Filing a defamation claim is not for the faint of heart. Even if one can prove publication of an untrue, defamatory statement, the plaintiff must worry about whether he or she will be deemed a public figure or a limited-purpose public figure and, if a public figure, whether actual malice can be demonstrated. Even if the plaintiff is not deemed a public figure, she must prove at least negligence in failing to ascertain the truth of the statement. And, in appropriate cases, the plaintiff must be prepared to address the assertion of not only certain defenses but also a variety of privileges: conditional, executive office, fair report, judicial, legislative, litigation and more. Your defendant may buy ink by the barrel or produce a terabyte of Internet-based data every month, and if they do you will face extremely gifted lawyers who routinely practice defamation law.¹ Or your individual defendant, even one filled with malice and with a reputation as one who would rather climb a tree to tell a lie than stand on the ground and tell the truth, may well be judgment-proof. In short, the marshy field of defamation law has lots of land mines.

To be sure, there are some excellent defamation cases. The Sandy Hook families who filed defamation claims against Alex Jones and his entities were first cursed then blessed by Jones himself, a man who could give a seminar on how to establish and constantly enhance the value of a punitive damages claim. Suing Alex Jones for punitive damages is like hunting in a baited field where the game wants to die. And the collection of defamation cases filed by Dominion Systems Inc. against Fox News Corporation and others, concerning allegations of 2020 election-related misconduct with its voting machines, while not yet tried or otherwise resolved, certainly seem to have meat on the bones. But the average defamation case for the plaintiff is fraught with danger.

A relatively new law in Tennessee increases that danger. A person filing a defamation claim in Tennessee today is at risk of facing a petition under the Tennessee Public Participation Act (TPPA)², which is Tennessee’s version of an anti-SLAPP statute.³ The TTPA is designed “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 and, at the same time, protect the rights of persons to file meritorious lawsuits for demonstrable injury.”⁴ Therefore, the TPPA does not cloak defamation defendants with immunity from liability for claims arising from a defendant’s protected rights of speech, participation or association. Rather, it sets forth a procedure for identifying and dismissing, at an early stage, frivolous claims arising from an exercise of those rights.

The TPPA permits a defendant in a defamation suit to file a petition to dismiss the action within 60 days after service, alleging the action was filed in response to defendant’s exercise of the right of free speech, right to participation and right of association—each defined terms under the statute.⁵ For example, the TPPA defines the “[e]xercise of the right of free speech” as “a communication made in connection with a matter of public concern or religious expression that falls within the protection of the United States Constitution or the Tennessee Constitution[.]”⁶ A “matter of public concern” under the TPPA can include, inter alia, “an issue related to…[h]ealth or safety[,]” “[a] good, product or service in the marketplace[,]” or “[a]ny other matter deemed by a court to involve a matter of public concern.”⁷

Once the TPPA petition is filed, all discovery is stayed, absent a showing of good cause, until a ruling is made on the petition.⁸ The court must rule on the sufficiency of the petition using the process outlined in the statute.⁹ A court order dismissing or refusing to dismiss the underlying defamation complaint is immediately appealable.¹⁰ If the court dismisses the defamation action, reasonable attorney’s fees and expenses must be awarded to the defendant, and the court may award other sanctions.¹¹ Attorneys’ fees are not available to the defamation plaintiff unless the court determines the counterclaim was frivolous or filed solely for the purpose of unnecessary delay, and then the award of fees is discretionary, not mandatory.¹² There is no statutory provision for award of sanctions against the TPPA claimant, although Tenn. R. Civ. P. 11 should apply to permit sanctions if the claim was determined to meet the standard for sanctions under the rule.¹³

An early case giving an analysis of the TPPA was a defamation case.¹⁴ Dr. Nandigam and his neurology practice filed a defamation and false light action against Ms. Beavers over an unflattering Yelp! review.¹⁵ The case was a procedural nightmare in the courts below, but ultimately the Court of Appeals ruled that an order deciding a TPPA challenge is appealable, even if the trial court did not rule on a request for attorneys’ fees,¹⁶ and when a trial-level court decides a TPPA challenge, the law permits appeals to the Court of Appeals whether the order is final or interlocutory and regardless of whether the case is appealed from General Sessions or Circuit Court.¹⁷ They affirmed the dismissal of the case under the TPPA¹⁸ and remanded it for a determination of an award of attorneys’ fees and expenses, both on the trial and appellate level.¹⁹ Another recent decision, Reiss v. Rock Creek Construction Inc.,²⁰ makes it clear that when the defendant asserts a TPPA claim, the analysis of that claim is controlled by the dismissal procedure set forth in Tenn. Code Ann. § 20-17-105 rather than under Rule 12 of the Tennessee Rules of Civil Procedure.²¹

Finally, in Charles v. McQueen, the Court of Appeals ruled that a negative online review of Plaintiff concerning his real estate development business was covered by the TPPA because it related to “the notion of community well-being”²² and that defendant had established a prima facie case that she had engaged in protected activity under the TPPA.²³ The opinion also analyzes whether the plaintiff made a prima facie case of each of his claims (defamation and false light invasion of privacy) against the defendant.²⁴

The take-away is this: if you are asked to file a defamation claim on behalf of a plaintiff, review the TPPA and the case law and explain to your client the risk that such a claim may be asserted that, if successful, will subject the client to payment of attorneys’ fees. If you are defending such a claim, review the TPPA and the case law to determine whether you have a basis to assert a TPPA action. The assertion of the claim has the potential to shift the landscape in the litigation and put the plaintiff atop yet another land mine. |||

JOHN A. DAY is a plaintiff’s personal injury and wrongful death lawyer with offices in Brentwood, Murfreesboro and Nashville. He did some reading about land mines in connection with his work on this article, coming away both amazed and saddened with the numerous ways human beings have created to maim and kill one another.

NOTES

1. A terabyte contains 1024 gigabytes. It is large enough to store 500 hours’ worth of movies.
2. Tenn. Code Ann. § 20-17-101, et seq. There is another statute that referred to in court opinions as the “TPPA” – the Tennessee Public Protection Act, sometimes referred to as the “Whistleblower Act.” It found at Tenn. Code Ann. § 50-1-304.
3. “SLAPP” serves as an acronym for “strategic lawsuit against public participation.” Todd Hambridge et al., “Speak Up,” Vol. 55, Issue 9 Tennessee Bar Journal 14, 15 (2019).
4. Tenn. Code Ann. § 20-17-102.
5. Tenn. Code Ann.. § 20-17-103.
6. Tenn. Code Ann. § 20-17-103(3).
7. Tenn. Code Ann. § 20-17-103(6)(E), (G).
8. Tenn. Code Ann. § 20-17-104(d).
9. Tenn. Code Ann. § 20-17-104 and 105.
10. Tenn. Code Ann. § 20-17-106.
11. Tenn. Code Ann. § 20-17-107 (a).
12. Tenn. Code Ann. § 20-17-107 (b).
13. Id.
14. The first case to interpret the statute was Doe v. Roe, 638 S.W.3d 614 (Tenn. Ct. App. 2021). In Doe, the defendant Roe moved to dismiss a defamation case related to a Title IX complaint (and other communications) filed by Roe alleging that Doe sexually assaulted her. Roe asserted her filing of a Title IX complaint was covered by the TPPA and that the burden shifted to Doe to establish a prima facie case for each essential element of his claim as it pertained to the filing of the Title IX complaint. Id. at 623-24.
15. Nandigam Neurology v. Beavers, 639 S.W.3d 651 (Tenn. Ct. App. 2021).
16. Id. at 660-63. This holding was affirmed in Laferney v. Livesay, No. E2021-00812-COA-R3-CV, 2022 WL 14199150, *8-9 (Tenn. Ct. App. Oct. 25, 2022).
17. Id. at 663-67.
18. Id. at 667-69. To be clear, the plaintiff did not timely contest the TPPA filing and thus the appellate court did not have to undertake a detailed analysis of whether the plaintiff established a prima facie case for each element of their claims.
19. Id. at 669-70.
20. No. E2021-01513-COA-R3-CV, 2022 WL 16559447 (Tenn. Ct. App. Nov. 1, 2022).
21. Id. at *8.
22. Charles v. McQueen, No. E2021-01513-COA-R3-CV, 2022 WL 4490980, at *2-4 (Tenn. Ct. App. Sept. 28, 2022).
23. Id.
24. Id. at *10 -13. The court held that the plaintiff established a prima facie case of defamation but did not establish a prima facie case of false light invasion of privacy.