Category Archives: First Amendment

The “Tennessee Public Participation Act”⁠—Tennessee’s First-Ever Meaningful Anti-SLAPP Law⁠—Takes Effect Today

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

By Tennessee First Amendment, Speech Defense, and Anti-SLAPP Lawyer Daniel Horwitz:

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.

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The Tennessee Justice System Has a Bigoted Personnel Problem. Unfortunately, the Bureaucrats Responsible for Overseeing It Don’t Care.

First Amendment, Rules of Professional Conduct, ,

By Daniel Horwitz:

It seems that almost every week now, government officials involved in Tennessee’s justice system make headlines for their overt, unapologetic bigotry. In May of this year, for instance, Shelby County Criminal Court Judge Jim Lammey gained national attention after posting an article that referred to Muslim immigrants as “foreign mud” and said that Jews should “get the f**k over the Holocaust.” Weeks later, Coffee County District Attorney Craig Northcutt provoked an initial wave of outrage after posting (among other disqualifying nonsense) that Muslims’ “belief system is evil, violent and against God’s Truth,” only to outdo himself shortly thereafter when a video surfaced of him proclaiming that gay couples don’t enjoy constitutional rights and would not be protected by domestic violence statutes within his jurisdiction. And today, the Knoxville News Sentinel reports that Knox County Sheriff’s Detective Grayson Fritts recently declared that “federal, state and county governments should arrest, try, convict and ‘speedily’ execute people within the LGBTQ community” for participating in Pride parades.

These outrages are not isolated. They also are not surprising, given the shockingly indifferent way that such disqualifying conduct is treated by the bureaucrats who oversee Tennessee’s justice system. And they will continue to occur over and over and over again until administrators like BPR Chief Disciplinary Counsel Sandy Garrett are replaced with competent, capable people who consider bigotry and misconduct by public officials at least as problematic as private attorneys loaning poor clients money so that they can pay their rent.

This is not an exaggeration. Tennessee’s Board of Professional Responsibility—the shadowy, quasi-governmental body that regulates lawyers in Tennessee—has routinely turned a blind eye to racism and approached the absolute worst forms of misconduct with kid gloves under circumstances when the violators were participants in Tennessee’s justice system. In 2014, for instance, a Shelby County District Attorney who was caught (and admitted) withholding exonerating evidence in a capital murder case received nothing more than a public censure. In other circumstances, misconduct in the form of racist comments made by District Attorneys during prosecutions were ignored by the body entirely. And indeed, during an insane attempted power grab last year that would have afforded the BPR wide-ranging authority to censor and prosecute a vast amount of constitutionally protected, private attorney speech, at Ms. Garrett’s urging, the BPR itself sought to carve out a special disciplinary exemption for prosecutors who exercised racist peremptory challenges during jury selection.

By contrast, trivial violations that most reasonable people would not consider misconduct at all are met with fire and fury. For instance, in only the latest indication that Tennessee’s BPR has lost both its purpose and its mind, the Board came down hard on one lawyer for what is apparently considered an egregious offense in this State: Helping a poor client pay her rent.  Ultimately, the punishment he received was identical to the sanction that the BPR levied against the above-mentioned Memphis prosecutor who hid exonerating evidence in a capital murder case—a fact that says just about everything that needs to be said about the BPR, its judgment, and its priorities.

Most troublingly, though, Garrett’s BPR has helped prevent serious misconduct by public officials from coming to light by aggressively prosecuting attorneys across the state for having the audacity to speak up or speak out against judges. Indeed, notwithstanding the absence of any conceivable harm to the public, there appears to be no surer way to guarantee severe professional sanction in Tennessee—including summary, indefinite suspension—than to stand up to a judge. Given this context, it is fair to wonder whether the culture of silence and censorship that Garrett’s BPR fosters—whether deliberately or otherwise—serves to inhibit whistleblowing and allows misconduct by public officials to fester unchecked for years. Indeed, one wonders whether that’s the point.

Year after year, bar associations and self-important bar leaders across Tennessee wonder aloud why the legal profession is consistently held in such low esteem by the general public. Curiously, the existence of bigoted judges and prosecutors, a structurally inadequate indigent defense system, and highly questionable behavior by professional regulators—both with respect to the way they treat practicing attorneys and prospective lawyers—never seem to come up as possible explanations.  Certainly, the solutions sought by the BPR don’t address any of the many legitimate reasons why the public would hold the entire legal system in low regard.  Instead, to the exclusion of any justifiable priority, the approach of Tennessee’s BPR has largely been to censor and prosecute lawyers who criticize governmental participants in a legal system that is failing daily.

Though few dare to challenge the BPR’s behavior and priorities given credible fear of retaliation, it is past time that the BPR secured new leadership.  As Garrett’s BPR demonstrates year after year, the body quite simply lacks the judgment to oversee or regulate the practice of law in Tennessee.  Having failed to do her job competently for long enough, the Tennessee Supreme Court should replace her.  Alternatively, for the good of the profession, Garrett should do the honorable thing and resign.

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Individual Rights Are Expanding In Tennessee

Constitutional Law, Criminal Law, Criminal Procedure, Defamation, First Amendment, Opinions, ,

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

Constitutional Law, Defamation, First Amendment

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

Defamation, First Amendment, ,

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 [email protected] 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).

 

Restaurateur Wins Defamation Suit (Again)

Constitutional Law, First Amendment, ,

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 Needs to Provide More Protection to People Sued for Defamation

Constitutional Law, First Amendment, ,

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

Constitutional Law, Criminal Law, First Amendment, ,

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.

Slate: If the Supreme Court thinks nonmembers can’t be compelled to pay union fees, then unions can’t be compelled to represent nonmembers.

Constitutional Law, First Amendment, , ,

By Daniel A. Horwitz:

Late last month, the Supreme Court announced that it would hear Janus v. AFSCME, a case that challenges public-sector unions’ right to collect fees from nonmembers. Such “fair share” fees have been a legal bedrock of labor unions since the Supreme Court’s 1977 ruling in Abood v. Detroit Board of Education.  In Abood, the court held that unions could lawfully charge fees to non–union members to help offset the costs of “collective bargaining, contract administration, and grievance adjustment” from which all employees benefit, as long as the union does not use such fees for political purposes.  Continue reading Slate: If the Supreme Court thinks nonmembers can’t be compelled to pay union fees, then unions can’t be compelled to represent nonmembers. →

Local First Amendment Scholar Calls on Justice Kennedy to Reverse His Worst First Amendment Decision

Constitutional Law, First Amendment, , ,

By Daniel A. Horwitz

Local First Amendment scholar David L. Hudson, Jr. – an occasional guest contributor to this blog whose First Amendment resume rivals anyone alive (Ombudsman for the First Amendment Center, Legal Fellow for the Foundation for Individual Rights in Education, Professor of First Amendment Law at Vanderbilt Law School, etc.) – has penned an excellent piece over at Slate calling on U.S. Supreme Court Justice Anthony Kennedy to undo the damage of Garcetti v. Ceballos—one of the worst First Amendment decisions in the Supreme Court’s modern history.

Decided in 2006, the Supreme Court’s contentious 5-4 decision in Garcetti upended previously settled law regarding the First Amendment rights of public employees.  The Court’s majority opinion—authored by Justice Kennedy—stands for the general proposition that even if public employees are exposing governmental misconduct or speaking about matters of unquestioned public importance, they have no First Amendment protection whatsoever for any speech made pursuant to their official duties.  As Hudson explains:

“In Garcetti, the Supreme Court created a categorical rule: ‘When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.'”

The consequences of Garcetti have been devastating, falling particularly hard on whistleblowers and other public employees who have sought to expose official misconduct.  Professor Hudson’s full piece (accessible here) is well worth the read, and for the public’s sake, one can only hope that Justice Kennedy will take notice.

Questions about this article?  Email Daniel Horwitz at [email protected].

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