When a defamation defendant in Tennessee invokes the source of an allegedly defamatory statement as a defense, does the plaintiff have to follow the Shield Law's divestiture-order procedure to get the source disclosed?

Plain-English summary

The Tennessee Shield Law, Tenn. Code Ann. § 24-1-208, protects journalists from being forced to disclose information they gathered for publication or the sources of that information. But that protection has a defamation exception: if a defendant in a defamation case asserts a defense based on the source of the allegedly defamatory information (e.g., "I relied on a credible police source"), the shield does not protect that source.

The Shield Law also has a divestiture procedure at subsection (c)(1): a person seeking protected information or sources can apply to the court for an order divesting the protection. A state representative asked whether a plaintiff trying to learn the source of allegedly defamatory information has to use that divestiture procedure, or whether normal discovery rules apply because the subsection (b) defamation exception already strips the protection.

The AG's answer: subsection (c)(1) does not apply to subsection (b) situations. The divestiture procedure exists to overcome the shield in cases where the shield otherwise protects the material. In a defamation case where the defendant's defense puts the source at issue, the shield does not protect the source at all. There is nothing to divest because there is nothing to shield. So ordinary discovery rules apply.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Tenn. Code Ann. § 24-1-208 has three operative subsections relevant to the question:

• § 24-1-208(a) (the privilege). A person engaged in gathering information for publication or broadcast (whether connected with the news media or independent) "shall not be required by a court, a grand jury, the general assembly, or any administrative body, to disclose . . . any information or the source of any information procured for publication or broadcast." This creates the journalist's privilege.

• § 24-1-208(b) (the defamation exception). "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." This is a categorical carve-out, not a "balancing" exception. When the defendant puts the source at issue as part of the defense, the source is no longer protected by the shield.

• § 24-1-208(c)(1) (the divestiture procedure). "Any person seeking information or the source thereof protected under this section may apply for an order divesting such protection."

The text of (c)(1) is the key. It applies to information or sources "protected under this section." The AG read that phrase to refer only to material the shield actually protects, which is the material covered by subsection (a). Subsection (b) does not protect anything; it removes protection in specified circumstances. So material falling under (b) is not "information or the source thereof protected under this section."

That reading is the natural one. Subsection (a) creates a privilege. Subsection (b) creates an exception. Subsection (c)(1) creates a procedural mechanism for overcoming the privilege. The procedural mechanism applies where there is a privilege to overcome. If subsection (b) already took the material out of the privilege, the procedural mechanism is unnecessary, and forcing the requesting party to apply for a divestiture order would be a meaningless ritual that adds nothing to ordinary civil discovery.

The Tennessee Supreme Court's decision in Austin v. Memphis Publishing Co., 655 S.W.2d 146 (Tenn. 1983), supports this structure. Austin described subsection (a) as creating a "shield" and (b) as excluding the source from that shield in defamation cases where the defense relies on the source. The shield is what (c)(1) divests; when there is no shield, there is no divestiture to do.

The opinion did not address what showing a defamation defendant must make to assert "a defense based on the source." That question, what counts as such a defense and how courts evaluate it, is left to litigation. The point of 16-23 is only that, once (b) applies, the plaintiff can use ordinary discovery (interrogatories, depositions, subpoenas under Rule 45) to seek the source, without first running the (c)(1) gauntlet.

Common questions

Q: I'm suing a newspaper for defamation. Do I have to file a divestiture motion under § 24-1-208(c)(1) before deposing the reporter about her source?
A: Not if the newspaper has asserted a defense based on the source under subsection (b). In that situation, the source is not "protected" by the shield, so the divestiture motion is not required.

Q: What if the defendant's defense does not rely on the source?
A: Then subsection (b) doesn't apply, the shield in subsection (a) still protects the source, and the plaintiff would need to use the (c)(1) divestiture procedure to seek disclosure.

Q: Does that mean I can compel disclosure of any source in a defamation case?
A: No. Subsection (b) requires the defendant to have asserted "a defense based on the source." A general denial of defamation, without putting the source at issue, may not trigger (b). The defendant's pleading practice matters.

Q: Does subsection (b) reach information other than the source?
A: Subsection (b) by its terms reaches only "the source of any allegedly defamatory information." Other information protected under (a), like notes, drafts, or unpublished material, remains under the privilege unless divested under (c)(1).

Q: What about the First Amendment journalist's privilege?
A: The Tennessee Shield Law is a state statutory privilege. The federal First Amendment recognizes a qualified journalist's privilege, but its scope is contested and varies by circuit. A defendant or third party could potentially assert First Amendment protections that are independent of the Tennessee statute. The AG opinion only addressed the statutory framework.

Citations and references

Statutes (as cited in the opinion):

• Tenn. Code Ann. § 24-1-208(a) (general privilege)
• Tenn. Code Ann. § 24-1-208(b) (defamation exception)
• Tenn. Code Ann. § 24-1-208(c)(1) (divestiture procedure)

Cases:

• Austin v. Memphis Pub. Co., 655 S.W.2d 146 (Tenn. 1983)
• Morgan Keegan & Co. v. Smythe, 401 S.W.3d 595 (Tenn. 2013)
• Nye v. Bayer Cropscience, Inc., 347 S.W.3d 686 (Tenn. 2011)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2016/op16-023.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
June 21, 2016
Opinion No. 16-23
Application of Divestiture Under the Tennessee Shield Law

Question
Is an application pursuant to Tenn. Code Ann. § 24-1-208(c)(1) for an order divesting the
protection of the Tennessee Shield Law necessary only when someone is seeking disclosure of
information or the source of information otherwise protected under Tenn. Code Ann. § 24-1-
208(a), or must someone seeking disclosure of the source of defamatory information as permitted
under Tenn. Code Ann. § 24-1-208(b) also apply pursuant to Tenn. Code Ann. § 24-1-208(c)(1)
for an order divesting protection?

Opinion
The divestiture order provisions of Tenn. Code Ann. § 24-1-208(c)(1) apply only when
someone is seeking disclosure of information or the source of information that is protected under
Tenn. Code Ann. § 24-1-208(a). The divestiture order provisions of Tenn. Code Ann. § 24-1-
208(c)(1) do not apply with reference to Tenn. Code Ann. § 24-1-208(b).

ANALYSIS

The "Tennessee Shield Law," Tenn. Code Ann. § 24-1-208, provides, in relevant part:

(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.

When construing a statute, a court must give effect to the intent of the legislature. Morgan
Keegan Co., Inc., v. Smythe, 401 S.W.3d 595, 602 (Tenn. 2013). If the statutory text is clear and
unambiguous, legislative intent is to be found in the ordinary and natural meaning of the statutory
language. Nye v. Bayer Cropscience, Inc., 347 S.W.3d 686, 694 (Tenn. 2011).

The language of Tenn. Code Ann. § 24-1-208 is clear and unambiguous. As the Tennessee
Supreme Court has found, in Tenn. Code Ann. § 24-1-208(a) "the Legislature has in clear and
unambiguous language expressly stated that a newsman, etc., gathering information for
publication, shall not be required to disclose" any information that was gathered for publication
and shall not be required to disclose the source of any such information. Austin v. Memphis Pub.
Co., 655 S.W.2d 146, 149 (Tenn. 1983). In other words, subsection (a) creates a privilege; it
"shields" and protects the specified information and sources from disclosure. See id.

But this protection is not absolute. Subsection (b) creates an exception. "[S]ubsection (b)
of T.C.A. § 24-1-208 . . . excludes the source of information from the privilege in a civil action
for defamation where defendant asserts a defense based on that source . . . ." Id. Thus, the
subsection (a) "shield" does not apply at all to protect the source of any alleged defamatory
information in any such case. T.C.A. § 24-1-208(b). In short, the source of defamatory
information gathered for publication does not even come within the scope of the shield created by
subsection (a) when that information and its source are at issue in a lawsuit.

In addition, subsection (c)(1) explicitly allows any person to apply for a court order to
access the "information or the sources thereof protected under this section . . . ." The only
information and sources protected under "this section," i.e., Tenn. Code Ann. § 24-1-208, are the
information and sources protected under subsection (a), since subsection (b) does not protect
anything, but instead creates an exception to the protection afforded by subsection (a).
Accordingly, subsection (c)(1) applies when disclosure is sought for information and sources
otherwise protected under subsection (a).

But subsection (c)(1) does not apply in the context of subsection (b). Because subsection
(b) does not protect sources from disclosure in certain specified cases, subsection (c)(1), which
applies only when someone is seeking disclosure of information or sources "protected" by the
Shield Law, does not apply to subsection (b). In sum, the divestiture provisions of subsection
(c)(1) apply only when someone is seeking disclosure of information or sources that are protected
under the Shield Law and therefore apply only with reference to information or sources otherwise
protected under subsection (a).

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JEREMY E. PYPER
Senior Counsel

Requested by:
The Honorable Jason Powell
State Representative
34 Legislative Plaza
Nashville, TN 37243