Tag Archives: First Amendment

Tennessee Needs to Provide More Protection to People Sued for Defamation

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.

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

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.

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

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 daniel.a.horwitz@gmail.com.

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Metro Drops “Obscene Bumper Sticker” Citation Against Dustin Owens; Concedes Bumper Sticker Is Protected By the First Amendment

Nashville, Tennessee, March 13, 2017—In response to a lawsuit filed by Dustin Owens after he was cited for displaying what his arresting officer claimed was an “obscene bumper sticker,” lawyers for the Metropolitan Nashville Police Department have conceded that “Mr. Owens is correct that the bumper sticker at issue does not fit the criteria of ‘obscene and patently offensive’ as those terms are defined in Tenn. Code Ann. § 55-8-187 and under relevant First Amendment jurisprudence.”  As a result, Metro has agreed to dismiss Mr. Owens’ citation, and it will also submit to a declaratory judgment that the bumper sticker at issue “is protected by the First Amendment to the U.S. Constitution.”  Under the parties’ settlement agreement, Metro will also pay for the costs of Mr. Owens’ lawsuit.

Mr. Owens’ resounding legal victory comes after extensive local and national media coverage of his arrest for displaying the following crass but comical bumper sticker:

Said Daniel Horwitz, Mr. Owens’ lead counsel: “The statute under which Mr. Owens was cited is facially unconstitutional.  Hard-core censorship of this nature also has no place in a free society.  We’re ecstatic about this victory, and we appreciate Metro’s prompt concession that the position taken by Mr. Owens’ arresting officer was nakedly meritless.”

Added David L. Hudson, Jr., who also represented Mr. Owens in the lawsuit: “Mr. Owens’ bumper sticker is clearly protected speech, a form of parody, and not remotely close to obscenity.  I applaud Dustin’s courage in challenging his unconstitutional citation, and I am proud to have represented him.”

Mr. Owens’ Complaint against the MNPD and his Application for a Temporary Injunction are available here and here, respectively.  The individuals referenced in this release will be available for further comment at daniel.a.horwitz@gmail.com and davidlhudsonjr@gmail.com once the parties’ settlement agreement has been approved by the Court.

Selected media coverage regarding the case is available at the following links:

Selected Media Coverage:

-Patch: Obscenity Charges Dropped In Nashville Stick Figure Sex Case

-Faultlines: Nashville Cops Hate Stick Figure Sex (and the First Amendment)

-Heat Street: Tennessee Cops Back Down on Fine For ‘Obscene’ Bumper Sticker of Stick Figures

-TechDirt: Driver Sues State After Receiving Ticket For ‘Obscene’ Stick Figure Vehicle Decal

Case Filings:

Plaintiff’s Complaint

Plaintiff’s Application for Temporary Injunction

*Order Granting Judgment to Plaintiff

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No, Justin Timberlake Did Not Break the Law By Taking a Ballot Selfie

By Daniel Horwitz:

Demonstrating his laudable commitment to participating in the political process and encouraging others to do so as well, international music sensation and Memphis-bred popstar Justin Timberlake recently posted an instragram photo of himself rocking the (early) vote at his polling place in Memphis, Tennessee.  That terrible offense, unfortunately, has earned him a rebuke from the Shelby County District Attorney’s office, which is currently conducting a criminal investigation into his scandalous conduct.  The reason?  Tennessee’s poorly-worded “Use of Mobile Electronic and Communication Devices at Polling Place for Informational Purposes” statute, codified at Tenn. Code Ann. § 2-7-142(b), which provides that:

“Any voter using a mobile electronic or communication device . . . shall be prohibited from using the device for telephone conversations, recording, or taking photographs or videos while inside the polling place.”

Violating this provision is theoretically a Class C misdemeanor punishable by up to 30 days in jail and a $50.00 fine.  The law, however, is unconstitutional.

The practice of taking “ballot selfies” – photographs of one’s ballot that may or may not also include the voter – has become increasingly popular among voters in recent years.  Celebrities from Beyoncé to Sean Hannity to Kim Kardashian have also gotten in on the action.  Unfortunately, however, the celebratory practice of posting ballot selfies – which should be welcomed and perhaps even encouraged in a political climate in which many voters, especially young voters, never vote at all – has also drawn the attention of overzealous state regulators.  During the November 2014 election, for instance, “approximately 35 states prohibited ballot selfies in one form or another,” and several states – Tennessee among them – “have since followed suit.”

At least one prominent election law scholar has supported the bans both as a policy matter and as a constitutional one, characterizing them as “a threat to democracy” because they could ostensibly facilitate vote-buying or coercion schemes.  As this author explained in his 2015 SMU Science and Technology Law Review article A Picture’s Worth a Thousand Words: Why Ballot Selfies Are Protected by the First Amendment, however, that conclusion is woefully misguided, and ballot selfies are safely protected by the First Amendment.  Importantly, every single court that has evaluated the issue to date – which includes the U.S. District Court for the District of New Hampshire, the U.S. Court of Appeals for the First Circuit (upon review of the District Court of New Hampshire), the U.S. District Court for the Southern District of Indiana, and the U.S. District Court for the Southern District of Michigan – has also agreed that states cannot lawfully prohibit ballot selfies without running afoul of the First Amendment, unanimously striking down various states’ ballot selfie prohibitions on free speech grounds.  Thus, as far as the federal judiciary is concerned, Tennessee’s ballot selfie prohibition cannot withstand constitutional scrutiny.

Three main reasons, detailed extensively in this article, support the conclusion that ballot selfies may not lawfully be prohibited without violating the First Amendment.

First, ballot selfie bans unnecessarily restrict a substantial amount of constitutionally protected speech (like Mr. Timberlake’s) that is completely unrelated to vote buying, while simultaneously doing nothing to prevent far simpler forms of vote buying, such as absentee ballot fraud (which can be accomplished outside of the comparatively well-surveilled atmosphere of a polling place).

Second, the “compelling” nature of the Government’s interest in enacting broad-based laws to guard against vote buying is subject to considerable doubt, because vote buying is statistically non-existent even in jurisdictions where it is easy to accomplish.

Third, and most importantly, because voters have the ability to change their vote even after taking a ballot selfie, ballot selfies are a useless tool for promoting vote buying anyway—rendering the entire premise behind such laws baseless.  That reality is exposed, for example, by this set of pictures (click on the photo to enhance it) that the author took during the 2015 Nashville mayoral election, which collectively illustrate just how easy it is to change one’s vote after making an initial selection:

photo

In other words, because ballot selfies do not provide a prospective vote-buyer any level of certainty that a ballot has actually been cast in a particular way (an absolute prerequisite to any effective vote-buying scheme), ballot selfies are a useless tool for committing fraud, and banning them serves to do nothing but interfere with the political speech of innocent voters who want to do nothing more than celebrate the fact that they voted.

In sum: Justin Timberlake should be applauded for his activism and his decision to celebrate the right to vote, which is fully protected by the First Amendment.  As such, today – like most days – JT’s an American hero.

Update, 5:07 PM: To the surprise of nobody, Justin Timberlake’s prosecution for violating Tennessee’s ballot selfie ban won’t go forward.

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First Amendment Rights of Public Employees

By Daniel Horwitz:

News Channel 2 viewers were treated to a fun story last night about the free speech rights of public employees.  According to the segment, Nashville District Fire Chief Tim Lankford was recently disciplined for controversial, conservative-leaning statements that he made on his facebook page, which were perceived by his employer as being “racial, stereotypical, and threatening toward members of the public.”  The statements included posts such as: “The first man who goes into the restroom with my daughter won’t have to worry about the surgery,” as well as a diatribe about the Supreme Court’s marriage equality ruling that concluded with Chief Lankford stating that he was “so disturbed” by the opinion that he could “barely function at his job.”  Chief Lankford’s discipline also comes on the heels of independent sanctions being levied against two local police officers and a Sherriff’s deputy for statements made on facebook about the military lifting its ban on transgender service members and about the Black Lives Matter movement.  All of which led News Channel 2’s reporter to wonder:  Can public employees be disciplined for their speech without running afoul of the First Amendment?

Last night’s segment does not explore the applicable First Amendment doctrine in detail, but the short answer is “sometimes.”   Sadly, for most of the 20th century, public employers had an unfettered right to take adverse employment actions against public employees for their speech whether it was expressed inside or outside of the workplace.  Specifically, the Court’s thinking went: “A policeman may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”[1]

Happily, though – at least for those of us who believe that more speech contributes to a better democracy – the Supreme Court eventually decided to change course.  In a series of cases beginning with the Court’s 1968 decision in Pickering v. Board of Education, the Court aimed to strike a balance “between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”[2]  Approximately four decades of tweaking later, following the Supreme Court’s contentious 2006 decision in Garcetti v. Ceballos,[3] the current state of the doctrine is as follows:

Determining whether a public employee’s First Amendment rights have been violated currently requires a three-part inquiry.

First, to be protected, the employee’s speech must address a matter of public concern, rather than a purely private matter.[4]  “Matters of public concern include speech that ‘relat[es] to any matter of political, social, or other concern to the community.’”[5]  This requirement is broadly construed, so in addition to encompassing commentary on political issues writ large,[6] “speech falling into this category includes informing the public that a governmental entity failed to discharge its governmental responsibilities or bringing to light actual or potential wrongdoing or breach of public trust on the part of a governmental entity or any officials therein.”[7]

Second, the employee must also have been speaking as a private citizen, rather than speaking pursuant to his or her official job responsibilities.  “When public employees make statements pursuant to their official duties,” the Supreme Court has explained, “employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”[8]  Thus, although speech by public employees on matters of their employment is sometimes protected under federal and state whistleblower laws, for First Amendment purposes, public employees who speak in their capacity as public employees enjoy no First Amendment protection whatsoever.

Third, if the employee’s speech involved a matter of public concern and was not made pursuant to the employee’s official duties, then courts must attempt to “balance the interests of the public employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”[9]  In Garcetti, the Supreme Court instructed that “[s]o long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.”[10]  However, lower courts have interpreted this requirement to mean that an employee’s interest in commenting upon matters of public concern must “outweigh” his or her employer’s interest in promoting an efficient and effective workplace, meaning that this final factor often derails otherwise-valid First Amendment claims as well.[11]  If the employee can satisfy all three of these requirements, however, then disciplining the employee for speaking out violates the employee’s rights under the First Amendment.

Satisfying each of these three requirements is undeniably difficult— especially for first responders who require the public’s complete trust that they will discharge their duties fully and impartially without regard to factors like a person’s race, gender, or sexual orientation.  (As former New York Mayor Rudy Giuliani celebrated during his speech at the Republican National Convention on Monday, for example: “When the[ police] come to save your life, they don’t ask if you are black or white, they just come to save you!”)  Accordingly, public employees often do not enjoy quite the level of First Amendment freedom that many expect or hope to see.  Of note, however, the limited First Amendment protections afforded to public employees stand in stark contrast to those held by private employees, who enjoy no First Amendment protections with regard to their employment at all.

Of course, the First Amendment also is not the only source of protection for free speech.  Additional protections can be and often are conferred upon public employees by federal law, state law, union agreements, or by contract.  For example, pursuant to Tennessee’s Public Employee Political Freedom Act (PEPFA): “it is unlawful for any public employer to discipline, threaten to discipline or otherwise discriminate against an employee because such employee exercised that employee’s right to communicate with an elected public official.”[12]  Taking disciplinary action against a public employee who exercises his or her right to communicate with a public official under PEPFA can also result in severe consequences to a government employer, including “treble damages plus reasonable attorney fees.”[13]  Thus, the First Amendment functions as only a protective floor upon which additional free speech protections can be – and should be – built higher.

Questions about this article?  Email Daniel Horwitz at daniel.a.horwitz@gmail.com.

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[1] Connick v. Myers, 461 U.S. 138, 143-44 (1983) (quoting  McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 517 (1892), citing Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517 (1952); Garner v. Board of Public Works, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317 (1951); United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947); United States v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508 (1930); Ex parte Curtis, 106 U.S. 371, 1 S.Ct. 381, 27 L.Ed. 232 (1882).

[2] 391 U.S. 563, 568 (1968).

[3] 547 U.S. 410, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006).

[4] See Connick v. Myers, 461 U.S. 138, 143, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Hughes v. Region VII Area Agency on Aging, 542 F.3d 169, 180 (6th Cir. 2008).

[5] Rodgers v. Banks, 344 F.3d 587, 596 (6th Cir. 2003) (quoting Connick, 461 U.S. at 146.).

[6] See, e.g., Pickering, 391 U.S. at 571 (protecting commentary on use of tax dollars and school spending).

[7] Rodgers, 344 F.3d at 596 (internal quotation marks and alterations omitted).

[8] Garcetti, 547 U.S. at 421 (2006).

[9] Hughes v. Region VII Area Agency on Aging, 542 F.3d 169, 180 (6th Cir. 2008).

[10] Garcetti, 547 U.S. at 419 (2006).

[11] See, e.g., Housey v. Macomb Cty., 534 F. App’x 316, 321 (6th Cir. 2013).

[12] Tenn. Code Ann. § 8-50-603(a).

[13] Tenn. Code Ann. § 8-50-603(b).

Yes, you may legally vote in another party’s primary under Tennessee law.

By Daniel Horwitz:

It’s election season!  In addition to junk mail and jingles, if there’s anything that’s absolutely guaranteed to take place in Tennessee this time of year, it’s an unresolved dispute over whether or not it’s illegal to vote in another party’s primary election.  So is it?

According to the Bernie Sanders campaign, whether you’re a Democrat or not, voting in the Democratic primary is legal.  “Tennessee has open primaries.  Tennesseans can vote for Bernie Sanders regardless of their registered party,” his website declares.  In sharp contrast, however, during several past election cycles, others have taken a markedly different view.  In May 2014, for example, Maury County’s Election Commission formally censured one of its Democratic members for voting in the local Republican Primary.  “Contrary to many public pronouncements by various people, a party primary is not open to anyone to come and essentially make a mockery of the process,” proclaimed Commission member Jason Whatley.  “People who disagree with that are disagreeing with the law and they’re demonstrating a gross misunderstanding of what the law says.”[1]

Despite protestations from many in Commissioner Whatley’s camp, however, the reality of Tennessee law is quite different.  Specifically, unless your party membership has been formally challenged under an obscure procedure that is virtually never utilized, voting in the primary election of a party with which you are not typically affiliated is not illegal at all.  The reasons why, however, require considerable explanation.

In the election law world, the practice of voting in the primary election of a party with which a voter is not traditionally affiliated is known as “crossover voting.”  Alternately considered insidious or a laudable expansion of democracy depending on who is benefiting from it, voters frequently engage in crossover voting for any number of reasons.  For example, a Republican voter might be so disgusted with her party’s candidates in a particular election that she decides to affiliate with the Democratic Party for a single election cycle instead.  Other voters—particularly those who live in highly gerrymandered districts—might vote in an opposing party’s primary in order to exert meaningful influence (called “hedging”) in the ultimate selection of their representatives, given that the winner of the opposing party’s primary is likely—or, in many cases, guaranteed—to win the general election down the road.[2]  Alternatively, a Democratic voter might try to bolster his party’s chances of winning a general election by crossing over and voting for a weak Republican primary candidate who is comparatively less likely to prevail against his Democratic candidate of choice—a tactic known as “raiding.”[3]

With respect to this latter tactic, it’s worth noting that supporters of both parties have a rich history of organizing “crossover raiding” drives in an attempt to sabotage their opponents’ chances of winning a general election victory.  In 2012, for example, in an effort to bolster Rick Santorum’s chances of becoming the Republican nominee for President over Mitt Romney, liberal activist Markos Moulitsas generated national media attention by encouraging Democrats to crossover to the Republican Primary and vote for Santorum.[4]  Similarly, in 2008, conservative talk radio host Rush Limbaugh encouraged Republicans to crossover and vote for Hillary Clinton in their respective states’ Democratic primaries when then-Senator Barack Obama began surging ahead in the polls.[5]  Although neither of these efforts turned out to be effective, successful crossover raiding has been blamed for primary victories of candidates in any number of elections, including Presidential primary victories in Michigan by George Wallace, Jesse Jackson and John McCain.[6]  A successful crossover voting campaign was also given credit, in part, for the controversial 2008 primary victory of former Tennessee State Senator Rosalind Kurita over challenger Tim Barnes,[7] which was ultimately vacated under internal party procedures by the Tennessee Democratic Party.[8]

Unsurprisingly, in the roughly fifteen states where voters are not required to declare their party affiliation in order to vote in a particular party’s primary, crossover voting is simple, and it is unquestionably legal.  To crossover, a voter in such an “open primary” state need only show up on election day and ask to vote in her primary of choice.  The voter will then be given the opportunity to cast her vote in that party’s primary with no questions asked.

In other states, however, voters are prevented (or, at least, hindered) from engaging in crossover voting because the states hold “closed primaries.”  In closed primaries, only voters who are expressly affiliated with a particular party may vote in that party’s primary elections.  In several jurisdictions—Kentucky, for example—this affiliation requirement effectively eliminates crossover voting because in order to vote in a party’s primary, a voter must be pre-registered with the party long before voting begins.[9]  In other closed primary states, however—Iowa, for instance—the affiliation requirement is effectively meaningless, because voters are permitted to change their party affiliation up until and even on election day itself.[10]

Tennessee falls into the latter category—a technically closed primary state, but one in which the party affiliation requirement exists only in theory.  To start, Tennessee law does not impose any registration requirement on voters whatsoever.  In fact, there is no such thing as party registration in Tennessee.  Instead, the only affiliation requirement contained in Tennessee law is found in Tenn. Code Ann. § 2-7-115(b), which provides that:

“A registered voter is entitled to vote in a primary election . . .  if:

(1) The voter is a bona fide member of and affiliated with the political party in whose primary the voter seeks to vote; or

(2) At the time the voter seeks to vote, the voter declares allegiance to the political party in whose primary the voter seeks to vote and states that the voter intends to affiliate with that party.”

“A bona fide member” of a political party?  “Declares allegiance”?  What do these things even mean?  Additionally, who decides whether someone is a bona fide member of a political party or not?  And how are these requirements even enforced, anyway?

The broad answer to each of these questions is that it’s entirely up to the parties themselves.  Political parties are private organizations.  Accordingly, they enjoy an unquestioned First Amendment right to decide their own membership criteria and to exclude or include anyone they see fit.  See, e.g., Washington State Grange v. Washington State Republican Party, 128 S.Ct. 1184, 1188 (2008) (“a party’s right to exclude is central to its freedom of association.”); Democratic Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107, 122 (1981) (“the freedom to associate for the common advancement of political beliefs necessarily presupposes the freedom to identify the people who constitute the association, and to limit the association to those people only.”) (internal quotation omitted); California Democratic Party v. Jones, 530 U.S. 567, 575 (2000) (“our cases vigorously affirm the special place the First Amendment reserves for, and the special protection it accords, the process by which a political party selects a standard bearer . . . .”) (internal quotations and alterations omitted).   As such, the definition of a “bona fide” member of a particular political party is left exclusively to political parties themselves.[11]

Notably, given this framework, it is also possible to be a bona fide member of both the Democratic Party and the Republican Party (or any other political party) at the same time.  In fact, although Tennessee law prohibits candidates from appearing on the ballot under two separate parties, history offers multiple examples of the same candidate being selected as the nominee of more than one party in the same election—a practice known as “electoral fusion.”  For example, in 1946, future U.S. Supreme Court Justice Earl Warren—who was then the incumbent Governor of California—became the only gubernatorial candidate in California’s history to win both the Republican and Democratic nominations for the state’s governorship.[12]  As such, the fact that a person is considered a “bona fide” Republican by the Tennessee Republican Party does not necessarily foreclose that person from being considered a “bona fide” Democrat by the Tennessee Democratic Party as well.  For precisely the same reason, there would be nothing untoward about a traditionally Republican voter seeking to vote in the Conservative Party’s primary, or a traditionally Democratic voter seeking to vote in the Green Party’s primary.

It is for these reasons that several public officials have erred so substantially in concluding that an individual who traditionally affiliates with one party cannot lawfully attempt to affiliate with another by voting in its primary.[13]  For one thing, public officials have absolutely no authority to determine party membership—only parties do.  For another, affiliating with one political party does not categorically preclude a voter from affiliating with another, since political parties are not necessarily incompatible with one another.  All contrary conclusions reflect a fundamental misunderstanding of the First Amendment as it applies to political parties’ freedom of association.

Enforcement of Bona Fide Party Membership

As noted, however, the Supreme Court has recognized that the First Amendment’s right to freedom of association affords political parties the right to exclude voters from voting in their primaries as well.  See, e.g., La Follette, 450 U.S. at 122 (“the inclusion of persons unaffiliated with a political party may seriously distort its collective decisions—thus impairing the party’s essential functions—and [] political parties may accordingly protect themselves from intrusion by those with adverse political principles.”) (internal quotation omitted).  Accordingly, any political party is well within its rights to exclude a voter from its membership, thus rendering the voter ineligible to participate in the party’s primary.

Under Tennessee law, however, the only mechanism for enforcing political parties’ right to exclude voters from participating in their primaries is found in Tenn. Code Ann. § 2-7-126, which provides that:

“A person offering to vote in a primary may . . . be challenged on the ground that the person is not qualified under § 2-7-115(b).  Such a challenge shall be disposed of under the procedure of §§ 2-7-123 — 2-7-125 by the judge or judges and the other election officials of the party in whose primary the voter applied to vote, with a total of three (3) to decide the challenge.”

In turn, the highly complicated (and practically useless[14]) procedure found in §§ 2-7-123 — 2-7-125 provides that:

“If any person’s right to vote is challenged by any other person present at the polling place, the judges shall present the challenge to the person and decide the challenge after administering the following oath to the challenged voter: “I swear (affirm) that I will give true answers to questions asked about my right to vote in the election I have applied to vote in.”  A person who refuses to take the oath may not vote.

. . . .

The judges may ask any question which is material to deciding the challenge and may put under oath and ask questions of such persons as they deem necessary to their decision. The judges shall ask the administrator of elections to check the original permanent registration records if the voter claims to be registered but has no duplicate permanent registration record.

. . . .

(a) If the judges determine unanimously that the person is not entitled to vote, the person shall vote by paper ballot and the person’s ballot shall be deposited in a sealed envelope marked “Rejected” with the person’s name, the reason for rejection, and the signatures of the judges written on it.

(b) If the judges do not agree unanimously to rejection, the person shall be permitted to vote as if unchallenged.”

Thus, in order to prevent a prospective voter from voting in a party’s primary, the voter must:

  1. Be recognized by a Party “challenger” before casting a vote;
  2. Be challenged on the spot; and
  3. Have that challenge adjudicated unanimously by three previously-appointed Party judges.[15]

Then—but only then—could it conceivably become illegal for a voter to attempt to vote in a particular party’s primary.[16]  For obvious reasons, however—namely, that it is impossible and economically infeasible to carry out party purity challenges across the state in primary elections during which several hundred thousand (or more) votes are often cast—this process simply does not occur in nature.  As such, in practice, nothing prevents a traditionally Democratic voter from voting in the Republican Party’s primary or vice versa.  Under Tennessee law, such a practice—whether pursued for nefarious reasons or otherwise—is perfectly legal unless and until the voter’s right to participate has specifically been challenged by a party official and formally adjudicated against her.

Questions about this article?  Email Daniel Horwitz at daniel.a.horwitz@gmail.com.

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[1] This particular incident also prompted State Election Coordinator Mark Goins to send a threatening letter – illegally, in the author’s view – to all 475 county Election Commissioners indicating that “they will be subject to removal by the State Election Commission” if they vote in another party’s primary.  See Andy Sher, Tennessee’s county election commissioners can only vote in their party’s primary, Times Free Press (Jul. 28, 2014), http://www.timesfreepress.com/news/local/story/2014/jul/28/county-election-commissioners-can-only-vote-in/262916/.  At the time, at least one attorney spoke out against the policy to note – correctly, in the author’s view – that such a threat violated the First Amendment.  Id. (“the state’s new directive is already coming under fire from Chattanooga attorney Jerry Summers, a Democratic member on the Hamilton County Election Commission.  Summers said Saturday in an interview that he doesn’t believe the state’s order passes muster under federal guarantees of free speech and assembly under the U.S. Constitution.”).

[2] See, e.g., Eric Lyons, All’s fair in love and the Tennessee primaries, Vanderbilt Hustler (Sep. 3, 2012), available at http://www.vanderbilthustler.com/opinion/columns/article_043fd3c0-f572-11e1-9e29-0019bb30f31a.html?mode=jqm (“In northeast Tennessee, Republicans are all but guaranteed a victory come November, meaning that it is very often the case that the primary election is, for all intents and purposes, “the race,” as Lt. Governor Ramsey himself noted when asked for his stance on the primary question. For that reason, liberal voters who want to actually have some say in the election may do well to cross over in late summer to nominate a Republican candidate whose views align closer to their own.”).

[3] See, e.g., Seok-ju Cho and Insun Kang, Open primaries and crossover voting, Journal of Theoretical Politics (2014).

[4] Joseph B. White, Michigan: Inviting Crossover Voting?, The Wall Street Journal (Feb. 23, 2012), available at http://blogs.wsj.com/washwire/2012/02/23/michigan-inviting-crossover-voting.

[5] Aaron Blake, Michigan Democratic Party encourages crossover voting in GOP presidential primary,  The Washington Post (Feb. 22, 2012), available at https://www.washingtonpost.com/blogs/the-fix/post/michigan-democratic-party-encourages-crossover-voting-in-gop-presidential-primary/2012/02/22/gIQA1qjoTR_print.html.

[6] Id. 

[7] Jeff Woods, Devil Woman: Scorned by her own political party, Rosalind Kurita is defiant and determined, The Nashville Scene (Oct. 23, 2008), http://www.nashvillescene.com/nashville/devil-woman/Content?oid=1198631 (“Barnes contested the results, charging essentially that Republicans commandeered the Democratic primary by organizing a crossover campaign”); David J. Luciano, The flip side of the 9/13 Kurita/Barnes Executive Committee hearing, Clarksville Online (Sep. 17, 2008), http://www.clarksvilleonline.com/2008/09/17/the-flip-side-of-the-913-kuritabarnes-executive-committee-hearing/ (“It was proven that a significant [sic] higher number of voters who historically vote in Republican primaries switched over to vote in the Democratic primary in this election.  The suggestion is that Rosalind Kurita used her ties to Ron Ramsey, who had pledged openly to “help her in any way [he] could” to turn out Republican voters to vote for her in an attempt to maintain Republican leadership of the Senate.”).

[8] See Kurita v. State Primary Bd. of Tennessee Democratic Party, 2008 WL 4601574 (M.D. Tenn. Oct. 14, 2008) aff’d, 472 F. App’x 398 (6th Cir. 2012).

[9] Ky. Rev. Stat. Ann. § 116.055 (“Before a person shall be qualified to vote in a primary election, he shall possess all the qualifications required of voters in a regular election. In addition, he shall be a registered member of the party in whose primary election he seeks to vote, and shall have been registered as a member of that party on December 31 immediately preceding the primary election, or, in the case of new registrations made after December 31 immediately preceding the primary election, he shall have registered and remained registered as a member of that party. No person shall be allowed to vote for any party candidates or slates of candidates other than that of the party of which he is a registered member. The qualifications shall be determined as of the date of the primary, without regard to the qualifications or disqualifications as they may exist at the succeeding regular election, except that minors seventeen (17) years of age who will become eighteen (18) years of age on or before the day of the regular election shall be entitled to vote in the primary if otherwise qualified. However, any registered voter, whether registered as a member of a party, political organization, political group, or as an independent, shall be qualified to vote in primary elections for candidates listed in all nonpartisan races.”)

[10] Iowa Code Ann. § 43.42 (“Any registered voter may change or declare a party affiliation at the polls on election day and shall be entitled to vote at any primary election. Each voter doing so shall indicate the voter’s change or declaration of party affiliation on the voter’s declaration of eligibility affidavit.”).

[11] The Tennessee Democratic Party’s bylaws do not define a “bona fide” member, and they do not establish any affiliations requirements for prospective voters at all.  However, the TNDP’s bylaws do  expressly allow party members to bring a challenge to a candidate’s status as a bona fide Democrat on the basis that the candidate has “fail[ed] to vote in at least three of the immediate prior five Democratic primaries[.]”  See Bylaws of the Tennessee Democratic Executive Committee 2010, Article III, Section 2(l) (“In the event that a county party, in compliance with its Bylaws, challenges a candidate for any office be it local, county, state or federal, against appearing on the ballot as a Democrat for failing to vote in at least three of the immediate prior five Democratic primaries, the challenge shall be referred to the County Party Development Committee which shall by a simple majority vote of the members make a recommendation to the State Party Chair.”)  Similarly, the Tennessee Republican Party’s bylaws do not establish specific bona fide membership requirements for voters, but do include flexible affiliation standards for establishing the bona fide status of prospective Republican candidates.  See Bylaws of the Tennessee Republican Party, Article IX, Section 1-2.

[12] Richard Rodda, The not-always-accurate memoirs of Earl Warren, California Journal 378 (Nov. 1977), available at http://www.unz.org/Pub/CalJournal-1977nov-00378.

[13] Of course, Tennessee law requires voters to choose a single party with which to affiliate in each election.  See Tenn. Code Ann. § 2-19-107 (“A person commits a Class D felony who:  . . . (2) Votes in the primary elections of more than one (1) political party on the same day.”).

[14] See Green Party of Tennessee v. Hargett, 882 F. Supp. 2d 959, 1004 (M.D. Tenn. 2012) (“[A]t the time of voting, the voter can simply declare affiliation with the party to vote in [a Party’s] primary election.  Although a challenge to such a declaration is permitted under Tennessee law, given [Parties’] limited support and resources, . . . prospects for realistic challenges across the State at the time of the primary voting would be, at best, nominal.”); rev’d and remanded on mootness groundsGreen Party of Tennessee v. Hargett, 700 F.3d 816 (6th Cir. 2012).  See also  Eric Lyons, All’s fair in love and the Tennessee primaries, Vanderbilt Hustler (Sep. 3, 2012), available at http://www.vanderbilthustler.com/opinion/columns/article_043fd3c0-f572-11e1-9e29-0019bb30f31a.html?mode=jqm (observing that “election officials rarely enforce [the affiliation requirement] at the polls as it is not something they are prepared to deal with.”).

[15] Tenn. Code Ann. §§ 2-7-123 – 2-7-125.

[16] Tenn. Code Ann. § 2-19-107 provides that: “A person commits a Class D felony who: (1) Intentionally and knowing that such person is not entitled to, registers or votes in any manner or attempts to register or vote in any manner where or when such person is not entitled to under this title, including voting more than once in the same election.”

Banned Books Week is an excellent opportunity to reflect on the dangers of censorship and the importance of the First Amendment

In light of the ongoing furor over Nashville Prep’s edits to and a school board member’s complaint about the book entirely, a timely article by Professor David L. Hudson Jr. on banned book week.  Republished upon request from The Newseum Institute’s website:

By David L. Hudson, Jr.:

Beginning Sept. 27, 2015.  the American Library Association (ALA), the American Booksellers for Free Expression, and a host of other groups  will remind us once again that that banning books damages the “marketplace of ideas” and is contrary to the meaning and purpose of a free society and a constitutional democracy.

Acclaimed authors such as Toni Morrison, Kurt Vonnegut, and Maya Angelou have seen their books banned in certain school districts.   Classics such as J.D. Salinger’s Catcher in the Rye, Aldous Huxley’s Brave New World and Alice Walker’s The Color Purple have faced censorship.   The wildly popular Harry Potter series by J.K. Rowling has faced significant opposition.

Books may be opposed for a variety of reasons, such as profanity, sexually explicit themes, sorcery, gambling, and violence.   The ALA’s Office of Intellectual Freedom website provides detailed descriptions of books challenged year by year and by decade, offers a top ten list, and provides detailed statistics.

The U.S. Supreme Court addressed the concept of banning books from a public school library in Bd. of Educ. v. Pico (1982). Five years ago, in an interview, Robert Rieger – one of the students who challenged the censorship in the Pico case – said that  “I couldn’t believe they were taking classics from the library.”

In the Pico decision, Justice William Brennan wrote that public school officials could not remove books from library shelves simply because they disagreed with the ideas in those books.   In his reasoning, Brennan emphasized the “right to receive ideas.”

This “right” should be sacrosanct in this nation.  Inquisitive minds shouldn’t be repressed or rebuffed. Rather, they should be applauded or encouraged.

We want an educated populace who loves to read and explore.  Justice Louis Brandeis warned in 1927 that “the greatest menace to freedom is an inert people.”

Celebrate “Banned Books Week” by taking time to reflect on the importance of First Amendment freedoms and the power of “the right to receive ideas.”

David L. Hudson, Jr. is the Ombudsman for the Newseum Institute’s First Amendment Center. He also is the author or co-author of more than 40 books, including The First Amendment: Freedom of Speech (2012).

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