Category Archives: First Amendment

Tennessee Supreme Court Grants Review of the Nashville Banner’s Application to Appeal Trial Court Order Refusing to Unseal Judicial Incompetency Records

Appeals, Criminal Procedure, First Amendment

By Daniel A. Horwitz:

The Tennessee Supreme Court will hear the Nashville Banner’s appeal seeking to unseal judicial records that may shed light on claims that Davidson County Criminal Court Judge Cheryl Blackburn—who suffered a stroke in 2021—is incompetent.  The Tennessee Supreme Court’s order granting the Nashville Banner’s application for permission to appeal is available here: https://horwitz.law/wp-content/uploads/Banner-Rule-10-Grant.pdf

The case arises from a criminal proceeding in Davidson County.  On April 8, 2024, Judge Blackburn entered an order “recus[ing] herself from further presiding over the above captioned case.”  The order offered no explanation for Judge Blackburn’s recusal.  Nor did the court’s docket suggest what may have prompted it.

The Nashville Banner—a news organization—then engaged in newsgathering. Although no sealed documents were identified on the court’s docket, the Davidson County Criminal Court Clerk later confirmed to the Banner that there were actually five sealed filings in the case that the court’s docket did not reflect. The Clerk identified three of those sealed documents—which were filed shortly before Judge Blackburn’s recusal order entered—as:

1.  John Doe’s Motion for Disqualification of the Trial Judge and For Continuance

2.  Affidavit of John Doe In Support of John Doe’s Motion for Disqualification and to Continue

3.  Affidavit of Jane Doe In Support of John Doe’s Motion for Disqualification and to Continue

These documents had been sealed without explanation in contravention of local court rules and long-settled Tennessee sealing precedent.  Nevertheless, when the Banner moved to unseal the documents, Criminal Court Judge Angelita Dalton—who was now presiding over the case following Judge Blackburn’s recusal—declined to do so.  Judge Dalton’s order states:

[T]his Court further finds that the public disclosure of these particular documents, especially at this premature juncture, would likely result in the publication of claims that (a) are currently insufficiently supported, (b) would annoy, embarrass, oppress, or create undue burdens for involved persons, (c) deny involved persons their rights to substantive, procedural, and administrative due process, and (d) delay court proceedings. The Court further finds that any substantiated concerns related to judicial competency may also be addressed through other appropriate avenues, which counsel for the existing parties are sufficiently equipped to pursue if they have not already.

Following an initial round of appellate review, the Tennessee Court of Criminal Appeals declined to unseal the subject documents.  In its ruling, though, the Court of Criminal Appeals determined—without any party asserting the position—that “Rule 10 specifically limits the opportunity to seek appellate review in criminal cases to the State and the Defendant,” meaning that the Court of Criminal Appeals ruled that intervening media entities have no right to pursue an immediate appeal of trial court sealing determinations.  Tennessee Rule of Appellate Procedure 10 does not restrict intervenors’ right of appeal in this way, though, and previous appellate cases hold differently.  See, e.g., State v. Montgomery, 929 S.W.2d 409, 411 (Tenn. Crim. App. 1996) (granting Rule 10 application for permission to appeal by intervenor “the Memphis Publishing Company” in criminal case).

The Tennessee Supreme Court has now granted review of the Banner’s application for permission to appeal.  Thus, the Tennessee Supreme Court will hear just its third media case in a decade.

“We are proud to represent the Nashville Banner in this important case, and we look forward to vindicating the public’s right to transparency,” said Horwitz Law, PLLC principal Daniel A. Horwitz, the Banner’s lead counsel.  “The public is entitled to review judicial records that include claims that a judge may be incompetent, and the Banner is committed to ensuring that such records are not sealed from public view improperly.”

The Banner’s application for permission to appeal can be found here: https://horwitz.law/wp-content/uploads/Banner-Rule-10_Rule-11-App.pdf.

An amicus brief filed in support of the Banner by the Reporters Committee for Freedom of the Press, the Tennessee Association of Broadcasters, the Tennessee Coalition for Open Government, and the Tennessee Press Association can be found here: https://horwitz.law/wp-content/uploads/Final-Amicus-Brief-in-Support-of-Review-of-Banner-App.pdf

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Questions about this article?  Contact the author at daniel [at] horwitz.law.

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Tennessee Court of Appeals Affirms Trial Court Order Invalidating School Board Censorship Clause in Ex-Director Shawn Joseph’s Severance Agreement

Appeals, Civil Procedure, Constitutional Law, Contract Law, First Amendment, Opinions, Tennessee Constitutional Law

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 Amy Frogge, 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.

Selected Case Documents:

*Tennessee Court of Appeals Opinion Affirming Summary Judgment and Awarding Appellate Fees

*Concurring Opinion Affirming Judgment

*Post-Remand Order Granting $110,000.00 Attorney’s Fee Award

*Order Granting Summary Judgment and Denying Defendants’ Motions to Dismiss

*Order Granting $58,543.52 Attorney’s Fee Award

–Principal Brief of Plaintiffs-Appellees

–Reply Brief of Plaintiffs-Appellees

–Plaintiffs’ Complaint

–Plaintiffs’ Memorandum in Support of Motion for Summary Judgment

–Metro Response/Joseph Response In Opposition to Summary Judgment

Selected Media Coverage:

-The Tennessean: Tenn. appeals court finds part of MNPS director Joseph’s severance deal unconstitutional

-Channel 5: Court invalidates censorship clause in MNPS former director Shawn Joseph’s termination contract

-Main Street Nashville: Court rules non-disparagement clause in termination contract was unconstitutional

-TCOG: Non-disparagement clause violates free-speech rights of Nashville school board members, court says

-The Tennessean: Judge finds part of MNPS director Shawn Joseph’s severance agreement ‘unconstitutional’

-Fox 17: Court order finds clause in ex-MNPS director’s contract is unconstitutional, unenforceable

-Channel 4: Judge rules censorship clause in former Director of School’s severance agreement unconstitutional

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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.

Tennessee Bureau of Ethics and Campaign Finance, Registry of Election Finance Held In Contempt, Ordered to Return $64,000.00 It Collected in Willful Violation of Permanent Injunction

Constitutional Law, Election Law, First Amendment, ,

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.

Read the Chancery Court’s Memorandum Opinion and Order on Plaintiff’s Petition for Contempt here: https://horwitz.law/wp-content/uploads/Memorandum-Opinion-and-Order-on-Plaintiffs-Petition-for-Contemp-1.pdf

Happy New Year to the Tennessee Public Participation Act!

First Amendment, Tennessee Public Participation Act

By Daniel A. Horwitz (Republished from the Tennessee Free Speech Blog):

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.

In December of 2021, the Tennessee Court of Appeals signaled that it would treat the TPPA’s statutory discovery stay seriously, entering an immediate order staying discovery pending appeal upon a defendant’s application for extraordinary appeal on the matter.

Also in December of 2021, SmileDirectClub’s multi-billion dollar SLAPP-suit against NBC Universal was dismissed under the TPPA.

Also in December of 2021, the Circuit Court of Overton County granted several public school parents’ TPPA petitions to dismiss a SLAPP-suit filed by a public school teacher who had been lawfully accused of sexual predation and harassment against students.

Also in December of 2021, the Tennessee Court of Appeals affirmed both an anti-SLAPP judgment and a $39,000 fee and sanctions award issued against a congressional candidate who sued a trio of activists for criticizing him on Facebook.  The Court of Appeals additionally issued appellate sanctions against the candidate for filing a frivolous appeal.

There were some setbacks for the TPPA, though.  Most prominently, the U.S. District Court for the Middle District of Tennessee held for the first time that the Tennessee Public Participation Act does not apply in federal court—one of many reasons why a federal anti-SLAPP law remains essential.  The media’s nasty habit of covering SLAPP-suits only at their inception and hyping the liability that a defendant faces—then failing to follow up once a SLAPP-suit predictably fails—has not improved, either, even when media defendants themselves are the targets.

All considered, however, 2021 was a tremendous year for Tennessee’s nascent anti-SLAPP law.  Here’s to more wins—and more protected speech—in 2022.

Daniel Horwitz is a free speech lawyer who represents clients across Tennessee.

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Tennessee Court of Appeals Affirms First-Ever Anti-SLAPP Judgment Under the Tennessee Public Participation Act

Civil Procedure, Constitutional Law, Defamation, First Amendment, Judgments, Tort Law, ,

In a precedent-setting, unanimous ruling, the Tennessee Court of Appeals has affirmed the first trial court judgment ever issued under the Tennessee Public Participation Act, Tennessee’s recently enacted anti-SLAPP statute.  The ruling establishes several critical precedents for free speech law in Tennessee, and it represents a total victory for Wilson County woman Kelly Beavers, who has spent nearly two years defending her constitutional right to post a negative review on Yelp!.

“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.”

The case at issue arose out of a lawsuit filed by Dr. Kaveer Nandigam and his corporation, Nandigam Neurology, PLC, against Kelly Beavers regarding a negative Yelp! review.  After Ms. Beavers took her father to see Dr. Nandigam and had a terrible experience there, she exercised her First Amendment right to post a negative review on Yelp!, a popular consumer review website.  Dr. Nandigam threatened to sue her if she did not remove the review, and ultimately, he did sue her for defamation and false light invasion of privacy regarding it when she refused to do so.

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.

Read the Tennessee Court of Appeals’ unanimous ruling in Nandigam Neurology, et al. v. Kelly Beavers here: https://www.tncourts.gov/sites/default/files/nandigamneurologyv.beavers.opn_.pdf

 

The Tennessee Public Participation Act is affirmed—and it’s working.

Defamation, First Amendment, Tennessee Constitutional Law, Tort Law

By Daniel A. Horwitz (Republished from the Tennessee Free Speech Blog):

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:

  1. This lawsuit against a woman who posted a negative Yelp! review about a business (fees and sanctions pending appeal);
  2. This lawsuit against a woman who called 911 and sought an order of protection ($26,500.00 fees and sanctions award);
  3. This lawsuit against three community activists who criticized a congressional candidate ($39,000.00 fees and sanctions award); and
  4. This lawsuit regarding charges of animal cruelty (fees and sanctions TBD).

The TPPA has also resulted in prompt, favorable settlements to defendants before hearing, provided a backstop in cases that were ultimately dismissed on other grounds, and—this author can attest—has been utilized extensively in pre-suit correspondence to ward off litigation in the first place.

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.

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Davidson County Chancery Court Invalidates School Board Censorship Clause in Ex-MNPS Director Shawn Joseph’s Severance Agreement

Constitutional Law, First Amendment, Tennessee Constitutional Law,

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.

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New at the Tennessee Free Speech Blog

First Amendment, Uncategorized

By Daniel Horwitz:

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:

Tennessee Free Speech Blog:

–Second-Ever Anti-SLAPP Petition Granted Under the Tennessee Public Participation Act, $26,500.00 in Attorney’s Fees and Sanctions Awarded to Prevailing Defendant

–Defending Against Malicious Prosecution Claims in Tennessee

–Not With a Bang, But With a Whimper: Strip Club and Valet Parking Company’s SLAPP-Suit Against Neighbors, Councilman Ends Quietly After Total Loss in Five Separate Courts

–Fired Preschool Teacher Loses Defamation, False Light Claims Against Church Preschool Due to Common Interest Privilege, Absence of Damages

–Clumsy court ruling allows SLAPP-suit to move forward against State Representative John Mark Windle

–Tennessee Court of Appeals: You (Still) Can’t Sue People For What They Say During Judicial Proceedings

–Tennessee Court of Appeals to Public Officials: Get Ready For Loads of Libel Lawsuits

–Knoxville News Sentinel, Reporter Jamie Satterfield Win Dismissal of Defamation Lawsuit

–First-Ever Anti-SLAPP Petition In Tennessee Granted in Lawsuit Regarding Negative Yelp Review

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First-Ever Anti-SLAPP Petition In Tennessee Granted in Lawsuit Regarding Negative Yelp Review

Constitutional Law, First Amendment, , , ,

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.

Several defendants quickly benefited from the TPPA’s added protections after the statute took effect, resulting in plaintiffs quickly dropping defamation claims or providing additional bases for dismissal in speech-based lawsuits that were ultimately dismissed on other grounds. Today, however, in a ruling by Wilson County General Sessions Judge Barry Tatum, the first-ever petition to dismiss a plaintiff’s claims under the Tennessee Public Participation Act has been granted.

The case arose out of a lawsuit filed by Dr. Kaveer Nandigam and his corporation, Nandigam Neurology, PLC, against Kelly Beavers regarding a negative Yelp review. After Ms. Beavers took her father to see Dr. Nandigam and had a terrible experience, she exercised her First Amendment right to leave a negative review on Yelp!, a popular consumer review website. Dr. Nandigam quickly threatened to sue her if she did not remove the review, and ultimately, he did sue her for defamation and false light invasion of privacy regarding it when she refused.

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.

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Tennesseans For Sensible Election Laws Issues Litigation Threat Over Davidson County Election Officials Viewing Marked Ballots

Constitutional Law, Election Law, First Amendment

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.

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