Charles v. McQueen

693 S.W.3d 262

Bill CHARLES

v.Donna MCQUEEN

Supreme Court of Tennessee, AT NASHVILLE.

October 4, 2023 Session

FILED July 3, 2024

Appeal by Permission from the Court of Appeals, Chancery Court for Williamson County, No. 21CV-50119, Michael Binkley, Judge

Ronald G. Harris, William J. Harbison II, and William T. Ramsey, Nashville, Tennessee, for the appellant, Donna McQueen.

Paul J. Krog, Eugene N. Bulso Jr., Eric W. Smith, and Nicholas W. Tsiouvaras, Brentwood, Tennessee, for the appellee, Bill Charles.

OPINION

Sarah K. Campbell, J., delivered the opinion of the court, in which Holly Kirby, C.J., Jeffrey S. Bivins, Roger A. Page, and Dwight E. Tarwater, JJ., joined.

Ordinarily, a plaintiff asserting a defamation claim must prove that the defendant made a false statement and did so negligently. If the plaintiff is a public figure, however, he must prove that the statement was made with actual malice. This is a steep hill to climb, so determining whether the plaintiff is a public figure is a crucial inquiry in any defamation case. This case is no exception. The plaintiff here, Bill Charles, assisted with the development of the Durham Farms community in Hendersonville, Tennessee, and is president of its homeowners’ association. Charles brought defamation and false light claims against Donna McQueen, a Durham Farms resident who posted a Google review that was critical of him. McQueen sought dismissal of Charles’s claims under the Tennessee Public Participation Act, arguing that Charles could not establish a prima facie case for his claims because he could not prove actual malice. The trial court agreed with McQueen and dismissed the claims. The Court of Appeals reversed in part. It agreed with McQueen that Charles had to prove actual malice to prevail on his false light claim and had failed to do so. But it held that Charles is not a public figure and therefore need not prove actual malice for his defamation claim. We disagree with the Court of Appeals on that score. We hold that Charles is a limitedpurpose public figure given the voluntary and prominent role he played in a controversy concerning changes to the Durham Farms development plan. We further hold that Charles failed to establish a prima facie case of actual malice. Finally, we reject Charles’s argument that McQueen waived her request for appellate attorney’s fees by failing to list it as an issue in her Court of Appeals brief. We reverse the Court of Appeals in part and affirm in part, and we remand for further proceedings.

I.

To set the scene for the factual and procedural history of this case, we first introduce the legal framework that governs defamation and false light actions in Tennessee. The relevant framework here includes the Tennessee Public Participation Act and protections for the freedom of speech and press in the United States and Tennessee Constitutions.

A.

The Tennessee Public Participation Act ("TPPA") was enacted in 2019 and is Tennessee’s version of an anti-SLAPP statute. Tennessee Public Participation Act, ch. 185, §§ 1–2, 2019 Tenn. Pub. Acts 455–57 (codified at Tenn. Code Ann. §§ 20-17-101 to -110 (2021)). The acronym "SLAPP" stands for strategic lawsuits against public participation. The primary aim of a SLAPP is not to prevail on the merits, but rather to chill the speech of the defendant by subjecting him or her to costly and otherwise burdensome litigation, See 2 Rodney A. Smolla, Law of Defamation § 9:107 (2d ed.), Westlaw (database updated May 2024); Nandigam Neurology, PLC v. Beavers, 639 S.W.3d 651, 658 (Tenn. Ct. App. 2021). Because SLAPPs threaten to interfere with the exercise of constitutionally protected rights, more than twenty states have adopted anti-SLAPP statutes to protect defendants "from the often punishing process of defending" such suits. Smolla, supra, § 9:107.

The TPPA attempts to strike a balance between two competing interests. On the one hand, it seeks to "encourage and safeguard the constitutional rights of persons to petition, to speak freely, to associate freely, and to participate in government to the fullest extent permitted by law." Tenn. Code Ann. § 20-17-102. "[A]t the same time," it also seeks to "protect the rights of persons to file meritorious lawsuits for demonstrable injury." Id.

Like many other anti-SLAPP statutes, the TPPA establishes a procedure for swift dismissal of non-meritorious claims. The defendant in a SLAPP suit may file a petition to dismiss the action within sixty days of service of the action or "at any later time that the court deems proper." Id. § 20-17-104(a)–(b).

Courts engage in a two-step analysis to rule on a TPPA petition. First, the court determines whether the petitioner has made a prima facie case that the challenged lawsuit "is based on, relates to, or is in response to [the petitioner’s] exercise of the right to free speech, right to petition, or right of association." Id. § 20-17-105(a). If the petitioner has not made this showing, the court denies the petition. See id. § 20-17-105(b). But if the petitioner succeeds at the first step, the court next determines whether the respondent has made a prima facie case for each essential element of his claim. Id. If the respondent meets this burden, the court must deny the petition unless "the petitioning party establishes a valid defense to the claims in the legal action." Id. § 20-17-105(b)–(c). Otherwise, the court must grant the petition and dismiss the suit with prejudice. Id. § 2047405(e).

The filing of a TPPA petition immediately stays discovery in the pending lawsuit until the court has ruled on the petition. Id. § 20-17-104(d). But "[t]he court may allow specified and limited discovery relevant to the petition upon a showing of good cause." Id. In ruling on a petition, a court may consider "supporting and opposing sworn affidavits stating admissible evidence" and "admissible evidence presented by the parties." Id. § 2047405(d). A court’s ruling on a TPPA petition is immediately appealable. Id. § 20-17-106.

The TPPA also has a fee shifting provision. If a court grants a TPPA petition for dismissal, it "shall award" the petitioner "[c]ourt costs, reasonable attorney’s fees, discretionary costs, and other expenses incurred in filing and prevailing upon the petition" along with "[a]ny additional relief, including sanctions, that the court determines necessary to deter repetition of the conduct by the party who brought the legal action or by others similarly situated." Id. § 20-17-107(a)(1)–(2). Conversely, if a court finds that a petition was frivolous or solely dilatory, the court may award to the respondent costs and fees incurred to oppose the petition. Id. § 204 7407(b).

B.

At the founding, defamatory statements enjoyed no constitutional protection. Herbert v. Lando, 441 U.S. 153, 158, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979); Beauharnais v. Illinois, 343 U.S. 250, 266, 72 S.Ct. 725, 96 L.Ed. 919 (1952); Memphis Publ’g Co. v. Nichols, 569 S.W.2d 412, 415 (Tenn. 1978); see also Robert C. Post, The Social Foundations of Defamation Law: Reputation and the Constitution, 74 Calif. L. Rev. 691, 721 (1986). That changed in 1964 when the United States Supreme Court decided New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

In Sullivan, the Court held that the First Amendment "prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Id. at 279-280, 84 S.Ct. 710. The Court explained that "erroneous statement is inevitable in free debate" and "must be protected if the freedoms of expression are to have" sufficient " ‘breathing space.’ " Id. at 271-72, 84 S.Ct. 710 (quoting NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963)). The actual malice standard provides this necessary breathing space, the Court reasoned, by ensuring that "would-be critics of official conduct" will not be "deterred from voicing their criticism," either because of doubt about whether they can prove the truth of their speech or the "expense of having to do so." Id. at 279, 84 S.Ct. 710.

[1] Although the actual malice standard initially applied only in actions involving speech critical of the official conduct of public officials, the United States Supreme Court later extended the standard to speech critical of public figures, including private individuals with prominent roles in public controversies. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 342–43, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Curtis Publ’g Co. v. Butts, 388 U.S. 130, 155, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). Our Court has held that the Tennessee Constitution’s protections for free speech and press likewise require an actual malice standard for defamation actions involving speech critical of public officials or public figures. See Press, Inc. v. Verran, 569 S.W.2d 435, 441-42 (Tenn. 1978) (interpreting Article I, Section 19, of the Tennessee Constitution to require an actual malice standard).¹

[2] Private individuals, by contrast, need only show that allegedly false statements were made negligently to recover in a defamation action. Nichols, 569 S.W.2d at 417-18. The United States Supreme Court explained the rationale for these different standards in Gertz. It reasoned that "[p]rivate individuals are … more vulnerable to injury" from defamatory statements than public officials or public figures because they have less "access to the channels of effective communication" and fewer "opportunit[ies] to counteract false statements." Gertz, 418 U.S. at 344, 94 S.Ct. 2997; see also Verran, 569 S.W.2d at 439. Moreover, a private individual has not "relinquished … his interest in the protection of his own good name" by becoming a public official or public figure and therefore is "more deserving of recovery." Gertz, 418 U.S. at 345...