IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

October 2, 2013 Session

ZOYLE JONES v. STATE OF TENNESSEE

Appeal by Permission from the Court of Appeals, Middle Section

Tennessee Claims Commission

No. T20100218 Robert Hibbett, Commissioner

No. M2012-02546-SC-S09-CV - Filed December 23, 2013

The issue presented in this case is one of first impression: whether cabinet-level state

executive officials are absolutely immune from defamation claims arising out of statements

made while performing their official duties. An employee of the Tennessee Department of

Correction (“TDOC”) was disciplined for double-billing claims for his job-related travel

expenses to both the state and a private organization. After the TDOC Commissioner

responded to media inquiries about the employee’s demotion for violating the state’s travel

billing policy, the employee sued the State of Tennessee and the TDOC for defamation. The

State moved for summary judgment, asserting that the TDOC Commissioner had an absolute

privilege to make the allegedly defamatory statements to the media. The Tennessee Claims

Commission denied the State’s motion. Upon review, we hold that the State is absolutely

immune from the employee’s defamation claims that relate to the TDOC Commissioner’s

statements in response to media inquiries about the employee’s demotion. This ruling allows

cabinet-level officials to perform their governmental duties free from legal harassment and

uninhibited by the fear of potential lawsuits arising out of their job-related speech. It also

furthers the vital free-expression principle that the public has a right to receive critical

information from the government and its public officials, who must be free to speak with

complete candor about matters of public importance. The judgment of the Claims

Commission is reversed.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Claims Commission

Reversed; Case Remanded

SHARON G. LEE, J., delivered the opinion of the Court, in which GARY R. WADE, C.J., and

JANICE M. HOLDER, CORNELIA A. CLARK, and WILLIAM C. KOCH, JR., JJ., joined.

Pamela S. Lorch, Nashville, Tennessee, for the appellant, State of Tennessee.

Jeffery Scott Frensley, Nashville, Tennessee, for the appellee, Zoyle Jones.
OPINION

FACTUAL BACKGROUND

Zoyle Jones worked for the TDOC for twenty-seven years, beginning in 1985. From

April 2003 through February 2009, he served as the TDOC’s Director of Classification

Programs. Among other things, Mr. Jones’s duties required him to visit different penal

institutions across the state.

While he was employed by the TDOC, Mr. Jones also served as the President of the

Tennessee State Employees Association (“TSEA”), which is a private entity. Occasionally,

Mr. Jones would travel both in his capacity as a Director of the TDOC and as the President

of the TSEA. On many occasions, Mr. Jones claimed and received travel reimbursement

from both the State of Tennessee and the TSEA for the same trips.

In late 2008, the TDOC’s Office of Internal Affairs began investigating Mr. Jones’s

travel claims and reimbursements. By letter dated February 9, 2009, Mr. Jones was advised

by TDOC Commissioner George Little that he was being investigated for falsifying travel

reimbursement claims and for double-billing the TDOC and the TSEA for the same

travel. The results of the investigation confirmed that on twelve occasions between June

2004 and August 2008, Mr. Jones had submitted travel claims to both entities. In the

TDOC’s view, these actions constituted theft, official misconduct, and a violation of the

False Claims Act. Mr. Jones was further advised that a hearing would be conducted on

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February 11, 2009, to determine the appropriate discipline.

At the February 11, 2009 hearing, Mr. Jones admitted that he had been reimbursed by

both the TDOC and the TSEA for the same travel. On February 17, 2009, Commissioner

Little sent Mr. Jones a letter informing him that “[i]t is a serious violation of State travel

regulations to be reimbursed by the State and another entity for the same travel (in this case

mileage). Moreover, the nature of these violations may rise to the level of a criminal

matter.” The letter also informed Mr. Jones that he had been demoted to the lower-paying

position of Correctional Counselor II and reassigned to the Tennessee Prison for Women.

Media outlets contacted Commissioner Little about Mr. Jones’s alleged doublebillingIn response to these media inquiries, the TDOC formally released the letters that

Commissioner Little had previously sent to Mr.Jones on February 9th and 17th, both of which

were public records within the meaning of Tenn. Code Ann. § 10-7-503

The “False Claims Act” is codified at Tenn. Code Ann. § 4-18-101 to -108 (2011 & Supp. 2013). 1

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(2012). Commissioner Little also spoke to different members of the media concerning Mr.

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Jones’s demotion. One media outlet quoted Commissioner Little as saying: “At issue was the

claim for full reimbursement over a period of several years that certainly was in violation of

state travel regulations.” The substance of Commissioner Little’s statements to the media was

directly related to the content of the February 9th and February 17th letters that he had sent

to Mr. Jones.

Rather than accept a demotion, Mr. Jones retired. On August 10, 2009, Mr. Jones filed

a claim against both the State of Tennessee and the TDOC with the Tennessee Claims

Commission seeking damages for defamation, false light invasion of privacy, and the

disclosure of confidential information to the TSEA pursuant to Tenn. Code Ann. § 9-8-

307(a)(1)(N) (2012) and § 10-7-504(a)(8) (2012 & Supp. 2013). In its answer to Mr. Jones’s

complaint, the State asserted numerous affirmative defenses, including that the statements

published by Commissioner Little were absolutely privileged. The State also filed a motion

for summary judgment, seeking dismissal of the defamation claim on the bases

that: Commissioner Little’s statements were absolutely privileged; the Claims Commission

lacked jurisdiction over the false light invasion of privacy claim ; and Tenn. Code Ann. § 10-

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7-504 does not provide a private cause of action.

The Claims Commission denied the State’s motion for summary judgment on Mr.

Jones’s defamation claim. In denying the State’s motion, the Claims Commission held that

it had no authority to determine whether absolute immunity applied to Commissioner Little

and found that there was a dispute of material fact regarding whether Commissioner Little

acted with actual malice in speaking to the press about his February 9 and February 17, 2009

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letters. With respect to Mr. Jones’s false light and statutory claims, however, the Claims

 Tenn. Code Ann. § 10-7-503(a)(2)(A) provides: 2

(a)(2) All state . . . records . . . shall, at all times, during business hours . . . be open for

personal inspection by any citizen of this state, and those in charge of the records shall not

refuse such right of inspection to any citizen, unless otherwise provided by law.”

Some jurisdictions do not recognize the false light invasion of privacy tort, considering it to be 3

duplicative of a defamation claim. See Denver Publ’g Co. v. Bueno, 54 P.3d 893 (Col. 2002); Cain v. Hearst

Corp., 878 S.W.2d 577 (Tex. 1994); Renwick v. News & Observer Publ’g Co., 312 S.E.2d 405 (N.C.

1984). This Court has recognized false light as a separate and distinct tort. See West v. Media Gen.

Convergence, Inc., 53 S.W.3d 640 (Tenn. 2001).

Actual malice is the constitutional standard established by the U.S. Supreme Court in New York 4

Times Co. v. Sullivan, 376 U.S. 254 (1964). The Supreme Court defined actual malice as publishing material

“with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 279-

80. The Court also held that public officials who sue for defamation must show evidence of actual malice

by clear and convincing evidence. Id. at 285-86.

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Commission granted the State’s motion for summary judgment, reasoning that it lacked

jurisdiction to hear false light claims and that Tenn. Code Ann. § 10-7-504(a)(8) does not

establish a private cause of action.

The Claims Commission granted the State’s motion for interlocutory appeal, but the

Court of Appeals denied the motion. The State filed a Tenn. R. App. P. 11 application for

permission to appeal to this Court, which we granted.

ANALYSIS

Thisinterlocutory appeal raises an important issue of first impression: whether cabinetlevel state executive officials are absolutely immune from defamation claims arising out of

statements made while performing their official duties. Defamation lawsuits serve a vital

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function by allowing aggrieved individuals to seek redress from false statements of fact that

impugn their reputations. In the 1966 case Rosenblatt v. Baer, former U.S. Supreme Court

Justice Potter Stewart eloquently expressed the societal importance of protecting individuals

from reputational harm, noting that: “The right of a man to the protection of his own

reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept

of the essential dignity and worth of every human being — a concept at the root of any decent

system of ordered liberty.” 383 U.S. 75, 92 (1966) (Stewart, J., concurring).

Despite the importance of protecting individuals from reputational harm, Tennessee

law recognizes both absolute and qualified privileges as defenses to defamation claims in

certain instances. Simpson Strong-Tie Co., Inc. v. Stewart, Estes & Donnell, 232 S.W.3d 18,

22 (Tenn. 2007). “An absolute privilege is a total immunity granted on the basis of the

speaker’s position or status.” See Robert D. Sack, Sack on Defamation: Libel, Slander and

Related Problems § 8.1 (4th ed. 2012). Absolute privileges shield a defendant from liability

for defamatory statements even when made with ill will, malice or some other improper

purpose. Id. at §8.2. Qualified privileges, on the other hand, shield defendants from liability

for most defamatory statements, but can be overcome by a plaintiff’s showing that the

statements were made with actual malice or ill will. Id. at §9.1. In this case, the State argues

that this Court should adopt an absolute privilege for defamation claims against state

executive officials. In contrast, Mr. Jones contends that this Court should adopt only a

qualified privilege.

In Barr v. Matteo, 360 U.S. 564 (1959), the U.S. Supreme Court adopted an absolute

privilege for federal executive officials who publish defamatory statementsin the performance

Although this opinion addresses the applicability of an absolute privilege for cabinet-level state

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executive officials to make defamatory statements, there has been no judicial finding that the statements

made by Commissioner Little were in fact defamatory.

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of their official duties. In a plurality opinion, Justice John Marshall Harlan expressed the

following rationale:

It has been thought important that officials of government should be free to

exercise their duties unembarrassed by the fear of damage suits in respect of

acts done in the course of those duties—suits which would consume time and

energies which would otherwise be devoted to governmental service and the

threat of which might appreciably inhibit the fearless, vigorous, and effective

administration of policies of government.

Id. at 571. Justice Harlan further explained that the invocation of the absolute privilege

represented “an expression of a policy designed to aid in the effective functioning of

government.” Id. at 572-73.

In Barr, the Court held that absolute privilege applied to the acting director of a federal

agency who had issued a press release about former employees of the agency. The former

employees contended that the director’s press release contained defamatory

statements. However, the Supreme Court ruled that the director was protected by absolute

privilege when he issued the press release and dismissed the employees’ claims, reasoning

that communicating with the media by disseminating the press release “was an appropriate

exercise of the discretion which an officer of that rank must possess if the public service is

to function effectively.” Id. at 575. The Barr Court acknowledged that conferring an absolute

privilege may lead to “occasional instances of actual injustice,” but reasoned that such a price

is “a necessary one to pay for the greater good.” Id. at 576. Previously, in Gregoire v. Biddle,

Judge Learned Hand offered a similar rationale for adopting absolute immunity for

government officials in the context of an allegedly unlawful arrest, explaining that:

The justification for doing so is that it is impossible to know whether the claim

is well founded until the case has been tried, and that to submit all officials, the

innocent as well as the guilty, to the burden of a trial and to the inevitable

danger of its outcome, would dampen the ardor of all but the most resolute, or

the most irresponsible, in the unflinching discharge of their duties.

177 F.2d 579, 581 (2d Cir. 1949).

Immunizing government officials against harassment and giving them the ability to

perform their jobs “in the unflinching discharge of their duties,” however, is not the only

rationale that supports adopting an absolute privilege against defamation for cabinet-level

state executive officials. Id. In his separate concurring opinion in Barr, Justice Hugo Black

explained that adopting an absolute privilege advanced significant First Amendment free

speech interests. “The effective functioning of a free government like ours depends largely

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on the force of an informed public opinion,” Justice Black explained. Barr, 360 U.S. at 577

(Black, J., concurring). “This calls for the widest possible understanding of the quality of

government service rendered by all elective or appointed public officials or

employees.” Id. We agree that the public has a vital interest in receiving information from

public officials about the effective, or ineffective, functioning and performance of the

government.

Consistent with the Supreme Court’s holding in Barr, the Restatement (Second) of

Torts provides for an absolute privilege against defamation claims for high-ranking federal

and state executive officials. See Restatement (Second) of Torts § 591 (1977) (“An absolute

privilege to publish defamatory matter concerning another in communications made in the

performance of his official duties exists for (a) any executive or administrative officer of the

United States; or (b) a governor or other superior executive officer of a state.”). Comment

c to Section 591 further explains that “the absolute privilege stated in Clause (b) protects the

superior officers of the state governments, including at least the governor, the attorneygeneral or the heads of state departments whose rank is the equivalent of cabinet rank in the

Federal Government.” Id. cmt. c.

“Like their federal counterparts, high-ranking elected state officials and other officials

of cabinet level or equivalent rank are generally held entitled to an absolute privilege as to

their defamatory communications while exercising discretionary functions.” David Elder,

Defamation: A Lawyer’s Guide § 2:14 (2003). Many states have adopted the Restatement

(Second) of Torts’ absolute privilege against defamation claims for certain executive

officials. In Johnson v. Dirkswager, for example, the Minnesota Supreme Court held that

a state-level commissioner who allegedly uttered defamatory comments to the public about

an employee through a press release was entitled to an absolute privilege. 315 N.W.2d 215

(Minn. 1982). Weighing the “public’s right to know [against] a defamed individual’s right

to redress,” the Minnesota Supreme Court ultimately concluded that “the balance is to be

struck in favor of the public’s right to know” because the state employee’s interest must

“yield[] to the needs of a free, democratic society to be apprised of the conduct of the public

business by its public officials.” Id. at 221, 23. In Hackworth v. Larson, the Supreme Court

of South Dakota had reached an identical holding in a case involving the South Dakota

Secretary of State, who had issued press releases stating that she had fired two

employees. 165 N.W.2d 705 (S.D. 1969). As the Hackworth court explained: “It is thought

desirable to encourage free and uninhibited dissemination of information about governmental

activities even if on occasions an individual suffers harm thereby.” Id. at 709.

More recently, in Salazar v. Morales, the Texas Court of Appeals adopted the absolute

privilege reflected by the Restatement (Second) of Torts as applied to the Texas Attorney

General. 900 S.W.2d 929 (Tex. App. 1995). Salazar involved a defamation claim asserted

against the Texas Attorney General regarding comments that he had made to the press about

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a former employee’s termination. In affirming the Texas Attorney General’s motion to

dismiss, the Texas Court of Appeals determined that the Texas Attorney General “ha[d] an

absolute privilege to publish defamatory statements in communications made in the

performance of his official duties.” Id. at 932. The Salazar court also observed that: “All

of the state courts that have addressed the issue have agreed that an absolute privilege . . .

applies to state attorneys general.” Id., citing Kilgore v. Younger, 640 P.2d 793, 797–98 (Cal.

1982); Little v. Spaeth, 394 N.W.2d 700, 706 (N.D.1986); Matson v. Margiotti, 88 A.2d 892,

896 (Pa. 1952); Levinsky v. Diamond, 559 A.2d 1073, 1078 (Vt. 1989); Gold Seal

Chinchillas, Inc. v. State, 420 P.2d 698, 701 (Wash. 1966); Morton v. Hartigan, 495 N.E.2d

1159, 1164–65 (Ill. App. Ct. 1986).

While the common law doctrine of absolute immunity remains the majority rule, we

note that other states afford executive officials only a qualified privilege for statements made

in the course of their official duties. See Sack, § 8.2.5 (“A few states deny absolute immunity

to public officials altogether and grant a qualified privilege for statements made in the course

of official duties.”). The Hawaii Supreme Court, for example, has rejected the application

of an absolute privilege to state officials, instead holding that such officials are entitled to a

qualified privilege. Towse v. Hawaii, 647 P.2d 696, 701-02 (Haw. 1982). Similarly, in

Chamberlain v. Mathis, the Arizona Supreme Court adopted a qualified privilege for the

Director of the Arizona Department of Health Services, reasoning in that case that the

rationale supporting absolute immunity is “countered by basic principles of equal

justice.” 729 P.2d 905, 912 (Ariz. 1986).

We note that “the overwhelming majority of cases have struck the balance in favor

of encouraging public officials to speak with complete candor – and without fear of legal

recourse – with respect to their official duties.” Gold Seal, 420 P.2d at 701. Pennsylvania,

for example, reaffirmed the common law’s absolute privilege against defamation for all

“high public officials.” See Lindner v. Mollan, 677 A.2d 1194, 1196 (Pa. 1996) (“This Court

has never called into question, much less overruled, the common law doctrine of absolute

privilege for high public officials.”). We agree with this longstanding majority

rule. Accordingly, we adopt the position taken by the Restatement (Second) of Torts that

cabinet-level executive officers are entitled to an absolute privilege from defamation claims

arising out of comments made within the scope of their official duties. Restatement (Second)

of Torts § 591.

In Tennessee, commissioners serve as the heads of state departments and function as

part of the “Governor’s Cabinet.” These officials formulate official policy and exercise

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See Governor’s Cabinet Members, http://www.tn.gov/governor/cabinet/, (last visited Nov. 22, 6

2013).

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significant supervisory authority in conducting state business. Such officials must have the

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flexibility to make important decisions free from fear that they will have to defend

themselves from lawsuits. Gregoire, 177 F.2d at 581. Uninhibited communication with the

public about governmental affairs is essential and must be protected. Barr, 360 U.S. at 577

(Black, J., concurring). Because providing cabinet-level executive officials with anything

less than absolute immunity from defamation claims would also force such officials to spend

time responding to lawsuits rather than discharging their public duties, see Gregoire, 177

F.2d at 581, we hold that providing absolute immunity to such officials is appropriate.

We recognize that in some cases, the application of an absolute privilege to cabinetlevel state officials may leave aggrieved individuals without a remedy. Nonetheless, such

a sacrifice “is justified by the public’s need for free and unfettered action by its

representatives.” Blair v. Walker, 349 N.E.2d 385, 389 (Ill. 1976). As other courts have

observed, an individual’s right to redress must ultimately be balanced against the public

interest, and that balance must be struck in favor of the “needs of a free, democratic society

to be apprised of the conduct of the public business by its public officials.” Johnson, 315

N.W.2d at 223.

Adopting an absolute privilege for cabinet-level state executive officials provides

them with the same level of protection afforded their colleagues in the judicial and legislative

branches. “The immunity of judges can be traced as far back as the time of [Sir Edward]

Coke,” see Sack, § 8.2.1. Statements made in judicial proceedings are absolutely

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privileged. Lea v. White, 36 Tenn. (4 Sneed) 111 (1856). The need for judicial immunity

“is based upon the consideration that the judge represents the public.” Webb v. Fisher, 72

S.W. 110, 112 (Tenn. 1903). “It is generally recognized that statements made in the course

of a judicial proceeding that are relevant and pertinent to the issues involved are absolutely

privileged and cannot be the predicate for liability in an action for libel, slander, or invasion

of privacy.” Lambdin Funeral Serv., Inc. v. Griffith, 559 S.W.2d 791, 792 (Tenn.

1978). Legislators also have an absolute privilege. See Tenn. Const. art. II, § 13 (“Senators

and representatives shall . . . be privileged from arrest during the session of the General

Assembly, and in going to and returning from the same; and for any speech or debate in

either House, they shall not be questioned in any other place.”).

Mr. Jones correctly notes that the U.S. Supreme Court’s ruling on absolute privilege

in Barr, 360 U.S. 564, preceded the Supreme Court’s seminal libel law decision in New York

This case concerns statements made by TDOC Commissioner Little, who is a cabinet-level 7

official. We do not decide in this case whether the privilege of absolute immunity extends beyond cabinetlevel officials.

 Sir Edward Coke (1552-1634) was an influential English jurist.

8

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Times Co. v. Sullivan, 376 U.S. 254, and he argues that the constitutional protections

afforded by Sullivan adequately protect governmental defendants from defamation

claims. In that landmark decision, the U.S. Supreme Court determined that public officials

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who sue for libel must prove by clear and convincing evidence that a defendant acted with

actual malice. Upon review, we find Mr. Jones’s arguments unpersuasive.

While the actual malice standard set forth in Sullivan presents a significant hurdle for

Mr. Jones and other public figure plaintiffs to clear in defamation lawsuits, it provides

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governmental defendants with less protection than an absolute privilege. Notably, some

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legal commentators have also suggested that the actual malice standard of Sullivan does not

sufficiently protect free speech. See, e.g., Anthony Lewis, New York Times v. Sullivan

Reconsidered: Time to Return to the ‘Central Meaning of the First Amendment,’ 83 Colum.

L. Rev. 603, 624-25 (1983); David A. Anderson, Libel and Press Self-Censorship, 53 Tex.

L. Rev. 422, 424-25, 479-80 (1975). Moreover, providing cabinet-level executive officials

with anything less than absolute immunity from defamation claims would result in the

unacceptable consequence of forcing such officials to waste precious time responding to

lawsuits rather than discharging their public duties. Gregoire, 177 F.2d at 581. Accordingly,

we agree with the State that Sullivan’s actual malice standard is insufficient to protect

cabinet-level executive officials from claims of defamation. Thus, we adopt the view held

by the vast majority of states that the better course of action is to afford such high-ranking

executives absolute immunity from defamation claims.

Cabinet-level executive officials are absolutely immune from defamation claims, but

this holding does not automatically apply to all statements made by such officials. Crucially,

the absolute privilege for these officials applies only to communications made pursuant to

a cabinet-level officer’s official duties. Restatement (Second) of Torts § 591

(1977). Comment f to Section 591 specifically explains that the absolute privilege applies

only when the state official “publishes the defamatory matter in the performance of his

 Justice William Brennan authored the Court’s decision in Sullivan and dissented in Barr.

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Mr. Jones acknowledged in his deposition that, as president of the TSEA, he qualified as a public 10

figure.

In Sullivan, Justice Black and Justice Arthur Goldberg each wrote separate concurring opinions, 11

contending that the Court should have adopted an absolute privilege for critical comments made by public

officialsrather than the actual malice rule. Justice Black explained: “The requirement that malice be proved

provides at best an evanescent protection for the right critically to discuss public affairs and certainly does

not measure up to the sturdy safeguard embodied in the First Amendment.” 376 U.S. at 293 (Black, J.,

concurring). For his part, Justice Goldberg opined: “In my view, the First and Fourteenth Amendments to

the Constitution afford to the citizen and to the press an absolute, unconditional privilege to criticize official

conduct despite the harm which may flow from excesses and abuses.” 376 U.S. at 298 (Goldberg, J.,

concurring).

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official duties, or within the scope of his line of duty.” Id. We agree that this limitation is

an appropriate one.

As applied to Mr. Jones’s defamation claim, we hold that Commissioner Little was

acting within the scope of his official duties when he issued the February 9 and February 17,

2009 letters and subsequently responded to media inquiries about Mr. Jones’s

demotion. “The overwhelming weight of authority reflects that comments made to the press

by a high-ranking official concerning personnel matters are within the scope of the

[executive] privilege.” Salazar, 900 S.W.2d at 932-33. Because Commissioner Little’s

letters and subsequent statements to the media concerned state personnel matters, these

publications were made in the performance of his official duties as a cabinet-level executive

official. Thus, the State is absolutely immune from Mr. Jones’s claim of defamation.

Mr. Jones also urges us to recognize a distinction between Commissioner Little’s

letters and the Commissioner’s subsequent statements to the media about their

contents. There is no material difference between Commissioner Little’s February 9 and

February 17, 2009 letters and Commissioner Little’s statements to the media about the

letters’ contents. The letters were matters of public record; therefore, the letters’ contents

were public. See Johnson, 315 N.W.2d at 222. Accordingly, we hold that the State is

absolutely immune from Mr. Jones’s defamation claims that relate to Commissioner Little’s

statements in response to media inquiries about Mr. Jones’s demotion.

Conclusion

We hold that cabinet-level executive officials “have an absolute privilege to publish

defamatory matter concerning another in communications made in the performance of his

official duties.” This privilege ensures that high-ranking state executive officials will enjoy

“complete freedom of speech when discharging their duties.” Sack, § 8.2. Commissioner

Little, as a cabinet-level executive official with policy-making authority, is entitled to this

absolute privilege. Because Commissioner Little’s statements to the press concerning Mr.

Jones were directly related to his official duties, Commissioner Little is entitled to absolute

immunity from Mr. Jones’s defamation claim, and the State is therefore immune from

liability. Accordingly, we reverse the decision of the Tennessee Claims Commission and

remand the case to the Claims Commission for any further proceedings.

The costs of this appeal are taxed to Zoyle Jones, for which execution may issue if

necessary.

______________________________

SHARON G. LEE, JUSTICE

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