The Tennessee Court of Appeals recently upheld a Sumner County judge’s decision to dismiss a defamation lawsuit that a former Hendersonville mayoral candidate filed against one of his opponents after the 2016 election.
The decision of the three-judge panel issued Oct. 4 affirmed a trial court ruling made by Sumner County Circuit Court Judge Joe Thompson in December of 2018.
Former city alderman Tommy Elsten, who had unsuccessful bids for mayor in 2012 and 2016, filed the complaint against Jeff Coker and Coker’s 2016 mayoral campaign in May of 2017.
Elsten and Coker, who owns an insurance agency, were two of four candidates in the 2016 race for mayor when then-Mayor Scott Foster didn’t seek a fourth term. Jamie Clary won the election with 34 percent of the vote, and attorney David Kimbrough finished second with 23 percent. Elsten finished third with 22.2 percent of the vote while Coker came in fourth with 20.6 percent.
Elsten’s complaint stemmed from a campaign mailer sent by Coker titled, “Are you tired of the ‘Revolving Door’ of career politicians and special interests?”
In the mailer, Coker said that his three opponents were political insiders and that he was the only candidate who wasn’t a career politician.
Next to Elsten’s photo and name, the mailer stated that while he was an alderman, Elsten was “caught in an insider deal to sell stolen property to the Hendersonville Parks Department and is currently under investigation by the Tennessee Ethics Commission for campaign finance violations relating to illegal contributions from a construction company owner.”
Elsten sued Coker for defamation, alleging the statements were false and defamatory, and that Coker either knew the statements were false, or made a conscious decision not to investigate if the statements were true or not.
Accusation dated back to 2009
According to court documents, Elsten conceded that in July 2009 he purchased an all-terrain vehicle known as a “Gator” from a friend for $1,650. He then sold the Gator to the Hendersonville High School Soccer Booster Club for $2,500. Elsten returned the money when the Metropolitan Police Department informed him the Gator was stolen property and had been seized, according to the documents. The Hendersonville Police Department created a police report and obtained a signed statement from Elsten, explaining he did not know the Gator was stolen. Elsten was never charged in the case.
Coker argued that while the insider deal statement was inaccurate in that Elsten had not sold the Gator to the Hendersonville Parks Department, the statement was substantially true due to the close connection between the Hendersonville High School Soccer Booster Club and the Hendersonville Parks Department. Coker also argued that even if the insider deal statement was materially false, Elsten presented no evidence to show that Coker knew the statement was false.
Elsten contended the implication he intentionally or knowingly sold stolen property was false and that Coker had a “high degree of awareness” that the insider deal statement wasn’t true.
As for the ethics investigation, Elsten conceded someone filed a complaint against him with the Tennessee Ethics Commission for an alleged campaign finance violation. However, the alleged violation was not related to “illegal contributions” because no authoritative body declared he acted illegally, according to the ruling. Therefore, the statement was false as a matter of law.
Still, the appeals court asserted, since Elsten is a public figure, he had the burden to prove “clearly and convincingly” that Coker acted with actual malice – meaning Coker knew that the facts were false or that he acted with reckless disregard as to their truth.
“The trial court found that the plaintiff did not produce clear and convincing evidence of actual malice at the summary judgment stage, and summarily dismissed the action,” wrote the appeals court judges. “We affirm.”
Elsten was ordered to pay court costs.
His attorney, Kirk Clements, says he and his client are disappointed with the ruling, and plan to appeal to the state’s Supreme Court.
“We agree that political speech should be protected and agree with the Court that holding a person participating in the political arena liable should only occur if a heighten standard and strict scrutiny has been judiciously applied,” Clements said in a written statement.
He disagrees, however, with the court’s ruling that Coker’s comments were political speech worthy of protection.
“We will appeal this issue to the Supreme Court as we believe it is crucial to maintain some level of integrity in politics notwithstanding how uncivilized it has become and precisely because it has become so uncivilized,” said Clements.
Coker referred a reporter to his attorney who did not respond by this newspaper’s deadline.