In a pair of separate opinions issued June 20, 2022, the Tennessee Court of Appeals affirmed a ruling by Davidson County Chancery Court Judge Ellen Hobbs Lyle in favor of Plaintiffs AmyFrogge, Fran Bush, and Jill Speering, all represented by Horwitz Law, PLLC. The ruling arose out of a lawsuit filed against Metro and ex-MNPS Director Shawn Joseph regarding the legality of the School Board Censorship Clause contained in Joseph’s severance agreement. In a September 2020 Memorandum Order, Chancellor Lyle struck down the censorship clause as unconstitutional on multiple grounds and permanently enjoined its enforcement.
Among other things, the School Board Censorship 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, Chancellor Lyle invalidated the clause as unenforceable and ordered Metro and Joseph to pay the Plaintiffs’ “reasonable costs and attorney’s fees,” which were pledged to charity. Thereafter, both Metro and Joseph appealed.
Upon review of Chancellor Lyle’s ruling, the Court of Appeals unanimously affirmed in a pair of separate opinions. By the time the case reached appeal, the Defendants had all but conceded that what they had done was illegal and attempted to use that concession as a basis for avoiding a judgment. In their majority opinion, Judges Carma Dennis McGee and Andy Bennett noted that: “The fact that the defendants admit in their briefs that their contract was unlawful should not prevent Plaintiffs from having standing to challenge the contract in court.” In a separate concurring opinion, Judge McBrayer undertook a wider review of several issues that the majority determined Metro and Joseph had waived through deficient briefing, and he held that:
“Here, the chancery court concluded that there was ‘no material dispute that the Nondisparagement Clause contained in the Severance Agreement . . . does not promote a compelling governmental interest, that it is unconstitutional, and that is an overbroad and unenforceable speech restriction.’ Based on my review of the record, I conclude the same.”
“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 A. Horwitz, who represented all three Plaintiffs along with co-counsel Lindsay Smith. “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.” Selected case documents and media coverage are linked below.
As part of Horwitz Law’s First Amendment practice, Horwitz Law has successfully represented and advised numerous state and local elected officials, candidates for public office, PACs and political organizations, county political parties, and other political law clients across Tennessee. If you are seeking First Amendment or political law assistance, you can purchase a consultation from Horwitz Law here.
The Tennessee Bureau of Ethics and Campaign Finance, Registry of Election Finance “is in contempt of court,” a senior Chancery Court judge has found. The finding arose from the Registry’s willful collection of $64,000.00 in PAC fees in violation of a permanent injunction prohibiting it from doing so. “[T]he Registry shall refund all improperly collected registration fees, obtained through the enforcement of Tenn. Code Ann. §2-10-121 in violation of this Court’s injunction, within 15 days,” the Court’s order reads. It further “ORDERED that additional coercive fines will be considered if defendant fails to refund the registration fees as ordered above[.]”
The contempt proceeding at issue arose from an injunction secured by the election reform advocacy group Tennesseans for Sensible Election Laws in 2018. Based in part on misconduct by the Tennessee Attorney General’s Office, that injunction was thereafter upheld on appeal by the Tennessee Court of Appeals, which additionally concluded that a mid-litigation statutory amendment to the underlying statute did not moot the case. A subsequent order issued in December 2021 opted to keep the injunction in place, finding that the Registry had “failed to allege, or meet, the ‘significant change in the law’ standard for relief from prospective enforcement of a final judgment containing an injunction.”
In advance of the contempt trial, discovery revealed that despite knowing that the court’s permanent injunction remained unmodified, Registry officials had opted to begin enforcing the enjoined statute again at the recommendation of the Tennessee Attorney General’s Office. It additionally revealed that the Registry “expected” a contempt petition to result from its renewed enforcement. In defense of its violation of a permanent injunction, though, the Registry asserted that “sovereign immunity bars” a contempt petition against the government “as a matter of law”—a position that would mean the government may violate court orders without consequence. “[T]his simply cannot be[,]” Senior Judge Wright concluded in an April 6 2022 order, noting that such a result would render the separation of powers doctrine “a nullity” and reduce the judiciary “to a paper tiger with the authority to declare an action of the legislative or executive branch to be unconstitutional but an inability to enforce its judgment.”
Upon review of the Registry’s behavior, Judge Wright concluded that “[t]he injunction at issue was lawful,” that it “is clear and unambiguous,” and that the Registry’s “conscious choice” and “deliberate” decision to enforce the enjoined statute was “willful.” Accordingly, “the Court FINDS that the defendant willfully violated this Court’s injunction by a preponderance of the evidence,” Judge Wright’s order reads.
“While the Tennessee Attorney General’s lawless approach to court orders and constitutional rights continues unabated, so does TSEL’s commitment to vindicating the rights of Tennesseans to participate in elections without illicit governmental interference,” said Daniel A. Horwitz, who represented TSEL with attorneys Jamie Hollin and Lindsay Smith. “Court orders are not voluntary—even for the state officials who wrongly believe themselves to be above the law. We look forward to ensuring the return of $64,000.00 that the Tennessee Attorney General’s Office instructed the Registry to steal.”
The Registry was unsuccessfully represented by attorneys Alex Rieger, Matt Jones, and Janet Kleinfelter, all of the Tennessee Attorney General’s Office. Contact them at @TNattygen.
In 2019, Tennessee’s free speech law underwent a sea change. The Tennessee Public Participation Act—Tennessee’s first-ever meaningful anti-SLAPP law—took effect, ushering in a host of critical protections for people sued for defamation (libel or slander), false light invasion of privacy, business disparagement, or other speech-based torts.
Heading into its third year of existence, it is clear at this point that the Tennessee Public Participation Act is working. If 2021 is a sign of things to come, Tennessee’s free speech law is also headed in the right direction.
Building on a series of important wins in 2020, the results that the TPPA produced in 2021 cannot be overstated. To list just a few of them:
In June of 2021, the Tennessee Court of Appeals affirmed an anti-SLAPP judgment—the first ever anti-SLAPP judgment issued in Tennessee—in favor of a Wilson County woman who posted a negative Yelp! review. The end result was that the thin-skinned doctor who baselessly sued her was ordered to pay a cumulative $75,000.00 cost, fee, and sanctions award for his SLAPP-suit across a pair of cases filed in Wilson County Circuit and General Sessions Court.
In March of 2021—and then again in July 2021—Circuit Courts in separate counties affirmed the constitutionality of the Tennessee Public Participation Act over a Plaintiff’s constitutional challenge.
“This precedent-setting victory for Ms. Beavers and her family sends a clear warning to anyone who would abuse the judicial process in an attempt to censor honest, critical consumer reviews and other constitutionally protected speech,” said Horwitz Law, PLLC attorney Daniel Horwitz, a First Amendment, anti-SLAPP, and speech defense lawyer who represented Ms. Beavers along with Sarah Martin. “The First Amendment protects every person’s right to speak freely, and this ruling makes clear that the consequences for plaintiffs who file baseless defamation suits in Tennessee will be severe.”
After Dr. Nandigam dismissed and then refiled his lawsuit against her, Ms. Beavers filed a Petition to Dismiss the Plaintiffs’ claims under the Tennessee Public Participation Act. Ms. Beavers’ petition was granted, and the Tennessee Court of Appeals has now affirmed that dismissal in its entirety while ordering the Plaintiffs to pay Ms. Beavers’ legal fees and potential sanctions. “As [Ms. Beavers] aptly notes in her principal brief, ‘the TPPA . . . was designed to prevent and deter such abuse, not to enable it,'” the Court of Appeals ruled. Ms. Beavers’ claims for attorney’s fees and sanctions against Dr. Nandigam remain pending and will be adjudicated upon remand. The Court of Appeals’ opinion additionally orders that: “We remand this matter to the general sessions court for a determination of the proper amount of reasonable fees incurred by Defendant during this appeal” as well.
In 2019, Tennessee’s free speech law underwent a sea change. The Tennessee Public Participation Act—Tennessee’s first-ever meaningful anti-SLAPP law—took effect, ushering in a host of protections for people sued for defamation (libel or slander), false light invasion of privacy, business disparagement, or other speech-based torts. Due to a recent decision out of Hamilton County, the constitutionality of the TPPA has now been expressly affirmed. After nearly two years, it is also clear that the TPPA is working as intended “to encourage and safeguard the constitutional rights of persons to speak freely, to associate freely, and to participate in government to the fullest extent permitted by law. . .” See Tenn. Code Ann. § 20-17-102.
Bedsole v. Sinclair Broadcast Group, Inc. is a defamation lawsuit concerning the TV show “Tiny House Nation.” After being sued, the defendants in that case raised claims for dismissal under the TPPA. In response, the plaintiff asserted that the TPPA was unconstitutional in its entirety based on the Tennessee Constitution’s separation of powers doctrine. Thus, in late February 2021, the Hamilton County Circuit Court held a hearing on the contested constitutionality of the statute.
There are, of course, several immediate problems with any broad claim that the Tennessee Public Participation Act is “unconstitutional.” To begin, the TPPA is a collection of statutory provisions, not a single statute. It has many different features—an automatic stay on discovery provision, fee-shifting and discretionary sanctions provisions, an interlocutory appeal provision, and several other provisions—all of which function independently. Several of those provisions also are not even theoretically unconstitutional, and there is no serious argument otherwise. More generally, anti-SLAPP statutes like the TPPA—which is narrowly tailored to preserve judicial discretion—also promote compelling public interests and serve as an essential tool to protect the oft-ignored rights of third parties.
Upon review, the Hamilton County Circuit Court issued a short but forceful ruling affirming the TPPA’s constitutionality. “The TPPA, at least in the eyes of this Court, is clearly predicated upon public policy concerns,” the Court explained. “There can be no serious questions that the intent of the legislature in passing this statute was to effect a more beneficial public policy.” Further, “the over-arching purpose of the statute”—“to provide protection to [Tennessee’s] citizens from SLAPP lawsuits”—“do[es] not mandate any particular result but leave[s] the ultimate decision within the discretion of the trial court.” Indeed, the Court noted, “the statute actually broadens the court’s authority to move past the very low requirements of Rules 8 and 12, and to impose attorney’s fees following a burden shift not previously available to the litigants.” Thus, the Court held, “the constitutional challenge of the Plaintiff is DENIED.”
To be sure, this ruling is excellent news for anyone who cares about free speech in Tennessee. Before the TPPA was enacted,bad actors could credibly threaten to impose tens—if not hundreds—of thousands of dollars’ worth of litigation expenses in SLAPP-suits over a period of several years if their baseless retraction or other demands were not met in legally frivolous speech-based tort cases. That is no longer true, given the very real possibility that a plaintiff who files a SLAPP-suit will be ordered to pay the other side’s legal fees and could potentially be sanctioned. The end result is that negotiating power has flipped, outcomes have dramatically improved, and any number of SLAPP-suits have been avoided entirely because plaintiffs were not willing to risk the severe consequences associated with filing one. Speech defense attorneys (like the author) are also able to defend against SLAPP-suits on a contingent basis now, rather than having to do so on a pro bono basis when a defendant cannot afford to pay for a vigorous defense.
The evidence that the TPPA is working as intended is also indisputable at this juncture. To date, TPPA petitions have been granted in four total cases:
This lawsuit against a woman who posted a negative Yelp! review about a business (fees and sanctions pending appeal);
This lawsuit against a woman who called 911 and sought an order of protection ($26,500.00 fees and sanctions award);
This lawsuit against three community activists who criticized a congressional candidate ($39,000.00 fees and sanctions award); and
This lawsuit regarding charges of animal cruelty (fees and sanctions TBD).
Why, specifically, is the TPPA so effective? The answer is “for several reasons,” but the following three changes are instructive:
1. Prior to the TPPA being enacted, no matter how much money a plaintiff forced a defendant to spend on legal fees in order to defend against a bogus SLAPP-suit, a prevailing defendant’s ability to recover his or her legal expenses after securing a dismissal and then upholding the dismissal through appeal was capped at $10,000.00. That is no longer the case, because under the TPPA, defendants who are subjected to baseless SLAPP-suits can recover their full legal fees and be made whole after winning. That difference has also had enormous practical consequences when it comes to negotiating power and settlement leverage, and it enables rapid dismissals by agreement in cases that might otherwise have lasted years.
2. Prior to the TPPA being enacted, plaintiffs could impose massive litigation costs and expenses and subject defendants to intrusive discovery simply by making baseless allegations that they did not have to substantiate with evidence until much later in a case. That is no longer true, either, because the TPPA allows defendants who are subjected to speech-based lawsuits to force plaintiffs to come forward with admissible evidence to substantiate their claims immediately. If a plaintiff cannot or does not do so, the plaintiff’s lawsuit will be dismissed with prejudice, and the plaintiff will be ordered to pay the defendant’s full legal fees.
3. Trial court judges make mistakes from time to time, and prior to the TPPA being enacted, an erroneous trial court ruling that a cognizable claim for defamation had been alleged could take years to correct—forcing defendants to go through intrusive and costly discovery or even a full-blown trial in the interim. As a consequence, an incorrect trial court ruling frequently had the effect of coercing defendants to settle baseless SLAPP-suits just to avoid the cost and stress of litigation. Now, however, defendants who are subjected to frivolous speech-based lawsuits have a right to take an immediate interlocutory appeal to the Court of Appeals and avoid such expenses by getting damaging trial court errors corrected early.
Even with the TPPA in place, of course, competently defending against defamation and other speech-based lawsuits remains a complex and expensive proposition that requires specialized expertise. Definitionally, the type of people who file SLAPP-suits—and the lawyers who take their cases—are also willing to abuse the legal process in order to censor, intimidate, and retaliate against critics, which means that such cases invariably involve unethical and abusive people as a matter of course. There are also a disturbingly large number of ways that the legal system can be abused successfully by bad actors and unethical people generally, so it remains important to have a competent speech defense lawyer who can effectively push back.
The good news, though, is that with the TPPA in place, litigants’ ability to impose legal consequences now goes in both directions. Plaintiffs who file SLAPP-suits can now be forced to pay very large sums of money to the people they have baselessly sued as well. As detailed above, that has happened already, and while certain gaps in speech-based protections remain, it will continue to happen as long as the TPPA remains in effect. This is good news for everyone who cares about the right to speak freely, as well as the right to hear what others have to say.
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:
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.
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.
