Defamation

April 3, 2020

Immunity For Government Employ Denied

Where a trial court did not explain the legal basis for its ruling that a deputy sheriff was immune from a defamation suit under the GTLA, the Court of Appeals vacated the judgment.

In Taylor v. Harsh, No. M2019-01129-COA-R3-CV (Tenn. Ct. App. Feb. 21, 2020), plaintiff filed suit against defendant, who was a deputy sheriff, for slander, defamation, and interference with prospective economic advantage. The complaint specified that defendant was being sued in his individual capacity. According to plaintiff, defendant pulled plaintiff over for a traffic stop “that resulted in no citation or arrest,” and defendant “thereafter informed an official with a youth volunteer firefighter program…that Plaintiff had committed a felony and fled from the police,” which caused plaintiff’s participation in the program to be terminated.

Defendant filed a motion for summary judgment, arguing that he was immune under the Governmental Tort Liability Act (GTLA). The trial court granted the motion, writing in its memo that defendant “was entitled to the immunities set forth in Tenn. Code Ann. § 29-20-205(2).” In its oral ruling, the trial court found that defendant was entitled to immunity, but “focuse[d] primarily on the facts of this case, rather than the law.”

January 10, 2020

Absolute executive privilege does not apply to district attorney general.

by The Law Offices of John Day, P.C.

The absolute privilege against a Tennessee defamation claim given to some state officials “for statements made in the course of their official duties” does not extend to district attorneys general.

In Burns v. State of Tennessee, No. E2018-02174-COA-R9-CV (Tenn. Ct. App. Nov. 26, 2019), plaintiff was the lead investigator for the Gatlinburg Police Department on a case involving a high school basketball player who was assaulted with a pool cue. Plaintiff testified during a preliminary hearing, and according to news coverage of the hearing plaintiff stated that “the assault did not constitute a rape because the alleged assailants were not seeking sexual gratification.” After reports regarding plaintiff’s testimony, General Neal Pinkston, who was the Hamilton County District Attorney, sent out a press release to news outlets stating that General Pinkston had requested the TBI to “investigate [plaintiff] for perjurious testimony related to statements he made during sworn testimony” in the preliminary hearing. The next day, General Pinkston’s office released a statement saying “General Pinkston believes [plaintiff] perjured himself in Hamilton County Juvenile Court on Monday, February 15.”

January 2, 2020

Litigation Privilege Defeats Defamation Claim.

by The Law Offices of John Day, P.C.

In a Tennessee defamation case, statements made in an email regarding a deposition in a federal lawsuit fell under the litigation privilege and dismissal was affirmed.

In Kilgore v. State of Tennessee, No. E2018-01790-COA-R3-CV (Tenn. Ct. App. Nov. 13, 2019), plaintiff had been involved in a previous federal lawsuit. In the federal case, plaintiff, who owned a towing service, had brought an action against certain highway patrol officers. During that case, the officers were represented by two attorneys, Ms. Jordan and Ms. Lyford. Shortly before the scheduled deposition of a witness, the witness’s son’s business caught fire. The day before the deposition, Ms. Jordan sent an email to plaintiff’s counsel in the federal case stating that one of the co-plaintiff’s emissaries had told the witness to “watch out” and that “the timing [did] not seem to be coincidental.” The email stated that the incident would be fully investigated and that witness intimidation was a crime, and also stated that future depositions would be held at secure locations with metal detectors. Later that day, Ms. Lyford sent an email explaining that she was attempting to locate a secure location for the deposition the following day.

December 18, 2019

Fair Report Privilege Did Not Apply to Private Conversation in Defamation Case

by The Law Offices of John Day, P.C.

The Tennessee Supreme Court recently affirmed that the fair report privilege does not apply to “a nonpublic, one-on-one conversation between a newspaper reporter and a detective of the county sheriff’s department, who also served as the public information officer for the sheriff’s department.” In Burke v. Sparta Newspapers, Inc., No. M2016-01065-SC-R11-CV (Tenn. Dec. 5, 2019), plaintiff filed a defamation suit against a newspaper that ran an article stating that he had “misappropriated” money from a football league fundraiser. Plaintiff took issue with several statements from the story, which quoted as its source “the case’s lead investigator, Detective Chris Isom, of the White County Sheriff’s Office[.]”

Defendant newspaper filed a motion for summary judgment “asserting immunity from liability based on the fair report privilege.” Defendant argued that “the privilege applied because the article was a fair and accurate report of the statements Detective Isom made to [the reporter] in his official capacity both as lead detective and as public information officer for the White County Sheriff’s Department.” Defendant acknowledged that the statements occurred during a private, one-on-one conversation, but urged that the fair report privilege nevertheless applied.

November 1, 2019

Defamation Claim Asserted by Public Figure

by The Law Offices of John Day, P.C.

To defeat summary judgment on a defamation claim, a public figure needed to “produce clear and convincing evidence of actual malice at the summary judgment stage.” In Elsten v. Coker, No. M2019-00034-COA-R3-CV (Tenn. Ct. App. Oct. 4, 2019), plaintiff and defendant were both running for mayor of Hendersonville. Before the election, defendant’s campaign disseminated a pamphlet with two statements about plaintiff that plaintiff found objectionable: (1) that as an alderman plaintiff was “caught in an insider deal to sell stolen property to the Hendersonville Parks Department” and (2) that plaintiff was “currently under investigation by the Tennessee Ethics Commission for campaign finance violations relating to illegal contributions from a construction company owner.”

Plaintiff filed this defamation action, and the trial court granted defendant summary judgment, finding that plaintiff “did not produce clear and convincing evidence of actual malice[.]” The Court of Appeals affirmed.

July 24, 2018

Elements of Tennessee Claim for Defamation by Implication

by The Law Offices of John Day, P.C.

In order to succeed on a defamation by implication claim in Tennessee, a plaintiff must be able to show that the statements made implied facts that were not true and held the plaintiff “up to public hatred, contempt or ridicule, “ or lowered the plaintiff “in the eyes of the community.” Where these showings cannot be made, a claim for defamation by implication or innuendo must fail.

In Loftis v. Rayburn, No. M2017-01502-COA-R3-CV (Tenn. Ct. App. April 20, 2018), plaintiff was the previous director of the Nashville State Community College culinary program. He brought suit based on an article published in a newspaper, which was based on an interview between the reporter writing the story and defendant. Defendant was a local restaurant owner who was brought on to help make the college program more successful. The article stated that when defendant began his work, the program was “simply turning out unqualified students,” and that he enlisted other chefs to help turn the program around. The article said that “[t]hey started by cleaning house from the top by removing director Tom Loftis [i.e., plaintiff].” The article further noted that this was a “politically inexpedient move last year since Loftis was the brother-in-law of Bill Freeman who was running for mayor at the time.” This was the only mention of plaintiff in the article.

December 26, 2017

Facebook Post Ruled Not Defamatory

by The Law Offices of John Day, P.C.

Social media and the ability to broadcast one’s opinions across the internet are raising many new issues in defamation law. A recent Tennessee case held that when a Facebook post and picture are posted together, they must be considered together and the communication should be analyzed in its entirety.

In Weidlich v. Rung, No. M2017-00045-COA-R3-CV (Tenn. Ct. App. Oct. 26, 2017), defendant sued plaintiff for defamation over a post plaintiff made on Facebook. Plaintiff and defendant had both attended a heated school board meeting regarding the potential formation of a Gay/Straight Alliance at their local high school. Defendant was in favor of the group, while plaintiff “expressed strong opposition to the formation.” During this time, plaintiff’s wife “made tentative plans to run for” the school board. At a subsequent meeting, defendant saw plaintiff’s vehicle in the parking lot. On the back of the vehicle, plaintiff had a sticker with the Confederate flag and the word “SECEDE;” a sticker with the words “God, Family, The South” next to another Confederate flag; and another sticker that said “The League of the South,” which Defendant testified was a hate group. Defendant took a picture of these stickers and posted it to her Facebook wall, along with the caption: “Free Bonus Prize. The Fisty Family are also white supremacist! We’ll need to keep this handy come election time.”

Plaintiff sued for defamation based on this Facebook post. The General Sessions Court ruled for defendant, finding that plaintiff “had been unable to establish damages.” In the trial court, plaintiff had a witness testify that the witness stopped using plaintiff’s mechanic shop and had spent around $7,000 using a different service provider. The trial court ruled for plaintiff and awarded him $7,000 in damages and $5,000 in attorney’s fees. In its order, the trial court found that the statement was defamatory, that it was made maliciously, and that at the time of posting neither plaintiff nor his wife were public figures. The Court of Appeals reversed this ruling.

July 12, 2017

Slander Subject to Six-Month Statute of Limitations

by The Law Offices of John Day, P.C.

In Vaughn v. Methodist Hospital Staff & Administration, No. W2016-00422-COA-R3-CV (Tenn. Ct. App. May 8, 2017), the Tennessee Court of Appeals affirmed dismissal of a slander claim due to the six-month statute of limitations.

Plaintiff, who was proceeding pro se, originally filed her action in general sessions court for “libel/slander/defamation of character…” on July 15, 2014. In court, she testified that her claims were all based on statements made on July 17, 2013. The general sessions court dismissed the case pursuant to the six-month statute of limitations, and the circuit court subsequently granted a motion for summary judgment on the same grounds, which the Court of Appeals affirmed.

June 6, 2016

Proof of Actual Malice in False Light Case

by The Law Offices of John Day, P.C.

A recent Court of Appeals case serves as a reminder of the difficulty of proving actual malice in a false light claim made by a public official.

In Eisenstein v. WTVF-TV, No. M2015-00422-COA-R3-CV (Tenn. Ct. App. May 3, 2016), plaintiff was a Davidson County General Sessions Judge suing a TV station and various reporters regarding a story aired in 2011. The story focused on whether plaintiff “hired an unlicensed individual to act as a psychologist for the drug court program.” The Court of Appeals opinion contained a transcript of the broadcast, which revolved around a Dr. Casey who was paid by the drug court and allegedly held out to some drug court defendants to be a psychologist, but who was not in fact licensed as a psychologist in Tennessee. The report included a statement that plaintiff judge “wanted to put Casey on staff using federal money, writing in this memo that Casey had proven himself an excellent psychologist.” The broadcast showed the reporter approaching plaintiff judge, and plaintiff not answering questions posed by the reporter.

Plaintiff argued that the “broadcast placed him in a false light by implying that he lied on a federal grant application and by indicating that he was uncooperative.” Because plaintiff was a public figure, he had to show actual malice to prove his false light claim, and defendants moved for summary judgment on the basis of plaintiff’s inability to make such a showing.

March 24, 2016

Kitchen Sink Complaint Goes Down Drain.

by The Law Offices of John Day, P.C.

In Goetz v. Autin, No. W2015-00063-COA-R3-CV (Tenn. Ct. App. Feb. 10, 2016), plaintiff filed a rather unclear complaint that appeared to assert four causes of action: (1) defamation, (2) malicious prosecution, (3) abuse of process and (4) intentional infliction of emotional distress. The trial court dismissed the entire complaint for failure to state a claim, and the Court of Appeals affirmed.

Plaintiffs factual allegations were essentially that defendants “made defamatory statements to [his] family members, neighbors and friends, subjecting [him] to contempt and ridicule and threatening his job[;]” that defendants filed suit against plaintiff on May 12, 2010 with “no reasonable basis” for the action and with an “ulterior motive;” that defendants “committed an act in the use of process other than such as would be proper in the regular prosecution of the charges alleged[;]” that defendants eventually voluntarily dismissed their claims; that the lawsuit contained false statements about plaintiff; and that plaintiff suffered “severe physical and emotional injury” due to the defendant’s lawsuit and statements. Based on these facts, the Court of Appeals affirmed the ruling that the complaint failed to state a claim for the causes of action pursued by plaintiff.

On the abuse of process claim, the Court noted that “a plaintiff must allege the existence of an ulterior motive and an act in the use of process other than such as would be proper in the regular prosecution of the charge.” Moreover, “[t]he mere initiation of a lawsuit, though accompanied by a malicious ulterior motive, does not constitute an abuse of process.” (internal citation omitted). Instead, a “plaintiff must allege some misuse of process after the initiation of the lawsuit.” Here, the complaint failed to allege that defendants did anything more than file the “original processes of the court.” Since the institution of a lawsuit alone is not enough to support an abuse of process claim, plaintiff’s complaint failed to state a claim for this cause of action.