Defamation - Libel and Slander Under Tennessee Law
© Bob E. Lype, 2017
Defamation (libel and slander) Under Tennessee Law.
(1) Elements Under Tennessee Law.
Under Tennessee law, defamation (whether written libel or oral slander) requires Plaintiff to prove, by a preponderance of evidence, the following prima facie elements:
(A) Defendant published a statement;
(B) With knowledge that the statement is false and defaming to Plaintiff; or
(C) With reckless disregard for the truth of the statement or negligence in failing to ascertain the truth of the statement.
Sullivan v. Baptist Memorial Hosp., 995 S.W.2d 569, 571 (Tenn. 1999).
However, apart from these prima facie elements, there are assorted other "rules" and requirements regarding defamation claims, which can be summarized as follows:
(i) Only statements that are false are actionable, and truth is a nearly universal defense. Brown v. Christian Bros. Univ., 428 S.W. 3d 38 (Tenn. App. 2013).
(ii) However, "Actionable defamation may occur through sarcasm, insinuation, and the like when the truth is twisted by either omitting relevant facts and circumstances, or alluding to 'facts' and circumstances that do not exist." Hunt v. Tangel, 1997 Tenn. App. LEXIS 914 (decided December 19, 1997). "Truth is available as an absolute defense [to a charge of defamation] only when the defamatory meaning conveyed by the words is true." Id., citing Memphis Publishing Co. v. Nichols, 569 S.W. 2d 412, 420 (Tenn. 1978). On the other hand, "no artificial and unreasonable construction placed upon innocent words by the civil-minded can add a defamatory meaning not fairly to be found in light of the circumstances." Hunt, supra.
(iii) To be actionable, the alleged defamatory statement must "constitute a serious threat to the plaintiff's reputation." Davis v. Tennessean, 83 S.W.3d 125, 128 (Tenn. App. 2001)(quoting Stones River Motors, Inc. v. Mid-South Publ'g Co., 651 S.W.2d 713, 719 (Tenn. App.1983). "It is reputation which is defamed, reputation which is injured, and reputation which is protected by the law of defamation." Spicer v. Thompson, 2004 Tenn. App. LEXIS 436 (Tenn. App., decided July 7, 2004)
(iv) Regarding what statements are defamatory:
(A) The question of whether a statement is "capable of being understood as defamatory" in the first place is a question of law for the Court to decide. Stones River, 651 S.W. 2d at 719. In making this determination, the Court must take the alleged defamatory words "as a whole" and give them their normal meaning as would be "reasonably understood" by those who hear them. Id.
(B) A trial court may determine that, as a matter of law, a statement is not defamatory only when "the statement is not reasonably capable of any defamatory meaning and cannot be reasonably understood in any defamatory sense." Aegis Scis. Corp. v. Zelenik, 2013 Tenn. App. LEXIS 30 (decided January 16, 2013).
(C) It is for the jury to decide whether a statement which was capable of a defamatory meaning was actually understood by the person who heard it as carrying that meaning. Patterson v. Grant-Herns, 2013 Tenn. App. LEXIS 675 (decided October 8, 2013).
(D) Statements alleged to be defamatory "should be judged within the context in which they are made" and "read as a person of ordinary intelligence would understand them in light of the surrounding circumstances." Revis v. McClean, 31 S.W.3d 250, 253 (Tenn. App.2000).
(E) A statement is defamatory where "it tends so to harm the reputation of another as to lower him [or her] in the estimation of the community or to deter third persons from associating or dealing with him [or her]." Patterson v. Grant-Herns, supra.
(F) To be defamatory, the statement "must reasonably be construable as holding the plaintiff up to public hatred, contempt or ridicule, and it must convey an element of disgrace." Stones River, 651 S.W. 2d at 719.
(G) On the other hand, the law is especially concerned about defamatory statements that tend to prejudice a party in his business, trade, office or profession. See, e.g., Smith v. Fielden, 205 Tenn. 313, 326 S.W.2d 476, 479 (Tenn. 1959); McWhorter v. Barre, 132 S.W.3d 354, 364-365 (Tenn. Ct. App. 2003).
(v) In the same vein, some words are not defamatory when they merely express rhetorical hyperbole, opinions, vigorous epithets, and the like.
(A) While opinions are not normally capable of being defamatory, they are not "automatically protected," and "an opinion may be actionable if the communicated opinion may reasonably be understood to imply the existence of undisclosed defamatory facts justifying the opinion." Revis, 31 S.W. 3d at 253.
(B) "Mere hyperbole or exaggerated statements intended to make a point are not actionable defamatory statements." Farmer v. Hersh, 2007 Tenn. App. LEXIS 513 (decided August 9, 2007). For example, comments that someone committed "pure highway robbery" or "ripped off" another have been held not to constitute actionable defamation, but instead were mere hyperbole. Farmer, supra, citing Stones River, supra. In fact, the Hersh Court cites an opinion from Pennsylvania which held that the statement that the plaintiff's comments "reflect the sort of paranoid thinking that you get from a schizophrenic" would be understood by a normal person as "mere hyperbole." The Hersh Court held that "obvious exaggerations tending to emphasize" what was viewed as an unfair purchase price were "permissible hyperbole and [were] not defamatory as a matter of law."
(C) Other examples of non-actionable "rhetorical hyperbole," as cited in Anderson v. Watchtower Bible & Tract Society of N.Y., Inc., 2007 Tenn. App. LEXIS 29, n. 21 (decided January 19, 2007), include: Greenbelt Cooperative Publishing Association v. Bresler, 398 U.S. 6, 14, 90 S. Ct. 1537, 26 L. Ed. 2d 6 (1970)(finding that the use of the term "blackmail" to describe the plaintiff's negotiating tactics was not slander when spoken in a heated city council meeting, and not libel when published in newspaper articles accurately reporting the public debate because "the word was no more than rhetorical hyperbole, a vigorous epithet by those who considered [the defendant's] negotiating position extremely unreasonable"); Old Dominion Branch No. 496 v. Austin, 418 U.S. 264, 286, 94 S. Ct. 2770, 41 L. Ed. 2d 745 (1974)(holding that a union publication describing the plaintiff non-union member as a scab, and therefore "a traitor to his God, his country, his family, and his class" was not actionable because use of words like "traitor" in that case could not be construed as representations of fact, but rather as "merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members towards those who refuse to join").
(iv) Likewise, words which are merely annoying, offensive or embarrassing are not typically actionable. "A libel does not occur simply because the subject of a publication finds the publication annoying, offensive or embarrassing. The words must reasonably be construable as holding the plaintiff up to public hatred, contempt or ridicule. They must carry with them an element 'of disgrace.'" Brown v. Mapco Express, Inc., 393 S.W. 3d 696 (Tenn. App. 2012).
(2) Statute of Limitations Under Tennessee Law.
The statute of limitations under Tennessee law for slander (oral defamation) is six months from the time "the words are uttered." Tenn. Code Ann. § 28-3-103. The Tennessee Supreme Court has held that this statute of limitations is not an "accrual" limitation of actions, and therefore, the "discovery rule" is not applied to extend the limitations period when the injured plaintiff claims he did not know, and could not have reasonably known, of the slanderous statement until after the period had expired. See Quality Auto Parts Co. v. Bluff City Buick Co., 876 S.W. 2d 818 (Tenn. 1994).
For libel (written defamation), the statute of limitations is one year from the time the "cause of action accrued." Tenn. Code Ann. § 28-3-104. Unlike the statute of limitations for slander, the statute of limitations for written libel is an "accrual" limitations period, and therefore, the "discovery rule" does apply to extend an injured plaintiff's limitations period. As noted in Watson v. Fogolin, 210 Tenn. App. LEXIS 250 (decided April 1, 2010), "where the alleged libel is contained within documents not available to the general public, the statute of limitations begins to run when the plaintiff knew, or with reasonable diligence could have discovered, that he had been defamed."
(3) Damages Available Under Tennessee Law.
Tennessee no longer recognizes "presumed damages" in defamation cases, even when the words are considered defamatory "per se." Instead, a plaintiff is required to prove actual damages. Handley v. May, 588 S.W. 2d 772 (Tenn. 1979). However, "actual injury is not limited to out-of-pocket loss." "The more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury.... Failure to prove special damages or out of pocket loss is not necessarily determinative." Id. "If there is material evidence on any of the elements of damages, the cause must be submitted to the jury." Id.
In Handley, the plaintiff alleged that the defendant told others that he "was a member of organized crime," and he alleged the defendant engaged in "a campaign of slander, harassment, and embarrassment calculated to destroy the personal and professional integrity of the plaintiff." The plaintiff was unable to prove any specific monetary loss, nor any impairment to his reputation. Her only testimony regarding mental anguish was that she was upset by the telephone call which revealed the defamatory statements, and she was "unable to concentrate in her business." The Tennessee Supreme Court held that she had failed to prove any special damages, physical suffering or illness, and it affirmed the trial court's decision to direct a verdict in favor of the defendant. The Court further noted that the plaintiff's reaction to the telephone call was "anger rather than anguish," and "mere annoyance or loss of peace of mind do not constitute recoverable special damages." Id.
On the other hand, "it has been said that 'in actions of defamation the wrong done to a plaintiff is peculiarly difficult to measure according to a money standard.'" Spicer v. Thompson, 2004 Tenn. App. LEXIS 436 (decided July 7, 2004). Further, "in addition in cases involving libel and slander 'the amount of damages assessed depends on the degree of moral turpitude of the defendant's conduct.'" Id. In Spicer, the Court upheld an award of $1 Million in compensatory damages to the plaintiff police officer whose career was "ruined" by "egregious" defamation.
As summarized in one Tennessee case:
Under Tennessee law, a plaintiff is required to prove actual damages in all defamation cases. . . . Actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury. The failure to prove special damages or out-of-pocket losses is not necessarily determinative. The issue is whether the record contains any material evidence of impairment of reputation and standing in the community, personal humiliation, or mental anguish and suffering.
Myers v. Pickering Firm, Inc., 959 S.W.2d 152, 164 (Tenn. App. 1997), as cited in McWhorter v. Barre, 132 S.W. 3d 354 (Tenn. App. 2003).
In a case where a defamation plaintiff's "only proof" of injury to reputation was her assertion that co-workers "refused to work with her," but where there was no proof as to why co-workers would no longer work with her, the Tennessee Court of Appeals held that "it would be pure speculation" to conclude that the co-workers' refusal was caused by the defamatory comments, and therefore, the plaintiff's claim failed. Brasfield v. Dyer, 2010 Tenn. App. LEXIS 9 (decided January 12, 2010). Therefore, there must be proof of a causal connection between the defamatory statements and the alleged injury to reputation, beyond "mere speculation."
Finally, since presumed damages are no longer available for defamation under Tennessee law, then a jury's award of punitive damages with no award of compensatory or actual damages will not be permitted to stand. See Emerson v. Garner, 732 S.W. 2d 613 (Tenn. App. 1987).