The request comes in a defamation case against Nashville television reporter Phil Williams. At issue is whether accurately reporting on a court case protects Williams from prosecution.
In 2016, Davidson County District Attorney Glenn Funk sued Williams and WTVF-TV station owner Scripps Media for more than $200 million. Funk claims Williams defamed him in reporting on a lawsuit by suggesting that Funk had been accused of soliciting bribes, extorting money and blackmailing a criminal defendant.
Williams' attorneys, in their pleadings, say the stories simply reported on allegations made by others. Williams says the stories did not accuse Funk of soliciting bribes or extortion.
Funk wants the Tennessee Supreme Court to rule that the accuracy of the reporting does not matter if a reporter's motives are found to be malicious. Funk's attorneys point to lawsuits going back to the 1800s in which Tennessee courts have taken into account whether "express malice" - defined as ill will or spite - was a component of the reporting.
Funk wants Williams to hand over all the information he gathered and produced in reporting his stories so Funk can try to prove Williams acted out of malice. The case has been stalled over questions of what information Williams is required to provide to Funk.
The trial court judge earlier ordered Williams to hand over documents to the district attorney, but the state Court of Appeals overturned that decision last November.
In court pleadings, Williams' attorneys say he is protected by Tennessee's fair report privilege, which generally protects fair and accurate reporting on public proceedings like lawsuits.
On Thursday, the Tennessee Supreme Court will hear arguments over how it should interpret the fair report privilege as well as Tennessee's shield law, which protects journalists from having to divulge their sources in many cases.
The Associated Press and other media with operations in Tennessee have filed a friend-of-the-court brief arguing that Tennessee precedent cited by Funk is outdated and runs afoul of U.S. Supreme Court precedent and the First Amendment.
They also argue that considering malice is illogical because it could treat two reports of identical content differently based on the mindset of the reporter. The brief urges the Tennessee Supreme Court to overturn precedent and rule that malice has no bearing on a claim of fair report privilege.
Funk's attorneys, in their pleadings, ask the court to follow "more than 100 years of Tennessee Supreme Court precedent." They cite a case from 1871 in which the court stated that "a bona fide report of the proceedings in a court of justice, in the absence of express malice, is not libel."
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