Category Archives: Defamation

Individual Rights Are Expanding In Tennessee

By Daniel A. Horwitz

The past week has been an excellent one for individual rights in Tennessee, with improvements coming in several independent areas:

First, the Tennessee General Assembly has passed the State’s first meaningful anti-SLAPP law to protect Tennesseans’ right to free speech. The reform will instantly have the effect of deterring people from filing baseless lawsuits aimed at censoring critical commentary and severely punishing people who do. Thus, effective July 1, 2019, the Randy Rayburns and Linda Schipanis and Bari Hardins of the world will be able to wield a powerful protective weapon against foolish bad actors’ efforts to censor and intimidate them through frivolous, failed lawsuits.

Second, following a 2017 lawsuit to terminate a White County, Tennessee inmate sterilization program, the United States Court of Appeals for the Sixth Circuit has ruled that sterilization-for-sentencing-credits arrangements like White County’s are illegal. “Requiring inmates to waive a fundamental right to obtain a government benefit impermissibly burdens that right” in contravention of the Fourteenth Amendment, the Court’s opinion reads. “This decision sends a clear, important message that should never have been necessary in the first place: Inmate sterilization is illegal and unconstitutional,” the inmates’ attorney, Daniel Horwitz (the author), said in a statement to The Tennessean on the ruling.

Third, the Tennessee General Assembly passed one of Governor Bill Lee’s central legislative priorities—a substantial reduction in the current expungement fee that the state assesses people for the privilege of expunging convictions and diverted offenses on their criminal records. Tennessee’s expungement law, which enables people to expunge up to two qualifying convictions, provides an extraordinarily important mechanism for people to move on from an interaction with the criminal justice system and eliminate their criminal record history such that—as a matter of law—it “never occurred.” Although the reform does not wholly eliminate all applicable expungement fees, it reduces the total fee that people will have to pay to expunge a conviction or diversion from $280 to $100 going forward.

These important reforms each move individual rights in the right direction. They reduce private litigants’ ability to abuse the legal process, they curtail the government’s power to infringe upon people’s constitutional rights, and they help ensure that people will not suffer a life sentence for minor criminal convictions solely because they lack the ability to pay a few hundred dollars to expunge their qualifying convictions. Hopefully, progress like this is only a beginning.

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Tennessee Supreme Court Strengthens Protections for Journalists’ Fair Report Privilege; Rules on Source Protection Law

By Daniel A. Horwitz

In a unanimous, twenty-page opinion released earlier this afternoon, the Tennessee Supreme Court ruled on a pair of critical issues affecting newsgathering in Tennessee.  The Court’s ruling strengthens protections for the “fair report” privilege—a legal defense that protects journalists from liability for allegedly defamatory news articles—while at least arguably undercutting Tennessee’s “Shield Law,” which enables journalists to protect their sources.  The Court’s opinion, authored by Justice Cornelia Clark, is accessible here.

The first and central holding of the Court’s opinion is that no claim of “malice”—either an express motive to harm another or simply reckless reporting—can overcome the fair report privilege afforded to news media.  “We hold that neither express malice nor actual malice can defeat the fair report privilege,” the Court’s opinion reads.  “The privilege can only be defeated by showing that a report about an official action or proceeding was unfair or inaccurate.”  Because the overwhelming majority of defamation lawsuits are baseless, the Court’s opinion significantly strengthens protections for journalists that could otherwise be eviscerated through creative or fanciful pleading.

On the other hand, however, the Court held that a journalist’s invocation of the fair report privilege necessarily “triggers the exception to the shield law in Tennessee Code Annotated section 24-1-208(b),” which generally protects journalists against having to disclose the sources of their information.  The Court’s opinion explains:

“[A]ssertion of the fair report privilege will necessarily entail disclosure of the media defendant’s source of information. This is because a media defendant asserting the privilege must show that the allegedly defamatory information is a fair and accurate report of official actions or proceedings, and therefore, the media defendant must disclose the source of the allegedly defamatory information.” 

The Court made clear, however, that “the exception to the shield law allows a court to compel disclosure of the source of a media defendant’s information—how media defendants know something; it does not authorize a court to compel media defendants to disclose the information the source provided.”

Read the Tennessee Supreme Court’s unanimous opinion in Glenn R. Funk v. Scripps Media, Inc. here.

This post will be updated.

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Nashville School of Law Graduate JT Conway Wins Defamation Lawsuit Against Convicted Felon, Ex-Beauty Queen Kumari Fulbright

FOR IMMEDIATE RELEASE

Nashville, TN—Following a more than ten-year saga involving multiple criminal convictions and intense national media attention, Joshua “JT” Conway has closed the final chapter of his kidnapping, violent torture, and near-murder at the hands of former Arizona beauty queen and convicted felon Kumari Fulbright, Conway’s ex-girlfriend.  The final order granting Conway a declaratory judgment against Fulbright—which includes an agreement that “she will never use [Conway’s] name again in a public setting”—is available here.

A decade ago, Fulbright had Conway kidnapped and tortured at gunpoint for more than eight hours with the help of three armed men.  Conway eventually escaped by ripping the skin off his zip-tied hands and wrestling a gun away from Fulbright that was fired in the struggle.  Conway has since authored a tell-all book and movie script about his life and near-death experience.

For her crimes against Conway, Fulbright previously pleaded guilty to conspiracy to commit kidnapping and aggravated assault, and she served two years in an Arizona prison following her convictions.  Fulbright was also ordered to pay Conway restitution and sentenced to an additional six years of probation.

During the criminal trial of Robert Ergonis—Fulbright’s ex-fiancé and co-conspirator in Conway’s kidnapping—Fulbright claimed that she had committed her crimes against Conway because he stole jewelry from her.  Conway fiercely disputed the allegation, however, as did Aaron Ellertson, a witness to a phone call between Conway and Fulbright that took place during the jewelry’s sale.  To this day, Fulbright’s motives for fabricating her allegations against Conway remain unknown.  “We’re never going to know why Kumari did that, but what you’re going to know at the end of the trial is that she lied about it,” Arizona prosecutor Kim Ortiz told the Arizona jury that convicted Ergonis.

After the end of her criminal sentence, Fulbright went on national television and falsely claimed—again—that her crimes against Conway were “justified” because Conway had stolen jewelry from her.  Fulbright also added new allegations that Conway had drugged her and stolen money from her as well.  In response, Conway—a recent law school graduate with a family and a reputation—sued Fulbright for defamation.

During the parties’ lawsuit, overwhelming evidence indicated that Fulbright had indeed fabricated her claims against Conway as Arizona prosecutors had argued.  The parties’ phone records proved that Conway had called Fulbright and spoken to her at length while negotiating her jewelry’s sale, and a witness to their conversation supported Conway’s longstanding claim that the jewelry had been sold with Fulbright’s knowledge and approval at her request.  A police report filed by Fulbright well after the alleged “theft” took place also indicated that another piece of jewelry that Fulbright claimed Conway stole from her had really gone missing in a Detroit hotel room—a city that Conway had never even visited.  During her deposition, Fulbright also repudiated her new claims that Conway stole money from her or drugged her, claiming instead that “I never said he stole it and [that] I know it” and that “[t]here’s a lot of other explanations” for what she claimed had happened.

Earlier this year, Fulbright formally admitted that her claims that Conway stole from her and drugged her were not supported by any proof whatsoever.  As a result, a Circuit Court Judge in Davidson County, Tennessee, issued a declaratory judgment that the allegations were baseless.  Fulbright also agreed to the entry of an order “that she will never use Plaintiff Joshua ‘JT’ Conway’s name again in a public setting.”  Further, as the losing party in the case, Fulbright was assessed the costs of the lawsuit, which she paid earlier this morning.

“As a First Amendment and speech defense lawyer, I am deeply skeptical of defamation lawsuits, and this is the first and only defamation case that I have ever considered legitimate,” said attorney Daniel Horwitz, who represented Conway.  “I rarely support defamation lawsuits, but when I do, it’s because a convicted felon tries to justify domestic violence and profit from her crimes by fabricating allegations that she had someone kidnapped, tortured, and very nearly killed because the person stole from her and drugged her—allegations that she knew full well were baseless at the time she made them.”

Please contact JT Conway at conway.jt@gmail.com for media inquiries.

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Photos from left to right:  Joshua “JT” Conway (submitted); Kumari Fulbright (Kevin Hayes, CBS News, Kumari Fulbright (PICTURES): Beauty Queen Known for Mug Shot Headed to Prison (Dec. 10, 2010, 12:04PM), CBS News, http://www.cbsnews.com/news/kumari-fulbright-pictures-beauty-queen-known-for-mug-shot-headed-to-prison); Robert Ergonis (Brian Mori, Last man in kidnapping guilty; Sues judge, prosecutors, and sheriff, Tucson Courts Examiner (Nov. 9, 2010, 7:49PM), https://meridiancity.files.wordpress.com/2011/07/guilty-ergonis-sues.pdf).