Home » Perspective » District attorney’s arguments in Tennessee Supreme Court libel case would undermine a free press

By Deborah Fisher, published on September 10, 2018

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NewsChannel 5 chief investigative reporter Phil Williams on left; Nashville District Attorney Glenn Funk on right. 

The Tennessee Supreme Court is set to hear oral arguments on Oct. 4 in an important case involving state libel laws and a free press.

The appeal before the state’s highest court has to do with interpretation of something known as the fair report privilege.

On a practical level, this privilege, which is recognized in every state’s laws, protects journalists from libel claims when they are reporting on official proceedings — such as court cases and city council meetings —  as long as the reporting is a fair, accurate and balanced account of what happened.

If someone sues for libel, a court can dismiss the case at an early stage under the fair report privilege applying those standards.

Phil Williams reported story relying on court documents

In a libel case filed in February 2016, Davidson County District Attorney Glenn Funk claims that two stories by NewsChannel 5’s chief investigative reporter Phil Williams injured his reputation.

Williams relied on court documents for his reporting. But the question before the Tennessee Supreme Court is not whether Williams accurately and fairly reported on those documents. 

The question before the high court is whether a fair report privilege that could protect Williams from liability can be overcome if Funk can show Williams was motivated by animosity.

In other words, if the Supreme Court adopts Funk’s argument, and if Funk can show Williams acted with spite or ill will toward him, it would not matter if the stories were a fair, accurate and balanced account of what was in court documents.

Under such a scenario, the lawsuit could be allowed to continue with Funk forcing the news station and Williams to produce notes and information about how they went about the story so Funk could sort through it for evidence.

Public officials can “win” a libel suit even if they lose in court

Most public officials who sue for libel do not win. This is because of the Supreme Court’s ruling in 1964 that established that the only way a public official could win is that if a reporter knew a story was false or behaved in reckless disregard of the facts. This is called “actual malice.”

But this higher standard has not stopped public officials from filing libel lawsuits.

Many public official plaintiffs can “win” even if they ultimately lose their case. By subjecting journalists and news organizations to grueling, drawn-out litigation, they’ve achieved their goal: to punish the speaker.

Fair report privilege reduces liability for reporters covering official government proceedings

The fair report doctrine is important. It protects a free press by immediately reducing liability risk for accurate news reports of official government proceedings and documents.

“Suppose a witness says the vilest, most untrue, most defamatory things possible in a court of law,” says First Amendment attorney Lucian Pera of Memphis. “Then a reporter ought to be able to repeat them verbatim, to inform the public about what’s going on in court, without regard to malice and without regard to their truth or falsity, with no repercussions. That’s fair report.”

With diligence and professionalism, a journalist can meet the standards of accuracy, fairness and balance in a news story, even when covering contentious issues.

Yet Funk argues in his brief filed with the state’s highest court that this is not enough and suggests motivation of the reporter could be more important.

“The question for this Court is, should defamation law leave injured parties without a remedy as long as what the press published is a fair and accurate summation of a proceeding — even if what is published is false or politically motivated? No matter how lascivious? Or, in this age of ‘fake news’ and increasingly politically motivated news stories, should there be a safeguard built into the fair report privilege?”

Should reporters censor information from government proceedings? Of course not

I can’t help but worry of the Pandora’s box of litigation against journalists that would pour forth if everyone who did not like how they were portrayed in a story about a court case or a city council meeting could open a court-sanctioned inquiry into the state of a mind of the news reporter who wrote it.

Are reporters supposed to choose against reporting things from official government proceedings that might make someone look bad? Act as censors of government proceedings instead of the eyes and ears of the public?

Reporters in Tennessee shouldn’t have to risk expensive and time-consuming litigation and a raid on their notes for just doing their job.

Such an unreasonable and unworkable threat would result in fewer journalists willing to fully report on public affairs, and the public would be worse off for it.

Deborah Fisher is director of the John Seigenthaler Chair of Excellence in First Amendment Studies at Middle Tennessee State University’s College of Media and Entertainment where she manages the online, searchable First Amendment Encyclopedia. She also is executive director of Tennessee Coalition for Open Government, a nonprofit that provides education and research on public records and open meetings laws.


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