Day on Torts
Plaintiff’s role as the Director of Safety and Security at a private college did not make him a public official or public figure for purposes of the Tennessee Public Protection Act (TPPA).
In McMurtrie v. Sarfo, No. E2023-01825-COA-R3-CV (Tenn. Ct. App. Sept. 12, 2024), plaintiff was employed as the Director of Safety and Security at a small, private college. Though he had previously been a state trooper and FBI agent, at the time relevant to this case he was not a sworn law enforcement officer for any city or county, and he did not carry a gun. Instead, he oversaw campus security and was the supervisor for the college’s five security guards. None of these guards carried weapons or had the authority to arrest anyone.
Defendant Sarfo was an alumnus of the college. On a rainy night, he had stopped in front of a campus building to take a photo. When plaintiff saw Sarfo’s vehicle in the roadway, he pulled next to him and rolled down his window. He honked to get Sarfo’s attention, and when Sarfo rolled his window down, plaintiff asked “why are you parked in my driveway?” Plaintiff asserted that he meant this as a joke. Sarfo responded that he was taking a photo of a building he previously lived in, and that he was in a rental car and was having trouble shifting out of park. Plaintiff told Sarfo that he needed to move his car out of the middle of the road and into one of several open parking spaces. Sarfo asked plaintiff to identify himself, so plaintiff gave his name and title. The interaction between the men lasted approximately one minute, and there was no evidence that plaintiff knew Sarfo’s race before pulling next to him.
The following day, Sarfo wrote an email about this interaction to the college president and other college officials. The subject line used the work “harassed” and the email said plaintiff stated that the campus was his property and asked Sarfo to leave. The grievance escalated, with plaintiff being given a verbal warning and told to attend a diversity class.
Sarfo also contacted a local newspaper, which ran two front page stories. Both implied that the incident was racially motivated, and a nearby channel ran news stories on the matter based off these articles. Eventually, the college fired plaintiff.
Plaintiff filed this defamation case against Sarfo and the newspaper. Both defendants filed a petition to dismiss under the Tennessee Public Protection Act (“TPPA”). The trial court denied the TPPA petitions, and on appeal that denial was affirmed.
“[I]f a legal action is filed in response to a party’s exercise of the right of free speech…that party may petition the court to dismiss the legal action” under the TPPA. Tenn. Code Ann. § 20-17-104(a). The TPPA defines the exercise of the right of free speech as “a communication made in connection with a matter of public concern…that falls within the protection of the United States Constitution or the Tennessee Constitution.” Tenn. Code Ann. § 10-17-103(3). The TPPA provides a list of examples of matters of public concern, which includes issues related to “a public official or public figure.” Tenn. Code Ann. § 20-17-103(6). Both defendants cited this provision in their petition to dismiss, so the Court of Appeals analyzed whether plaintiff was either a public official or public figure based on the facts of this case.
Defendants argued that Plaintiff was a police officer and therefore a public figure, but the Court disagreed. The Court pointed out that the college was a private entity, and Plaintiff was not a sworn law enforcement officer at the time of the incident. Plaintiff did not “control[] the conduct of governmental affairs at any time relevant to this case,” and he “was not a deputized officer of any city or county, did not carry weapons, and had no authority to seize or arrest anyone.” Based on these facts, the Court ruled that Plaintiff was not a public official.
Defendants next argued that Plaintiff was a public figure “by virtue of having injected himself into a public controversy and a matter of public or general concern through his own purposeful or deliberate actions.” Noting that “[t]he mere fact that a dispute is newsworthy does not necessarily mean it is a public controversy,” the Court looked to the underlying facts of the incident. (internal citation omitted). The Court pointed out that the initial incident was between two private individuals, lasted about a minute, and involved one “brusquely telling the other to move his car to a parking spot instead of blocking the roadway on private property.” The Court wrote that “no dispute existed as a public concern prior to Sarfo’s alleged defamatory comments and prior to the news articles identified in the complaint,” and there was thus no public controversy. Moreover, even if there were a public controversy, the Court found that Plaintiff did not interject himself into it. Instead, Plaintiff attempted to stay out of the controversy, as he “stayed silent and did not attempt to publicly rebut Sarfo’s account or the newspaper’s reporting of the events.” (internal citation omitted).
Based on these findings, the Court ruled that defendants “did not establish a prima facie case by showing that Plaintiff filed the underlying lawsuit against them in response to the exercise of free speech in relation to a matter of public concern.”
The newspaper made an additional argument that dismissal under the TPPA was appropriate based on the defense of the fair report privilege. Because the fair report privilege “is limited to only public proceedings or official actions of government that have been made public,” it did not apply here. Denial of the TPPA petitions was accordingly affirmed.
The trial court and Court of Appeals analyzed this case correctly. While the TPPA is being used more and more by defendants, this case reminds us that not all defamation claims fall within the statute’s purview.
The Court of Appeals released this opinion three months after oral arguments in this case.