Glenn R. Funk v. Scripps Media, Inc. , 570 S.W.3d 205 ( 2019 )

03/13/2019
IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
October 4, 2018 Session
GLENN R. FUNK v. SCRIPPS MEDIA, INC., ET AL.
Appeal by Permission from the Court of Appeals, Middle Section
Circuit Court for Davidson County
No. 16C-333 William B. Acree, Senior Judge
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No. M2017-00256-SC-R11-CV
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We granted review of this interlocutory appeal arising from a defamation action to
address whether the Court of Appeals correctly determined that (1) a showing of malice
cannot defeat the fair report privilege and (2) an assertion of the fair report privilege
exempts the defendants from part of the protections of Tennessee Code Annotated section
24-1-208, Tennessee’s news media shield law. With respect to the first issue, we
conclude that neither actual nor express malice defeats the privilege; the only limitations
on the fair report privilege are that a report of an official action or proceeding must be
fair and accurate. With respect to the second issue, we conclude that the fair report
privilege is a defense based upon a source of information that renders the source of the
statements the plaintiff alleges to be defamatory unprotected by Tennessee’s shield law.
Accordingly, we affirm the judgment of the Court of Appeals on the separate grounds
stated in this opinion and remand this case to the trial court.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals
Affirmed on Separate Grounds; Case Remanded to the Trial Court
CORNELIA A. CLARK, J., delivered the opinion of the court, in which JEFFREY S. BIVINS,
C.J., and SHARON G. LEE, HOLLY KIRBY, and ROGER A. PAGE, JJ., joined.
James D. Kay, Jr., John B. Enkema, and Michael A. Johnson, Nashville, Tennessee, for
the appellant, Glenn Richard Funk.
Ronald G. Harris, Jon D. Ross, and William J. Harbison II, Nashville, Tennessee, for the
appellees, Scripps Media, Inc., and Phil Williams.
Paul R. McAdoo, Nashville, Tennessee, for the amici curiae, The Associated Press, Cable
News Network, Inc., Courthouse News Service, Cox Media Group Northeast d/b/a
WHBQ-TV, Gannett Co., Inc., GateHouse Media, LLC, Gray Television, Inc., Meredith
Corporation, Nexstar Media Group, Inc., Raycom Media, Inc., Reporters Committee for
Freedom of the Press, Sinclair Broadcast Group, Inc., TEGNA, Inc., and Tribune Media
Company.
OPINION
I. Factual and Procedural Background
Not unlike a Fabergé egg, this appeal presents a case within a case within this
case. In 2014, the Office of the District Attorney General for the 20th Judicial District
brought criminal charges against Nashville developer David Chase. On June 5, 2015,
while the criminal charges were pending, Mr. Chase filed a complaint in federal court in
which he alleged that members of Nashville law enforcement had violated his civil rights.
District Attorney General Glenn Funk, the plaintiff in this appeal, ultimately decided to
dismiss the criminal charges against Mr. Chase but conditioned the dismissal of the
charges on Mr. Chase first dismissing his federal lawsuit. Mr. Chase complied with this
condition. The criminal charges against him were then dismissed on July 1, 2015.
However, on August 12, 2015, Mr. Chase filed a complaint in state court in which he
alleged, among other claims, that members of Nashville law enforcement conspired to
subject him to malicious prosecution.
In his state court lawsuit, Mr. Chase did not bring any claims against Glenn Funk.
However, on October 22, 2015, the defendants in Mr. Chase’s state court lawsuit did file
a sealed motion to compel Glenn Funk to testify about the deal he made with Mr. Chase
before dismissing the criminal charges. The motion also discussed a $2,000,000 payment
that public relations consultant Bill Fletcher requested of Mr. Chase’s father on behalf of
an undisclosed source.
On February 3, 2016, NewsChannel 5, a subsidiary of Scripps Media, Inc.,
broadcast a report about Mr. Chase’s state court lawsuit that referred to the plaintiff’s
deal with Mr. Chase and the request from an undisclosed source for a $2,000,000
payment. On February 4, 2016, the plaintiff filed a complaint against Scripps Media, Inc.
and NewsChannel 5’s chief investigative reporter, Phil Williams, (collectively
“defendants”), alleging that, in the February 3 news report, the defendants claimed the
plaintiff solicited a $2,000,000 bribe and blackmailed Mr. Chase into dismissing his
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federal court lawsuit. The plaintiff accused the defendants of publishing libelous
statements about him, structuring statements to create a defamatory implication,
portraying him in a false light, and conspiring to commit these acts. That same evening,
NewsChannel 5 broadcast a second news report about Mr. Chase’s state court lawsuit.
This second report expanded on the information discussed in the first news report and
included portions of an interview with Mr. Chase. Three weeks later, on February 26,
2016, the plaintiff amended his complaint to include allegations of libel, defamation by
implication, and portrayal in a false light about both the first and second news reports.
On March 14, 2016, the defendants filed a motion for summary judgment.1 The
defendants claimed that the first news report fell entirely under the fair report privilege
because the report was about pleadings and depositions filed in a judicial proceeding.
The defendants argued that the allegedly defamatory sections of the second news report
were either true or protected by United States Supreme Court precedent concerning the
use of the word “blackmail.” They further proposed that the plaintiff “would also not be
able to prove any of the other elements of his libel and false light-invasion of privacy
claims as to [the news reports], including a false and defamatory statement concerning
Plaintiff, actual malice or damages to reputation, but those elements are not the basis of
this Motion.”
In addition to the motion for summary judgment, the defendants also filed a
motion for a protective order on March 24, 2016, which they amended on April 8, 2016.
In their motion, they asked the trial court to stay discovery until after it had decided the
motion for summary judgment. They argued that the plaintiff did not need to receive the
discovery he requested in order to respond to their motion for summary judgment.
The plaintiff did not respond to the defendants’ motion for summary judgment, but
he did object to the motion for a protective order, arguing that the discovery was
necessary because it would allow him to show that the defendants maliciously published
the two news reports, which would defeat the fair report privilege. After hearing
arguments, the trial court denied the defendants’ motion for a protective order. Upon
receiving the plaintiff’s next set of interrogatories and requests for production, the
defendants responded to a number of the discovery requests, but Scripps Media, Inc.
objected to Interrogatories Nos. 4–5, 7–8, 10–14, 17–20, and 24 and Requests for
Production Nos. 6, 8–16, 20, 22–25, and 33, and Mr. Williams objected to Interrogatories
Nos. 4–5, 7–8, 10–14, 17–20, and 27 and Requests for Production Nos. 4, 6, 7–14, 16,
1
The motion was styled as a motion to dismiss for failure to state a claim. However, there was an
affidavit attached to the motion. Therefore, the parties agreed that it should be treated as a motion for
summary judgment. See Tenn. R. Civ. P. 12.02; Runions v. Jackson-Madison Cnty. Gen. Hosp. Dist.,
549 S.W.3d 77, 81 n.5 (Tenn. 2018).
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17, 18, 19, and 31. Both objected on the grounds that the information is protected by
Tennessee Code Annotated section 24-1-208(a), Tennessee’s news media shield law.
On July 14, 2016, the plaintiff filed a motion to compel the defendants to respond
to all of the discovery requests to which the defendants objected on the basis of the shield
law. The plaintiff argued that the defendants are not protected by the shield law because,
by relying upon the fair report privilege, they are asserting a defense based upon the
source of their information, thereby triggering a statutory exception to the shield law’s
protections. The defendants responded that they are not asserting a defense based upon a
source of information. The trial court postponed ruling on this motion to compel until the
attorney who represented the defendants in Mr. Chase’s state court case was deposed due
to the possibility that the information uncovered during this deposition would render the
motion moot.
On January 3, 2017, the plaintiff filed a supplemental motion to compel in which
he argued that the attorney’s testimony had not rendered his motion moot and reasserted
that he needed the discovery to show the defendants’ malice because malice would defeat
the fair report privilege and because, regardless of the privilege, his status as a public
official required him to show evidence of malice. The plaintiff also argued that the
discovery he sought was relevant to determining whether the documents were “public at
the time of broadcast.” Because the two news reports described depositions and
pleadings that the parties in Mr. Chase’s state court lawsuit had agreed were supposed to
be filed under seal, the plaintiff claimed that it was unclear whether the fair report
privilege even applies to this case.
There are some inconsistencies in the plaintiff’s motion to compel regarding the
type of information he believed would be sufficient to show malice and defeat the fair
report privilege. The plaintiff stated that the requested discovery would aid him in
showing that the defendants knew the two news reports were based upon false
information. But to support this argument, he cited multiple cases indicating that a
defamatory publication made with a desire to cause harm cannot be protected by the fair
report privilege. As a result, it is unclear whether the plaintiff sought to discover that the
defendants knew the news stories contained false allegations or that the defendants
harbored a desire to harm him. The defendants responded that the desired discovery was
not relevant because malice does not defeat the fair report privilege.
On January 13, 2017, the trial court heard argument on the plaintiff’s motion to
compel discovery and held that, because a showing of malice can defeat the fair report
privilege, the plaintiff should be allowed to discover information relating to malice. It
also held that, because the fair report privilege was a defense based upon a source of
information, the exception to the shield law applied. However, rather than holding that
the shield law no longer protected the defendants, the trial court found that the exception
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only provided the plaintiff with the ability to compel responses to Interrogatories Nos. 7
and 8, which asked that the defendants describe all investigation they conducted
regarding the two news reports, and to the corresponding Requests for Production.2 The
court ordered the defendants to answer these interrogatories and disclose all of the
sources and documents that the defendants considered when investigating the two news
reports. On February 13, 2017, the trial court incorporated its findings of fact and
conclusions of law in a written order granting the plaintiff’s motion to compel.
The defendants then applied for permission to bring an interlocutory appeal
regarding the trial court’s interpretation of the fair report privilege and also filed an
appeal as of right from the trial court’s interpretation of the shield law pursuant to
Tennessee Code Annotated section 24-1-208(c)(3). The plaintiff argued against the
direct appeal and emphasized that the statutory provision for an appeal as of right did not
apply in the defendants’ circumstances. On March 13, 2017, the trial court found that the
defendants were entitled to an appeal as of right under the shield law and that, regardless,
the defendants were entitled to an interlocutory appeal on both issues. Thus, the trial
court granted the defendants’ interlocutory appeal “upon the issue of whether malice is an
element of the fair report privilege and upon the issue of whether the shield law requires
disclosure of the Defendants[’] source.”3
The Court of Appeals also granted the defendants’ interlocutory appeal,
consolidated the appeal with the defendants’ direct appeal, and ultimately reversed the
trial court’s order granting the plaintiff’s motion to compel. The Court of Appeals held
(1) that the fair report privilege cannot be defeated by a showing of malice and (2) that,
while an assertion of the fair report privilege triggers the statutory exception to the shield
law, the defendants are only required to disclose the sources they identify as the basis for
the reports. We granted the plaintiff’s application for permission to appeal in this Court.
2
For Scripps Media, Inc., these were Requests for Production Nos. 13–14, and for Mr. Williams
these were Requests for Production Nos. 11–12.
3
The trial court noted in its order granting the defendant’s application for interlocutory appeal
that there are numerous errors in the transcript of the hearing on the motion to compel discovery.
Therefore, we primarily rely on the summarization of the trial court’s findings and conclusions contained
in its order granting interlocutory appeal.
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II. Scope and Standard of Review
“Unlike an appeal as of right under Tennessee Rule of Appellate Procedure 3, in
which both the appellant and the appellee have broad latitude with regard to the issues
that may be raised, ‘[w]hen dealing with an interlocutory appeal, the Court can and will
deal only with those matters clearly embraced within the question certified to it.’” Young
v. City of LaFollette, 479 S.W.3d 785, 789 (Tenn. 2015) (quoting Tennessee Dep’t of
Mental Health & Mental Retardation v. Hughes, 531 S.W.2d 299, 300 (Tenn. 1975)).4
This appeal arises from a trial court’s ruling on a pretrial discovery dispute. Trial court
decisions on pretrial discovery disputes are reviewed using an abuse of discretion
standard. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). “A court
abuses its discretion when it causes an injustice to the party challenging the decision by
(1) applying an incorrect legal standard, (2) reaching an illogical or unreasonable
decision, or (3) basing its decision on a clearly erroneous assessment of the evidence.”
Id. Whether a court applied an incorrect legal standard is a question of law that is
reviewed de novo. Id. at 525. The issues in this appeal concern legal standards,
specifically, what role, if any, malice plays in the fair report privilege, whether the fair
report privilege is a defense based upon a source of information that triggers the
exception to Tennessee’s news media shield law, and if it is, the extent of the discovery
to which the plaintiff is entitled. These issues are questions of law that are reviewed
under a de novo standard with no presumption of correctness. See Wallace v. Metro.
Gov’t of Nashville, 546 S.W.3d 47, 52 (Tenn. 2018).
III. Analysis
A. Malice and the Fair Report Privilege
This appeal demonstrates the tension that exists between two competing social
commodities: reputation and information. Protecting the first commodity are defamation
lawsuits, which enable aggrieved individuals to seek redress from false statements of fact
that impugn their reputations. In the 1966 case Rosenblatt v. Baer, 383 U.S. 75, 92
(1966) (Stewart, J., concurring), former United States Supreme Court Justice Potter
Stewart emphasized the importance of protecting individuals from reputational harm,
noting that: “The right of a man to the protection of his own reputation from unjustified
invasion and wrongful hurt reflects no more than our basic concept of the essential
dignity and worth of every human being—a concept at the root of any decent system of
4
We recognize that the defendants raised the shield law issue in a direct appeal as well as in his
interlocutory appeal. In the trial court and the Court of Appeals, plaintiff argued that the shield law did
not provide for a direct appeal in these circumstances. However, neither party has raised this issue in this
appeal. Therefore, we will not address it and will treat both issues as interlocutory.
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ordered liberty.” The danger posed by defamation lawsuits is that, if unrestrained, these
lawsuits may obstruct access to the second commodity, information. For this reason,
courts have developed a variety of privileges that provide defenses to defamation claims
even when the accused actually defamed the accuser. See generally Restatement
(Second) of Torts §§ 583–612 (1977). One of these privileges is at issue in this appeal,
the fair report privilege.
1. The History of the Fair Report Privilege
Common law has long provided that a person who repeats the defamatory
statements made by another is also liable for defamation. See VI Matthew Bacon with
Henry G. William and Bird Wilson, A New Abridgment of the Law 238–39
(Philadelphia, Philip H. Nicklin 1813) (“[T]hese words, Thou art a sheep[]stealing
rogue, and farmer Parker told me so, were holden to be actionable; although it was not
averred, that farmer Parker did not tell the defendant so . . . .”); see also Dameron v.
Washington Magazine, Inc., 779 F.2d 736, 739 (D.C. Cir. 1985) (discussing “the
common law rule that one who repeats or republishes a defamation uttered by another
‘adopts’ it as his own”).
The fair report privilege originated in Curry v. Walter, 126 Eng. Rep. 1046 (C.P.
1769), when an English judge observed that a newspaper should not be held liable for
republishing allegedly defamatory statements made during a judicial proceeding because
such a proceeding “is open to all the world.” Kathryn Dix Sowle, Defamation and the
First Amendment: The Case for a Constitutional Privilege of Fair Report, 54 N.Y.U. L.
Rev. 469, 478 & n.40 (1979) (quoting Curry, 126 Eng. Rep. at 1046). American courts
later adopted the fair report privilege and expanded it to protect the publication of reports
about a variety of official actions or proceedings. See David Elder, Defamation: A
Lawyer’s Guide § 3:1 (July 2018 update). American courts also identified another
justification for the fair report privilege beyond the original justification—that
newspapers should be allowed to report on publicly accessible information. Id. The
second justification is that the privilege facilitates the worthwhile goal of public
supervision of official actions or proceedings. Id.; see also Cox Broad. Corp. v. Cohn,
420 U.S. 469, 492 (1975) (“With respect to judicial proceedings in particular, the
function of the press serves to guarantee the fairness of trials and to bring to bear the
beneficial effects of public scrutiny upon the administration of justice.”).
Traditionally, courts held that the privilege applied to fair and accurate reports of
official actions or proceedings, even if the report included false and defamatory
statements made during the official proceeding, so long as the reports were “not made
solely for the purpose of causing harm to the person defamed.” Restatement (First) of
Torts § 611 (1938) (collecting cases). In the context of defamation law, this desire to
harm another has been referred to by a number of terms that courts have used
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interchangeably. These terms include malice, express malice, common law malice, and
malice in fact. See, e.g., Novecon Ltd. v. Bulgarian-Am. Enter. Fund, 190 F.3d 556, 567
(D.C. Cir. 1999). Such a wide variety of terms can lead to confusion, particularly when
combined with the separate concept of ‘actual malice,’ which we will discuss in the next
section. See Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 667 n.7 (1989)
(“The phrase ‘actual malice’ is unfortunately confusing in that it has nothing to do with
bad motive or ill will.”); Crump v. P & C Food Markets, Inc., 576 A.2d 441, 447 n.1 (Vt.
1990) (“We note that much confusion has arisen over the terminology applied to the
malice requirement in its various contexts: courts have used the term ‘actual malice’ in
reference to both types of malice.”); Ullrich v. New York Press Co., 23 Misc. 168, 171–
72, 50 N.Y.S. 788, 791 (Sup. Ct. 1898) (“The jumble in some modern text-books on
slander and libel concerning malice, actual malice, malice in law, malice in fact, implied
malice and express malice (all derived from judicial utterances, it is true), is a striking
testimony of the limitations of the human mind.”). For purposes of clarity, we will refer
to the desire to harm another in the context of a defamation action as express malice.
2. Express Malice and Actual Malice Distinguished and Reconsidered
Express malice differs from the concept of actual malice, which gained
constitutional standing in two 1964 United States Supreme Court decisions. In New
York Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964), the United States Supreme
Court held that public officials cannot recover damages for defamatory falsehoods
relating to their official conduct unless they show that the statements were made with
“actual malice.” Sullivan defined actual malice as acting “with knowledge that [a
statement] was false or with reckless disregard of whether it was false or not.” Id. at 280.
Sullivan provided several justifications for this heightened showing requirement. First,
the actual malice standard takes into account that “public [officials] are, as it were, public
property” and, as such, should be less protected from criticism and commentary than a
private person. Id. at 268 (quoting Beauharnais v. Illinois, 343 U.S. 250, 263 n.18
(1952)); see also Press, Inc. v. Verran, 569 S.W.2d 435, 438–41 (Tenn. 1978) (providing
a detailed history of United States Supreme Court opinions on this topic). Second, the
actual malice standard encourages the press not to self-censor when discussing matters of
particular importance to the public. Sullivan, 376 U.S. at 277–81. Third, the actual
malice standard provides a “fair equivalent” to the privilege protecting public officials
from liability for the statements they make during the performance of their duties. Id. at
282. In Garrison v. State of Louisiana, 379 U.S. 64, 73 (1964), the United States
Supreme Court explained why it chose to condition defamation liability on a showing of
actual malice rather than express malice:
Debate on public issues will not be uninhibited if the speaker must run the
risk that it will be proved in court that he spoke out of hatred; even if he did
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speak out of hatred, utterances honestly believed contribute to the free
interchange of ideas and the ascertainment of truth.
These United States Supreme Court decisions prompted a number of states to
consider whether a showing of actual malice, as defined in New York Times, defeats the
fair report privilege. In the state court decisions we have reviewed, the vast majority of
states have concluded that it does not defeat the privilege. See Butler v. Hearst-Argyle
Television, Inc., 49 S.W.3d 116, 120 (2001) (finding it significant that “the privilege
exists ‘even though the publisher himself does not believe the defamatory words he
reports to be true and even when he knows them to be false’” (quoting Restatement
(Second) of Torts § 611 cmt. a)); Ltc. Lawton v. Georgia Television Co., No. CIV. A. E-
12269, 1994 WL 538892, at *8 (Ga. Super. May 5, 1994), aff’d sub nom. Lawton v.
Georgia Television Co., 456 S.E.2d 274 (Ga. Ct. App. 1995); Solaia Tech., LLC v.
Specialty Pub. Co., 852 N.E.2d 825, 843–44 (Ill. 2006); Howell v. Enter. Publ’g Co.,
LLC, 920 N.E.2d 1, 13 n.8 (Mass. 2010); Adelson v. Harris, 402 P.3d 665, 667–68 (Nev.
2017); Thomas v. Tel. Publ’g Co., 929 A.2d 993, 1007–08 (N.H. 2007), as modified on
denial of reconsideration (Aug. 29, 2007); Salzano v. N. Jersey Media Grp. Inc., 993
A.2d 778, 796–98 (N.J. 2010); Freedom Comm’ns, Inc. v. Sotelo, No. 11-05-00336-CV,
2006 WL 1644602, at *3–4 (Tex. App. June 15, 2006); Russell v. Thomson Newspapers,
Inc., 842 P.2d 896, 904 (Utah 1992); see also DeMary v. Latrobe Printing & Pub. Co.,
762 A.2d 758, 764 (Pa. Super. 2000) (“Thus, in a defamation action by a plaintiff public
figure against a defendant newspaper, the fair report privilege is not implicated until the
plaintiff has met his or her constitutionally mandated burden in showing that the
newspaper acted with actual malice.”). But see Am. Chem. Soc. v. Leadscope, Inc., 978
N.E.2d 832, 859 (Ohio 2012) (finding that actual malice defeats the privilege).
Furthermore, the Restatement (Second) of Torts states in several sections that actual
malice does not defeat the fair report privilege because actual malice protects different
interests than the interests protected by the fair report privilege. See Restatement
(Second) of Torts §§ 599 cmt. c, 600 cmt. c, 611 cmts. a–b. Instead, under the
Restatement (Second) of Torts section 611, the fair report privilege may be defeated by a
showing that the report was unfair or inaccurate.
Courts have also reconsidered the role that the motive to harm another—express
malice—plays in the fair report privilege. After New York Times and Garrison, several
other United States Supreme Court decisions emphasized the importance of public access
to information about governmental proceedings. See, e.g., Landmark Commc’ns, Inc. v.
Virginia, 435 U.S. 829, 838–40 (1978) (finding that the First Amendment protection of
the “free discussion of governmental affairs” prevented Virginia from criminalizing the
disclosure of confidential proceedings held by a judicial review commission (quoting
Mills v. State of Ala., 384 U.S. 214, 218 (1966))); Cox, 420 U.S. at 496 (“At the very
least, the First and Fourteenth Amendments will not allow exposing the press to liability
for truthfully publishing information released to the public in official court records.”). As
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a result of this line of United States Supreme Court opinions, a number of states have
eschewed the traditional approach to the fair report privilege for a modern approach that
looks only at whether a report of an official action or proceeding is fair and accurate,
eliminating express malice from consideration. See Read v. News-Journal Co., 474 A.2d
119, 120–21 (Del. 1984); Solaia, 852 N.E.2d at 842–44; Moreno v. Crookston Times
Printing Co., 610 N.W.2d 321, 332–33 (Minn. 2000); Salzano, 993 A.2d at 795–98 &
796 n.9. But see Wilson v. Birmingham Post Co., 482 So. 2d 1209, 1213 (Ala. 1986);
Doneghy v. WKYT 27 News First, No. 2014-CA-001850-MR, 2016 WL 7030420, at *2–
3 (Ky. Ct. App. Dec. 2, 2016); Thomas, 929 A.2d at 1008; Russell, 842 P.2d at 905.
Courts that have adopted the modern approach do so for a variety of reasons.
Some conclude that the express malice limitation is an unproductive limitation on the
privilege. See Read, 474 A.2d at 120–21 (finding “the motive of a publisher irrelevant”
to the “rationale for the breadth of the privilege”). Others are content to adopt it because
it is the approach of the Restatement (Second) of Torts. See, e.g., Butler, 49 S.W.3d at
120; Solaia, 852 N.E.2d at 843–44; see also Restatement (Second) of Torts § 611
reporter’s note (“This Section has been changed from the first Restatement . . . by the
deletion of Clause (b), which made it a condition of the privilege that the publication not
be ‘made solely for the purpose of causing harm.’”). Of the courts that adhere to the
traditional approach, several do so because they are bound by statute. See Wilson, 482
So. 2d at 1213; Doneghy, 2016 WL 7030420, at *2; Russell, 842 P.2d at 904–05. Others
do so because it is how they have always analyzed the privilege. See DeMary, 762 A.2d
at 763–65.
3. Tennessee’s Limitations on the Fair Report Privilege
The plaintiff argues that we should follow the traditional approach to the fair
report privilege and conclude that express malice defeats the privilege. During oral
argument, he also suggested that, should this court decide to deviate from the traditional
approach, actual malice is a workable alternate limitation to express malice. The
defendants argue we should conclude that neither actual nor express malice defeats the
privilege.
We will consider first whether actual malice can defeat the fair report privilege.
Tennessee adopted the fair report privilege in Saunders v. Baxter, 53 Tenn. 369 (1871).
Saunders restricted the scope of the privilege to “bona fide report[s] of the proceedings in
a court of justice, in the absence of express malice.” Id. at 381. At various points
throughout the opinion, the Saunders Court defined malice as the lack of “good motives
or . . . justifiable ends,” “personal ill-will,” and “hatred.” Id. at 384, 386–87. Although
Saunders and other early Tennessee opinions on the fair report privilege also used the
term “actual malice,” these opinions treated the term as synonymous with express malice.
Id. at 386; Am. Pub. Co. v. Gamble, 90 S.W. 1005, 1009–10 (Tenn. 1906); Langford v.
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Vanderbilt Univ., 287 S.W.2d 32, 37 (Tenn. 1956). The manner in which Tennessee
courts have used the term “actual malice” caused some confusion for the parties. Indeed,
the plaintiff’s counsel admitted at oral argument, “In the trial court, I don’t think either
party recognized, including the judge, the complexity of the term actual malice. And
there really were no discussions of, well, what exactly does that mean.”
After New York Times provided the term “actual malice” with a new and specific
meaning, some courts applying Tennessee law have found that this type of actual malice
can defeat the fair report privilege, although their opinions lack any clear explanation as
to why. The Court of Appeals has provided contradictory guidance about whether actual
malice can defeat the fair report privilege. Compare Grant v. Commercial Appeal, No.
W2015-00208-COA-R3-CV, 2015 WL 5772524, at *5–8 (Tenn. Ct. App. Sept. 18, 2015)
(noting that for the fair report privilege to apply “the report must not be made with actual
malice”), with Honig v. Nashville Banner Pub. Co., 10 Media L. Rep. 2139, 1984 Tenn.
App. Lexis 3034 (July 31, 1984) (noting that the privilege applies even if the report
concerns a judicial proceeding that is “an obvious farce and misuse of the judicial
process”). The opinion in Grant provided no rationale for its conclusion that a “report
must not be made with actual malice” but simply cited a federal district court decision,
Milligan v. U.S., 644 F. Supp. 2d 1020, 1033 (M.D. Tenn. 2009), aff’d 670 F.3d 686 (6th
Cir. 2012), and a Court of Appeals opinion, Lewis v. NewsChannel 5 Network, L.P., 238
S.W.3d 270, 284–85 (Tenn. Ct. App. 2007). Grant, 2015 WL 5772524, at *6.
The Grant opinion’s reliance on Lewis was inapt. Lewis did not treat actual
malice as a limitation on the fair report privilege. 238 S.W.3d at 284–88. Instead, Lewis
concluded that the fair report privilege could not apply because the allegedly defamatory
statements were not made in the course of “official actions or proceedings.” Id. (finding
that information obtained from “anonymous informants, a private conversation with [a
police officer], and recordings of official radio transmissions and telephone calls that had
not been released to the public” did not qualify as “information obtained as a result of an
official action or proceeding”). Lewis only considered actual malice as a component of
the prima facie defamation claim. Id.
Milligan does support the proposition for which Grant cited it—that actual malice
defeats the fair report privilege. Indeed, federal courts have uniformly held that under
Tennessee law actual malice defeats this privilege. See Milligan v. United States, 670
F.3d 686, 696–98 (6th Cir. 2012); Molthan v. Meredith Corp., No. 3:17-CV-00380, 2018
WL 691338, at *11 (M.D. Tenn. Feb. 2, 2018), report and recommendation adopted, No.
3:17-CV-00380, 2018 WL 2387235 (M.D. Tenn. May 25, 2018); Hill v. Old Navy, LLC,
20 F. Supp. 3d 643, 648 (W.D. Tenn. 2014); Archibald v. Metro. Gov’t of Nashville &
Davidson Cnty., No. 3:11-0728, 2012 WL 3000137, at *4 (M.D. Tenn. July 23, 2012),
report and recommendation adopted, No. 3-11-0728, 2012 WL 3283480 (M.D. Tenn.
Aug. 10, 2012); ADT Servs. AG v. Brady, No. 2:10-02197, 2011 WL 13092411, at *3
- 11 -
(W.D. Tenn. Jan. 4, 2011); Stem v. Gannett Satellite Info. Network, Inc., 866 F. Supp.
355, 360 (W.D. Tenn. 1994). However, these federal court decisions result either from
misreading Lewis in the same manner that Grant misread it, see Milligan, 670 F.3d at
696, or from failing to understand that early Tennessee opinions employed the term
“actual malice” as a reference to express malice, see Stem, 866 F. Supp. at 360 (citing
Langford, 287 S.W.2d at 36–37; Am. Pub. Co., 90 S.W. at 1010). Thus, we are
unpersuaded by the Court of Appeals and federal court decisions that have treated New
York Times actual malice as a limitation on the fair report privilege.
As mentioned previously, the New York Times actual malice standard protects a
number of interests that differ from those protected by the fair report privilege. See
Time, Inc. v. Firestone, 424 U.S. 448, 455 (1976) (“[W]e likewise reject petitioner’s
claim for automatic extension of the New York Times privilege to all reports of judicial
proceedings.”); see also Restatement (Second) of Torts §§ 599 cmt. c, 600 cmt. c, 611
cmts. a–b. The actual malice standard provides a carefully crafted restriction on
defamation claims brought by public officials that takes into account a public official’s
interest in preventing the spread of defamatory statements and the argument that such
officials merit reduced protections because they have assumed positions that expose them
to public scrutiny. But the fair report privilege has long protected reports of judicial
proceedings even if the report includes defamatory statements made in judicial
proceedings and even when those reporting on the judicial proceedings knew the
statements were false. See, e.g., Restatement (First) of Torts § 611 cmt. a (“This
privilege differs from the usual conditional privilege in that it affords protection even
though the defamatory statement reported is known to be false.”); Restatement (Second)
of Torts § 611 cmt. a (same). This is because, when a statement is made in a judicial
proceeding, the statement is worthy of public notice, not only as a result of the contents
of the statement, but also because of the context in which the statement was made. If we
were to now hold that a reporter’s knowledge of a statement’s falsity could defeat the fair
report privilege, it would undermine the purposes of the privilege. It would lessen the
public’s opportunities to be “apprised of what takes place in the proceedings without
having been present,” Smith v. Reed, 944 S.W.2d 623, 625 (Tenn. Ct. App. 1996);
Salzano, 993 A.2d 797–98, and to “assess the value of our government in action,” Solaia,
852 N.E.2d at 848. For these reasons, we hold that a showing of actual malice cannot
defeat the fair report privilege.
We consider next the plaintiff’s argument that we should adhere to the traditional
approach to the fair report privilege and continue to apply the express malice limitation.
As acknowledged, all of our prior decisions follow this approach. However, in light of
the modern approach, we choose to reconsider the usefulness of the express malice
limitation. The Court of Appeals has addressed this matter but, like its treatment of
actual malice, has reached inconsistent conclusions. Compare Burke v. Sparta
Newspapers, Inc., No. M2016-01065-COA-R3CV, 2018 WL 3530839, at *3 (Tenn. Ct.
- 12 -
App. July 23, 2018) (“For the privilege to apply, the report must be ‘a fair and accurate
summation of the proceeding.’” (quoting Smith, 944 S.W.2d at 625)), and Eisenstein v.
WTVF-TV, News Channel 5 Network, LLC, 389 S.W.3d 313, 323 n.8 (Tenn. Ct. App.
2012) (“It appears that at one time the fair report privilege required an absence of
malice.”), with Honig, 1984 Tenn. App. Lexis 3034 (“Where the publication is
determined to be a fair and accurate statement of the contents of the public record, it is
presumed to have been made without malice; and the burden of showing malice is upon
the plaintiff.”).
The plaintiff argues that without the express malice limitation reporters with
vendettas may solicit or goad others into making defamatory statements in official
proceedings and then repeat the defamatory statements to the public without punishment.
This argument resembles the reason that New Hampshire has provided for not adopting
the modern approach: “Allowing plaintiffs to try to establish common law malice, where
appropriate, will guard against abuse of the privilege and ensure that the privilege
continues to be used as a shield, not a sword.” Thomas, 929 A.2d at 1008. We agree that
the scenarios the plaintiff describes would be cause for concern. But, in such unusual
circumstances, it is unlikely that the fair report privilege would apply. As explained in
the Restatement (Second) of Torts section 611 comment c,
A person cannot confer this privilege upon himself by making the
original defamatory publication himself and then reporting to other people
what he had stated. This is true whether the original publication was
privileged or not. Nor may he confer the privilege upon a third person, even
a member of the communications media, by making the original statement
under a collusive arrangement with that person for the purpose of
conferring the privilege upon him.
This provision prevents journalists from using the privilege as a sword rather than a
shield.
The plaintiff further argues that the express malice limitation is necessary to deter
reporters from injuring others with fair and accurate reports of official actions or
proceedings “in this age of ‘fake news’ and increasing politically motivated news
stories.” Yet, in application, an express malice limitation on the privilege would do little
to prevent the publication of defamatory statements made in an official proceeding.
Consider the following hypothetical. Two reporters fairly and accurately report on a
judicial proceeding and include defamatory statements made during the proceeding in
their reports. One of the reporters happens to dislike the person about whom the
defamatory statements were made and privately hopes that the republication of the
defamatory statements will cause that person harm. Under the traditional approach to the
fair report privilege, one of the reporters would be able to rely on the fair report privilege
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to defend against a defamation action but the other reporter would not. This result would
neither advance the purposes of the fair report privilege nor protect the individuals about
whom defamatory statements were made.5
Having weighed the arguments for and against the traditional and modern
approach, we are persuaded that the modern approach better serves the purposes of the
fair report privilege. Therefore, in keeping with our earlier decisions concerning
defamation law, we adopt the approach of the Restatement (Second) of Torts section 611.
See Jones v. State, 426 S.W.3d 50, 56 (Tenn. 2013) (adopting Restatement (Second) of
Torts section 591 as governing the executive and administrative officers’ privilege);
Simpson Strong-Tie Co. v. Stewart, Estes & Donnell, 232 S.W.3d 18, 22–24 (Tenn.
2007) (adopting Restatement (Second) of Torts section 586 as governing the attorneys’
privilege). We hold that neither express malice nor actual malice can defeat the fair
report privilege. The privilege can only be defeated by showing that a report about an
official action or proceeding was unfair or inaccurate.
At this stage in the litigation, it is unclear whether the two news reports qualify as
reports of an official action or proceeding for the purposes of the fair report privilege.
According to the plaintiff, the defendants’ news reports about the depositions and other
pieces of discovery in Mr. Chase’s state court lawsuit do not fall under the protections of
the fair report privilege because, at the time the reports were broadcast in February of
2016, the parties in Mr. Chase’s state court lawsuit had signed a protective order agreeing
that this information would be filed under seal. The plaintiff’s assertion is muddied by
the fact that, when the reports were broadcast, the court had not yet ruled on this
protective order. At oral argument, the defendants asserted that the first report and part
of the second do fall under the fair report privilege because the information contained in
the relevant sections of the news reports had already been disclosed in the motion to
compel the examination of Glenn Funk that was filed in Mr. Chase’s state court lawsuit
on October 22, 2015. However, the motion to compel states that the “Motion and its
Exhibits are filed under seal pending the Court’s ruling on Non-Parties’ assorted motions
asserting confidentiality over certain materials and testimony cited herein.” Thus, on
remand, in addition to determining whether the reports were fair and accurate, the trial
court will still have to determine whether the news reports concerned information that
was obtained from an official action or proceeding.
5
The amicus curiae brief raised the argument that the express malice limitation is unconstitutional
because the speech protected by the fair report privilege is also protected by the First Amendment. This
constitutional issue was not raised in the application for interlocutory appeal. Therefore, we will not
address it.
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B. The Exception to the Shield Law
When considering the appropriateness of discovery requests, courts are guided by
the “time-honored rule that the public has a right to every man’s evidence.” Austin v.
Memphis Pub. Co., 655 S.W.2d 146, 150 (Tenn. 1983). As with so many other legal
rules, this rule is not universally applicable. In 1973, the Tennessee General Assembly
enacted Tennessee Code Annotated section 24-1-208, Tennessee’s news media shield
law, to protect “person[s] engaged in gathering information for publication or broadcast”
from being compelled to disclose “before the general assembly or any Tennessee court,
grand jury, agency, department, or commission any information or the source of any
information procured for publication or broadcast.”6 However, in two statutorily
specified circumstances, a party may still obtain such information or the source of such
information. One of those circumstances occurs when the party has demonstrated “by
clear and convincing evidence that”:
(A) There is probable cause to believe that the person from whom
the information is sought has information which is clearly relevant to a
specific probable violation of law;
(B) The person has demonstrated that the information sought cannot
reasonably be obtained by alternative means; and
(C) The person has demonstrated a compelling and overriding public
interest of the people of the state of Tennessee in the information.
Tenn. Code Ann. § 24-1-208(c)(2) (2017). The other of those circumstances occurs when
a “defendant in a civil action for defamation asserts a defense based upon the source of
[the allegedly defamatory] information.” Tenn. Code Ann. § 24-1-208(b); see also Tenn.
Op. Att’y Gen. No. 16-23 (June 21, 2016) (noting that the showing requirement of
section 208(c) does not apply to section 208(b)). The questions presented to us
concerning the shield law involve the latter of the two circumstances. Plaintiff asks
whether the fair report privilege is a defense based upon the source of the allegedly
defamatory information such that its assertion triggers the exception to the shield law
6
In Austin, we described the General Assembly’s enactment of the shield law as a reaction to the
United States Supreme Court’s holding in Branzburg v. Hayes, 408 U.S. 665 (1972), that “requiring a
newsman to testify before a grand jury did not abridge the freedom of speech and press guaranteed by the
First Amendment nor did the newsman’s confidentiality agreement, to conceal the sources, the material
and the criminal acts, invoke a constitutional privilege.” 655 S.W.2d at 149. Indeed, the statute contains
“almost identical language” to the language used by Justice Stewart in his dissenting opinion in
Branzburg. Id. at 149–50.
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provided in Tennessee Code Annotated section 24-1-208(b) and, if so, what does the
exception entitle the plaintiff to discover. These are both issues of first impression.
According to the trial court’s order granting permission for an interlocutory
appeal, the plaintiff primarily seeks to discover evidence of malice in order to defeat the
fair report privilege. As a result of our holding that neither actual nor express malice can
defeat the fair report privilege, this discovery is not relevant to the plaintiff’s defamation
claims regarding any part of the first or second news report that is protected by the fair
report privilege. However, the plaintiff asserts that, even if actual malice does not defeat
the fair report privilege, he is still entitled to the requested discovery because, as a public
official, at some point in this case, he must prove actual malice to prevail on his claims.
The defendants argue that the defamation and false light claims for which actual malice is
relevant are not at issue at this stage of the litigation. We are constrained to disagree with
the defendants. Because the trial court has not yet ruled on the defendants’ motion for
summary judgment, this issue remains unresolved. In the absence of any ruling by the
trial court, we find that, due to the plaintiff’s status as a public official, actual malice
remains relevant to this case, and the plaintiff’s request for discovery of information
regarding actual malice is an issue ripe for resolution in this appeal. Therefore, we will
consider the substance of the questions presented concerning the exception to the shield
law.
When answering these questions, we are bound by familiar principles of statutory
interpretation. Our “overarching purpose in construing statutes is to ascertain and
effectuate legislative intent, without expanding a statute beyond its intended scope.” Ray
v. Madison Cnty., Tennessee, 536 S.W.3d 824, 831 (Tenn. 2017). To achieve this
purpose, we begin with the plain language of the statute. Lee Med., Inc., 312 S.W.3d at
526. “We presume that every word in a statute has meaning and purpose and that each
word’s meaning should be given full effect as long as doing so does not frustrate the
General Assembly’s obvious intention.” Harris v. Haynes, 445 S.W.3d 143, 146 (Tenn.
2014). “The words used in a statute are to be given their natural and ordinary
meaning . . . .” Wallace, 546 S.W.3d at 52. If the language of the statute is clear and
unambiguous, we “apply its plain meaning in its normal and accepted use.” State v.
Frazier, No. M2016-02134-SC-R11-CD, 2018 WL 4611624, at *4 (Tenn. Sept. 26, 2018)
(quoting State v. Hannah, 259 S.W.3d 716, 721 (Tenn. 2008)). If the language of the
statute is ambiguous, we look to “the overall statutory scheme, the legislative history, and
other sources” to aid our interpretation. Sneed v. City of Red Bank, Tennessee, 459
S.W.3d 17, 23 (Tenn. 2014).
The defendants argue that the fair report privilege does not trigger the shield law
exception because the shield law exception applies only when a defendant asserts a
defense based upon a source that is confidential. The amicus curiae argue that the
exception only applies when the source is a person. However, if the General Assembly
- 16 -
had desired to limit the meaning of “source of information” to people or confidential
sources, it certainly could have done so by including further restrictions in the statute.
See Tenn. Code Ann. § 24-1-208(a)–(b). Indeed, a number of states have opted to
include definitions for “source” as part of their shield laws. See Colo. Rev. Stat. Ann. §
13-90-119 (West, Westlaw through end of the 2nd Reg. Sess. of the 71st Gen. Ass.); Del.
Code Ann. tit. 10, § 4320 (West, Westlaw through 81 Laws 2018); 735 Ill. Comp. Stat.
Ann. 5/8-902 (West, Westlaw through 2018 Reg. Sess.); N.J. R. Evid. N.J.R.E. 508;
N.M. R. Evid. Rule 11-514; Utah R. Evid. 509; see also Minn. Stat. Ann. § 595.023
(West, through the end of the 2018 Reg. Sess.) (protecting from disclosure “the person or
means from or through which information was obtained”). The General Assembly has
not chosen that option. See Austin, 655 S.W.2d at 149.
Accordingly, in the absence of any statutory definition, we look to the normal and
accepted use of the word “source.” In prior opinions, we have found Black’s Law
Dictionary to be a particularly useful aid to ascertaining the plain meaning of statutory
text. See In re Estate of Tanner, 295 S.W.3d 610, 626 (Tenn. 2009) (“We have
specifically identified Black’s Law Dictionary as a reliable source.”); State v.
Edmondson, 231 S.W.3d 925, 928 (Tenn. 2007) (“When the Legislature does not provide
a specific definition for a statutory term, this Court may look to other sources, including
Black’s Law Dictionary, for guidance.”); see also Garrison v. Bickford, 377 S.W.3d 659,
669 (Tenn. 2012) (defining “bodily injury”); Allmand v. Pavletic, 292 S.W.3d 618, 625
(Tenn. 2009) (defining “public utility”). Black’s Law Dictionary (10th ed. 2014) defines
“source” as “[t]he originator or primary agent of an act, circumstance, or result.” It
further provides that “originator” means “someone who conceives of something and starts
it,” and “agent” means “something that produces an effect.” Id. (emphasis added). These
definitions indicate that “source” encompasses documents and events as well as people.
Applying this definition to the shield law, we find that the statute uses “source” in a
broad manner that includes official actions or proceedings. Cf. Bank of Nova Scotia v.
United States, 487 U.S. 250, 264 (1988) (Marshall, J., dissenting) (referring to
governmental disclosures as a “source of information”); Seattle Times Co. v. Rhinehart,
467 U.S. 20, 33 (1984) (referring to certain judicial proceedings as a “source of
information”). By asserting the fair report privilege, the defendants are claiming that the
allegedly defamatory information they published is privileged because the source of that
information is an official action or proceeding. Therefore, under the circumstances of
this case, we hold that the fair report privilege is a defense based upon the source of the
allegedly defamatory information, and as such, the assertion of this defense triggers the
exception to the shield law in Tennessee Code Annotated section 24-1-208(b).7
7
This holding aligns with how other state courts have interpreted “source” in the context of news
media shield laws. Many states have news media shield laws that do not define “source.” See Ala. Code
§ 12-21-142 (West, Westlaw through Act 2018-579); Alaska Stat. Ann. § 09.25.300 (West, Westlaw
through 2018 2nd Reg. Sess. of 30th Legis.); Ariz. Rev. Stat. Ann. § 12-2237 (West, Westlaw through 1st
- 17 -
The final issue for us to resolve is the scope of the exception. The plaintiff claims
that the exception allows him to discover the source of any information, regardless of
whether the information was procured for publication or broadcast, and that this
Special and 2nd Reg. Sess. of 53rd Legislature (2018)); Ark. Code Ann. § 16-85-510 (West, Westlaw
through 2018 Fiscal Sess. and 2nd Extra. Sess. of 91st Ark. Gen. Ass.); D.C. Code Ann. § 16-4702 (West,
Westlaw through Dec. 13, 2018); Fla. Stat. Ann. § 90.5015 (West, Westlaw through 2018 2nd Reg. Sess.
of 25th Legis.); Ind. Code Ann. § 34-46-4-2 (West, Westlaw through 2018 2nd Reg. Sess. and 1st Special
Sess. of 120th Gen. Ass.); Kan. Stat. Ann. § 60-481 (West, Westlaw through laws effective on or before
July 1, 2018); Ky. Rev. Stat. Ann. § 421.100 (West, Westlaw through end of 2018 reg. sess.); La. Stat.
Ann. § 45:1452 (West, Westlaw through 2018 3rd Extra. Sess.); Md. Code Ann., Cts. & Jud. Proc. § 9-
112 (West, Westlaw through 2018 Reg. Sess. of Gen. Ass.); Mont. Code Ann. § 26-1-902 (West, through
chapters effective Feb. 12, 2019 sess.); Neb. Rev. Stat. Ann. § 20-144 (West, through 2nd Reg. Sess. of
105th Legislature (2018)); Nev. Rev. Stat. Ann. § 49.275 (West, Westlaw through 79th Reg. Sess.
(2017)); N.Y. Civ. Rights Law § 79-h (McKinney, Westlaw through L.2018); N.D. Cent. Code Ann. §
31-01-06.2 (West, Westlaw through 2017 Reg. Sess. of 65th Legis. Ass.); Ohio Rev. Code Ann. §
2739.12 (West, Westlaw through File 172 of 132nd Gen. Ass. (2017–2018)); Okla. Stat. Ann. tit. 12, §
2506 (West, Westlaw through 2nd Reg. Sess. of 56th Legislature (2018); Or. Rev. Stat. Ann. § 44.520
(West, Westlaw through 2018 Reg. Sess. and 2018 Spec. Sess. of 79th Legis. Ass.)); 42 Pa. Cons. Stat.
Ann. § 5942 (West, Westlaw through 2018 Reg. Sess.); 9 R.I. Gen. Laws Ann. § 9-19.1-2 (West,
Westlaw through Ch. 353 of Jan 2018 Sess.). Only a handful of courts in these states have discussed how
to interpret the word “source.” These courts have employed several interpretive approaches that include
consulting dictionaries, see Svoboda v. Clear Channel Commc’ns, Inc., 805 N.E.2d 559, 567 (Ohio Ct.
App.) (citing Merriam–Webster’s Collegiate Dictionary 1123 (10th ed. 1996)), cause dismissed, 817
N.E.2d 104 (Ohio 2004); In re Taylor, 193 A.2d 181, 184–85 (Pa. 1963) (citing Webster’s New
International Dictionary 245 (2nd ed.), 2177 (3d ed.); 10 Oxford English Dictionary 275–76), overruled in
part on other grounds by Hatchard v. Westinghouse Broad. Co., 532 A.2d 346 (Pa. 1987), consulting law
review notes, see Lightman v. State, 294 A.2d 149, 153, 157 (Md. Ct. Spec. App.) (citing Recent Case,
Evidence — Privileged Communications — Journalist Need Not Reveal Information Disclosed by
Confidential Informant. — In the Matter of Taylor (Pa. 1963)., 77 Harv. L. Rev. 556 (1964); Case
Comment, Newpapermen Not Required to Divulge Confidential Information to Investigating Grand Jury,
112 U. Pa. L. Rev. 438, 439 (1964)), consulting journalism-specific glossaries, see In re Indiana
Newspapers Inc., 963 N.E.2d 534, 547 (Ind. Ct. App. 2012) (citing The Wall Street Journal, Terms in
Journalism (1997), http://info.wsj.com/college/glossary/journalism.pdf), and relying entirely on the
court’s innate understanding of the word, see Branzburg v. Pound, 461 S.W.2d 345, 347 (Ky. 1970), aff’d
sub nom. Branzburg v. Hayes, 408 U.S. 665 (1972). Despite the variety of approaches, these states have
reached a consensus that “source” is an expansive term. See Indiana Newspapers Inc., 963 N.E.2d at 547
(“Source in the journalistic world is a term of art meaning a person, record, document, or event that gives
information to a reporter in order to help write or decide to write a story.”); Branzburg, 461 S.W.2d at 347
(“Information as used in the statute refers to the things or the matters which a reporter learns and source
refers to the method by which or to the person from whom he learns them.”); Svoboda, 805 N.E.2d at 567
(“Thus, a ‘source’ is ‘a point of origin’ or one who initiates or supplies ‘information.’”); Taylor, 193
A.2d at 185 (“‘Source’ means not only the identity of the person, but likewise includes documents,
inanimate objects and all source[s] of information.”). The Supreme Court of Pennsylvania subsequently
refined its holding in Taylor. See Com. v. Bowden, 838 A.2d 740, 749 (2003) (“We read that case as
standing only for the proposition that documents are to be considered sources where their production,
even with all names redacted, could breach the confidentiality of a human source.” (citing Taylor, 193
A.2d at 186)).
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discovery includes “documents or data” in the defendants’ possession. We do not
interpret the exception so broadly.
The exception provides that, when a source-based defense is asserted, the shield
law does not apply “with respect to the source of [such] allegedly defamatory
information.” Tenn. Code Ann. § 24-1-208(b). This language from section 208(b) limits
the scope of the exception in the following ways: (1) the exception applies only to
defamation cases; (2) the exception applies only if the defendant asserts a defense based
on the source of information; (3) the exception only allows the compelled disclosure of
sources and not information; and (4) the exception specifies that the source that must be
disclosed is only the source of the allegedly defamatory information—it does not apply to
all of the sources of all of the information that a media defendant may have researched
when preparing a news report. Thus, contrary to the plaintiff’s assertions, the scope of
the exception is far narrower than the scope of the shield law’s protection. Compare
Tenn. Code Ann. § 24-1-208(a), with Tenn. Code Ann. § 24-1-208(b).
Our interpretation does not mean that, if the source of information is a document, a
defendant must provide the plaintiff with the document in addition to identifying the
document. We agree with the defendants that this interpretation would obliterate the
statute’s clear distinction between “information” and “source of information.” Tenn.
Code Ann. § 24-1-208(a). A source is the means by which a reporter obtains
information. For example, a source may be a person the reporter interviewed or a
document the reporter read. But information is what the reporter learned from the
interview or the document. Thus, the exception to the shield law allows a court to
compel disclosure of the source of a media defendant’s information—how media
defendants know something; it does not authorize a court to compel media defendants to
disclose the information the source provided. Tenn. Code Ann. § 24-1-208(b). A
plaintiff may only obtain compelled disclosure of the “information” the media defendant
acquired from the source by making the previously discussed three-part showing set out
in another section of the shield law, Tennessee Code Annotated section 208(c)(2)(A)–
(C). This portion of the statute provides that a plaintiff must demonstrate that the
information is “clearly relevant,” that the information is not reasonably available from
sources other than the media defendant, and that the people of Tennessee have a
“compelling and overriding public interest” in learning the information. Id.; see also
Henderson v. People, 879 P.2d 383, 393 (Colo. 1994) (finding that a reporter could not be
required to testify about information that could be obtained from other sources such as
Federal Aviation Administration records); State v. Smith, No. 00-1553 F, 2001 WL
1750827, at *1 (Fla. Cir. Ct. Mar. 15, 2001) (finding that a newspaper did not have to
disclose a letter that was the basis for one of its articles because a different letter that was
already filed with the court provided information similar to the information contained in
the letter that was in the newspaper’s possession); WBAL-TV Div., Hearst Corp. v. State,
477 A.2d 776, 782 (Md. 1984) (finding that a news station had to disclose certain video
- 19 -
tapes because the information contained in the video tapes was not available from any
other source).8
Of course, assertion of the fair report privilege will necessarily entail disclosure of
the media defendant’s source of information. This is because a media defendant asserting
the privilege must show that the allegedly defamatory information is a fair and accurate
report of official actions or proceedings, and therefore, the media defendant must disclose
the source of the allegedly defamatory information. See Bufalino v. Associated Press,
692 F.2d 266, 272 (2d Cir. 1982) (“Without knowledge of the identities of the persons to
whom [the news gatherer] spoke, it is impossible to say whether their statements
constituted official action within the scope of the [fair report] privilege.”). The
defendants have disclosed in detail the circumstances of the judicial proceeding where the
allegedly defamatory statements originated. On remand, the trial court will have to
determine whether these disclosures amount to a sufficient description of the source of
information in accordance with our interpretation of Tennessee Code Annotated section
24-1-208(b). The trial court may not under the auspices of the shield law order the media
defendants to disclose the information obtained from these sources unless the plaintiff
satisfies the three-part test of Tennessee Code Annotated section 24-1-208(c)(2)(A)–(C).
IV. Conclusion
For the reasons stated herein, we affirm the judgment of the Court of Appeals that
the trial court erred by granting the plaintiff’s motion to compel. We remand this matter
to the trial court. Costs of this appeal are taxed to Glenn R. Funk for which execution
may issue if necessary.
_________________________________
CORNELIA A. CLARK, JUSTICE
8
Any Court of Appeals’ opinions that conflict with this holding are overruled. See, e.g., Jones v.
Hays, No. W2005-00991-COA-R3-CV, 2006 WL 6108678, at *1 (Tenn. Ct. App. July 11, 2006) (“[N]o
privilege exists for the non-disclosure of information or sources in a civil action involving
defamation . . . .”); Fed. Ins. Co. v. Arthur Andersen & Co., No. 89-380-II, 1990 WL 73924, at *2 (Tenn.
Ct. App. June 6, 1990) (“[T]he newsgatherer’s shield statute does not apply in actions for defamation
against the newsperson . . . .” (citation omitted)).
- 20 -