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VOL. 42 | NO. 40 | Friday, October 5, 2018

Tennessee Supreme Court hears reporter defamation case

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NASHVILLE (AP) — Tennessee's Supreme Court took up the question Thursday of whether a reporter can be sued for defamation when reporting fairly and accurately on a public proceeding.

Davidson County District Attorney Glenn Funk is suing a Nashville investigative reporter over 2016 stories on a lawsuit Funk claims accused him of soliciting a bribe, extortion and blackmail.

At issue is whether reporting accurately on the lawsuit protects Phil Williams, or whether that's unimportant if Funk's attorney can show Williams harbored ill will against the official.

Funk's attorney, John Enkema, told the justices on Thursday they should uphold more than 100 years of precedent in which Tennessee courts have taken into account a reporter's personal feelings when judging whether a news report is defamatory.

The justices questioned Enkema intently about the possible ramifications of that posture.

"Say a high federal official defames people right and left," Justice Holly Kirby said. "Wouldn't a reporter be hamstrung from reporting it for fear of defamation?"

Justice Cornelia Clark said considering malice would allow two people who had reported the same story to be treated differently in court based on their feelings toward their subject.

"How is that a workable standard?" she asked.

"You're not going to have a perfect situation," Enkema stated, later adding, "The purpose is to weigh freedom of the press against the freedom of public officials not to be defamed."

"Doesn't this misdirect the ire of the public official who has been defamed?" Kirby asked. "The real focus should be on the person who made the statement."

Justice Sharon Lee told Enkema, "It sounds like you're saying we should shoot the messenger."

"I think you should shoot the messenger if the only reason that these are being published is based upon ill will," Enkema said.

Ron Harris, representing Williams and WVTF-TV station owner Scripps Media, argued the reporter's mindset is irrelevant in a defamation case.

"What's the check, then, if you do have an unscrupulous reporter who wants to dig and dig?" Chief Justice Jeffrey Bivens asked.

Harris said Tennessee's fair report privilege, which generally protects fair and accurate reporting on public proceedings like lawsuits, already has a check built into it.

"The reporter is not going to be shielded by the privilege if his report contains a false statement of fact regarding what actually occurred during the proceeding," Harris said. He added that one-sided reporting and defamatory comments made by reporters themselves are also not protected.

The Associated Press and a dozen other news organizations with operations in Tennessee along with the Reporters Committee for Freedom of the Press have filed a friend-of-the-court brief in the case. They urge the court to rule that malice should not be considered in a defamation case against a reporter. They argue that Tennessee precedent is outdated and runs afoul of both U.S. Supreme Court precedent and the First Amendment.

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