Day on Torts
The recent opinion in Byrge v. Campfield, et al., No. E2013-01223-COA-R3-CV (Tenn. Ct. App. Sept. 8, 2014) serves as a good reminder of Tennessee defamation law involving a public figure.
In October 2008, Stacey Campfield, then a Republican State Representative for Tennessee’s 18th District, posted on his political blog an entry about the 36th State House District race featuring Democrat Roger Byrge. Campfield’s blog entry alleged that Byrge had a drug-related arrest record. The blog post stated, in part:
Word is a similar mail piece has gone out exposing Byrges multiple separate drug arrests. Including arrests for possession and drug dealing. (I hear the mug shots are gold).
The big problem with Campfield’s blog post is that it was false. Byrge had no such criminal record. Byrge lost the November election. Shortly thereafter he sued Campfield for defamation.
Campfield moved for summary judgment, claiming in his affidavit that he had received the false information about Byrge from Glenn Casada, who was the Republican State Representative for the 63rd District and also Chairman of the House Republican Caucus. Campfield asserted that Casada had told him that Byrge had a criminal record that included arrests for possession of drugs and drug dealing. Campfield knew that the Tennessee Republican Caucus frequently researches political candidates and races across the state during election season, and he believed the statements about Byrge were accurate and truthful at the time they were published on his blog. Campfield said that when the accuracy of the information that Casada had provided to him about Byrge was questioned he immediately removed the post from his blog.
Casada, on the other hand, claimed that he made the comment about Byrge to Campfield during an informal phone conversation and that he had characterized the information as preliminary. Casada confirmed that the information had been provided by the Tennessee Republican Caucus, and his precise words to Campfield were: “We may have a record of a felony on Roger Byrge.” Casada said he did not intend for any unverified information to be disseminated and that he had qualified his comments to Campfield.
Turns out that Campfield, Casada, and the Tennessee Republican Caucus had mistaken candidate Byrge for his son, Roger Derick Byrge. Regardless, the trial court granted Campfield’s motion for summary judgment and Byrge appealed.
The appellate court began its decision by reviewing the elements of a defamation claim in Tennessee, which are: (1) a party publish (i.e., communicate to a third party) a statement; (2) with knowledge that the statement is false and defaming to the other; OR (3) with reckless disregard for the truth of the statement or with negligence in failing to ascertain the truth of the statement. However, because Byrge was considered a “public figure,” the heightened standard required him to prove by clear and convincing evidence that Campfield’s 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.
Campfield’s defense on appeal was that he only published what Casada had told him about Byrge, that Casada was a credible source of information, and that it was not as though he had just picked up the information off the street and ran with it. However, because the summary judgment standard required that all facts be viewed in the light most favorable to Byrge, the court of appeals credited Casada’s version of the conversation over Campfield’s, placing great emphasis on the fact that Casada had been clear that the information on Byrge was preliminary and his statement to Campfield had been a qualified statement. Casada’s version of what he told Campfield (“We may have a record of a felony on Roger Byrge”) was materially different from what Campfield alleged Casada had told him (“Byrge had a criminal record that included arrests for possession of drugs and drug dealing). The appellate court ruled that reasonable minds could consider it at least reckless to publish information tending to tarnish someone’s reputation on the basis of a “may have,” especially when the record showed that Campfield had decided to publish the information without any kind of additional investigation or verification on his own or by Casada before publishing it.
Thus, according to the appellate court, there was clear and convincing evidence in the record upon which a trier of fact could find actual malice on Campfield’s part. The trial court had erred by granting Campfield’s motion for summary judgment because Campfield had not negated the essential element of actual malice. The opinion ended with the following observations before remanding the case to the trial court:
This Court recognizes and values the robust, free exchanges in politics that are so central to democracy and our constitutional republic. However, here we have a case not about differences of ideology or opinion, but rather about factually false allegations made against a candidate for public office. Politics may be a rough and tumble endeavor, but, contrary to the vintage Cole Porter song, “anything goes” will not suffice when it comes to publishing factual falsehoods about political rivals. A public figure, even a politician, is neither totally immune from nor totally unprotected by the law of defamation.
This was the right decision. If Campfield decides to appeal the decision to the Tennessee Supreme Court and the Court elects to hear the case, Campfield will lose again.
By the way, Campfield received just 28% of the vote in the August 7, 2014 Republican primary.