Tag Archives: First Amendment

Victims of SLAPP-Suits Cannot Recover Their Legal Fees If Plaintiffs Withdraw Their Claims Before Hearing, Holds Tennessee Supreme Court

Appeals, Civil Procedure, Tennessee Public Participation Act, Tort Law, ,

By Daniel A. Horwitz:

Strategic lawsuits against public participation—better known as “SLAPP-suits”—use the legal system to punish constitutionally protected speech.[1]  The Tennessee Supreme Court has explained that “[t]he primary aim of a SLAPP is not to prevail on the merits, but rather to chill the speech of the defendant by subjecting him or her to costly and otherwise burdensome litigation.”[2]  Using this definition, it is hard to argue that plaintiffs are engaged in anything other than quintessential SLAPP litigation when they: (1) sue someone for their speech; (2) run up a defendant’s litigation expenses for as long as possible before a hearing; and then (3) withdraw their claims just before a reviewing court can rule on them.

Fortunately, like many jurisdictions, Tennessee has enacted an anti-SLAPP statute called the Tennessee Public Participation Act, or the “TPPA.”  As Tennessee’s Court of Appeals has explained, “the TPPA is largely intended to deter SLAPP lawsuits and prevent litigants from spending thousands of dollars defending themselves in frivolous litigation.”[3]  “[T]housands of dollars,” it should be noted, is a dramatic undercount.  Given Tennessee courts’ routine willingness to allow SLAPP-suit filers to delay proceedings through discovery, amendment, and other litigation tactics, the cost of defending a SLAPP-suit through a TPPA hearing routinely exceeds $25,000.00, and it often eclipses hundreds of thousands of dollars or, in some cases, millions.

In theory, the expenses imposed on SLAPP-suit victims do not matter at the end of the day.  That is because the TPPA contains an expense-shifting provision—Tennessee Code Annotated section 20-17-107(a)—that requires trial courts to “award to the petitioning party: Court costs, reasonable attorney’s fees, discretionary costs, and other expenses incurred in filing and prevailing upon the petition[.]”  Thus, no matter how long the litigation takes, the TPPA assures SLAPP-suit victims that they will recover their expenses at the end of it.  As a result, assuming a plaintiff’s ability to pay the award, the TPPA promises SLAPP-suit victims that they will (mostly[4]) be made whole when litigation ends.

Unsurprisingly, those who are engaged in abusive litigation that is intended to burden speakers with uncompensated expenses are uninterested in paying their victims.  And to achieve their nefarious goals, they have employed a simple tactic: file SLAPP-suits; run up a defendant’s litigation expenses for as long as possible; and then voluntarily dismiss their claims on the eve of hearing before a court can rule on them.  Lawyers who make SLAPP-suits their business also have employed this tactic over, and over, and over again, often nonsuiting literally minutes before hearing, the night before hearing, or even during a hearing on a TPPA petition.  After doing so, they have insisted that SLAPP-suit victims are not entitled to recover a penny of their legal expenses, because the voluntary dismissal precludes all further litigation, and a court has never granted a petitioner’s TPPA petition.

If blessing such a tactic seems antithetical to what the TPPA was designed to accomplish, that is because it is.  Filing a bogus speech-based lawsuit, imposing substantial litigation expenses, and—recognizing that one’s claims have no chance of prevailing—dismissing the case right before a court can rule is definitionally the behavior that the TPPA was designed to deter.  Even so, dozens if not hundreds of plaintiffs have done exactly that in the short time since the TPPA was enacted in 2019.

The certainty of fee-shifting also is what permits lawyers to defend SLAPP-suit victims on a contingent basis.  Without contingency representations, SLAPP-suit victims would be forced to expend—upfront—tens of thousands, hundreds of thousands, or even millions of dollars to defend their speech against bogus lawsuits: an amount of money that few speakers have to spend even if they wanted to.  Further, when faced with the choice of taking down a negative Yelp! review or having to liquidate one’s life-savings to defend it, self-censoring to avoid (or end) litigation becomes an easy choice.

Sadly, in a unanimous October 9, 2024 opinion authored by Justice Jeffrey S. Bivins, the Tennessee Supreme Court has now blessed the tactic of filing SLAPP-suits, running up litigation expenses, and then parachuting out of the litigation without consequence by nonsuiting on the eve of hearing.  The opinion arose out of the most sympathetic facts possible: a misbehaving landlord filing facially meritless litigation against speakers who successfully advocated for tenants that the landlord had tried to evict illegally—outside the legal process and in contravention of a federal eviction moratorium—by cutting off their heat during the middle of winter.  In response to TPPA petitions filed by those speakers, landlord Robert E. Lee Flade ran up the speakers’ litigation costs for roughly seven months; delayed a ruling following an initial TPPA hearing by convincing a trial court to allow him to take discovery first; and then voluntarily dismissed all of his claims just before a second TPPA hearing, leaving the sued speakers with tens of thousands of dollars in legal expenses that the Tennessee Supreme Court has now held they cannot recover due to Mr. Flade’s strategic dismissal.

The calamitous consequences of the Tennessee Supreme Court’s opinion in Flade—which strips the TPPA of its deterrent value—are assured.  Simply put: No longer do calculated abusers of the legal system have to worry about being ordered to pay their victims’ legal fees.  Instead, such abusers of the legal process are now empowered—as a matter of right—to file SLAPP-suits; wait and see if their victims are willing or able to hire an attorney to defend against them; run up their victims’ litigation expenses as long as possible before a TPPA hearing; and then voluntarily dismiss their claims before a court can rule.  Because lawyers who defend SLAPP-litigation—even successfully—can no longer be assured that they will be paid for doing so, Flade also represents the end of SLAPP-suit contingency representations in Tennessee.

Confronted with the inevitable results of sanctioning this proven abuse, the Tennessee Supreme Court’s opinion explains that “[w]e do not intend to minimize [these] concerns.  However, the[se] policy-based arguments are best addressed to the legislative branch.”  Thus, according to the Tennessee Supreme Court, its hands were tied by the text of Tennessee Rule of Civil Procedure 41.01(1), which “permits liberal use of voluntary nonsuits at any time prior to ‘final submission’ to the trial court for decision in a bench trial or in a jury trial before the jury” absent certain specified exceptions.

Lest anyone be fooled, the Tennessee Supreme Court has never followed this approach to interpreting Rule 41.01(1) before now.  For example, despite the Rule’s explicit prohibition against taking a voluntary dismissal “when a motion for summary judgment made by an adverse party is pending,” the Tennessee Supreme Court has held that “it is implicit in the Rule and inherent in the power of the Court that, under a proper set of circumstances, the Court has the authority to permit a voluntary dismissal, notwithstanding the pendency of a motion for summary judgment.”[5]  The Tennessee Supreme Court has found other “implicit” exceptions to Rule 41.01(1)’s text, too, including inventing an entire category of exceptions for what it calls “The Vested Rights Implied Exception.”[6]  Thus, far from interpreting Rule 41 in a way that ties the judiciary’s hands, the Tennessee Supreme Court has interpreted it atextually in a way that furthers judicial policy preferences throughout the Rule’s existence.

With these considerations in mind, no one should be misled by the Tennessee Supreme Court’s claim that this result was compelled by text.  It was not—and the TPPA plausibly fell within three recognized exceptions to Rule 41.01(1) (two of them text-based) anyway.  The Tennessee Supreme Court’s effort to distinguish as “inapposite” TPPA-based claims from several other claims that Tennessee law holds courts may adjudicate post-nonsuit—including claims “involving sanctions under Rule 11 of the Tennessee Rules of Civil Procedure,” “an award of damages for a frivolous appeal under Tennessee Code Annotated section 27-1-122,” and “legislation concerning ‘abusive civil actions’”—also demonstrates the malleability of the judiciary’s approach to the question presented by itself.

In summary, as it has before, the Tennessee Supreme Court made a policy choice; here, to defang the TPPA and reward those who file SLAPP-suits in Tennessee with the freedom to do so without fear of incurring consequences.  The repercussions of that decision will be borne most heavily by the people who need the TPPA most—speakers of modest means who need lawyers to defend them on contingency—who will now be forced to incur significant debt to defend their speech; self-censor to avoid or end litigation; or defend themselves pro se.  No one should celebrate this policy choice, and Tennessee’s free speech protection scorecard has now been downgraded as a result of it.

Read the Tennessee Supreme Court’s unanimous ruling in Flade v. City of Shelbyville, No. M2022-00553-SC-R11-CV, 2024 WL 4448736 (Tenn. Oct. 9, 2024), authored by Justice Jeffrey Bivens, here:  https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Majority%20Opinion%20-%20M2022-00553-SC-R11-CV.pdf.

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

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[1] Daniel A. Horwitz, The Need for a Federal Anti-SLAPP Law, N.Y.U. J. Legis. & Pub. Pol’y Quorum (June 15, 2020),  https://perma.cc/A8F4-FQ6G.

[2] Charles v. McQueen, 693 S.W.3d 262, 267 (Tenn. 2024).

[3] Nandigam Neurology, PLC v. Beavers, 639 S.W.3d 651, 670 (Tenn. Ct. App. 2021)

[4] By statute, a defending litigant can only recover expenses “incurred in filing and prevailing upon the petition[.]”  Tenn. Code Ann. § 20-17-107(a)(1).  Thus, not all expenses are compensable, so the provision falls slightly short of this goal.

[5] See, e.g., Stewart v. Univ. of Tennessee, 519 S.W.2d 591, 593 (Tenn. 1974) (“it is implicit in the Rule and inherent in the power of the Court that, under a proper set of circumstances, the Court has the authority to permit a voluntary dismissal, notwithstanding the pendency of a motion for summary judgment.”); Anderson v. Smith, 521 S.W.2d 787, 790 (Tenn. 1975) (“where a summary judgment is pending, the right to a nonsuit rests in the sound discretion of the trial judge.”).

[6] Flade v. Shelbyville, No. M2022-00553-SC-R11-CV, 2024 WL 4448736, at *13 (Tenn. Oct. 9, 2024).

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

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

 

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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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.

Sixth Circuit Upholds Vote On Amendment 1

Constitutional Law, Election Law, , ,

In a decision issued earlier this morning, the U.S. Court of Appeals for the Sixth Circuit formally upheld Tennesseans’ 2014 vote to ratify Amendment 1 to the Tennessee Constitution.  The amendment provided that:

“Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.”

Following the referendum election—which Tennesseans supported by a margin of 53%-47% in a contest involving nearly 1.4 million voters—opponents of the amendment challenged the results of the election in federal court, arguing that state officials should have disqualified the votes of anyone who declined to vote in the Governor’s race.  The challengers’ claim was premised upon a reading of an inartfully drafted provision of Tennessee’s Constitution, which states that:

“[I]f the people shall approve and ratify such amendment or amendments by a
majority of all the citizens of the State voting for Governor, voting in their favor,
such amendment or amendments shall become a part of this Constitution.”

Although initially accepted by the now-vacated decision of the District Court, the challengers’ reading of the above provision had several critical problems.  Among them, the novel interpretation that they demanded had never previously been applied in any referendum election in Tennessee’s history.  Most importantly, however, as the Yes On 1 Committee argued in an amicus brief filed in the Sixth Circuit, the challengers’ position would have unconstitutionally caused “the votes of tens of thousands of qualified voters—as many as eighty thousand, by some estimates—[to] be subject to wholesale invalidation for no other reason than that the voters who cast them did not support any candidate for governor.”  The same deficiency was noted in an editorial penned by Daniel Horwitz, Yes On 1’s eventual election counsel, in a 2014 op ed published in the Tennessean.

The Sixth Circuit’s opinion held that for purposes of the federal lawsuit, a separate state court decision that had previously determined that all votes in a referendum election must be counted regardless of whether or not a voter had voted in the Governor’s race was entitled to preclusive effect.  In a footnote, however, the Sixth Circuit also explained that it would have reached the same conclusion independently, noting that:

“[P]laintiffs’ preferred reading of the text of Article XI, Section 3, while not implausible on its face, would be patently unreasonable in effect. Not only would their proposed construction—requiring a voter to vote for governor as a prerequisite to casting a valid vote on Amendment 1—contravene longstanding practice and pre-election instructions published to the public, and effectively nullify the votes of thousands of citizens; it would also conflict with another provision of the Tennessee Constitution. Article IV, Section 1 prohibits the imposition of any additional qualification to vote, beyond age, U.S. citizenship, state residency, and registration. To adopt plaintiffs’ proposed interpretation would be to run afoul of our obligation, in construing state law, “to avoid constitutional difficulty” when fairly possible.”

“The issues involved in this lawsuit had absolutely nothing to do with abortion,” said Daniel Horwitz, election counsel for the Yes On 1 Campaign. “Instead, this was a direct challenge to pro-life voters’ right to vote itself, and fortunately, the right to vote won. Anybody who cares about the integrity of the democratic process should be both gratified and reassured by this outcome.”

The Sixth Circuit’s decision in the case is available here.

Selected Case Documents:

–Brief of the “Yes On 1” Campaign as Amicus Curiae

–Sixth Circuit Opinion Reversing District Court

–Sixth Circuit Order Denying En Banc Review

Selected Media Coverage:

-The Tennessean: Appeals court won’t reconsider Tennessee abortion measure decision

-Patch: Federal Court Denies Challenge To Tennessee Abortion Amendment

-Yes on 1: Yes on 1 Files State Court Motion on Behalf of Disenfranchised Voters

-The Tennessean: Amendment 1 plaintiffs on shaky legal ground

-The Tennessean: Appeals court upholds vote count on Tennessee abortion measure Amendment 1

-The Tennessean: Fate of Tennessee abortion measure Amendment 1 now up to appeals court

-Pro Life News: Tennessee: Pro-Life Win as Judge Says State Counted Votes Correctly on Amendment 1

-News Channel 5: Vote Counting For Tennessee Abortion Measure Argued In Federal Court

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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. →