20 F. Supp. 3d 643
W.D. Tenn.2014Background
- On Feb. 13, 2013 the Memphis Police Department issued a press release about a Feb. 9 Old Navy forgery: surveillance images showed a male and female allegedly using a forged check; Crime Stoppers number provided.
- WHBQ (Fox) broadcast a Feb. 14, 2013 news segment using images and language saying "Two thieves are caught on camera forging a check to steal some clothes," and displayed the MPD tip line.
- Pamela Hill (and her son Dylan) were the individuals shown; Hill learned of the broadcast, experienced distress, and later met with police who closed the matter after Old Navy checked its records.
- Plaintiffs sued Old Navy and WHBQ in Tennessee state court asserting negligence, defamation/libel, false light, intentional and negligent infliction of emotional distress, and loss of consortium; case removed to federal court on diversity grounds.
- WHBQ moved for summary judgment asserting the Tennessee fair report privilege, arguing its broadcast was a fair and accurate summary of an official police communication; plaintiffs argued the wording (“thieves,” “steal”) was inaccurate/sensational and sought more discovery to show actual malice.
- The court found the broadcast was a fair and accurate summation of the MPD press release, declined to allow additional discovery, concluded plaintiffs failed to show actual malice by clear and convincing evidence, and granted WHBQ summary judgment dismissing all claims against it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether WHBQ's broadcast is protected by Tennessee's fair report privilege | The broadcast used accusatory words (“thieves,” “steal”) that went beyond the MPD press release and were misleading | The broadcast fairly conveyed the gist of the MPD press release; words used were not inaccurate because forgery is a form of theft and the report referenced police and the tip line | Court: Report was a fair and accurate summary; privilege applies |
| Whether plaintiffs presented clear and convincing evidence of actual malice to defeat the privilege | Hill argued wording and alleged sensationalism support inference of malice; sought additional discovery to find evidence of malice | WHBQ: relied on MPD press release; no reason to doubt its accuracy; no facts showing knowledge of falsity or reckless disregard | Court: Plaintiffs failed to show actual malice; summary judgment for WHBQ |
| Whether more discovery under Rule 56(d) was warranted before ruling | Plaintiffs claimed limited discovery impeded showing actual malice | WHBQ argued additional discovery could not change outcome because timeline shows no available evidence of malice before broadcast | Court: Denied 56(d) request; additional discovery would not alter the legal outcome |
| Whether use of terms “thieves”/“steal” rendered report unfair/inaccurate | Plaintiffs: These terms imply guilt and sensationalize, so report was not a fair summary | WHBQ: Terms reflect the MPD’s characterization (forgery = theft) and report included police context and tip line | Court: Terminology did not render report inaccurate or misleading; fair report privilege stands |
Key Cases Cited
- Milligan v. United States, 670 F.3d 686 (6th Cir. 2012) (discussing fair report privilege and actual malice standard)
- Lewis v. NewsChannel 5 Network, L.P., 238 S.W.3d 270 (Tenn. Ct. App. 2007) (requirements for fair and accurate summary and when privilege applies)
- Smith v. Reed, 944 S.W.2d 623 (Tenn. Ct. App. 1996) (treating applicability of fair report privilege as a question of law)
- New York Times Co. v. Sullivan, 376 U.S. 254 (U.S. 1964) (actual malice standard for public-figure/libel contexts)
- Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (U.S. 1989) (reckless disregard definition in actual malice context)
- Compuware Corp. v. Moody’s Investors Servs., Inc., 499 F.3d 520 (6th Cir. 2007) (serious doubts standard for reckless disregard)