Session October 3, 2019
by Permission from the Court of Appeals Circuit Court for
White County No. CC-2605 Amy V. Hollars, Judge.
appeal requires us to determine whether the fair report
privilege applies to a nonpublic, one-on-one conversation
between a newspaper reporter and a detective of a county
sheriff's department, who also served as the public
information officer for the sheriff's department. The
plaintiff sued the newspaper alleging that it had published
defamatory statements the detective made about the plaintiff
during the nonpublic, one-on-one conversation with the
reporter. The newspaper moved for summary judgment based on
the fair report privilege. The trial court granted the
newspaper summary judgment, but the Court of Appeals
reversed. We hold that the fair report privilege applies only
to public proceedings or official actions of government that
have been made public and does not apply to the nonpublic,
one-on-one conversation at issue here. On this basis alone we
affirm the judgment of the Court of Appeals reversing the
trial court's decision granting the defendant summary
judgment and remand to the trial court for further
R. App. P. 11 Appeal by Permission; Judgment of the Court of
Appeals Affirmed and Case Remanded to the Trial
T. Pera, Phillip Michael Kirkpatrick, and J. Bennett Fox,
Jr., Nashville, Tennessee, for the appellant, Sparta
S. Sauer, Brian R. Epling, and Caroline D. Spore, Nashville,
Tennessee, and W.I. Howell Acuff, Cookeville, Tennessee, for
the appellee, Jeffery Todd Burke.
Douglas R. Pierce, Nashville, Tennessee, for the amicus
curiae, Tennessee Association of Broadcasters.
R. McAdoo, Nashville, Tennessee, for the amici curiae, The
Associated Press, Cable News Network, Inc., Cox Media Group
Northeast, LLC D/B/A WHBQ-TV, The E.W. Scripps Company,
Gannett Co., Inc., Gatehouse Media, LLC, Gray Television,
Inc., Meredith Corporation, Nexstar Media Group, Inc., Raycom
Media, Inc., Reporters Committee for Freedom of the Press,
Sinclair Broadcast Group, Inc., TEGNA Inc., and Tribune Media
Richard L. Hollow, Knoxville, Tennessee, for the amicus
curiae, Tennessee Press Association.
Farrar, Murfreesboro, Tennessee, and Rodney A. Smolla,
Wilmington, Delaware, for the amici curiae, David A. Elder
and Rodney A. Smolla.
Cornelia A. Clark, J., delivered the opinion of the court, in
which Jeffrey S. Bivins, C.J., and Sharon G. Lee, Holly
Kirby, and Roger A. Page, JJ., joined.
CORNELIA A. CLARK, JUSTICE.
Factual and Procedural Background
facts relevant to the issue in this appeal are undisputed. On
January 30, 2014, The Expositor, a newspaper of
general circulation published twice weekly in White County,
Tennessee, ran an article in its online and print editions
which reported on the indictment and arrest of Jeffery Todd
Burke. A staff writer with the newspaper, Pamela Claytor,
wrote the article. The article reported that Mr. Burke had
served as a middleman between a local youth football league
and a cookie dough fundraising company, that the football
league had collected and given "more than $16, 000"
to Mr. Burke for cookie dough orders, that Mr. Burke
"had misappropriated" the money and had "never
turned that money over to the fundraiser company," and
that the football league "[had] never received the
cookie dough they had sold and collected money for." The
article additionally reported that Mr. Burke had been
indicted "at the January meeting of the Grand Jury . . .
for theft over $10, 000," and had been arrested in White
County on January 24, 2014, but subsequently released on $10,
000 bond. The article also stated that Mr. Burke had been
previously indicted in Smith County "for allegedly
stealing $11, 000 . . . from a youth football league last
fall." The article quoted "the case's lead
investigator, Detective Chris Isom, of the White County
Sheriff's Office," who gave his personal assessment
of the strength of the case, stating: "We are happy with
the case." The article ended with another quote from
Detective Isom, who said: "We are trying to get justice
for these kids. It's a shame that kids have to learn a
lesson like this so early."
same day the newspaper published the article, Mr. Burke's
attorney emailed Ms. Claytor and advised that the allegations
related to the White County youth football league were
"seriously inaccurate." Mr. Burke's attorney
advised that the youth football league "did, in fact,
receive everything that was ordered." The next day, the
editor of The Expositor responded by email to Mr.
Burke's attorney. The editor stated that the information
in the article came directly from Detective Isom, "a
quotable source," and that the newspaper would run
corrections only if Detective Isom verified that there
actually were inaccuracies in the article. The editor advised
that Detective Isom had identified only one fact that needed
clarification, which was that the amount of money involved
was $11, 000 instead of ...