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§24.9 Truth and Other Defenses

The Case: Ali v. Moore , 984 S.W.2d 224 (Tenn. Ct. App. 1998).

The Basic Facts: Plaintiff sued defendants for defamation related to two television broadcasts.

The Bottom Line:

  • "In order to support a claim for libel, a plaintiff carries the burden of proving that the statement was 'false and defamatory.' Gibbons v. Schwartz-Nobel, [928 S.W.2d 922, 927 (Tenn. Ct. App. 1996)]. In Stones River Motors, Inc. v. Mid-South Publ'g Co., [651 S.W.2d 713 (Tenn. Ct. App. 1983)], we stated:
    The damaging words must be factually false. If they are true, or essentially true, they are not actionable, even though the published statement contains other inaccuracies which are not damaging. Thus, the defense of truth applies so long as the 'sting' (or injurious part) of the statement is true. ... it is not necessary to prove the literal truth of the accusation in every detail, and that it is sufficient to show that the imputation is substantially true, or, as it is often put, to justify the 'gist,' the 'sting,' or the 'substantial truth' of the defamation....
    [W. Prosser, Law of Torts, § 116, p. 798 (4th Ed. 1971)]. Stones River, 651 S.W.2d at 719-20." 984 S.W.2d at 229.
  • "'[A] criminal court conviction by a jury is conclusive' on the issue in a subsequent civil trial and, thus, works as an estoppel. McFadgon v. City of Memphis, [731 S.W.2d 530, 532 (Tenn. Ct. App. 1986)] (citing Grange Mut. Cas. Co. v. Walker, [652 S.W.2d 908, 910 (Tenn. Ct. App. 1983)]) (emphasis added). Therefore, in a defamation action in which the truth is asserted as a defense, a court may take judicial notice of the plaintiff's convictions. See, e.g., Swaffield v. Universal Ecsco Corp., 271 Cal.App.2d 147, 76 Cal.Rptr. 680 (1969). In the instant case, because Ali was convicted of rape and attempted bribery, this is accepted as the truth. Id. Ali's contention that Fox committed libel since he had not been convicted at the time that the episodes were aired is dubious. The convictions confirm the truth of the prior acts committed by Ali. The fact that Fox depicted Ali as a rapist and an attempted briber before a jury actually convicted Ali is irrelevant to the issue of whether the depictions were, in fact, true. The depictions made by Fox of Ali's actions were true at the time the episodes were aired." Id.
  • "We find that the fact that Ali was acquitted of one count of attempted bribery has no bearing on our finding. The 'sting' of the alleged libel was that Ali attempted to bribe Moore and her husband. Stones River, 651 S.W.2d at 719. Whether Ali, in fact, only attempted to bribe one of these persons is immaterial in light of these circumstances. Since Ali was convicted of one count of attempted bribery, his reputation was already tarnished. We do not believe that Ali's reputation suffered further disgrace for being accused of twice committing attempted bribery in light of the fact that he was convicted of rape and one act of attempted bribery.FN7 The trial court did not err in granting summary judgment to Defendant Fox.
    FN7 Although immaterial to our holding, we note that the fact that Ali was acquitted of one count of attempted bribery does not necessarily mean that Fox could not argue that Ali actually committed two acts of attempted bribery. The prosecution in Ali's criminal trial was faced with a higher burden of proving the truthfulness of the attempted bribery charges brought against Ali: guilt beyond a reasonable doubt. By contrast, in a civil suit, Ali's culpability need only be shown by a preponderance of the evidence."
    Id. at 229-30.

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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.

To order a copy of the book, visit www.dayontortsbook.com. John also blogs regularly on key issues for tort lawyers. To subscribe to the Day on Torts blog, visit www.dayontorts.com.

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