§24.2 Actual Malice

The Case: Tomlinson v. Kelley , 969 S.W.2d 402 (Tenn. Ct. App. 1997).

The Basic Facts: A mayor and a city manager filed a suit for defamation against two residents who publicly questioned the circumstances surrounding an interim appointment of an individual to the Board of Commissioners.

The Bottom Line:

  • "Public figures who desire to pursue defamation actions bear a heavy burden of proof because of our society's commitment to the principle that 'debate on public issues should be uninhibited, robust, and wide-open.' New York Times Co. v. Sullivan, [376 U.S. 254, 270 (1964)]. In order to recover damages, they must prove with convincing clarityFN3 that the defendant acted with actual malice. See Press, Inc. v. Verran, 569 S.W.2d 435, 441 (Tenn. 1978); Moore v. Bailey, 628 S.W.2d 431, 433 (Tenn. Ct. App. 1981).
    FN3 See McCluen v. Roane County Times, Inc., 936 S.W.2d 936, 939 (Tenn. Ct. App. 1996); Trigg v. Lakeway Publishers, Inc., 720 S.W.2d at 75."
    969 S.W.2d at 405.
  • "The concept of actual malice in defamation cases connotes more than personal ill will, hatred, spite, or desire to injure.See Masson v. New Yorker Magazine, Inc., [501 U.S. 496, 510 (1991)]; McCluen v. Roane County Times, Inc., 936 S.W.2d at 939; Windsor v. Tennessean, 654 S.W.2d 680, 688 (Tenn. Ct. App. 1983). Rather, it is limited to statements made with knowledge that they are false or with reckless disregard to their truth or falsity. See Press, Inc. v. Verran, 569 S.W.2d at 441; Cloyd v. Press, Inc., 629 S.W.2d 24, 27 (Tenn. Ct. App. 1981); [Restatement (Second) of Torts § 580A (1977)]. Determining whether a defendant acted with reckless disregard requires the finder of fact to determine whether the defendant 'in fact entertained serious doubts as to the truth of his [or her] publication.' Trigg v. Lakeway Publishers, Inc., 720 S.W.2d at 75 (quoting St. Amant v. Thompson, [390 U.S. 727, 731 (1968)])." Id. at 405-06.
  • "By the time Mses. Kelley and Coke spoke to the reporter for The Tennessean, they had reasonable grounds to believe that the incumbent city officials had not been completely candid about the circumstances surrounding Mr. McPherson's appointment. They had discovered a discrepancy between the Board's August 1, 1995 newsletter and its minutes concerning the date of Mr. McPherson's appointment.FN4 They had also examined a version of the minutes of the Board's July 10, 1995 meeting which made no mention of either Mr. McKelvey's resignation from the Board or Mr. McPherson's appointment to take his place. When Mses. Kelley and Coke questioned the city officials about these issues, Mr. McKelvey, Mr. Tomlinson, and the city attorney dismissed their concerns, and Mr. McKelvey even warned Ms. Coke that 'you better watch what you're saying, you're going to be in big trouble.' Thereafter, the city employees refused to cooperate with Mses. Kelley and Coke and declined to provide them with copies of the public records they had been promised earlier. Despite the lack of official cooperation, Mses. Kelley and Coke later discovered that the minutes of the Board's July 10, 1995 meeting had been changed and that Mr. Tomlinson had told Berry Hill's former mayor that the Board had held a special, unpublicized meeting in the city attorney's office to discuss Mr. McPherson's appointment.
    FN4 The newsletter stated that Mr. McPherson's appointment to the Board was announced on July 11, 1995; while the Board's minutes reflected that he was actually appointed on August 14, 1995."
    Id . at 406.
  • "All these circumstances indicate that Mses. Kelley and Coke had grounds to believe that their statements concerning the unpublicized meeting and the alteration of the Board's minutes were true. They were clearly frustrated because they had been unable to obtain the version of the minutes they had originally read on February 12, 1996, but their statement that 'we've got him now, but we've got no proof" is not evidence of actual malice. Citizens are not required to have documentary proof in order to criticize elected officials. Accordingly, we concur with the trial court's conclusion that Messrs. Tomlinson and McKelvey failed to demonstrate by clear and convincing evidence that Mses. Kelley and Coke were acting with actual malice when they informed the reporter for The Tennessean of the discrepancy concerning Mr. McPherson's appointment and the later alteration of the Board's minutes." Id.

Other Sources of Note: McWhorter v. Barre , 132 S.W.3d 354 (Tenn. Ct. App. 2003) (conditional privilege can be lost upon showing of actual malice; punitive damages can be award upon a showing of actual malice); McCluen v. Roane County Times, Inc., 936 S.W.2d 936 (Tenn. Ct. App. 1996) (mere proof of failure to investigate, without more, cannot establish reckless disregard for the truth).

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

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