In an order issued earlier this afternoon, Davidson County Chancery Court Judge Ellen Hobbs Lyle ruled in favor of Plaintiffs Amy Frogge, Fran Bush, and Jill Speering, who earlier this year sued Metro and ex-MNPS Director Shawn Joseph over the legality of the School Board censorship clause contained in Joseph’s severance agreement. In a Memorandum Order, Chancellor Lyle struck down the censorship clause as unconstitutional on multiple grounds and permanently enjoined its enforcement.
Among other things, the clause prohibited elected School Board members even from truthfully criticizing “Dr. Joseph and his performance as Director of Schools.” Upon review of it, Chancellor Lyle ruled that the clause violated the Plaintiffs’ First Amendment rights, unlawfully prohibited them from speaking honestly with their constituents, and violated established Tennessee public policy. As a result, the clause was invalidated as unenforceable. Metro and Joseph will additionally be required to pay the Plaintiffs’ “reasonable costs and attorney’s fees,” which have been pledged to charity.
“This is a landmark victory on behalf of both elected officials’ free speech rights and citizens’ right to hear from their elected representatives,” said attorney Daniel Horwitz, who represented all three Plaintiffs. “Metro and Joseph should be ashamed of their efforts to gag elected officials and prevent them from speaking honestly with their constituents about issues of tremendous public importance, and their illegal attempt to do so should serve as a costly warning to other government officials to think twice before violating the First Amendment.”
Daniel Horwitz is a First Amendment lawyer who represents clients across Tennessee.
As readers of this blog will be aware, its editor has expanded its focus to topics well beyond the Tennessee Supreme Court. In an effort to focus coverage on free speech issues, the author has also started a separate blog—the Tennessee Free Speech Blog—devoted specifically to free speech cases across Tennessee. Recent posts from that blog are linked below:
In an effort to keep Tennessee’s judiciary functioning during the midst of the coronavirus pandemic, the Tennessee Supreme Court has issued the following orders relating to court operations, CLE, and other proceedings:
Central provisions include that “[d]eadlines set forth in court rules, statutes, ordinances, administrative rules, or otherwise that are set to expire during the period from Friday, March 13, 2020, through Tuesday, May 5, 2020, are hereby extended through Wednesday, May 6, 2020,” and that “[a]ll in-person proceedings in all state and local courts in Tennessee, including but not limited to municipal, juvenile, general sessions, trial, and appellate courts, shall be suspended from the close of business on Friday, March 13, 2020, through Thursday, April 30, 2020” absent certain specified exceptions.
As longtime ScotBlog readers are aware, the author has been socially distancing from this blog’s original purpose—summarizing Tennessee Supreme Court decisions and reflecting on other interesting legal issues in the Volunteer State—for quite some time now due to an exploding speech defense, election law, and wrongful death practice that has left little time for regular commentary. As a result, if you, your associates, or your law students would like to fill that void and publish on a platform that still receives thousands of unique visitors each month despite a delinquent editor, please email Daniel Horwitz at [email protected].
On July 1, 2019, the Tennessee Public Participation Act—Tennessee’s first meaningful anti-SLAPP statute—took effect. The statute dramatically expanded the scope of speech that receives heightened legal protection in Tennessee. It also equips people targeted by Strategic Lawsuits Against Public Participation (“SLAPP-suits”) with important tools to secure the dismissal of meritless claims early on in litigation. Perhaps most importantly, the TPPA allows prevailing defendants to get their full attorney’s fees paid by a losing plaintiff if a petition to dismiss is granted. Previously, prevailing defendants were (generally) only able to recover a maximum of $10,000 under Tennessee’s frivolous lawsuit statute, and they were only eligible to do so if a plaintiff failed to state a claim upon which relief could be granted.
After Dr. Nandigam dismissed and then refiled his lawsuit against her, Ms. Beavers filed an immediate Petition to Dismiss the Plaintiffs’ claims under the TPPA. Earlier this morning, her petition was granted. Thus, pending a potential appeal to the Tennessee Court of Appeals, all of the Plaintiffs’ claims against her have been dismissed with prejudice.
“This is a huge win for Kelly Beavers and the First Amendment, and it’s a huge loss for Dr. Nandigam and anyone else who would abuse the legal process to promote censorship of honest, critical consumer reviews,” said Daniel Horwitz, a speech defense lawyer who represented Ms. Beavers. Ms. Beavers’ claims for attorney’s fees and sanctions against both Dr. Nandigam and his attorney, Bennett Hirschhorn (a real estate lawyer and landlord whose relevant First Amendment experience otherwise appears limited to having been charged with “distributing pornographic photographs” after graduating law school), remain pending.
Webster’s conviction has attracted widespread coverage due in part to its sensational details—a man serving a life sentence for a crime committed by his brother—and in part because the evidence of his innocence is overwhelming. Since being convicted, the lone witness who identified him as a perpetrator has recanted her identification of Webster multiple times. Further, four separate witnesses—including the brothers’ mother and the real perpetrator’s ex-girlfriend—have come forward to say that Webster’s brother not only confessed to committing the murder, but also bragged about doing so. DNA testing has additionally excluded Webster as a potential contributor to the DNA found on the murder weapon. Further, new eye witnesses have come forward to provide evidence that exculpates Webster and a description of the killer that does not match Webster at all. Separately, a treasure trove of new evidence points to two other individuals—Mr. Webster’s brother and his longtime right hand—as having being the real perpetrators who committed the crime, which still remains an unsolved cold case as to the second individual involved.
Webster’s original conviction review application is available here. Selected local media coverage from the case appears below.
Following a push to promote confidence in the election system, Nashville voters are using new voting machines to cast their votes in the August 1, 2019 Metro election. The purpose of the change was to enhance election integrity by giving voters a paper printout of their ballot choices that can be used to verify selections made on an electronic voting machine and to conduct a hand recount, if necessary. The rollout, however, has not gone as planned.
Earlier today, decorated News Channel 5 investigative reporter Phil Williams announced on Twitter that during the process of scanning his marked ballot, a poll worker had stared at it and was able to determine how he had voted, and that his wife had experienced the same issue:
My wife and I both had the same horrified reaction yesterday when we voted early in the Nashville election. The new system prints out your votes, then an election worker helps feed them into the scanner. In both cases, she was actually staring down at how we voted. Stop it NOW!— Phil Williams (@NC5PhilWilliams) July 21, 2019
You feed it into the scanner face-up, and there was an election worker standing right by the machine. In both our cases, she looked right down at the ballot as it was being fed into the machine.— Phil Williams (@NC5PhilWilliams) July 21, 2019
Thereafter, multiple other voters chimed in to report having the same experience. The issue—which appears to be due in large part to untrained or poorly trained poll workers who missed instructions that marked ballots are not to be touched and should be scanned by voters facedown—seriously compromises the secret ballot, prompting election advocacy group Tennesseans for Sensible Election Laws to issue a litigation threat to the Davidson County Election Commission:
The letter, in full, reads as follows:
TSEL STATEMENT ON NASHVILLE POLL WORKERS VIEWING
VOTERS’ MARKED BALLOTS
Following
reports from News Channel 5’s Phil Williams and other voters that poll workers
in Davidson County, Tennessee have been viewing voters’ marked ballots while
voters were feeding them into scanners, Daniel A. Horwitz, General Counsel for Tennesseans
for Sensible Election Laws,issued the following statement:
“Tennesseans
for Sensible Election Laws is deeply concerned about reports that Davidson
County poll workers have been viewing individual voters’ marked ballots as they
were being fed into scanners. It should
not even be possible for such a scenario to occur, much less actually occur in
practice.
The
secret ballot is critical to maintaining the integrity of Tennessee’s election process.
Ballot secrecy prevents illicit tactics
like vote-buying and ensures that voters will be comfortable voting for
whomever they please without fear of retaliation or intimidation. Simply put: The secret ballot is essential in
order to maintain both confidence in and the security of Tennessee’s entire
election process.
To protect
the secret ballot, Tenn. Code Ann. § 2-9-101(a) provides that: “A voting
machine to be used in Tennessee . . . must ensure voting in absolute secrecy.” Further, under Tenn. Code Ann. §
2-3-108(b)(1), paper ballots must be administered and arranged in such a way
“that it is impossible for any person to see a voter’s ballot while it is
being marked.”
Reports
by Phil Williams and others that their marked ballots were viewed by poll
workers while their votes were being counted make clear that Davidson County’s
new voting process does not comply with applicable ballot secrecy mandates. As a consequence, Tennesseans for Sensible
Election Laws demands that the Davidson County Election Commission take
immediate action to ensure that all marked ballots are fed into scanners facing
down and that poll workers are unable to view them under any
circumstances. Any election official who
attempts to view a voter’s marked ballot must be terminated. If the Davidson County Election Commission
does not take immediate action to maintain legally-mandated ballot secrecy, we
will take legal action yet again to protect Tennessee’s democratic process.”
Tennesseans for Sensible Election Laws is a nonpartisan group of concerned citizens who care about protecting Tennessee’s democratic process. Its mission is to ensure that Tennessee’s election and campaign finance statutes, policies, and regulations protect all Tennesseans’ rights to participate in the political process without unreasonable interference from the state government. Learn more at tn4sense.org.
Paid for by Tennesseans for Sensible Election Laws. David M. Morelli, Jr., Treasurer. Not authorized by any candidate or candidate’s committee, but we don’t think it should be a crime not to tell you that.
If you woke up this morning feeling freer to speak your mind, there’s a reason: A little-noticed law with huge free speech benefits takes effect today. As of July 1, 2019, the “Tennessee Public Participation Act”—Tennessee’s first-ever meaningful Anti-SLAPP law—became effective and affords those who are sued for their speech a host of critical legal benefits.
Because litigation is often prohibitively expensive, bad actors can often intimidate critics into silence by threatening or filing baseless speech-based lawsuits asserting claims like defamation (libel or slander), false light invasion of privacy, business disparagement, or other questionable torts. When faced with the prospect of having to spend tens (if not hundreds) of thousands of dollars in legal fees to defend one’s legal right, for instance, to leave an unfavorable review of a business, self-censorship can also become an extremely attractive proposition. The result of such self-censorship is to undermine both individuals’ right to free speech and the public’s right to hear and receive information.
It is important to note that the overwhelming majority of defamation and other speech-based lawsuits are not filed because a person has suffered an actual legal injury. Instead, their purpose is to punish people for lawfully exercising their right to speak freely about a topic that the suing plaintiff wants to censor. Given the cost of litigation, historically, such lawsuits have also been disturbingly effective.
To provide a counterbalance to the financial threat posed by bogus defamation lawsuits, laws aimed at deterring “Strategic Lawsuits Against Public Participation” (Anti-SLAPP laws) afford speakers a number of significant legal protections, all of which are critical to safeguarding free speech and promoting the free exchange of information and ideas. First, Anti-SLAPP laws help deter bad actors from filing baseless lawsuits against people for lawfully exercising their free speech rights in the first place. Second, the best Anti-SLAPP laws provide people who are sued for exercising their First Amendment rights an efficient and expeditious means of getting frivolous speech-based lawsuits dismissed quickly. Third, Anti-SLAPP laws commonly provide a mechanism to punish abusive litigants and attorneys who file baseless defamation claims with significant monetary sanctions. Fourth, Anti-SLAPP laws frequently give people who are sued for exercising their free speech rights the right to recoup whatever attorney’s fees and court costs they incurred for having to defend against a meritless speech-based lawsuit.
Happily, beginning today, Tennessee now boasts an Anti-SLAPP law that affords speakers all of these benefits. Until today, Tennessee only had a limited Anti-SLAPP law that was narrowly restricted to statements made to government agencies. Fortunately, though, earlier this year, Tennessee enacted the “Tennessee Public Participation Act” to protect Tennesseans’ right to free speech, which became effective July 1, 2019. Thus, from today onward, the Randy Rayburns and Linda Schipanis and Bari Hardins of the world can now wield a powerful protective weapon against bad actors’ efforts to censor and intimidate them through frivolous speech-based lawsuits.
The Tennessee Public Participation Act has dramatically expanded the scope of speech that receives heightened legal protection in Tennessee. Under the Act, every “communication made in connection with a matter of public concern”—a term that is defined broadly and expressly encompasses statements involving issues of “health or safety” and “community well-being”—”that falls within the protection of the United States Constitution or the Tennessee Constitution” will come within the ambit of the law’s protection. In other words: Most statements made by citizens within the State of Tennessee—including social media posts and blog posts—now receive heightened protection against speech-based lawsuits, including defamation lawsuits, false light invasion of privacy lawsuits, or lawsuits that assert claims such as “defamation by implication or innuendo.” Defendants who are sued for claims such as “abuse of process” or “malicious prosecution” will frequently enjoy heightened protection under the Tennessee Public Participation Act as well.
Censorship has always been rampant, and it comes in many forms—from firing people who speak out about misconduct in the workplace to libel and slander lawsuits. More than anything, in recent years, the permanence of the internet combined with the reach and speed of social media have made it more attractive than ever to try to censor others through the legal system before harmful information—whether accurate or not—reaches every corner of cyberspace. The good news is that the Tennessee Public Participation Act will now afford significant protection to people who speak out about topics like abuse and other important issues. The text of the law appears below.
The Tennessee Public Participation Act (Effective July 1, 2019):
20-17-101. This chapter shall be known and may be cited as the “Tennessee Public Participation Act.”
20-17-102. The purpose of this chapter is to encourage and safeguard the constitutional rights of persons to petition, to speak freely, to associate freely, and to participate in government to the fullest extent permitted by law and, at the same time, protect the rights of persons to file meritorious lawsuits for demonstrable injury. This chapter is consistent with and necessary to implement the rights protected by Article I, §§ 19 and 23, of the Constitution of Tennessee, as well as by the First Amendment to the United States Constitution, and shall be construed broadly to effectuate its purposes and intent.
20-17-103. As used in this chapter:
(1) “Communication” means the making or submitting of a statement or document in any form or medium, including oral, written, audiovisual, or electronic;
(2) “Exercise of the right of association” means exercise of the constitutional right to join together to take collective action on a matter of public concern that falls within the protection of the United States Constitution or the Tennessee Constitution;
(3) “Exercise of the right of free speech” means a communication made in connection with a matter of public concern or religious expression that falls within the protection of the United States Constitution or the Tennessee Constitution;
(4) “Exercise of the right to petition” means a communication that falls within the protection of the United States Constitution or the Tennessee Constitution and:
(A) Is intended to encourage consideration or review of an issue by a federal, state, or local legislative, executive, judicial, or other governmental body; or
(B) Is intended to enlist public participation in an effort to effect consideration of an issue by a federal, state, or local legislative, executive, judicial, or other governmental body;
(5) “Legal action” means a claim, cause of action, petition, cross-claim, or counterclaim or any request for legal or equitable relief initiated against a private party;
(6) “Matter of public concern” includes an issue related to:
(A) Health or safety;
(B) Environmental, economic, or community well-being;
(C) The government;
(D) A public official or public figure;
(E) A good, product, or service in the marketplace;
(F) A literary, musical, artistic, political, theatrical, or audiovisual work; or
(G) Any other matter deemed by a court to involve a matter of public concern; and
(7) “Party” does not include a governmental entity, agency, or employee.
20-17-104.
(a) 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.
(b) Such a petition may be filed within sixty (60) calendar days from the date of service of the legal action or, in the court’s discretion, at any later time that the court deems proper.
(c) A response to the petition, including any opposing affidavits, may be served and filed by the opposing party no less than five (5) days before the hearing or, in the court’s discretion, at any earlier time that the court deems proper.
(d) All discovery in the legal action is stayed upon the filing of a petition under this section. The stay of discovery remains 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.
20-17-105.
(a) The petitioning party has the burden of making a prima facie case that a legal action against the petitioning party is based on, relates to, or is in response to that party’s exercise of the right to free speech, right to petition, or right of association.
(b) If the petitioning party meets this burden, the court shall dismiss the legal action unless the responding party establishes a prima facie case for each essential element of the claim in the legal action.
(c) Notwithstanding subsection (b), the court shall dismiss the legal action if the petitioning party establishes a valid defense to the claims in the legal action.
(d) The court may base its decision on supporting and opposing sworn affidavits stating admissible evidence upon which the liability or defense is based and on other admissible evidence presented by the parties.
(e) If the court dismisses a legal action pursuant to a petition filed under this chapter, the legal action or the challenged claim is dismissed with prejudice.
(f) If the court determines the responding party established a likelihood of prevailing on a claim:
(1) The fact that the court made that determination and the substance of the determination may not be admitted into evidence later in the case; and
(2) The determination does not affect the burden or standard of proof in the proceeding.
20-17-106. The court’s order dismissing or refusing to dismiss a legal action pursuant to a petition filed under this chapter is immediately appealable as a matter of right to the court of appeals. The Tennessee Rules of Appellate Procedure applicable to appeals as a matter of right governs such appeals.
20-17-107.
(a) If the court dismisses a legal action pursuant to a petition filed under this chapter, the court shall award to the petitioning party:
(1) Court costs, reasonable attorney’s fees, discretionary costs, and other expenses incurred in filing and prevailing upon the petition; and
(2) Any additional relief, including sanctions, that the court determines necessary to deter repetition of the conduct by the party who brought the legal action or by others similarly situated.
(b) If the court finds that a petition filed under this chapter was frivolous or was filed solely for the purpose of unnecessary delay, and makes specific written findings and conclusions establishing such finding, the court may award to the responding party court costs and reasonable attorney’s fees incurred in opposing the petition.
20-17-108. Nothing in this chapter:
(1) Applies to an enforcement action that is brought in the name of the state or a political subdivision of this state by the attorney general, a district attorney general, or a county or municipal attorney; (2) Can result in findings or determinations that are admissible in evidence at any later stage of the underlying legal action or in any subsequent legal action; (3) Affects or limits the authority of a court to award sanctions, costs, attorney’s fees, or any other relief available under any other statute, court rule, or other authority; (4) Affects, limits, or precludes the right of any party to assert any defense, remedy, immunity, or privilege otherwise authorized by law; (5) Affects the substantive law governing any asserted claim; (6) Creates a private right of action; or (7) Creates any cause of action for any government entity, agency, or employee.
20-17-109. This chapter is intended to provide an additional substantive remedy to protect the constitutional rights of parties and to supplement any remedies which are otherwise available to those parties under common law, statutory law, or constitutional law or under the Tennessee Rules of Civil Procedure.
20-17-110. If any provision of this chapter or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this act that can be given effect without the invalid provision or application, and to that end the provisions of this act are declared to be severable.
These outrages are not isolated. They also are not surprising, given the shockingly indifferent way that such disqualifying conduct is treated by the bureaucrats who oversee Tennessee’s justice system. And they will continue to occur over and over and over again until administrators like BPR Chief Disciplinary Counsel Sandy Garrett are replaced with competent, capable people who consider bigotry and misconduct by public officials at least as problematic as private attorneys loaning poor clients money so that they can pay their rent.
This is not an exaggeration. Tennessee’s Board of Professional Responsibility—the shadowy, quasi-governmental body that regulates lawyers in Tennessee—has routinely turned a blind eye to racism and approached the absolute worst forms of misconduct with kid gloves under circumstances when the violators were participants in Tennessee’s justice system. In 2014, for instance, a Shelby County District Attorney who was caught (and admitted) withholding exonerating evidence in a capital murder case received nothing more than a public censure. In other circumstances, misconduct in the form of racist comments made by District Attorneys during prosecutions were ignored by the body entirely. And indeed, during an insane attempted power grab last year that would have afforded the BPR wide-ranging authority to censor and prosecute a vast amount of constitutionally protected, private attorney speech, at Ms. Garrett’s urging, the BPR itself sought to carve out a special disciplinary exemption for prosecutors who exercised racist peremptory challenges during jury selection.
By contrast, trivial violations that most reasonable people would not consider misconduct at all are met with fire and fury. For instance, in only the latest indication that Tennessee’s BPR has lost both its purpose and its mind, the Board came down hard on one lawyer for what is apparently considered an egregious offense in this State: Helping a poor client pay her rent. Ultimately, the punishment he received was identical to the sanction that the BPR levied against the above-mentioned Memphis prosecutor who hid exonerating evidence in a capital murder case—a fact that says just about everything that needs to be said about the BPR, its judgment, and its priorities.
Most troublingly, though, Garrett’s BPR has helped prevent serious misconduct by public officials from coming to light by aggressively prosecuting attorneys across the state for having the audacity to speak up or speak out against judges. Indeed, notwithstanding the absence of any conceivable harm to the public, there appears to be no surer way to guarantee severe professional sanction in Tennessee—including summary, indefinite suspension—than to stand up to a judge. Given this context, it is fair to wonder whether the culture of silence and censorship that Garrett’s BPR fosters—whether deliberately or otherwise—serves to inhibit whistleblowing and allows misconduct by public officials to fester unchecked for years. Indeed, one wonders whether that’s the point.
Year after year, bar associations and self-important bar leaders across Tennessee wonder aloud why the legal profession is consistently held in such low esteem by the general public. Curiously, the existence of bigoted judges and prosecutors, a structurally inadequate indigent defense system, and highly questionable behavior by professional regulators—both with respect to the way they treat practicing attorneys and prospective lawyers—never seem to come up as possible explanations. Certainly, the solutions sought by the BPR don’t address any of the many legitimate reasons why the public would hold the entire legal system in low regard. Instead, to the exclusion of any justifiable priority, the approach of Tennessee’s BPR has largely been to censor and prosecute lawyers who criticize governmental participants in a legal system that is failing daily.
Though few dare to challenge the BPR’s behavior and priorities given credible fear of retaliation, it is past time that the BPR secured new leadership. As Garrett’s BPR demonstrates year after year, the body quite simply lacks the judgment to oversee or regulate the practice of law in Tennessee. Having failed to do her job competently for long enough, the Tennessee Supreme Court should replace her. Alternatively, for the good of the profession, Garrett should do the honorable thing and resign.
Federal court orders that controversial sterilization program be rescinded; White County officials to pay Plaintiffs’ attorney’s fees, permanently enjoined from making or enforcing any sentencing determination that is based “in whole or in part upon a defendant’s consent—or refusal to consent—to becoming permanently or temporarily sterilized.”
Following an historic reversal at the United States Court of Appeals for the Sixth Circuit last month, an inmate sterilization program instituted by two White County, Tennessee officials has finally come to an end. The landmark order comes nearly two years after a trio of inmates at the White County jail filed suit against White County General Sessions Court Judge Sam Benningfield—the architect of the program—and the White County Sheriff’s Office, alleging that the program violated the 14th Amendment’s Equal Protection and Due Process clauses.
A consent decree approved by the United States District Court for the Middle District of Tennessee earlier today formally terminates the controversial inmate sterilization program, compelling Judge Benningfield to rescind each of his standing orders regarding the program “in their entirety,” effective immediately. The Court’s order also permanently enjoins both Judge Benningfield and the White County Sheriff’s Office “from making or enforcing any sentencing determination that is based in whole or in part upon a defendant’s consent—or refusal to consent—to becoming permanently or temporarily sterilized” at any point in the future. Judge Benningfield and the White County Sheriff were further ordered to pay the costs of the lawsuit and the plaintiffs’ attorney’s fees, which the order provides “shall be donated by Plaintiffs’ counsel to the United States Holocaust Memorial Museum and the Tuskegee History Center.” Each of the three inmates who sued after refusing to become sterilized also received a 30-day sentencing credit toward a future expungement.
“Inmate sterilization is despicable, it is morally indefensible, and it is illegal,” said Daniel Horwitz, a Nashville-based constitutional lawyer who represented the inmates along with Richard Brooks. “Let this historic order serve as a warning: Whether you are a sitting Judge, a Sheriff who is ‘just following orders,’ or any other government official, if you violate the Constitution, you will be held accountable.”
The Consent Decree and Final Order approved by the U.S. District Court for the Middle District of Tennessee and additional case documents regarding the program appear below.
The Tennessee Board of Law Examiners has released the results of the February 2019 Tennessee bar exam. The exam—which was taken by 289 prospective lawyers—resulted in an overall passage rate of 46.37%. Special shout out to successful exam-taker Kenny Dyer, whose herculean work as the author’s private investigator on the since re-opened Joseph Webster innocence case cannot be overstated.
Vanderbilt Law School maintained its multi-year grip on the state’s top spot with an overall passage rate of 83.33% (in a recent previous year, Belmont Law School had claimed the mantle). Tennessee’s other accredited law schools registered overall passage rates of 71.43% (Belmont), 51.43% (Memphis), 47.06% (Duncan), and 43.48% (UT).
