In a unanimous, twenty-page opinion released earlier this afternoon, the Tennessee Supreme Court ruled on a pair of critical issues affecting newsgathering in Tennessee. The Court’s ruling strengthens protections for the “fair report” privilege—a legal defense that protects journalists from liability for allegedly defamatory news articles—while at least arguably undercutting Tennessee’s “Shield Law,” which enables journalists to protect their sources. The Court’s opinion, authored by Justice Cornelia Clark, is accessible here.
The first and central holding of the Court’s opinion is that no claim of “malice”—either an express motive to harm another or simply reckless reporting—can overcome the fair report privilege afforded to news media. “We hold that neither express malice nor actual malice can defeat the fair report privilege,” the Court’s opinion reads. “The privilege can only be defeated by showing that a report about an official action or proceeding was unfair or inaccurate.” Because the overwhelming majority of defamation lawsuits are baseless, the Court’s opinion significantly strengthens protections for journalists that could otherwise be eviscerated through creative or fanciful pleading.
On the other hand, however, the Court held that a journalist’s invocation of the fair report privilege necessarily “triggers the exception to the shield law in Tennessee Code Annotated section 24-1-208(b),” which generally protects journalists against having to disclose the sources of their information. The Court’s opinion explains:
“[A]ssertion 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.”
The Court made clear, however, that “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.”
Read the Tennessee Supreme Court’s unanimous opinion in Glenn R. Funk v. Scripps Media, Inc. here.
This post will be updated.