Category Archives: Constitutional Law

MTSU was denied a law school.  Was the Higher Education Commission’s decision legal?

By Daniel A. Horwitz

Earlier this month, the Tennessee Higher Education Commission voted 8-5 to deny Middle Tennessee State University’s proposal to add a law school to its higher education offerings.  Given that Tennessee’s only existing public law schools are located in Memphis and Knoxville, MTSU’s proposal would have added the first and only public law school option to the Middle Tennessee area.  Its addition would also have introduced substantial competition into the low-cost segment of Middle Tennessee’s strictly private law school market, which is currently failing to produce.

Blasting criticism of the proposal, MTSU President Sidney A. McPhee called on the Commission to reject the “cartel-like view” that its role was to inhibit competition.  Opponents of the plan also appeared to make his point for him.  For instance, in urging the Commission to vote down a law school at MTSU, WPLN reports that “[t]he biggest critics of the transfer came from lawyers and law schools in Memphis and Knoxville, where the state’s only other public law schools are located.”  Other critics decried the fact that another school in the city: (1) “would take away from other schools’ ability to compete,” (2) “would saturate an already dense legal labor market,” (3) “would make it even more difficult for law school graduates to find work,” and (4) would “insert more law school graduates into an already crowded job market.”

The extent to which “the biggest” critics’ interests in stifling competition factored into the Higher Education Commission’s decision to vote down MTSU’s proposal is not clear.  What is clear, however, is that if concerns about enhanced competition in the legal industry or the private law school market—something that uniformly benefits consumers by affording them more choices and lower prices—played any role at all, the Higher Education Commission’s decision was not lawful.  Specifically, although Tennessee regulators appear to be unaware of this fact, a vast body of law instructs that raw economic protectionism is an illegitimate governmental interest, and that under both federal and state law, governmental action aimed solely at inhibiting competition is illegal.

In 2002, the United States Court of Appeals for the Sixth Circuit held for the first time that “protecting a discrete interest group from economic competition is not a legitimate governmental purpose” and violates the 14th Amendment to the U.S. Constitution.[1]  As far as state law is concerned, the Tennessee Supreme Court has long held that protectionism is forbidden by the Tennessee Constitution as well.  In the 1956 case Consumers Gasoline Stations v. City of Pulaski, for instance, the Tennessee Supreme Court held that “[a]lthough [a] city may have the right to regulate [a] business, it does not have the right to exclude certain persons from engaging in the business while allowing others to do so.”[2]  A wealth of additional state precedent spanning more than a century also supports this premise.[3]

Nor is the legal prohibition against raw protectionism a dead letter.  Over the past two years, a series of high-profile victories—from the case of bar applicant Maximiliano Gluzman to the case of on-demand beauty and health service provider Project Belle—were specifically defended on that basis, and recent Tennessee statutory law similarly provides that “arbitrarily limiting entry and reducing competition” is not a legitimate public purpose.  In sum:  At least in Tennessee, the prohibition against economic protectionism is real, it is meaningful, and it is enforceable.

With this context in mind, if attempts to stifle competition in the private Middle Tennessee law school market or in the legal industry more broadly played any role in the Commission’s 8-5 decision to reject MTSU’s proposal to add a law school, then MTSU is entitled to a new hearing.  Just as unconstitutional hostility to a litigant’s religious beliefs cannot play a role in an administrative proceeding, nor can unconstitutional hostility to competition factor into the Higher Education Commission’s decisions.  Given the prominent and visible role that raw economic protectionism of private industry appears to have played in the Commission’s decision to vote down a law school at MTSU, however, the school should seriously consider its right to appeal.

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[1] Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002).

[2] Consumers Gasoline Stations v. City of Pulaski, 292 S.W.2d 735, 737 (Tenn. 1956).

[3] See, e.g., Harbison v. Knoxville Iron Co., 53 S.W. 955, 957 (Tenn. 1899) (“The ‘liberty’ contemplated in [the Tennessee Constitution] means not only the right of freedom from servitude, imprisonment, or physical restraint, but also the right to use one’s faculties in all lawful ways, to live and work where he chooses, to pursue any lawful calling, vocation, trade, or profession, to make all proper contracts in relation thereto, and to enjoy the legitimate fruits thereof.”); Yardley v. Hosp. Housekeeping Sys., LLC, 470 S.W.3d 800, 806 (Tenn. 2015) (noting Tennessee’s established public policy favoring citizens’ “access to employment and the ability to earn a livelihood.”).

Tennessee Supreme Court Releases Trio of Decisions Restricting Criminal Defendants’ Rights

By Daniel A. Horwitz

Late last week, the Tennessee Supreme Court issued a trio of critically important decisions on criminal-constitutional issues.  Continuing a recent trend on the topic, criminal defendants got walloped.

1. Further Restricting Coram Nobis Relief

In Nunley v. State of Tennessee, the Court significantly restricted the measure of relief available under the writ of error coram nobis.  Coram nobis is a procedural vehicle used to help remedy wrongful convictions based on new evidence that is discovered after a defendant has been convicted.  Regrettably, the Court’s unanimous decision in Nunley narrowed the writ’s already limited scope even further.

Nunley involved a defendant who was convicted of aggravated rape in 1998 and alleged that DNA testing proved that he was innocent of the crime.  Mr. Nunley further alleged that in 2014, he discovered that the State had withheld critical exculpatory evidence when the Shelby County District Attorney’s Office included four previously-undisclosed exhibits in a responsive pleading that it filed in opposition to his petition for DNA testing under the Post-Conviction DNA Analysis Act.

Upon review, the Court rejected Mr. Nunley’s plea for relief.  Three critical, novel holdings are worthy of emphasis:

First, the Court held that the writ of error coram nobis cannot be used to advance claims under Brady v. Maryland, 373 U.S. 83 (1963).  A “Brady” claim is a claim that a defendant’s right to a fair trial was violated because the State withheld exculpatory evidence that it is constitutionally required to provide to defendants.  This oft-overlooked violation can be characterized as pervasive in Shelby County and other areas in Tennessee.  Further, when Brady violations are acknowledged—even in capital cases—the Board of Professional Responsibility of the Tennessee Supreme Court has given District Attorneys little more than a slap on the wrist.  Henceforth, however, Brady claims will no longer be cognizable via the writ of error coram nobis.  Instead, they must be brought via the Tennessee Post-Conviction Procedure Act.

Second, the Court held that “timeliness under the statute of limitations is an ‘essential element’ of a coram nobis claim that must appear on the face of the petition.”  Unless tolled, a writ of error coram nobis must be filed within one year of the date of a defendant’s conviction or it will be forever unavailable as time-barred.  Given, among other things, the overwhelming difficulties associated with reinvestigating one’s case from prison and Tennessee’s structurally deficient indigent defense system, this time limitation is so short that it renders the writ practically useless.  According to the National Registry of Exonerations, criminal defendants who were exonerated in 2017 “spent an average of 10.6 years incarcerated for their convictions.”  Similarly, in 2016, “[a]lmost two-thirds of the DNA exonerations in 2016 were murder cases, and the average time from conviction to exoneration was 21 years.”  Accordingly, absent rare and extraordinary circumstances, the one-year statute of limitations will operate to foreclose virtually all meaningful opportunities for relief under Tennessee’s coram nobis statute.

Third, and most significantly, the Court held that “coram nobis petitions with inadequate allegations are susceptible to summary dismissal on the face of the petition, without discovery or an evidentiary hearing.”  Importantly, the vast majority of coram nobis petitions are filed by pro se inmates who have no right or ability to have an attorney assist them.  As a result, this easily-overlooked bombshell will essentially end coram nobis relief across Tennessee, because vanishingly few pro se litigants will be able to draft a petition that successfully navigates the procedural morass necessary to state a cognizable claim for relief on their own.  Thus, when coram nobis petitions are filed, nearly all of them will now be dismissed summarily: (1) without a response; (2) without a hearing; and (3) without the opportunity to have an attorney file an amended petition to correct any shortcomings in the inmate’s pleadings.  As a consequence, for nearly all practical purposes, the writ of error coram nobis is now dead.

2.  Growing Expansion of “Good Faith” Exception to Unlawful Searches

In State v. Lowe, the Tennessee Supreme Court addressed a suppression issue in a gruesome case involving two murdered newborns.  The contested search warrant involved a magistrate’s “simple and good-faith clerical error of incorrectly indicating on one of three copies of the warrant that it was issued at 11:35 ‘PM’ while correctly indicating on the other two copies that it was issued at 11:35 ‘AM.’”  Although there is an extremely good reason why law enforcement is required to state the time of issuance on a search warrant—it helps “ensure that the warrant is obtained [legally] before the search is conducted, not [illegally] afterwards”—the error in Lowe genuinely appeared to have been a clerical one committed in good faith.

Following a similar set of circumstances, in 2011, the Tennessee General Assembly enacted the “Exclusionary Rule Reform Act,” which provides that evidence “shall not be suppressed” if the court determines that the violation was the result of a good faith mistake or “technical” violation.  In a holding that would traditionally be important, the Tennessee Supreme Court unanimously determined that, in enacting the ERRA, the General Assembly encroached upon the exclusive province of the judiciary in violation of the Tennessee Constitution’s separation of powers doctrine.  Accordingly, the Court held that “the ERRA represents an impermissible encroachment by the legislature upon this Court’s authority,” and it invalidated the ERRA as unconstitutional.

Even so, the Court nonetheless did precisely what the ERRA instructed, and it adopted its central legislative demand as a matter of Tennessee common law.  Notably, this is the second time in three years that the Tennessee Supreme Court has “asserted” its authority under the separation of powers doctrine, only to “acquiesc[e] to the standard proposed by the General Assembly” and adopt as a matter of Tennessee common law precisely what the legislature had promulgated as a matter of statute.

In sum: finding that “the magistrate’s good-faith mistake was inconsequential,” the Court held that “the exclusionary rule should not be applied under these circumstances,” and it declined to suppress the evidence gathered as a result.

3.  Wholesale Embrace of the “Good Faith” Exception

Third and finally, in a case relying on its just-released decision in Lowe, the Tennessee Supreme Court took up State v. Daniel, a decision involving whether the “good faith” exception should apply when law enforcement fails to provide a defendant with a copy of a search warrant at all.

One scholar has written about the Tennessee Supreme Court’s breakneck sprint toward a wholesale “good faith” exception in Tennessee.  Somewhat less noticed has been the fact that Tennessee Supreme Court has also changed the Tennessee Rules of Criminal Procedure to accommodate it, bolstering its permanence.  Effective July 1, 2018, Rule 41 was amended to afford trial courts discretion to determine whether to exclude evidence that was gathered pursuant to a search warrant that is noncompliant with Rule 41.  See 2018 Tenn. Ct. Order 0002, No. ADM2017-01892 (Tenn. 2018).  The amendment altered the critical language of subsection (g)—which had stated that a motion to suppress “shall be granted” if a search warrant is defective—to read instead that the motion “may” be granted.  This rule change, however, is merely a matter of formality, having already been adopted informally by judicial fiat.  In 2015, in a cursory section on page 32 of its decision in State v. Corrin Reynolds, the Tennessee Supreme Court expressly held that the notion that the word “shall” in Rule 41 ever actually meant what it said “would be peculiar indeed.”

With this context in mind, the Court easily concluded that the “good faith” exception to unlawful searches applied in Daniel, finding that although the search warrant at issue was not provided to the defendant, the mistake was an honest one and did not result in any prejudice.  As a consequence, while continuing to characterize the good faith exception as a “narrow” one despite decision after decision indicating otherwise, the Court determined that the evidence would not be suppressed.

***

Taken together, the Tennessee Supreme Court continues its steady campaign to restrict the rights of the criminally accused.  As a result, criminal defendants in Tennessee—particularly those who are innocent—may be forced to turn to federal courts for habeas corpus relief under equitable exceptions that excuse defendants’ failure to comply with inadequate state processes instead.

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Supreme Court Solicits Comments on Proposed Rule Changes

By Daniel A. Horwitz

Following the demise of proposed Rule 8.4(g) last month—a well-intentioned but dangerous and constitutionally infirm speech code—two additional rule changes have been proposed to the Tennessee Supreme Court for consideration.  The court is currently soliciting comments on both proposals.

The first proposal is a petition to amend Rule 25, governing the Tennessee Lawyers’ Fund for Client Protection.  The proposed changes are detailed here.  I have a problem with one of the proposals, which caps attorney compensation at the randomly low amount of $500.00.  Such a rule would significantly interfere with what is typically a strongly-enforced right to contract.  It would also have no result other than ensuring that clients can’t get legal representation to handle qualifying fraud claims.  Simply stated: lectures on lawyers’ duties aside, no lawyer will work a complex case with a potential value of up to $250,000.00 for just $500 plus expenses, and there are other matters that are significantly more worthy of pro bono assistance.  My concerns about this portion of the proposed change are detailed in this Twitter thread, and the text of the change at issue is as follows:

18.01. No lawyer shall charge or accept compensation for prosecuting a claim on behalf of a claimant unless approved by the Board (a) on a contingency basis or (b) in excess of a flat fee of $500.00 plus reimbursement of expenses. Lawyers owe a duty to the public to assist individuals wronged by members of the profession and may count hours spent assisting a claimant in the prosecution of a claim as pro bono hours if conducted without receiving a fee.

The second proposed change is to amend Rule 13 to adjust the hourly rates and per-case caps for appointed indigent criminal defense work.  $9.7 million in additional and much-needed funding was recently appropriated for indigent defense in Tennessee, which is currently in a state of crisis.  The proposed changes are available here, and the TBA is soliciting input here.  The changes, if adopted, would modestly increase case caps and compensate both in-court and out-of-court work at $50/hour.

Compensating in-court and out-of-court work at the same rate is a marked and arguably legally mandated improvement.  However, as a whole, the changes are not nearly significant enough to address the catastrophic problems and perverse incentives involved in Tennessee’s indigent defense system.  In particular, retaining case caps ensures a serious and rapid conflict of interest in appointed cases, because after attorneys spend between 10-60 hours on a defendant’s representation (depending on the type of case), the attorney stops getting paid.  For instance, under even the improved case caps, a lawyer defending a client charged with First Degree murder will only be paid for the first 60 hours of work.  Further, even if the case at issue is deemed especially “complex or extended”—a characterization that should apply to every serious felony case—a lawyer will only be compensated for a maximum of 120 hours of work no matter how long the case lasts.  For cases that can often take years to resolve, the economic pressure to push a client to plead guilty after the cap has been hit is enormous.

For anyone interested in providing commentary on the proposed rules, written comments may be emailed to appellatecourtclerk@tncourts.gov or mailed to:

James Hivner, Clerk
Tennessee Appellate Courts
100 Supreme Court Building
401 7th Avenue North
Nashville, TN 37219-1407

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Restaurateur Wins Defamation Suit (Again)

In a resounding win, celebrated Nashville restaurateur Randy Rayburn has again beaten back a multi-million dollar defamation and false light lawsuit filed against him by Thomas Nathan Loftis, Sr., the former director of Nashville State’s culinary program.  In a unanimous ruling, the Tennessee Court of Appeals affirmed the outright dismissal of Mr. Loftis’s claims on the basis that Loftis had advanced a “far-fetched and not a reasonable interpretation” of the statements that he had sued over, and that “the statements in the newspaper article are not defamatory as a matter of law.”  The Court of Appeals also ordered Mr. Loftis to pay for the costs of the lawsuit, and it further ordered the Trial Court to determine whether Loftis must pay Mr. Rayburn’s legal fees.

Given the serious threat that the case posed to the viability of newsgathering in Tennessee, the lawsuit attracted national attention from First Amendment organizations like The First Amendment Center’s Newseum Institute and TechDirt.  Following a disturbing trend in local media of inflating the legitimacy of almost uniformly baseless defamation lawsuits when they are filed but failing to cover them after they fail, however, the Court of Appeals’ decision has gone unreported in Nashville.

Mr. Loftis’s lawsuit was novel in that it was filed over statements that had been authored by a Tennessean newspaper journalist in an article in which Mr. Rayburn—the supposed source of the statements at issue—was not even quoted.  As a result, the lawsuit attempted to run an end-around Tennessee’s source-protection statutes, and it also served as a warning that anyone who is even referenced in a news article containing critical coverage can be threatened with multi-year, multi-million dollar litigation.  Had the lawsuit been permitted to go forward, it stands to reason that news sources would have been far less likely to speak to journalists on the record or to interact with the media at all.

Significantly, the case also involved a stunning, outright acknowledgement from Mr. Loftis’s counsel that Mr. Rayburn had been sued in part because the newspaper that had actually published the statements at issue was more likely to be able to defend itself.  Specifically, during oral argument before the Court of Appeals, Mr. Loftis’s counsel had the following exchange with the Court:

Judge Neal McBrayer: “Why isn’t the Tennessean the proper party here?”

Gary Blackburn (Attorney for Tom Loftis):  “Your Honor, there were practical reasons for that . . . .  It is easier to bring a lawsuit against the person who uttered the words than against a publication that buys ink by the barrel, as they say, and has lots of resources.

Unfortunately, this strategy—which is rarely acknowledged so openly—is all-too-common in the defamation world.  Given the enormous costs of civil litigation, powerful people seeking to stifle criticism often file flagrantly baseless claims against those perceived to have limited resources in the hopes of being able to censor them.  As a result, as the author has explained previously, being able to sue for defamation “provide[s] enormous space for the powerful and well-resourced to threaten, censor, abuse, and intimidate those who lack the means, knowledge, or fortitude to defend themselves.”

All considered, the Court of Appeals’ decision constitutes a total victory and complete vindication for Mr. Rayburn, who has maintained that the lawsuit was frivolous from the beginning.  “We’re thrilled about this resounding win, which fully vindicates Mr. Rayburn and the First Amendment yet again,” said Daniel Horwitz, Mr. Rayburn’s attorney.  “Filing a lawsuit this frivolous was a very poor decision, and unfortunately for Mr. Loftis, it is about to become an expensive one as well.”

The Court of Appeals’ unanimous decision, authored by Judge Andy Bennett, is available here.  Selected case documents and media coverage are available below.

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Selected Case Documents:

Plaintiff’s First Amended Complaint

Defendant’s Motion to Dismiss First Amended Complaint

Plaintiff’s Response to Motion to Dismiss (1)/Plaintiff’s Response to Motion to Dismiss (2)

Defendant’s Reply to Plaintiff’s Response

Transcript of Hearing on Defendant’s Motion to Dismiss

*Order Dismissing Plaintiff’s Complaint With Prejudice

Brief of Plaintiff-Appellant Thomas Nathan Loftis, Sr.

Brief of Defendant-Appellee and Cross-Appellant Randy Rayburn

*Appellate Court Order Denying Plaintiff’s Appeal and Remanding for Consideration of Attorney’s Fees Award

Selected Media Coverage:

-The Tennessean: Defamation lawsuit against restaurateur Randy Rayburn dismissed — again

-TechDirt: Judge Dumps Stupid Libel Suit Featuring A Man Suing A Third Party For Things A Journalist Said

-Nashville Business Journal: Nashville restaurateur Randy Rayburn faces $1.5 million lawsuit

-TechDirt: Former University Official Files Libel Lawsuit Against His Replacement For Things A Journalist Said

-Nashville Business Journal: Judge dismisses $1.5M suit against well-known restaurateur

-First Amendment Center’s Newseum Institute: Unusual Defamation Suit Targets Source of Story

 

Tennessee Passes Bill to Allow In-Home Beauty Services

FOR IMMEDIATE RELEASE:

Nashville, Tenn., April  25, 2018—Late yesterday afternoon, the Tennessee General Assembly completed the final step in passing a bill to allow in-home beauty services across Tennessee.  State Senator Steve Dickerson, R-Nashville, State Representative Sam Whitson, R-Franklin, and State Representative Jason Powell, D-Nashville, were the primary sponsors of the bill.  Once signed by Governor Haslam, the reform will allow Tennesseans to purchase beauty services in the privacy of their own homes and businesses.

The bill follows The Tennessee Board of Cosmetology and Barber Examiners’s 2016 decision to issue a cease-and-desist letter and file a formal complaint against Belle—a popular Nashville-based technology company that provides on-demand health and beauty services—for bringing “highly disturbing” competition into Tennessee’s beauty industry.  The Board initially alleged that Belle was violating the state’s cosmetology laws, but withdrew its complaint after Belle formally contested the Board’s allegations.  The Board’s decision to withdraw its complaint was covered widely in local, state, and national media, including ForbesYahooReason, the Nashville Business Journal, the Memphis Commercial Appeal, and the Daily Signal, among others.

“With the passing of this bill, Tennesseans will now have the right to enjoy concierge cosmetology services just like many other Americans,” said Armand Lauzon, CEO of Belle.  “Beyond that, it grants tens of thousands of cosmetologists access to the American dream by legalizing entrepreneurship in the industry. The General Assembly should be very proud of this needed reform.”

“Passage of this bill represents another step in our state to remove barriers that interfere with Tennesseans achieving the American Dream,” added Senator Dickerson.

The reform passed unanimously in the Tennessee State Senate, and it succeeded by a margin of 81-6 in the Tennessee House.  Along with the bill’s sponsors, Tennessee House Speaker Beth Harwell, R-Nashville, was instrumental in its passage.  “I was proud to support this legislation repealing a burdensome regulation.  Entrepreneurs across the state will now be able to provide convenient services to Tennesseans, and create prosperity for themselves and their families,” said Speaker Harwell.

“In 2016, the Tennessee Board of Cosmetology unlawfully attempted to shut down one of Nashville’s most exciting new tech companies for the sole purpose of protecting an outdated industry competitor from competition,” said Daniel Horwitz, Belle’s attorney and lobbyist.  “This important reform ensures that the Board of Cosmetology will be prevented from engaging in such lawless behavior ever again.”

For press inquiries, please contact Julia Bonner at ​julia@pierce-pr.com​ or Armand Lauzon at armand@projectbelle.com​.

###​

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Selected Case Documents:

Board Complaint and Demand to Cease and Desist

Respondent’s Response Letter Denying Liability and Refusing Consent Order

*Order Dismissing Complaint

Selected Media Coverage:

-Reason Tennessee Decides It’s Not Actually Dangerous for a Cosmetologist to Do House Calls

-Forbes: Tennessee Regulators Drop Complaint, Won’t Block Beauty App From Operating

-Forbes: Tennessee Wants To Shut Down This Beauty And Health App For Offering ‘Highly Disturbing’ Competition

-Nashville Business Journal: Regulators withdraw complaint against Nashville-based startups

-Reason: Tennessee Cosmetology Board Admits it Doesn’t Have Authority To Regulate Tech Companies

-Daily Signal: How This Nashville Tech Company Challenged a State Regulatory Board and Won

-The Federalist Society: Regulatory Hurdles for Entrepreneurs: The Story of Project Belle

Tennessee Supreme Court Denies Proposed Rule Change Attempting to Police Discrimination and Harassment

By Daniel A. Horwitz

Earlier today, the Tennessee Supreme Court rejected a proposed rule change that would have subjected attorneys to professional discipline for expressing views that could be considered discriminatory or harassing.  The proposed changes were roundly criticized as an overbroad infringement upon attorneys’ constitutionally protected rights to freedom of speech and association.  The controversial rule received nearly 400 pages of commentary from members of the bar, members of the public, and interested organizations.

Model Rule of Professional Conduct 8.4(g) was initially drafted by the American Bar Association in August of 2016 as an effort to curb discrimination and harassment in the legal profession.  Thereafter, several prominent national commentators promptly criticized it, and to date, nearly every jurisdiction that has considered the proposed change has rejected it.

On November 15, 2017, the Tennessee Board of Professional Responsibility and the Tennessee Bar Association filed a joint petition asking the Tennessee Supreme Court to adopt an amended version of Rule of Professional Conduct 8.4(g).  The proposed amendments would have made certain forms of discrimination and harassment subject to professional sanction, with several exceptions.

Despite its laudable goals, the proposed amendments suffered from serious shortcomings.  As this author noted in a recent Nashville Post article on the proposal:

“Although motivated by good intentions, proposed Rule 8.4(g) is a constitutionally infirm speech code that suffers from several critical flaws. First, it is wildly overbroad; it would, for example, prohibit attorneys from restricting their pro bono practice to female victims of domestic violence or to members of their church, because doing so would constitute sex discrimination and discrimination on the basis of religion, respectively. Second, it grants the Board of Professional Responsibility immense new regulatory authority to punish attorney speech, and based on the BPR’s long history of selective enforcement and a curious exemption in 8.4(g) that makes clear that exercising ‘peremptory challenges . . . on a discriminatory basis does not alone establish a violation,’ it is fair to say that the BPR should not be trusted with such vast censorial authority. Third, more generally, it gives the Government the power to determine what kind of speech is permissible and what kind of speech is illegal—a deeply troubling and downright dangerous proposition that cannot be squared with basic principles of the First Amendment.”

In a formal opinion released in March, the Attorney General of Tennessee similarly concluded that the proposal was unconstitutional.

Upon review, the Tennessee Supreme Court issued a per curiam order denying the BPR’s and TBA’s joint petition.  “The Court has carefully considered the BPR and TBA’s proposed amendment, the comments received, including the points and issues raised therein, and this entire matter. Upon due consideration, the BPR and TBA’s petition to adopt a new Rule 8, RPC 8.4(g) is respectfully DENIED. It is so ORDERED,” today’s Order reads.  The Court’s formal denial is accessible here.

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Tennessee Needs to Provide More Protection to People Sued for Defamation

By Daniel A. Horwitz:

Yesterday morning, the Nashville Post reported on yet another baseless, multimillion dollar defamation lawsuit filed here in Nashville.  The lawsuit follows a series of other recent defamation actions—including since-dismissed attempts to silence dog lovers, supposed media sources, and others—that have been aimed at stifling legitimate public criticism.

It should be emphasized that the overwhelming majority of such lawsuits have no realistic chance of success in a court of law.  Disturbingly, however, regardless of their legally meritless nature, such lawsuits often achieve their intended result—censorship of critical commentary and criticism of the powerful in particular—anyway.  Because, all things being equal, people would prefer not to be sued, voluntary self-censorship can be all-too-appealing.  Thus, to prevent such societal harm, it is long past time that Tennessee adopted a meaningful Anti-SLAPP law to deter would-be censors from threatening those who lawfully exercise their fundamental right to speak freely.

Though its protections are commonly taken for granted, the First Amendment to the United States Constitution codifies the most important protection in America’s governing charter.  Chief among the rights guaranteed by the First Amendment is the proscription against government action that “abridg[es] the freedom of speech.”  Uncontroversially, the right to speak freely plays an indispensable role in enabling the free exchange of thoughts, information, and ideas.  Indeed, without such a right, democratic government would not be possible at all.  If unaccompanied by the right to speak freely and critically, for example, “free and fair” elections would quickly become unrecognizable.

When it comes to defamation lawsuits, the First Amendment affords citizens enormous protection.  In practice, however, exercising one’s constitutional right to criticize the powerful can result in ruinous financial consequences.

The ability to sue people for defamation (libel in published form, slander by spoken word) or any number of other speech-related torts—like false light invasion of privacy—operate as theoretically narrow exceptions to the broad rule that speech is not illegal.  As a practical matter, however, most people cannot afford the tens (if not hundreds) of thousands of dollars in legal fees that are necessary to defend oneself against even the most frivolous defamation claims.  Nor are most people willing to endure the years of terror and stress that commonly accompany litigation.  As a consequence, in practice, these theoretically narrow exceptions provide enormous space for the powerful and well-resourced to threaten, censor, abuse, and intimidate those who lack the means, knowledge, or fortitude to defend themselves.  Further, when media outlets puff up defamation lawsuits and hype the liability that defendants are facing at the outset of a case regardless of legitimacy—but then fail to follow up after a lawsuit predictably collapses—all that viewers learn is that criticizing powerful people is dangerous.

None of this, of course, is meant to suggest that all defamation lawsuits are meritless.  In the 1966 case Rosenblatt v. Baer, U.S. Supreme Court Justice Potter Stewart persuasively observed 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.”  This worldview still carries widespread acceptance.  Accordingly, even the most ardent defenders of the First Amendment support defamation claims where, for example, someone falsely accuses an innocent child of being a murderer.  Indeed, even this author has filed a defamation suit to protect the reputation of an individual who was subjected to fabricated claims (on national television) of being a rapist and a thief by a woman who had had him kidnapped, tortured and very nearly killed—a lawsuit that ultimately resulted in an admission that the allegations were baseless.

Despite their frequency, however, legitimate defamation suits are few and far between.  Accordingly, the overwhelming majority of people who are sued for defamation are subjected to potential liability for lawfully exercising a constitutional right.  Further, because the First Amendment values not only the right to speak, but also the right to hear and the right to receive information, when individuals are censored, society as a whole suffers.

To deter such harm, many states have adopted “Anti-SLAPP” laws, which afford people who are sued for defamation special protections in response to “Strategic Lawsuits Against Public Participation.”  Although the substance of such laws varies across jurisdictions, they frequently contain provisions requiring mandatory payment of attorney’s fees in the event of a successful defense; an expedited process for reviewing the legitimacy of a plaintiff’s lawsuit; and/or an automatic right to appeal early on in the proceedings.

Tennessee, for its part, has a limited Anti-SLAPP law that provides for the payment of attorney’s fees when a person is improperly sued for exercising “such person’s right of free speech or petition under the Tennessee or United States Constitution in connection with a public or governmental issue,” and when the person sued has “communicate[d] information regarding another person or entity to any agency of the federal, state or local government regarding a matter of concern to that agency.”  Because few statements resulting in defamation lawsuits arise out of reports to government agencies, however, few defendants are able to take advantage of the law’s protection.  Given that speech in the public square is every bit as important as statements made to government agencies, however, it is long past time for these protections to be expanded.

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Mr. Wallace Goes to Court (Update: He Won)

UPDATE: By Order issued 4/10/2018, Nashville’s Mayoral Election must be held in May.  The Court’s unanimous opinion is available here.  

“We are grateful that the Tennessee Supreme Court has issued a powerful, persuasive, and unanimous opinion vindicating Mr. Wallace’s claim that the Charter is clear and that Metro Government cannot unilaterally nullify a referendum supported by 83% of voters.” —Jamie Hollin and Daniel Horwitz, Counsel for Ludye Wallace

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Yesterday afternoon, the Tennessee Supreme Court’s full gallery of onlookers was treated to an unprecedented event: an emergency appeal demanding that Metro Nashville hold a near-immediate special election to fill the vacancy in its Mayor’s office.  The office became vacant on March 6, 2018, when ex-Mayor Megan Barry resigned after pleading guilty to felony theft.  Following an extraordinary oral argument in which lawyers for the city argued that they had provided an “inaccurate” ballot summary to voters, the Court announced that it would issue a ruling sometime this week.

The emergency appeal—filed on behalf of Mayoral candidate and former Metro Councilman Ludye Wallace—centers on Section 15.03 of Nashville’s Metro Charter.  In pertinent part, that section reads: “There shall be held a special metropolitan election to fill a vacancy for the unexpired term in the office of mayor . . . whenever such vacancy shall exist more than twelve (12) months prior to the date of the next general metropolitan election.”  Consequently, the case turns on when “the next general metropolitan election” is scheduled to take place.  If, as Mr. Wallace argues, “the next general metropolitan election” is not until August 2019, then a special election must be held in May.  If, as Metro argues, there will be a “general metropolitan election” in August 2018, however, then the election can be held then.

Helpfully, the Metro Charter expressly defines “general metropolitan elections.”  One provision of the Charter—Section 15.01—is specifically titled “When general metropolitan elections held,” and it makes clear that such elections are only held every fourth August in odd-numbered years.  Another Charter provision referring exclusively to those four-year August elections—Section 15.02—uses the term “the general metropolitan election” seven separate times.  And another Charter provision—Section 18.06—reflects that Metro has uniformly considered those specific four-year August elections to be the only type of “general metropolitan elections” for decades.

Most clearly, however, because Section 15.03 was enacted by voter referendum in 2007, Metro was also required to provide a summary of the provision at the time that it was being considered for adoption by voters.  By law, that summary had to be “worded so as to convey [the amendment’s] meaning.”  Helpfully, in clear (and admittedly unambiguous) terms, the ballot summary stated: “This amendment would require that a special election be held to fill a vacancy in the office of mayor . . . whenever more than twelve (12) months remain in the unexpired term.”

Because more than eighteen months remained in ex-Mayor Barry’s term when she resigned, it would seem clear that Section 15.03 requires “that a special election be held to fill a vacancy in the office of mayor,” since all agree that “more than twelve (12) months remain in the unexpired term.”  Attempting to avoid this result, however, Metro lawyers argued to the court yesterday that the ballot summary they provided to voters was inaccurate.

Responding to that claim, Mr. Wallace’s counsel argued that such a position—if tolerated—would call “the integrity of the referendum process and the democratic process itself into question.”  Although that contention did not appear to be well-received by one Justice, it was certainly well supported.  Under similar circumstances, court after court has held that “[t]he citizen initiative constitutional amendment process relies on an accurate, objective ballot summary for its legitimacy.”  See In re Advisory Opinion to the Atty. Gen. re Additional Homestead Tax Exemption, 880 So. 2d 646, 653 (Fla. 2004).  See also Zukerberg v. Bd. of Elections & Ethics, 97 A.3d 1064, 1079 n. 77 (D.C. 2014) (“the summary is very important, because it will likely form the basis of a voter’s decision.”).  In a recent decision concerning Amendment 1 to the Tennessee Constitution, the U.S. Court of Appeals for the Sixth Circuit similarly explained that misleading voters without notice creates a Due Process problem.

Here, in undisputed reliance upon Metro’s “inaccurate” ballot summary, 83 percent of Nashville’s voters voted in favor of the amendment, and it carried every single precinct in the county.  As Mr. Wallace has argued, the measure also ensures that Nashville’s residents will promptly be able to ensure “that their Mayor is someone who was actually elected to represent them.”  Consequently, the notion that Metro can bait voters into supporting a referendum under a specifically defined set of terms and then attempt to change the provision’s meaning after the fact is, frankly, preposterous.

In a statement released to the media after the Tennessee Supreme Court exercised its jurisdiction to hear the case, Mr. Wallace’s lawyers stated that “[w]e are optimistic that the unambiguous terms of the Metro Charter and the clearly expressed will of 83 percent of Nashville’s voters will soon be vindicated.”  For the sake of the rule of law—and to protect the legitimacy of the referendum process—every Metro voter should hope they’re right.

Selected Case Documents

*Tennessee Supreme Court’s Opinion and Order

Wallace Principal Brief

Metro’s Principal Brief

Wallace Reply Brief

Wallace Application for Extraordinary Jurisdiction

Selected Media Coverage

-The Tennessean: Tennessee Supreme Court moves up Nashville mayoral special election to May

-The Nashville Scene: Supreme Court: Mayoral Election Must Be Held in May

-The Nashville Post: Supreme Court moves mayoral election to May

-The Nashville Business Journal: Supreme Court strikes down August mayoral election date

-Nashville Business Journal: Tennessee Supreme Court to decide fate of Nashville mayoral election

-WPLN: Nashville Must Hold Next Mayor’s Election In May, Court Rules

-Nashville Post: Supreme Court will decide mayoral election date

-Nashville Scene:  Metro Legal Could Cost the City Money for Another Election

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Tennesseans for Sensible Election Laws: It Shouldn’t Be a Crime to Make Fun of Your State Representative. In Tennessee, It Is.

Republished with permission from Tennesseans for Sensible Election Laws, a new organization seeking to ensure that Tennessee’s election statutes, policies, and regulations protect the rights of all Tennesseans to participate in democracy and support candidates of their choosing without unreasonable governmental interference.

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If you decide that you’ve had enough of the nonsense in Nashville and you send postcards to potential voters claiming your representative “has cauliflower for brains”—or if you publish or distribute any other “campaign literature in opposition to any candidate in any election” that you know to be false—police can arrest you for committing a Class C misdemeanor, lock you in a cage for a month, and fine you for every postcard you send.  Frighteningly, if Tennessee House Representative Karen Camper (D-Memphis) and Tennessee Senator Reginald Tate (D-Memphis) get their way, the “crime” of distributing false campaign literature would be elevated to a Class A misdemeanor, allowing the state to lock you up for nearly a year.

What country is this, and what happened to America?

The often-misunderstood Citizens United v. FEC case turns eight years old this year.  In that case, the Supreme Court ruled that the First Amendment protects people from being thrown in jail for exercising their right to free speech.  What better time is there to explore why the ideas behind Tenn. Code Ann. § 2-19-142 are so bad?

It goes without saying that giving government officials the power to imprison people who criticize or make fun of them is a dangerous, slippery slope.  With that context in mind, it is also worth noting that the Camper/Tate bill that the General Assembly is considering this legislative session helps nobody more than it helps Rep. Camper and Sen. Tate.  If you can’t write that your representative has cauliflower for brains, what can you write?  You can write a bunch of boring technical, legal, or public policy jargon that most people don’t understand.  When people read those kinds of things, they either vote for people who already hold office—like Rep. Camper and Sen. Tate—or they get frustrated and don’t vote at all.  Either way, incumbents win.

In a case involving an Ohio state law that criminalized political speech the same way that Tenn. Code Ann. § 2-19-142 does, Cato Institute constitutional scholar Ilya Shapiro once argued to the Supreme Court that “‘truthiness’—a ‘truth’ asserted ‘from the gut’ or because it ‘feels right,’ without regard to evidence or logic—is . . . a key part of political discourse.”  He also recognized that “the government [is not] well-suited for evaluating when a statement crosses the line into falsehood.”  That’s doubly true for people who have both the power to make laws and a personal interest in the outcome of their next election.  (And ultimately, Shapiro proved right: Ohio backed away from trying to enforce its unconstitutional law against a nonprofit that wanted to put up a billboard.)

Further, Tenn. Code Ann. § 2-19-142 ignores that saying nasty things about the other guy or gal is as American as apple pie.  When Thomas Jefferson ran for president in 1800, he accused President John Adams of “trying to start a war with France,” “importing mistresses from Europe,” and committing that cardinal sin of “trying to marry one of his sons to a daughter of King George.”  Adams, a known verbal pugilist, repaid Jefferson in kind, saying that if people elected the man who wrote the Declaration of Independence, their homes would spontaneously combust.  (And thanks to Lin-Manuel Miranda, many people now know that Adams also called Alexander Hamilton a “Creole bastard”—but that was actually true!)

If politicians want to literally handcuff themselves from being able to joke about some of the more cartoonish candidates for Tennessee governor and U.S. Senate this year, I suppose they can be my guest—because that’s exactly what Tenn. Code Ann. § 2-19-142 does.  Of course, Tennesseans who support sensible election laws shouldn’t let this happen.  Vote against Rep. Camper and Sen. Tate in the next election.  After all, they have cauliflower for brains.

Paid for by Tennesseans for Sensible Election Laws.  George S. Scoville III, 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.

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Tennesseans for Sensible Election Laws is a non-partisan, non-profit group of concerned citizens who care about protecting Tennessee’s democratic process.  Our mission is to ensure that Tennessee’s election statutes, policies, and regulations protect the rights of all Tennesseans to participate in democracy and support candidates of their choosing without unreasonable governmental interference.

We work toward this mission by supporting pro-democracy candidates for public office, initiating strategic litigation, engaging in direct lobbying, and promoting public awareness.   Follow us on Facebook and Twitter, and please click here to support our work.

Estate of Jocques Clemmons Secures Return of Phone; Deletion of Social Media Data Procured by MNPD

In an important win against investigative abuse, the Estate of Jocques Clemmons has secured all of the relief that it sought in a February 9, 2018 lawsuit concerning the Metro Nashville Police Department’s efforts to search Mr. Clemmons’ cell phone and social media accounts following his death.  The MNPD and MNPD Detective Danny Satterfield—who procured the warrants at issue and was similarly sued by Mr. Clemmons’ estate—also formally acknowledged that the search warrants that were sought against Mr. Clemmons could “be construed as overbroad.”

Following a settlement agreement reached on March 2nd, the MNPD agreed to relinquish Mr. Clemmons’ cell phone to his mother, which it had refused to turn over for more than a year following Mr. Clemmons’ death.  Yesterday, in keeping with the parties’ settlement agreement, the MNPD also filed a Declaration of Compliance certifying that the defendants had “administratively expunged and destroyed all data in their possession retrieved from Jocques Clemmons’ Instagram account and Facebook account.”  Accordingly, earlier this morning, the U.S. District Court for the Middle District of Tennessee issued a Final Order terminating the case.

The lawsuit arose out of a fatal officer-involved shooting on February 2017, during which Mr. Clemmons was shot in the back.  Days after Mr. Clemmons was killed, MNPD Detective Danny Satterfield filed three search warrant applications seeking “any/all data contained and/or stored within” Mr. Clemmons’ Facebook account, Instagram account, and cell phone.  Without any stated time or content limitation whatsoever, the warrants specifically sought Mr. Clemmons’ “pictures, videos, audio, text messages, incoming/outgoing Facebook Messanger [sic] conversations, voicemails, chat logs, contact information, call logs, emails, internet data, Wi-Fi data, IP address(es), search history, maps, locations, GPS data, drafts, deleted files/folders, etc.”

Officer Satterfield’s search warrant applications stated under oath that he had probable cause to believe that all of the data on Mr. Clemmons’ social media accounts and cell phone contained “certain evidence” of a crime committed by Mr. Clemmons, who was by then deceased and not subject to arrest.  A month later, however, the MNPD acknowledged that whether Mr. Clemmons’ social media accounts or cell phone contained any relevant evidence was actually “unknown.”   Disturbingly, such efforts to rifle through decedents’ social media accounts and cell phones in search of damaging information after controversial officer-involved shootings are not isolated.

“While we remain disappointed that these three wildly overbroad and comically unconstitutional search warrants were ever sought or approved in the first place, we appreciate that the MNPD has now taken the steps necessary to remedy those prior illegalities,” said attorney Daniel Horwitz, who represented Mr. Clemmons’ estate. “The Clemmons family is very happy to have back his phone—which contains several cherished family photos—and it is satisfied that the MNPD has now destroyed the data that it unlawfully obtained from Mr. Clemmons’ social media accounts following his death.”

Selected Case Documents:

Clemmons Complaint & Exhibits (MNPD Social Media Warrants)

*Settlement Agreement

Defendants’ Declaration of Compliance

Final Order

Selected Media Coverage:

-Patch: After A Year, Nashville Police Return Jocques Clemmons’ Phone

-The Tennessean: More than a year after Jocques Clemmons died, police returned his phone to family

-News Channel 5: Metro Police Return Clemmons’ Cell Phone After Lawsuit Is Filed

-The Tennessean: A year after Jocques Clemmons’ death, police still have his phone. His family wants it back.

-The Nashville Scene: It’s Been One Year Since the Jocques Clemmons Shooting

-The Nashville Scene: Why Does MNPD Need to Search Jocques Clemmons’ Social Media?

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