GLENN R. FUNK
SCRIPPS MEDIA, INC., ET AL.
Session September 6, 2017
from the Circuit Court for Davidson County No. 16C-333
William B. Acree, Judge
public figure filed a defamation lawsuit against an
investigative reporter and a television station based on two
news stories that were aired in February 2016. The defendants
filed a motion to dismiss, claiming that their reports were
constitutionally protected speech, were privileged as a fair
and accurate report of pleadings and documents filed in two
other lawsuits, and did not contain false or defamatory
statements. The plaintiff served interrogatories and requests
for documents on the defendants in an effort to discover the
defendants' investigative files. The defendants objected
on the grounds of relevance and the Tennessee fair report
privilege. The plaintiff filed a motion to compel, arguing
that he needed the discovery to respond to the
defendants' motion to dismiss by uncovering evidence of
actual malice. The trial court agreed and granted the motion
to compel. The defendants filed an interlocutory appeal of
the trial court's decision granting the motion to compel.
They argue that (1) actual malice is not an element of the
fair report privilege and (2) the trial court erred in
granting the plaintiff's motion to compel. We agree with
the defendants' position on both issues and reverse the
trial court's judgment.
R. App. P. 3 Appeal as of Right and Tenn. R. App. P. 9
Interlocutory Appeal; Judgment of the Circuit Court Reversed
George Harris, Jon D. Ross, and William J. Harbison, II,
Nashville, Tennessee, for the appellants, Scripps Media, Inc.
and Phil Williams.
Douglas Kay, John B. Enkema, and Michael Anthony Johnson,
Nashville, Tennessee, for the appellee, Glenn Richard Funk.
D. Bennett, J., delivered the opinion of the Court, in which
Richard H. Dinkins and W. Neal McBrayer, JJ., joined.
D. BENNETT, JUDGE.
Factual and Procedural Background
R. Funk is the District Attorney General for Davidson County,
Tennessee. Scripps Media, Inc. ("Scripps") owns and
operates the television station NewsChannel 5, WTVF in
Nashville, and Phil Williams is the station's chief
investigative news reporter. NewsChannel 5 broadcast news
stories on February 3 and 4, 2016, which are at the center of
this case. The news stories reported on allegations the real
estate developer David Chase made against several individuals
in a civil lawsuit filed in Williamson County and against
other individuals and a governmental entity in a federal
lawsuit filed in the Middle District of Tennessee. Mr. Funk
filed a complaint against Scripps Media, Inc. and Phil
Williams (together, "the Defendants") after the
first news story aired, and he filed an amended complaint
following the second news story to include allegations
related to the second story. According to Mr. Funk, the news
stories alleged that he extorted money from a criminal
defendant, solicited a bribe, and blackmailed a criminal
defendant into dismissing a civil lawsuit. When Mr. Funk
filed his amended complaint, he served a set of
interrogatories, requests for documents, and requests for
admission upon each defendant.
Defendants filed a motion to dismiss the complaint pursuant
to Tenn. R. Civ. P. 12.02(6). They claimed the first news
story was privileged as a fair and accurate report of
allegations made in another lawsuit and did not contain false
or defamatory statements about Mr. Funk and that the second
news story did not contain any false or defamatory statements
about Mr. Funk. The Defendants also moved for a protective
order to stay discovery until the trial court ruled on their
motion to dismiss. They argued that their motion, if
successful, would dispose of all of Mr. Funk's claims
against them and that the discovery was not relevant or
necessary to resolve the issues raised in their motion to
dismiss. Mr. Funk objected to the Defendants' motion to
stay discovery, arguing that he needed the discovery to
uncover evidence of the Defendants' actual malice. Mr.
Funk contended that he could defeat the Defendants' fair
report privilege claim with proof that they broadcast their
news stories with actual malice. The trial court denied the
Defendants' motion for a protective order, but it limited
the discovery to facts relating to the two news stories at
issue in the complaint.
and Mr. Williams responded to Mr. Funk's discovery
requests, but they objected to providing information they
claimed was privileged pursuant to the Tennessee Shield Law,
codified at Tenn. Code Ann. § 24-1-208; the First
Amendment to the United States Constitution; and Article I,
§ 19 of the Tennessee Constitution. Mr. Funk then filed
a motion to compel. The trial court held a hearing on Mr.
Funk's motion to compel on January 13, 2017, and it filed
its order granting the motion on February 13, 2017. The trial
court ordered the Defendants to answer Interrogatories 7 and
8 and to produce documents they obtained or relied on in
their investigation of the two news stories. The trial court
issued its ruling from the bench, which was incorporated by
reference into its order. The court explained its decision as
It is not questioned in this case that General Funk is a
public official and . . . actual malice is required. Actual
malice is defined by the case law, is that -- the fault of
actual knowledge that the facts were false or reported with
reckless disregard of their truth or falsity.
The plaintiff's claims are based upon defamation --
defamation or implication in a false light. The elements of
the false light claim -- the false light, in which the other
was placed would be highly offensive to a reasonable person.
Second, the actor had the knowledge or acted in reckless
disregard as to the falsity of the matter and the false light
in which the other would be placed. Thus the actual malice
standard applies. The defamation implication may be proved if
- may prove defamation if words suggested are found to have a
. . . .
The Court finds that the defendants have raised a defense
based upon the source. I base that upon the pleadings that
have been filed in this case along with the argument of
counsel. Thus, the Court finds that, under the Tennessee
Shield Law, the defendants have no protection from revealing
the source of information. I do not think that that ends the
As I stated a moment ago, defamation -- actual malice must be
proved under any of the theories that were relied upon by the
plaintiff, which is also a factor in the fair report
privilege relied upon by the defendant.
. . . .
[T]he investigation is highly relevant in this Court's
opinion to the issue of malice. And I don't think that
it's sufficient for the defendants simply to say
"Trust us. We have given you ...