Articles Posted in Defamation

Suing Your Ex for Defamation

Over the course of my nearly ten years practicing in defamation and privacy law, I have been asked on numerous occasions if it is possible to file suit against a former spouse for defamation. This question has recently popped up with a fervor due to the widespread publicity of the Johnny Depp vs. Amber Heard trial. Although every situation is unique, here are some factors that you should consider before deciding to pursue litigation against your ex.

Litigation Privilege

Blog-photo-defamation-law-1-300x200Recently, the Tennessee Senate and General Assembly unanimously passed HB 0777/SB1097 otherwise known as the Tennessee Public Participation Act. On April 23, 2019, Governor Bill Lee signed the bill which will become effective on July 1, 2019. This statute dictates new anti-SLAPP (Strategic Lawsuits Against Public Participation) measures for all citizens of Tennessee. The Tennessee Public Participation Act will broadly increase the protections as outlined in the first paragraph of the bill summary below:

“Under this bill, if a legal action is filed in response to a party’s exercise of the right of free speech, right to petition, or right of association, that party may petition the court to dismiss the legal action. All discovery in the legal action will be stayed upon the filing of a petition pursuant to this bill and the stay of discovery will remain in effect until the entry of an order ruling on the petition. The court may allow specified and limited discovery relevant to the petition upon a showing of good cause.”¹

The Tennessee Public Participation Act goes beyond Tennessee’s current anti-SLAPP Law (limited only to complaints made to government entities) and Tennessee’s “Loser pays” statute.² Tennessee joins states such as California and Texas in passing comprehensive anti-SLAPP legislation.

Disclaimer: This blog post is not legal advice. This post is intended to give a bit of background information about Defamation Law in the State of Tennessee. Each case is different and there is a meaningful distinction between having a cognizable claim and whether or not it is wise to bring a lawsuit. For legal advice applicable to your specific situation, always contact a licensed attorney in your state.


Under Tennessee Law defamation is a cause of action alleging that (1) a defendant published a statement; (2) with knowledge the statement was false or injuring to the reputation of the plaintiff; (3) and the defendant was negligent for failing to ascertain the truth of the statement or the defendant acted with reckless disregard for the truth of the statement. Brown v. Christian Bros. Univ., 428 S.W.3d 38, 50 (Tenn. Ct. App. 2013). The plaintiff has the burden of proof as to each element. If the defendant can show that any one of these essential elements is not met then the defendant would win the lawsuit as to the defamation claim. There are two types of defamation: slander and libel. Slander is “the speaking of base and defamatory words which tend to prejudice another in his reputation, office, trade, business, or means of livelihood.” Little Stores v. Isenberg, 172 S.W.2d 13, 16 (Tenn. App. 1943). Libel is written defamation. Davis v. The Tennessean, 83 S.W.3d 125, 128 (Tenn. Ct. App. 2001). Only people who are currently alive can bring claims for defamation. Estates cannot bring claims of defamation, because under the common law, defamation damages are to restore the reputation of the plaintiff, and once the plaintiff is deceased his or her reputation is no longer legally protectable.

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