First Amendment, Anti-SLAPP, and Speech Defense
Daniel Horwitz is a premier speech defense lawyer who has successfully defended clients against multiple multimillion-dollar libel, slander, false light, and other speech-based lawsuits in Tennessee’s state and federal courts.
Because litigation is often prohibitively expensive, bad actors can often intimidate critics into silence by threatening or filing baseless defamation lawsuits regarding a person’s written statements (called “libel”) or their spoken words (called “slander”). For example, when faced with the prospect of having to spend tens if not hundreds of thousands of dollars in legal fees to defend one’s legal right to leave an unfavorable review of a business, self-censorship can become an extremely attractive proposition. The result of such self-censorship is to undermine both individuals’ right to free speech and the public’s right to hear and receive information.
To provide a counterbalance to the financial threat posed by baseless defamation lawsuits, false light invasion of privacy lawsuits, and other speech-based lawsuits, laws aimed at deterring “Strategic Lawsuits Against Public Participation” (Anti-SLAPP laws) afford speakers a number of significant legal benefits, including the right to recover their legal fees, the right to stay discovery, and the right to file an immediate appeal if a case is not dismissed. Until recently, Tennessee only had a limited anti-SLAPP law that was restricted to statements made to government agencies. Fortunately, though, in 2019, Tennessee enacted the “Tennessee Public Participation Act”—the State’s first meaningful anti-SLAPP law—to protect Tennesseans’ right to free speech, which took effect on July 1, 2019. Thus, effective July 1, 2019, the Randy Rayburns and Linda Schipanis and Bari Hardins of the world can now wield a powerful protective weapon against bad actors’ efforts to censor and intimidate them through frivolous speech-based lawsuits.
The Tennessee Public Participation Act has dramatically expanded the scope of speech that receives heightened legal protection in Tennessee. Under the Act, every “communication made in connection with a matter of public concern”—a term that is defined broadly and expressly encompasses statements involving issues of “health or safety” and “community well-being”—”that falls within the protection of the United States Constitution or the Tennessee Constitution” will come within the ambit of the law’s protection. In other words: Most statements made by citizens within the State of Tennessee—including social media posts and blog posts—now receive heightened protection against defamation lawsuits, false light invasion of privacy lawsuits, or lawsuits that assert claims such as “defamation by implication or innuendo.” Defendants who are sued for claims such as “abuse of process” or “malicious prosecution” will frequently enjoy heightened protection under the Tennessee Public Participation Act as well.
Exercising one’s rights under the Tennessee Public Participation Act and defending against claims for defamation, libel, slander, false light invasion of privacy, defamation by implication or innuendo, abuse of process, malicious prosecution, and other speech-based torts in Tennessee requires specialized knowledge. If you would like to purchase a consultation from Horwitz, you can do so using the following form:
Due to the Tennessee Public Participation Act, if you have been sued for defamation, libel, slander, false light invasion of privacy, defamation by implication or innuendo, the person suing you could be required to pay your legal fees. However, if you have been sued over your speech, it is important to exercise your rights promptly. If you need a speech defense lawyer and would like to purchase a consultation from Horwitz, you can do so using the following form:
Horwitz’s selected case history and the full text of the Tennessee Public Participation Act, codified at Tenn. Code Ann. § 20-17-101, et seq., is available below.
Horwitz’s Selected First Amendment and Speech Defense Case History:
1. Nandigam Neurology, PLC v. Kelly Beavers, et al.—Tennessee Court of Appeals/Wilson County Circuit Court/Wilson County General Sessions Court (won)
Selected Case Documents:
–*Tennessee Court of Appeals Opinion Affirming Judgment
-Post-remand $25,000 and $50,000 fee and sanctions awards.
-*Order Granting TPPA Petition
–*Order Amending Judgment and Dismissing Complaint With Prejudice
–Second Memorandum of Law in Support of Motion to Dismiss and TPPA Petition
–Third Memorandum of Law in Support of Motion to Dismiss and TPPA Petition
–Memorandum of Law in Support of Motion to Dismiss and TPPA Petition
Selected Media Coverage:
-News Channel 5: Tennessee Court of Appeals upholds decision to dismiss Yelp review lawsuit
-News Channel 5: $25K lawsuit over bad Yelp review dismissed
-TechDirt: Anti-SLAPP Laws Work: Tennessee Doctor Suing Patient Over Negative Review Drops Lawsuit
-News Channel 5: Woman faces $25K lawsuit over Yelp review about Middle Tennessee doctor
2. Adamson v. Grove, et al.—Tennessee Court of Appeals (won)
Selected Case Documents:
*Tennessee Court of Appeals Opinion Affirming Judgment
*Circuit Court Granting TPPA Petition to Dismiss and Fee Award
–Brief of the State of Tennessee
3. Vonhartman v. Butterton—Davidson County Circuit Court (won)
Selected Case Documents:
–Defendant’s Motion and TPPA Petition to Dismiss and Exhibits A–R
–*Final Order and Entry of Judgment for Attorney’s Fees, Costs, and Sanctions
–Notice of Satisfaction of Judgment
Selected Media Coverage:
-WSMV: Court orders payment in dating app case
-WSMV: Lawsuit filed against woman who requested order of protection
-TechDirt: Anti-SLAPP Law Turns Bogus Defamation Lawsuit Into A $26,500 Legal Bill For The Plaintiff
4. Loftis v. Rayburn—Davidson County Circuit Court/Tennessee Court of Appeals (won)
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
–*Order Awarding $10,000.00 in Attorney’s Fees
Selected Media Coverage:
-The Tennessean: The Tennessean: Judge awards Randy Rayburn $10,000 after ‘far-fetched’ defamation suit was dismissed
-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
5. Dan Nicolau v. CCHR of Nashville, et al.—Washington County Chancery Court (won)
Selected Case Documents:
–*Memorandum and Order Dismissing Plaintiff’s Amended Complaint
–Defendants’ Memorandum in Support of Motion to Dismiss
–Defendant CCHR’s Special Motion to Strike
6. Deja Vu of Nashville, et al. v. Metropolitan Government, et al.—U.S. Court of Appeals for the Sixth Circuit/U.S. District Court for the Middle District of Tennessee (won)
Selected Case Documents:
*Sixth Circuit Opinion Affirming Dismissal of Plaintiffs’ Complaint
*Memorandum Opinion and Order Dismissing Complaint With Prejudice
–Schipani Memorandum in Support of Her Motion to Dismiss
–Deja Vu’s Response to Schipani’s Motion to Dismiss
–Schipani Motion to Stay Proceedings
–Order Granting Schipani’s Motion to Stay
Selected Media Coverage:
–Nashville Business Journal: Judge sides with Metro officials, property owner in strip-club legal battle
–Patch: Nashville Strip Club Sues City Claiming ‘Conspiracy’
–Nashville Business Journal: Nashville strip club takes aim at Metro officials, local business owners in newly filed suit
–Nashville Business Journal: Metro fights back in strip-club legal battle
7. Brittany S. Stevens v. Tony Sees and John Does—Davidson County Circuit Court (won)
Selected Case Documents:
–Memorandum of Law in Support of Motion to Dismiss and TPPA Petition
Selected Media Coverage:
-The Murfreesboro Post: Court motion asks to drop defamation suit by Stevens
-The Murfreesboro Post: Stevens family, campaign finance complainant agree to drop cases
-The Daily News Journal: Smyrna Town Court Clerk Brittany Stevens files lawsuit over Nashville man’s ethics complaint
-The Daily News Journal: Defendant seeks dismissal of Smyrna Town Court Clerk Brittany Stevens’ defamation lawsuit
-The Daily News Journal: Smyrna Town Court Clerk Brittany Stevens settles defamation lawsuit
8. The Dog Spot v. Byer et al.—Davidson County Circuit Court (won)
Selected Case Documents:
–Defendant Hardin Motion to Transfer & Exhibits
–Defendant Hardin’s Memorandum in Support of Motion to Dismiss
-*Order Dismissing Lawsuit With Prejudice
Selected Media Coverage:
–News Channel 5: Libel Lawsuit Dropped By Doggie Daycare
-The Nashville Scene: The Dog Spot Sues Two East Nashville Facebook Group Members for Libel
-The Tennessean: The Dog Spot East Nashville files $2 million libel lawsuit against Facebook commenters
-Nashville Business Journal: Nashville pet store files $2M suit over Facebook comments
-Channel 4 News: Owners of The Dog Spot file lawsuit over Facebook posts
-News Channel 5: Libel Suit From Doggie Day Care Hopes To Fetch $2 Million
9. Owens v. Metropolitan Nashville Police Department—Davidson County Chancery Court (won)
Selected Case Documents:
*Order Granting Declaratory Judgment to Plaintiff
–Plaintiff’s Application for Temporary Injunction
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
10. Tennesseans for Sensible Election Laws v. Tennessee Bureau of Ethics and Campaign Finance, Registry of Election Finance, et al.—Davidson County Chancery Court/Tennessee Court of Appeals (won)
Selected Case Documents:
*Court of Appeals Opinion Affirming Judgment
*Chancery Court Memorandum and Order
*Second Chancery Court Order Granting Attorney’s Fees
*Chancery Court Order Awarding Attorney’s Fees
*Chancery Court Order Granting Motion for Upward Adjustment of Attorney’s Fees
–Plaintiff’s Memorandum of Law in Support of a Preliminary Injunction
–September 26, 2018 Transcript of Proceedings
–Principal Brief of Appellants BECF and Davidson DA
–Brief of Appellee Tennesseans for Sensible Election Laws
–Reply Brief of Appellants BECF and Davidson DA
–Amicus Brief of the Beacon Center of Tennessee
–Brief of Amici Curiae Goldwater Institute and Liberty Justice Center
–Notice of Satisfaction of Judgment
Selected Media Coverage:
-The Tennessean: Appeals court tosses Tennessee laws that created a donation blackout for nonpartisan PACs
-The Tennessean: Tennessee election registry in contempt of court, ordered to pay back thousands in fees
-The Tennessean: Nashville judge rules against state in lawsuit over ‘blackout period’ for PACs
-Nashville Post: Court strikes down ‘blackout period’ campaign finance provision
-The Tennessean: Tennessee sued over PAC contributions ‘blackout period’ before elections
11. Lynne S. Cherry, et al. v. Del Frisco’s Grille of Tennessee, LLC, et al. (on behalf of restrained non-party)—Tennessee Court of Appeals (won)
Selected Case Documents:
–*Order of the Tennessee Court of Appeals
–Petition for Writ of Certiorari
Selected Media Coverage:
12. Amy Frogge, et al. v. Shawn Joseph and Metro Nashville Board of Public Education—Tennessee Court of Appeals/Davidson County Chancery Court (won)
Selected Case Documents:
*Tennessee Court of Appeals Opinion Affirming Summary Judgment and Awarding Appellate Fees
*Concurring Opinion Affirming Judgment
*Order Granting Summary Judgment and Denying Defendants’ Motions to Dismiss
*Order Granting $58,543.52 Attorney’s Fee Award
–Principal Brief of Plaintiffs-Appellees
–Reply Brief of Plaintiffs-Appellees
–Plaintiffs’ Memorandum in Support of Motion for Summary Judgment
–Metro Response/Joseph Response In Opposition to Summary Judgment
Selected Media Coverage:
-The Tennessean: Tenn. appeals court finds part of MNPS director Joseph’s severance deal unconstitutional
-Channel 5: Court invalidates censorship clause in MNPS former director Shawn Joseph’s termination contract
-Main Street Nashville: Court rules non-disparagement clause in termination contract was unconstitutional
-TCOG: Non-disparagement clause violates free-speech rights of Nashville school board members, court says
-The Tennessean: Judge finds part of MNPS director Shawn Joseph’s severance agreement ‘unconstitutional’
-Fox 17: Court order finds clause in ex-MNPS director’s contract is unconstitutional, unenforceable
-Channel 4: Judge rules censorship clause in former Director of School’s severance agreement unconstitutional
13. Gilliam v. Gerregano—Three-Judge Chancery Panel/Tennessee Court of Appeals (won in Court of Appeals; remand pending)
Selected Case Documents:
*Opinion of Tennessee Court of Appeals Reversing Judgment
Selected Media Coverage:
-Reason/The Volokh Conspiracy: Personalized License Plates (e.g., 69PWNDU) Are Private Speech
-Fox 17: Nashville woman sues state officials over license plate deemed ‘offensive’ 10 years later
-News Channel 5: Car owner sues over state banning ‘offensive’ license plate
-Fox: Tennessee woman sues after state officials deem vanity license plate ‘offensive’
-Chattanooga Times Free Press: Tennessee gamer hopes to ‘pwn’ state in lawsuit over ‘offensive’ license plate
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The Tennessee Public Participation Act (Effective July 1, 2019):
20-17-101. This chapter shall be known and may be cited as the “Tennessee Public Participation Act.”
20-17-102. The purpose of this chapter is to encourage and safeguard the constitutional rights of persons to petition, to speak freely, to associate freely, and to participate in government to the fullest extent permitted by law and, at the same time, protect the rights of persons to file meritorious lawsuits for demonstrable injury. This chapter is consistent with and necessary to implement the rights protected by Article I, §§ 19 and 23, of the Constitution of Tennessee, as well as by the First Amendment to the United States Constitution, and shall be construed broadly to effectuate its purposes and intent.
20-17-103. As used in this chapter:
(1) “Communication” means the making or submitting of a statement or document in any form or medium, including oral, written, audiovisual, or electronic;
(2) “Exercise of the right of association” means exercise of the constitutional right to join together to take collective action on a matter of public concern that falls within the protection of the United States Constitution or the Tennessee Constitution;
(3) “Exercise of the right of free speech” means a communication made in connection with a matter of public concern or religious expression that falls within the protection of the United States Constitution or the Tennessee Constitution;
(4) “Exercise of the right to petition” means a communication that falls within the protection of the United States Constitution or the Tennessee Constitution and:
(A) Is intended to encourage consideration or review of an issue by a federal, state, or local legislative, executive, judicial, or other governmental body; or
(B) Is intended to enlist public participation in an effort to effect consideration of an issue by a federal, state, or local legislative, executive, judicial, or other governmental body;
(5) “Legal action” means a claim, cause of action, petition, cross-claim, or counterclaim or any request for legal or equitable relief initiated against a private party;
(6) “Matter of public concern” includes an issue related to:
(A) Health or safety;
(B) Environmental, economic, or community well-being;
(C) The government;
(D) A public official or public figure;
(E) A good, product, or service in the marketplace;
(F) A literary, musical, artistic, political, theatrical, or audiovisual work; or
(G) Any other matter deemed by a court to involve a matter of public concern; and
(7) “Party” does not include a governmental entity, agency, or employee.
20-17-104.
(a) If a legal action is filed in response to a party’s exercise of the right of free speech, right to petition, or right of association, that party may petition the court to dismiss the legal action.
(b) Such a petition may be filed within sixty (60) calendar days from the date of service of the legal action or, in the court’s discretion, at any later time that the court deems proper.
(c) A response to the petition, including any opposing affidavits, may be served and filed by the opposing party no less than five (5) days before the hearing or, in the court’s discretion, at any earlier time that the court deems proper.
(d) All discovery in the legal action is stayed upon the filing of a petition under this section. The stay of discovery remains in effect until the entry of an order ruling on the petition. The court may allow specified and limited discovery relevant to the petition upon a showing of good cause.
20-17-105.
(a) The petitioning party has the burden of making a prima facie case that a legal action against the petitioning party is based on, relates to, or is in response to that party’s exercise of the right to free speech, right to petition, or right of association.
(b) If the petitioning party meets this burden, the court shall dismiss the legal action unless the responding party establishes a prima facie case for each essential element of the claim in the legal action.
(c) Notwithstanding subsection (b), the court shall dismiss the legal action if the petitioning party establishes a valid defense to the claims in the legal action.
(d) The court may base its decision on supporting and opposing sworn affidavits stating admissible evidence upon which the liability or defense is based and on other admissible evidence presented by the parties.
(e) If the court dismisses a legal action pursuant to a petition filed under this chapter, the legal action or the challenged claim is dismissed with prejudice.
(f) If the court determines the responding party established a likelihood of prevailing on a claim:
(1) The fact that the court made that determination and the substance of the determination may not be admitted into evidence later in the case; and
(2) The determination does not affect the burden or standard of proof in the proceeding.
20-17-106. The court’s order dismissing or refusing to dismiss a legal action pursuant to a petition filed under this chapter is immediately appealable as a matter of right to the court of appeals. The Tennessee Rules of Appellate Procedure applicable to appeals as a matter of right governs such appeals.
20-17-107.
(a) If the court dismisses a legal action pursuant to a petition filed under this chapter, the court shall award to the petitioning party:
(1) Court costs, reasonable attorney’s fees, discretionary costs, and other expenses incurred in filing and prevailing upon the petition; and
(2) Any additional relief, including sanctions, that the court determines necessary to deter repetition of the conduct by the party who brought the legal action or by others similarly situated.
(b) If the court finds that a petition filed under this chapter was frivolous or was filed solely for the purpose of unnecessary delay, and makes specific written findings and conclusions establishing such finding, the court may award to the responding party court costs and reasonable attorney’s fees incurred in opposing the petition.
20-17-108. Nothing in this chapter:
(1) Applies to an enforcement action that is brought in the name of the state or a political subdivision of this state by the attorney general, a district attorney general, or a county or municipal attorney;
(2) Can result in findings or determinations that are admissible in evidence at any later stage of the underlying legal action or in any subsequent legal action;
(3) Affects or limits the authority of a court to award sanctions, costs, attorney’s fees, or any other relief available under any other statute, court rule, or other authority;
(4) Affects, limits, or precludes the right of any party to assert any defense, remedy, immunity, or privilege otherwise authorized by law;
(5) Affects the substantive law governing any asserted claim;
(6) Creates a private right of action; or
(7) Creates any cause of action for any government entity, agency, or employee.
20-17-109. This chapter is intended to provide an additional substantive remedy to protect the constitutional rights of parties and to supplement any remedies which are otherwise available to those parties under common law, statutory law, or constitutional law or under the Tennessee Rules of Civil Procedure.
20-17-110. If any provision of this chapter or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this act that can be given effect without the invalid provision or application, and to that end the provisions of this act are declared to be severable.
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