TN Supreme Court narrows scope of “Fair Report Privilege”

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.

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