Glenn R. Funk v. Scripps Media , Inc.
M2017-00256-COA-R3-CV
| Tenn. Ct. App. | Nov 30, 2017Background
- Glenn R. Funk, Davidson County District Attorney General, sued Scripps Media and reporter Phil Williams for defamation and false light based on two NewsChannel 5 broadcasts (Feb. 2016) reporting allegations from civil and federal complaints.
- Defendants moved to dismiss under Tenn. R. Civ. P. 12.02(6), asserting the broadcasts were privileged as fair and accurate reports of public proceedings/documents and denied falsity.
- Funk served discovery seeking defendants’ investigative files and interrogatory answers about their investigations; defendants invoked the Tennessee Shield Law and First Amendment privileges and moved for a protective order.
- Trial court denied the stay, granted Funk’s motion to compel limited discovery (ordering answers to interrogatories about investigations and production of investigative materials), reasoning that actual malice was relevant to the fair report privilege and Shield Law protection did not apply.
- Defendants obtained interlocutory appellate review. The Court of Appeals reversed, holding (1) actual malice is not an element of the fair report privilege and (2) Tenn. Code Ann. § 24-1-208(b) does not require wholesale disclosure of investigative files—only disclosure of identified source(s) that underlie the reported material.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether actual malice is an element of the fair report privilege | Funk: public-figure standard applies; actual malice is relevant and may defeat the privilege | Defs: fair report privilege depends on fairness/accuracy and balance, not plaintiff’s proof of actual malice | Held: Actual malice is not an element of the fair report privilege; plaintiff cannot defeat the privilege by showing actual malice |
| Scope of Tennessee Shield Law § 24-1-208(b) when defendant asserts fair report privilege | Funk: § 24-1-208(b) permits disclosure of sources when privilege based on source is asserted, so defendants must produce investigative files | Defs: § 24-1-208(b) only removes protection for the specific source(s) the defendant identifies as the basis of the report; other investigative materials remain protected | Held: Trial court erred; defendants need only disclose the source(s) (documents or persons) identified as the basis for the allegedly defamatory information; broader investigative files remain protected under § 24-1-208(a) |
| Whether trial court abused discretion in compelling broad discovery of investigation files | Funk: discovery needed to prove actual malice and rebut fair report defense | Defs: discovery request exceeded what § 24-1-208 and fair report doctrine permit; undue intrusion into protected newsgathering materials | Held: Abuse of discretion; compelled disclosure beyond identified source(s) reversed |
| Appellate jurisdiction to review interlocutory order divesting Shield Law protection | Funk: questioned defendants’ basis for interlocutory appeal | Defs: invoked § 24-1-208(c) right to appeal orders divesting protection | Held: Court did not need to resolve jurisdiction issue (interlocutory appeal granted); merits decided in defendants’ favor |
Key Cases Cited
- Saunders v. Baxter, 53 Tenn. (Tenn. 1871) (early statement of fair report privilege conditioned on absence of malice)
- Am. Pub. Co. v. Gamble, 90 S.W. (Tenn. 1906) (fair report must be fair, balanced, and not omit qualifying facts)
- Langford v. Vanderbilt Univ., 318 S.W.2d 568 (Tenn. Ct. App. 1958) (privilege to publish defamation without liability on specified occasions)
- Smith v. Reed, 944 S.W.2d 623 (Tenn. Ct. App. 1996) (describes fair report as qualified privilege: correct impression and balanced/neutral reporting)
- Lewis v. NewsChannel 5 Network, L.P., 238 S.W.3d 270 (Tenn. Ct. App. 2007) (privilege applies when report is fair, accurate, balanced; Restatement §611 supports shielding reports even if publisher doubts truth)
- Eisenstein v. WTVF-TV, News Channel 5 Network, LLC, 389 S.W.3d 313 (Tenn. Ct. App. 2012) (affirming Lewis standards for fair report privilege)
- New York Times Co. v. Sullivan, 376 U.S. 254 (U.S. 1964) (public-figure defamation requires proof of actual malice)
- Press, Inc. v. Verran, 569 S.W.2d 435 (Tenn. 1978) (recognizes actual malice requirement for public officials)