Stem v. Gannett Satellite Information Network

• Decision Date: 23 September 1994
• Docket Number: No. 93-1135.,93-1135.
• Citation: 866 F. Supp. 355
• Parties: Billy STEM, d/b/a Crown Manufacturing, a sole proprietorship, Plaintiff, v. GANNETT SATELLITE INFORMATION NETWORK, INC., a/k/a Nashville Offset, d/b/a THE JACKSON SUN of Jackson, Tennessee, Defendant.
• Court: U.S. District Court — Western District of Tennessee

866 F. Supp. 355

Billy STEM, d/b/a Crown Manufacturing, a sole proprietorship, Plaintiff, v. GANNETT SATELLITE INFORMATION NETWORK, INC., a/k/a Nashville Offset, d/b/a THE JACKSON SUN of Jackson, Tennessee, Defendant.

No. 93-1135.

United States District Court, W.D. Tennessee, Eastern Division.

September 23, 1994.

Fred M. Ridolphi, Jr., David M. Dunlap, Memphis, TN, for plaintiff.

Charles M. Purcell, Jackson, TN, for defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

TODD, District Judge.

Plaintiff Billy Stem, d/b/a Crown Manufacturing, filed this defamation action against Defendant Gannett Satellite Information Network, Inc., a/k/a Nashville Offset, d/b/a The Jackson Sun. The allegedly defamatory statement published in The Jackson Sun was based on the contents of an affidavit filed in support of a search warrant in a criminal case. Defendant has moved for summary judgment on the grounds that (1) the publication of the statement is privileged under Tennessee law as a fair and accurate report of a judicial proceeding, (2) the article was a fair and accurate report of the affidavit, and (3) there is no evidence of actual malice to defeat the fair report privilege. Plaintiff has responded, asserting that the fair report privilege does not apply to statements contained in an affidavit filed ex parte in support of a search warrant, and, alternatively, that the privilege does not apply because Plaintiff was not the subject of the search warrant nor a party to the criminal proceedings. Plaintiff has moved for partial summary judgment on this issue. Plaintiff also contends that, even if the privilege applies, Defendant lost its privilege by failing to fairly and accurately report the statements in the affidavit. For the reasons set forth below, Defendant's motion is GRANTED, and Plaintiff's motion is DENIED.

To prevail on a motion for summary judgment, the moving party has the burden of showing the "absence of a genuine issue of material fact as to an essential element of the nonmovant's case." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989). The moving party may support the motion with affidavits or other proof or by exposing the lack of evidence on an issue for which the nonmoving party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The opposing party may not rest upon the pleadings but "by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." F.R.C.P. 56(e).

"If the defendant ... moves for summary judgment ... based on the lack of proof of a material fact, ... the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). The court's function is not to weigh the evidence, judge credibility, or in any way determine the truth of the matter, however. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510. Rather, "the inquiry on a summary judgment motion ... is ... `whether the evidence presents a sufficient disagreement to require submission to a trier of fact or whether it is so one-sided that one party must prevail as a matter of law.'" Street, 886 F.2d at 1479 (quoting Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2512.)

The following facts are undisputed. On August 31, 1992, Sandy Hodson, a reporter for The Jackson Sun, obtained from the U.S. District Court Clerk's office a copy of an affidavit filed by FBI Agent William Castleberry in support of a search warrant. At the time Hodson obtained the affidavit, the search warrant had already been executed and returned to the clerk's office. The affidavit concerned the alleged criminal activities of Kenneth Wayne Fowler and Jimmy Wayne Nance. The initial sentence of the affidavit stated that the affidavit was based on Castleberry's "review of official law enforcement reports and discussions with law enforcement officials." The affidavit stated, in relevant part:

That Kenneth Wayne Fowler has invested a large amount of money made from drug trafficking into legitimate business ventures in Lake and Obion Counties, including a home-building business, a cap factory and farm land.

The next paragraph of the affidavit stated:

That S2 an informant has personal knowledge that Fowler has invested the profits from drug trafficking in Crown Manufacturing, a cap factory in Samburg, Tennessee, and has also purchased farm land, and financed a home-building business with drug trafficking profits.

Before writing her story, Hodson talked to T.B.I. Agent John Mehr who was mentioned in the affidavit and with Plaintiff who owned Crown Manufacturing. Plaintiff denied that Fowler, his son-in-law, had invested any money in the business.

The following statement, which appeared in Hodson's article in The Jackson Sun on September 1, 1992, is the basis of the action for defamation:

According to the FBI agent's statement, Fowler invested a large amount of drugtrafficking proceeds in farmland, a home building business and Crown Manufacturing, a cap factory in Samburg.

The article identified the FBI agent's statement as a "sworn statement which persuaded Magistrate Judge Daniel Breen to issue ... search warrants" for the homes of Fowler and Nance. After the sentence referring to Crown Manufacturing, the article stated:

However, the owner of Crown Manufacturing, Billy Stem, said Monday afternoon that Fowler doesn't have any financial or any other interest in his company. Stem said he couldn't imagine where the officers got their information. Fowler's remote connection is to his wife — Stem's daughter — who works with the rest of Stem's immediate family at the factory, Stem said.

The article reported that the affidavit referred to "six unidentified sources who provided investigators with information about the alleged drug trafficking network."

Is the publication of the statement privileged under Tennessee law as a fair and accurate report of a judicial proceeding?

Although it is well settled that publication of statements made in judicial proceedings are privileged, American Publishing Co. v. Gamble, 115 Tenn. 663, 90 S.W. 1005 (Tenn.1905), it does not appear that Tennessee courts have addressed the issue of whether the privilege applies to the publication of an article that is based on an affidavit filed in court in support of a request for a search warrant. However, Tennessee courts have extended the privilege beyond proceedings that occur in open court. In Langford v. Vanderbilt University, 199 Tenn. 389, 287 S.W.2d 32, 37 (1956), the Court held that the privilege extended to "mere contents of pleadings filed in Court though no judicial actions had been taken" even if the allegations in the pleadings proved to be false. In holding that the publication of information contained in an arrest warrant issued ex parte was privileged, the court in Duncan v. Knoxville Journal, 20 Med.L.Rptr. 1391, 1992 WL 136172 (BNA) (Tenn.App.1992), equated the issuance of the arrest warrant with a "judicial proceeding." American Publishing Co. v. Gamble, 115 Tenn. 663, 90 S.W. 1005 (Tenn.1905) found the publication of an information in an ex parte sworn application for an injunction and fiat to be privileged.

Jurisdictions that have addressed the issue of whether an affidavit filed in connection with a judicial proceeding is privileged have held that the fair report privilege does apply. See e.g., Sibley v. Holyoke Transcipt-Telegram, 391 Mass. 468, 461 N.E.2d 823 (1984); Mark v. Seattle Times, 96 Wash.2d 473, 635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124, 102 S.Ct. 2942, 73 L.Ed.2d 1339 (1982). This is true even when the statement is made about a person who is not a party to the judicial proceeding. In Philomena v. WKBN Broadcasting Corp., 1987 WL 31938 (Ohio App.1987), the court considered a defamation claim by a third party who was incidentally mentioned in an FBI affidavit filed in federal court. The court affirmed summary judgment for the broadcaster. The Tennessee Supreme Court reached a similar result in American Publishing Co. v. Gamble, 115 Tenn. 663, 678, 90 S.W. 1005 (Tenn.1905) by noting that, if a statement is found to be a fair and accurate report, "it is not material that the matter it contains is injurious to the persons involved or referred therein." (emphasis added). To hold otherwise would restrict reporters in their coverage of judicial proceedings by forcing them to delete all references to third parties.

Plaintiff relies on Restatement (Second) of Torts, § 611, comment h, in support of his argument that publication of the contents of an affidavit in support of a search warrant is not privileged. Comment h states that statements made by the police or other witnesses about the facts of a case or the evidence expected to be given are not yet part of the judicial proceeding and are not privileged. Plaintiff cites Moore v. Bailey, 628 S.W.2d 431 (Tenn.App.1981), for this same proposition. In the present case, the affidavit was filed in court and, thus, became part of a judicial proceeding, unlike Moore and comment h which refer to out-of-court statements made to an investigator. The holding in Moore rested on the fact that there was "no tribunal present ... therefore, the defendant's statements were not privileged and were actionable." Id. at 436.

More applicable to this case are comments b and d to § 611 which state that:

The filing of a report by an officer or agency of the government is an action bringing a reporting of the governmental report within the scope of the privilege. The privilege is thus applicable to the report of proceedings before any court, whether it is one of general or of special and limited

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