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Burke v. Sparta Newspapers, Inc.

Supreme Court of Tennessee, Nashville

December 5, 2019

JEFFERY TODD BURKE
v.
SPARTA NEWSPAPERS, INC.

          Session October 3, 2019

          Appeal by Permission from the Court of Appeals Circuit Court for White County No. CC-2605 Amy V. Hollars, Judge.

         This 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 proceedings.

         Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Affirmed and Case Remanded to the Trial Court

          Lucian T. Pera, Phillip Michael Kirkpatrick, and J. Bennett Fox, Jr., Nashville, Tennessee, for the appellant, Sparta Newspapers, Incorporated.

          Edmund 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.

          Paul 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 Company.

          Richard L. Hollow, Knoxville, Tennessee, for the amicus curiae, Tennessee Press Association.

          Amy 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.

          OPINION

          CORNELIA A. CLARK, JUSTICE.

         I. Factual and Procedural Background

         The 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."

         The 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 ...


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