Tennessee high court to decide newspaper defamation case
NASHVILLE, Tenn. — The Tennessee Supreme Court heard arguments Thursday in a case that weighs the public’s right to know against the right of individuals not to be defamed.
The case concerns Jeffery Burke, who was accused in 2013 of stealing money from a White County football team’s cookie dough fundraiser. A reporter at the Sparta newspaper The Expositor wrote about the case after interviewing the investigating officer, but some of that information later turned out to be incorrect.
Burke sued the paper, which claims the story falls under Tennessee’s fair report privilege, a law that shields reporters from defamation suits when they report fairly and accurately on an official action or proceeding.
In court Thursday, Burke’s attorney, Edmund Sauer, argued that the reporter’s one-on-one interview with the detective, who is also the sheriff department’s public information officer, does not qualify as an official action or proceeding.
Justice Holly Kirby questioned whether it was practical in a small town that might have only one newspaper to ask public information officers to hold news conferences or send out releases every time they want to get information to the public.
But Sauer argued that even if the detective had held a press conference, much of the information reported would not have been protected by the fair report privilege. In his view, the only protected information is what is already publicly available, such as Burke’s arrest and the charge.
Sauer argued that Burke had not yet had a chance to defend himself in court when the story was published.
“In this particular context, limiting the privilege to public facts is extremely important,” Sauer argued, noting that stories might be available on the internet for decades.
Representing the newspaper, Phil Kirkpatrick argued that the fair report privilege should apply to statements made by a public information officer and a formal statement made to the press in a private setting should qualify as an official action.
But Justice Roger Page noted a Tennessee Supreme Court ruling earlier this year that expanded protections for reporters hinges on the determination that a report is a fair and accurate account of the proceeding it depicts. Page wondered how a court could determine whether a report was a fair and accurate account of a private phone call if there was no record of what was said.
Chief Justice Jeffrey Bivins noted that even if the court finds the fair report privilege does not apply in this case, it does not mean the reporter is guilty of defamation and the reporter could be protected by other defenses.
In arguing for a more expansive view of the fair report privilege, Kirkpatrick was joined by The Associated Press and several other news organizations that filed a friend-of-the-court brief in the case. In that brief, attorneys argue that if reporters cannot rely on law enforcement officers for information, it will have a chilling effect on reporting about crime, a topic of high public interest.
Speaking in an interview after the oral arguments, Deborah Fisher, the executive director of the Tennessee Coalition for Open Government, said it would open up a can of worms if reporters talking to a public information officer were covered by the privilege during a press conference but not during a phone call.
“Bottom line: Reporters need to feel like it’s safe to quote the local government PIO,” she said.