to resurrect it in anything like its original form. But the policy debate that produced the rule has not gone away. Worker‑mobility advocates are regrouping at the state level, plaintiffs’ lawyers are testing the limits of overbroad clauses in court, and the FTC has kept the door open to targeted enforcement in sectors where noncompetes look most like restraints of trade.

For employers, especially those with multi‑state workforces or high‑visibility talent, the homework assignment hasn’t changed: review your agreements, map them against each state’s rules, and make sure your noncompetes are narrowly tailored to what you actually need to protect. For employees, the key question is still the same one we’ve been asking for years on this site: does this contract reasonably protect the employer’s interests, or does it turn your own experience into a liability when you try to change jobs?

In April 2024, the Federal Trade Commission (FTC) issued a landmark rule banning most non-compete agreements nationwide. The rule was scheduled to take effect on September 4, 2024, and would have invalidated most existing non-competes—except for those involving senior executives. The FTC framed the rule as essential for enhancing worker mobility and promoting fair competition.

However, the rule has since been stalled.

Where Things Stand Nationally

On August 20, 2024, a federal judge in the Northern District of Texas struck down the FTC’s non-compete ban, ruling that the agency lacked authority to enact such a sweeping regulation. This ruling effectively blocked the rule from taking effect nationwide.

While the FTC appealed the decision, it requested a 120-day pause in March 2025—citing the transition to a new presidential administration and a potential shift in policy priorities. The court granted the stay, setting a deadline of July 21, 2025, for the FTC to determine its next move.

In the meantime, the FTC has remained active on the labor front. In March 2025, it announced the formation of a Joint Labor Task Force to investigate harmful labor market practices, including non-compete agreements.

State-Level Momentum: Spotlight on Tennessee

While the federal rule remains in limbo, states are pushing forward with their own reforms—and Tennessee is now one to watch.

In early 2025, the Tennessee General Assembly introduced House Bill 1034 and Senate Bill 995, aiming to broadly prohibit non-compete agreements for nearly all employees and contractors. If passed, these bills would:

• Invalidate most non-compete clauses, regardless of duration or geographic scope;
• Remove existing carveouts for healthcare professionals;
• Limit the enforceability of non-competes to a narrow category of physicians employed by hospital-affiliated entities.

These bills represent a major shift away from the current Tennessee law, which allows non-competes for certain licensed healthcare providers (e.g., podiatrists, chiropractors, psychologists) if they are limited to two years and a ten-mile radius (or county-based) restriction.

The proposed reforms are currently under consideration, with an effective date of July 1, 2025, if enacted. However, the NFIB and other stakeholders are expected to push for revisions and further study during the summer legislative session.

What This Means for Employers and Workers

• Federally: The FTC’s rule remains blocked. Employers are not yet bound by it, but the agency’s continued focus signals the issue isn’t going away.
• In Tennessee: Employers should prepare for the possibility that most non-competes could soon become unenforceable—especially in the healthcare sector.
• Nationwide: States like Colorado, Indiana, Kentucky, Texas, and now Maryland and Pennsylvania are increasingly limiting non-competes, particularly in healthcare.

The legal landscape surrounding non-compete agreements is changing quickly. Employers should stay informed and review existing employment agreements in light of ongoing developments at both the federal and state levels. Workers—especially in healthcare—should be aware of their rights and any restrictions placed on their professional mobility.

Stay tuned as we approach the critical July dates for both the FTC appeal and Tennessee’s legislative decisions.

The Federal Trade Commission (“FTC”) has adopted a rule banning non-compete agreements across all industries. Going forward, new non-competes are banned. Looking backward, “employers will simply have to provide notice to workers bound to an existing noncompete that the noncompete agreement will not be enforced against them in the future.” Senior executives who earn more than $151,164.00 annually and who are in policy-making positions may still be bound by existing agreements, but new non-competes are banned. The rule goes into effect in 120 days and litigation is anticipated. The FTC suggests that businesses worried about unfair competition can still rely on state-by-state trade secret statutes and confidentiality agreements.

From the FTC press release:

“Noncompete clauses keep wages low, suppress new ideas, and rob the American economy of dynamism, including from the more than 8,500 new startups that would be created a year once noncompetes are banned,” said FTC Chair Lina M. Khan. “The FTC’s final rule to ban noncompetes will ensure Americans have the freedom to pursue a new job, start a new business, or bring a new idea to market.”

From the Washington Post:

“The uncertainty created by these rules and the future litigation creates a risky landscape for businesses as they try to protect their most valuable trade secrets and confidential information,” said Berman, co-chair of her firm’s practice for business litigation, trade secrets and restrictive covenants, in an email. “I think we’ll see rapid movement by businesses to implement alternatives to noncompetes — such as non-solicitations agreements and deferred compensation plans — because they won’t take a gamble on protecting their proprietary information.”

Section 230 of the Communications Decency Act has been a hot topic among media/tech lawyers for more than a decade, but garnered increased attention during the Trump administration. Now, the U.S. Supreme Court is set to address its constitutionality. And the ramifications are tremendous.

From Time magazine:

The future of the federal law that protects online platforms from liability for content uploaded on their site is up in the air as the Supreme Court is set to hear two cases that could change the internet this week.

. . . .

Section 230, which passed in 1996, is a part of the Communications Decency Act. 

The law explicitly states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” meaning online platforms are not responsible for the content a user may post. 

The law allows tech companies to moderate or remove content that is considered egregious. Section 230, however, does not protect sites that violate federal criminal law, or intellectual property law. It also does not protect platforms that create illegal or harmful content. 

Because popular sites like Facebook, Twitter and YouTube rely on user-generated content, many people have credited Section 230 for the creation of the internet we now know and love.

Read more from Time.com.

The Federal Trade Commission released a 216-page report outlining the dangers of non-compete clauses and branding these provisions as indicia of unfair competition. Among the requirements of the proposed new rule is a mandate that employers affirmatively notify former employees that such provisions in their contracts are no longer in effect.

Click here to peruse the FTC memorandum and proposed language.

In a far-reaching move that could raise wages and increase competition among businesses, the Federal Trade Commission on Thursday unveiled a rule that would block companies from limiting their employees’ ability to work for a rival.

The proposed rule would ban provisions of labor contracts known as noncompete agreements, which prevent workers from leaving for a competitor or starting a competing business for months or years after their employment, often within a certain geographic area. The agreements have applied to workers as varied as sandwich makers, hair stylists, doctors and software engineers.

Read more from the New York Times…

In 2014, the White County, TN newspaper, The Expositor, published a story about the arrest of an individual named Jeffery Todd Burke, evidently based in part on statements made directly to the reporter by the lead detective on the case. Specifically, the paper published statements about prior alleged bad acts, asserting that Mr. Burke had been previously indicted for stealing thousands of dollars from a youth football league. It turns out that last part was not true, that Mr. Burke’s attorney gave notice to the newspaper the day of publication, but that the paper stood by its reporting because the untrue statements had allegedly come directly from the lead detective.

Mr. Burke sued the newspaper in the Circuit Court for defamation and false light invasion of privacy. The newspaper defended by relying on, among other things, Tennessee’s “Fair Report Privilege,” which immunizes journalists from liability for publishing “fair and accurate” reports of official actions or proceedings. The Supreme Court disagreed, in Jeffery Todd Burke v. Sparta Newspapers, Inc., M2016-01065-SC-R11-CV (2019), because the Detective made the statement in a one-on-one conversation with the reporter and it was not made in a public setting.

In sum, we conclude that expanding the fair report privilege to nonpublic, one-on- one conversations would constitute a departure both from the rationale on which the privilege is based and from existing Tennessee law defining its scope and that such an expansion would unnecessarily complicate the task of determining whether a report should be protected by the privilege. For all these reasons, we hold that the fair report privilege applies only to public proceedings or official actions of government that have been made public. Applying this holding to the undisputed facts, we conclude that the fair report privilege does not apply to the report at issue in this appeal. The nonpublic, one-on-one conversation between Ms. Claytor and Detective Isom was neither a public proceeding.

Interestingly, the Court also noted that “our holding here does not resolve the question of whether a press conference or a press release constitutes a public proceeding or an official action of government that has been made public.”

Click here to read the opinion.

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.