Tennessee

Reporter's Privilege Compendium

Lucian T. Pera
Adams and Reese LLP
Crescent Center

6075 Poplar Avenue, Suite 700

Memphis, TN 38119-0100

Tel: 901-524-5278

Fax: 901-524-5378

Last updated October 2018

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I. Introduction: History & Background

In 1974, in the wake of the U.S. Supreme Court decision in Branzburg v. Hayes, 408 U.S. 665 (1972), Tennessee adopted its current reporter's shield law. The statute protects journalists' sources and information, gathered for publication or broadcast, whether obtained confidentially or not, and whether published or not. See Tenn. Code Ann. § 24-1-208. Tennessee's broad shield law has generally been interpreted by Tennessee courts to favor protection for journalists. Tennessee courts have not addressed whether a privilege is also available by way of the state or federal constitutions.

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II. Authority for and source of the right

Tennessee has a shield law that protects journalists' sources and all other information gathered for publication or broadcast, whether obtained confidentially or not, and whether published or not. See Tenn. Code Ann. § 24-1-208. The shield law was enacted in 1974, in the wake of the 1972 U.S. Supreme Court decision in Branzburg v. Hayes. Cases under the statute have focused on the shield law's broad protection and have not addressed whether a privilege is also available by way of the state or federal constitutions.

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A. Shield law statute

Tennessee's shield law was enacted in 1974, in the wake of the 1972 U.S. Supreme Court decision in Branzburg v. Hayes.

The Tennessee shield law provides:

§ 24-1-208. Persons gathering information for publication or broadcast Disclosure.

(a) A person engaged in gathering information for publication or broadcast connected with or employed by the news media or press, or who is independently engaged in gathering information for publication or broadcast, shall not be required by a court, a grand jury, the general assembly, or any administrative body, to disclose before the general assembly or any Tennessee court, grand jury, agency, department, or commission any information or the source of any information procured for publication or broadcast.

(b) Subsection (a) shall not apply with respect to the source of any allegedly defamatory information in any case where the defendant in a civil action for defamation asserts a defense based on the source of such information.

(c)

(1) Any person seeking information or the source thereof protected under this section may apply for an order divesting such protection. Such application shall be made to the judge of the court having jurisdiction over the hearing, action or other proceeding in which the information sought is pending.

(2) The application shall be granted only if the court after hearing the parties determines that the person seeking the information has shown by clear and convincing evidence that:

(A) There is probable cause to believe that the person from whom the information is sought has information which is clearly relevant to a specific probable violation of law;

(B) The person has demonstrated that the information sought cannot reasonably be obtained by alternative means; and

(C) The person has demonstrated a compelling and overriding public interest of the people of the state of Tennessee in the information.

(3)

(A) Any order of the trial court may be appealed to the court of appeals in the same manner as other civil cases. The court of appeals shall make an independent determination of the applicability of the standards in this subsection to the facts in the record and shall not accord a presumption of correctness to the trial court's findings.

(B) The execution of or any proceeding to enforce a judgment divesting the protection of this section shall be stayed pending appeal upon the timely filing of a notice of appeal in accordance with Rule 3 of the Tennessee Rules of Appellate Procedure, and the appeal shall be expedited upon the docket of the court of appeals upon the application of either party.

Tenn. Code Ann. § 24-1-208.

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B. State constitutional provision

The Tennessee Constitution does not contain an express shield law provision. Section 19 of the Tennessee Constitution, called the "Press Clause," provides:

Freedom of speech and press. - That the printing presses shall be free to every person to examine the proceedings of the Legislature; or of any branch or officer of the government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions, is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty . . . .

Tennessee courts have focused on the shield law statute, Tenn. Code Ann. § 24-1-208, rather than this constitutional provision, in their discussion of the reporter's privilege.

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C. Federal constitutional provision

Tennessee decisions have not mentioned the U.S. Constitution in their discussion of the reporter's privilege.

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D. Other sources

Tennessee courts have not recognized any other sources of law for a reporter's privilege.

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III. Scope of protection

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A. Generally

The Tennessee shield law provides broad, though qualified, protection of "any information or the source of any information procured for publication or broadcast" by a journalist, and has been construed to cover journalists' sources, as well as all information gathered, whether the information is confidential or not, and whether the information is published or not. Tenn. Code Ann. § 24-1-208(a). The Tennessee Supreme Court has noted that "[t]he Legislature did not qualify 'any information' or the 'source of any information.' The non-specific adjective 'any' means 'all.'" Austin v. Memphis Publishing Co., 655 S.W.2d 146 (Tenn. 1983); see also State v. Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim. App. 2005).

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B. Absolute or qualified privilege

The privilege afforded by the Tennessee shield law is qualified. The privilege can be overcome by a showing, by clear and convincing evidence, that: (A) there is probable cause that the information sought is clearly relevant to a specific probably violation of law; (B) the information sought cannot be obtained by alternative means; and (C) there is a compelling and overriding public interest in the information. Tenn. Code Ann. § 24-1-208(c)(2). All three of these elements must be proven "by clear and convincing evidence" by the party seeking to obtain testimony from the journalist. Id.

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C. Type of case

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1. Civil

The Tennessee shield law applies in all civil cases. Austin v. Memphis Publishing Co., 655 S.W.2d 146 (Tenn. 1983).

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2. Criminal

The Tennessee shield law applies in all criminal cases. See State ex rel. Gerbitz v. Curriden, 738 S.W.2d 192 (Tenn. 1987); Austin v. Memphis Publishing Co., 655 S.W.2d 146 (Tenn. 1983) (rejecting contention that Tenn. Code Ann. § 24-1-208 is limited to civil cases); State v. Franklin, No. 01C01-9510-CR-00348, 1997 WL 83772, 1997 Tenn. Crim. App. LEXIS 199 (Tenn. Crim. App. 1997); State v. Shaffer, No. 89-208-II, 1990 WL 3347,1990 Tenn. App. LEXIS 21, 17 Med. L. Rptr. 3347 (Tenn. Ct. App. 1990); see also State v. Lane, 1991 WL 34649 (Tenn. Cir. Ct., Dyer Cnty, Jan 10, 1991).

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3. Grand jury

The Tennessee shield law expressly covers grand jury subpoenas. Tenn. Code Ann. § 24-1-208(a); see also State ex rel. Gerbitz v. Curriden, 738 S.W.2d 192 (Tenn. 1987).

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D. Information and/or identity of source

The Tennessee shield law specifically protects "any information or the source of any information procured for publication or broadcast." Tenn. Code Ann. § 24-1-208(a); see Moman v. M.M. Corp., No. 02A01-9608-CV00182, 1997 WL 167210, at *2, 1997 Tenn. App. LEXIS 233 (Tenn. Ct. App. Apr. 10, 1997).

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E. Confidential and/or nonconfidential information

The Tennessee shield law protects both confidential and non-confidential information. Austin v. Memphis Publishing Co., 655 S.W.2d 146 (Tenn. 1983); see also Haney v. Copeland, 291 B.R. 740, 756 (Bankr. E.D. Tenn. 2003); State v. Kendrick, 178 S.W.3d 734, 737 (Tenn. Crim. App. 2005); State v. Franklin, No. 01C01-9510-CR-00348, 1997 WL 83772, at *7, 1997 Tenn. App. LEXIS 199 (Tenn. Crim. App. 1997).

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F. Published and/or non-published material

The Tennessee shield law protects both published and unpublished information, so long as the information was "procured for publication or broadcast," Tenn. Code Ann. § 24-1-208(a); State v. Shaffer, No. 89-208-II, 1990 WL 3347,1990 Tenn. App. LEXIS 21, 17 Med. L. Rptr. 3347 (Tenn. Ct. App. 1990).

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G. Reporter's personal observations

There is no Tennessee statutory or case law on this issue, but the broad sweep of the statute to cover all information gathered for publication or broadcast, suggests that reporter’s personal observations would be within the protection of the statute.

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H. Media as a party

The Tennessee shield law does not differentiate between cases where the media or the particular journalist subpoenaed is a party and cases where they are not. But see the section on defamation cases.

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I. Defamation actions

The Tennessee shield law contains an exception for defamation cases. Subsection (b) provides that the privilege "shall not apply with respect to the source of any allegedly defamatory information in any case where the defendant in a civil action for defamation asserts a defense based on the source of such information." Tenn. Code Ann. § 24-1-208(b); see Moman v. M.M. Corp., No. 02A01-9608-CV00182, 1997 WL 167210, at *2, 1997 Tenn. App. LEXIS 233 (Tenn. Ct. App. 1997). See also Funk v. Scripps Media, Inc., No. M2017-00256-COA-R3-CV, 2017 WL 5952914, 2017 Tenn. App. LEXIS 779 (Tenn. Ct. App. Nov. 30, 2017), appeal granted, 2018 Tenn. App. LEXIS 140 (Tenn. Mar. 15, 2018).

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IV. Who is covered

The Tennessee shield law applies to any "person engaged in gathering information for publication or broadcast connected with or employed by the news media or press, or who is independently engaged in gathering information for publication or broadcast." Tenn. Code Ann. § 24-1-208(a). This protection is broad and appears to cover most types of newsgatherers. There is no case law further defining who is covered by the shield law, but it has generally been given a broad application by Tennessee courts.

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A. Statutory and case law definitions

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1. Traditional news gatherers

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a. Reporter

The Tennessee shield law applies to any "person engaged in gathering information for publication or broadcast connected with or employed by the news media or press, or who is independently engaged in gathering information for publication or broadcast." Tenn. Code Ann. § 24-1-208(a). The statute does not mention the term "reporter," but the statute is clearly meant to cover a broad range of people working in journalism.

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b. Editor

The Tennessee shield law applies to any "person engaged in gathering information for publication or broadcast connected with or employed by the news media or press, or who is independently engaged in gathering information for publication or broadcast." Tenn. Code Ann. § 24-1-208(a). The statute does not mention the term "editor," but the statute is clearly meant to cover a broad range of people working in journalism.

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c. News

The Tennessee shield law applies to any "person engaged in gathering information for publication or broadcast connected with or employed by the news media or press, or who is independently engaged in gathering information for publication or broadcast." Tenn. Code Ann. § 24-1-208(a). The statute uses, but does not define, the terms, "news," "news media," and "press." The context of the statute strongly supports a broad interpretation of these terms, but there is no case law further defining who is covered by the shield law.

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d. Photo journalist

The Tennessee shield law applies to any "person engaged in gathering information for publication or broadcast connected with or employed by the news media or press, or who is independently engaged in gathering information for publication or broadcast." Tenn. Code Ann. § 24-1-208(a). Neither the statute nor case law applying the statute expressly addresses whether photojournalists are covered. Nevertheless, the protection afforded by the shield law is broad and appears to apply to most types of newsgatherers.

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e. News organization/medium

The Tennessee shield law applies to any "person engaged in gathering information for publication or broadcast connected with or employed by the news media or press, or who is independently engaged in gathering information for publication or broadcast." Tenn. Code Ann. § 24-1-208(a). Neither the statute nor case law applying the statute expressly defines "news organization" or "media," but courts have generally considered that organizations that otherwise fall within the coverage of the statute fit within the meaning of "person."

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2. Others, including non-traditional news gatherers

The Tennessee shield law applies to any "person engaged in gathering information for publication or broadcast connected with or employed by the news media or press, or who is independently engaged in gathering information for publication or broadcast." Tenn. Code Ann. § 24-1-208(a). This protection is broad, and there is no case law expressly concerning whether, or to what extent, "non-traditional" newsgatherers would be covered. Nevertheless, the law has generally been given a broad application by Tennessee courts.

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B. Whose privilege is it?

In reported cases, the privilege has consistently been asserted by the newsgatherer. It is unclear whether others may assert the privilege.

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V. Procedures for issuing and contesting subpoenas

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A. What subpoena server must do

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1. Service of subpoena, time

There are no specific service requirements applying to news media subpoenas.

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2. Deposit of security

The deposit of security is not required.

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3. Filing of affidavit

The filing of an affidavit is not expressly required.

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4. Judicial approval

Judicial approval is not required, but subpoenas must generally be issued by a court clerk.

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5. Service of police or other administrative subpoenas

Various state and local administrative bodies have subpoena power, and procedures for issuing these subpoenas vary according to the rules governing each such body. Police departments generally do not have subpoena power under Tennessee law.

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B. How to Quash

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1. Contact other party first

As in most other states, it is advisable that a media party who is subpoenaed first attempt to contact the subpoenaing party before trying to quash the subpoena by formal motion. Counsel for the subpoenaing party may not be aware of the shield law and the requirements for enforcing compliance or may be willing to withdraw the subpoena voluntarily, upon learning that a subpoena will be opposed. As a practical matter, subpoenaing counsel are frequently convinced to withdraw or abandon a subpoena upon understanding the breadth of the coverage of the statute and the provision of the statute providing for a stay of enforcement of a trial court order for a reporter to testify merely upon the filing of a notice of appeal. See Tenn. Code Ann. § 24-1-208(c)(3)(B).

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2. Filing an objection or a notice of intent

The Tennessee shield law provides that the subpoenaing party must affirmatively take action (usually by filing a motion) to have a court divest the media party of the privilege. Tenn. Code Ann. § 24-1-208(c). Thus, the media party is not required to file a motion to quash, but it may do so.

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3. File a motion to quash

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a. Which court?

The motion to quash should be filed in the court or before the administrative body that issues the subpoena.

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b. Motion to compel

The media party may file a motion to quash the subpoena or may wait for the subpoenaing party to apply to the court for an order divesting the media party of the privilege. Tenn. Code Ann. § 24-1-208(c).

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c. Timing

There is no set timing for the motion to quash the subpoena.

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d. Language

The motion to quash the subpoena should cite and use the language of the shield law. Generally, the best practice would be to support the motion to quash with a simple affidavit of the subpoenaed journalist that invokes the provisions of the statute or affirms that the facts stated in the motion to quash are true.

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e. Additional material

There is no need for other material to be attached to the motion to quash the subpoena.

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4. In camera review

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a. Necessity

The Tennessee Court of Appeals has held that the shield law statute does not allow for in camera review. State v. Shaffer, No. 89-208-II, 1990 WL 3347,1990 Tenn. App. LEXIS 21, 17 Med. L. Rptr. 3347 (Tenn. Ct. App. 1990). The court said that the trial judge, who had ordered in camera review of a television reporter's interview outtakes, had exceeded his authority in making such an order. Because the shield law statute provides for an evidentiary hearing on the elements of the privilege, and because it makes no mention of in camera review, the court found that in camera review was improper.

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The Tennessee Court of Appeals has held that the shield law does not permit in camera review. State v. Shaffer, No. 89-208-II, 1990 WL 3347,1990 Tenn. App. LEXIS 21, 17 Med. L. Rptr. 3347 (Tenn. Ct. App. 1990). Thus, the issue of consenting to review should not come up.

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c. Consequences of refusing

The Tennessee Court of Appeals has held that the shield law statute does not allow for in camera review. State v. Shaffer, No. 89-208-II, 1990 WL 3347,1990 Tenn. App. LEXIS 21, 17 Med. L. Rptr. 3347 (Tenn. Ct. App. 1990). Thus, the issue of refusing in camera review should not come up. Nevertheless, journalists should be aware that they may be held in contempt for violating a court order, whether or not that order is proper.

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5. Briefing schedule

Any briefing schedule would be set by the court.

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6. Amicus briefs

Tennessee Rule of Appellate Procedure 31 outlines the procedures for filing amicus curiae briefs in the appellate courts. There is no established procedure for amicus briefs in the trial courts.

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VI. Substantive law on contesting subpoenas

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A. Burden, standard of proof

The shield law provides that the party seeking to enforce a subpoena directed to a reporter must show by clear and convincing evidence three elements: (A) there is probable cause that the information sought by the subpoena is clearly relevant to a specific probable violation of law; (B) the information sought cannot be obtained by alternative means; and (C) there is a compelling and overriding public interest in the information. Tenn. Code § 24-1-208(c)(2). See Haney v. Copeland, 291 B.R. 740, 756 (Bankr. E.D. Tenn. 2003) (stating that a party's application for divestiture will be denied if all three requirements of subsection (c)(2) are not proven by clear and convincing evidence); Moore v. Domino's Pizza, L.L.C., 199 F.R.D. 598 (W.D. Tenn. 2000) (stating that each of the three factors set forth in section 24-1-208(c) must be established by clear and convincing evidence to divest a news reporter of the privilege); State ex rel. Gerbitz v. Curriden, 738 S.W.2d 192 (Tenn. 1987); State v. Kendrick, 178 S.W.3d 734, 737 (Tenn. Crim. App. 2005); State v. Shaffer, No. 89-208-II, 1990 WL 3347,1990 Tenn. App. LEXIS 21, 17 Med. L. Rptr. 3347 (Tenn. Ct. App. 1990) (stating that, unless and until each element set forth in subsection (c)(2) is proven by clear and convincing evidence, the court will not enter an order divesting the privilege).

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B. Elements

The legislature has enacted a three-pronged test in Tenn. Code Ann § 24-1-208(c) that must be satisfied before a court will compel a reporter to reveal information protected by the privilege. See State ex rel. Gerbitz v. Curriden, No. 586, 1986 WL 15576, 1986 Tenn. App. LEXIS 3546 (Tenn. Ct. App. Nov. 14, 1986). In order to enforce a subpoena directed to a journalist, the subpoenaing party must show that: (A) there is probable cause to believe that the person from whom the information is sought has information that is clearly relevant to a specific probable violation of law; (B) the information sought cannot reasonably be obtained by alternative means; and (C) there is a compelling and overriding public interest of the people of the state of Tennessee in the information. Tenn. Code Ann. § 24-1-208(c).

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1. Relevance of material to case at bar

There is no case law discussing the relevancy requirement of the shield law in any detail. The statute requires that the subpoenaing party allege and prove, by clear and convincing evidence, not only that the journalist whose testimony is desired has information relevant to issues in the case, but also that, as one of three elements required to be proven to divest the privilege, that there is probable cause to believe that the person from whom the information is sought has information that is clearly relevant to a specific probable violation of law. See Benson v. McConkey, 11 Med. L. Rptr. 1711 (Tenn. Ct. App. 1985).

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2. Material unavailable from other sources

The subpoenaing party must prove, by clear and convincing evidence, that the information sought cannot reasonably be obtained by alternative means. Tenn. Code Ann. § 24-1-208(c).

In one federal case arising under Tennessee law, the court denied a defendant's demand for an opportunity to depose a news reporter because the subpoenaing party had not proven that the information sought could not be obtained elsewhere. Moore v. Domino's Pizza, L.L.C., 199 F.R.D. 598 (W.D. Tenn. 2000). The district court noted that no attempt had been made to depose the plaintiffs, who had the information defendants sought from the reporter. In addition, court records indicated that other sources of the same information, besides plaintiffs, might be available. Thus, the privilege could not be overcome. Id. at 600-01.

In another case, the Tennessee Supreme Court held that a prosecutor had failed to prove by clear and convincing evidence that alternative means had not been tested before he subpoenaed a radio newscaster to give "general information" before a grand jury investigating a murder. State ex rel. Gerbitz v. Curriden, 738 S.W.2d 192 (Tenn. 1987). The prosecutor had given "no explanation of what information was sought from [the reporter] or what other efforts, if any, the Attorney General or other law enforcement agencies had made to determine the identity of the criminal offense, the offender himself, or the site of the offense." Id. at 193. In addition, the court noted, "[n]o investigation or inquiry by [county] officials with officials from surrounding counties appears to have been made, nor has any check of prison or parole records been shown." Id. Thus, because alternative methods of obtaining information had not been tried, the reporter was protected by the privilege. Id.

Another Tennessee case has held that, when the source of a news report admits the statements attributed to them in all material respects, the plaintiff will likely "fail[] to show that there is probable cause to believe that the subpoenaed reporter has information which is relevant and which cannot be obtained by alternative means." See Dingman v. Harvell, 814 S.W.2d 362 (Tenn. Ct. App. 1991); see also State v. Clark, No. E2016-01629-COA-R3-CV, 2017 WL 564888, 2017 Tenn. App. LEXIS 100, 45 Med. L. Rptr. 1321 (Tenn. Ct. App. Feb. 13, 2017) (upholding denial of state’s motion to divest protection in criminal case because state failed to prove information could not be obtained by alternative means).

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a. How exhaustive must search be?

It is not clear from Tennessee case law how exhaustive the search for alternative sources of information must be. However, the subpoenaing party clearly must attempt to depose or question all obvious alternative sources before a court will divest the reporter's privilege. See Moore v. Domino's Pizza, L.L.C., 199 F.R.D. 598 (W.D. Tenn. 2000); State ex rel. Gerbitz v. Curriden, 738 S.W.2d 192 (Tenn. 1987).

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b. What proof of search does a subpoenaing party need to make?

The subpoenaing party must prove, by clear and convincing evidence, that alternative sources are unavailable. Tenn. Code Ann. § 24-1-208(c)(2)(B); see Moore v. Domino's Pizza, L.L.C., 199 F.R.D. 598 (W.D. Tenn. 2000); State ex rel. Gerbitz v. Curriden, 738 S.W.2d 192 (Tenn. 1987).

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c. Source is an eyewitness to a crime

The shield law specifically requires that the subpoenaing party prove, by clear and convincing evidence, that there is probable cause to believe that that the subpoenaed journalist has information which is clearly relevant to a specific probable violation of law. Tenn. Code Ann. § 24-1-208(c)(2)(A). In one case, a radio broadcaster was not required to divulge the identity of a caller who stated that he was responsible for killing a person and had not been apprehended and charged with the crime because the plaintiff had not demonstrated by clear and convincing evidence that the information sought could not reasonably be obtained from other sources. State ex rel. Gerbitz v. Curriden, 738 S.W.2d 192 (Tenn. 1987).

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3. Balancing of interests

The shield law specifically requires that the subpoenaing party prove, by clear and convincing evidence, that there is a compelling and overriding public interest in the testimony of the journalist. Tenn. Code § 24-1-208(c)(2)(C). There is no Tennessee case law separately construing this element.

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4. Subpoena not overbroad or unduly burdensome

No specific provision of the shield law prohibits a subpoena from being overbroad or unduly burdensome, but compliance with its express requirements would likely, in most cases, lead a court to limit subpoenas that were otherwise overly broad or unduly burdensome. Further, the requirements of the Tennessee Rules of Civil Procedure and the Tennessee Rules of Criminal Procedure may provide some additional protection in their general limitations on all subpoenas. See Tennessee Rule of Civil Procedure 45.07 (authorizing a court to limit or quash a subpoena that is "unreasonable or oppressive"); Tennessee Rule of Criminal Procedure 17(d) (similar restriction on subpoenas for documents and things).

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5. Threat to human life

There is no statutory or case law specifically on this issue.

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6. Material is not cumulative

Tennessee Rules of Evidence 403 precludes the "needless presentation of cumulative evidence," even where that evidence may be relevant. The subsection of the shield law that requires the subpoenaing party to prove, by clear and convincing evidence, that the testimony sought be "clearly relevant," Tenn. Code Ann § 24-1-208(c)(2)(A), may support an argument that evidence that would cumulative, and thus could be excluded under Tennessee Rule of Evidence 403, should not be compelled from a journalist. There is no case law specifically on this issue.

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7. Civil/criminal rules of procedure

Tennessee Rule of Civil Procedure 45 outlines the requirements for service of and compliance with civil subpoenas. Tennessee Rule of Civil Procedure 45.07 provides that "the Court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may . . . quash or modify the subpoena if it is unreasonable and oppressive." As to subpoenas calling for the production of documents or things, Tennessee Rule of Criminal Procedure 17(d)(2) provides that, "[o]n motion promptly and in any event by the time specified in the subpoena for compliance therewith, the court may quash or modify the subpoena if compliance would be unreasonably or oppressive."

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