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Court Shuts Down Tennessee’s Attempt To Ban People From Talking About Abortion Options

from the get-bent,-censors dept

Tennessee’s government cranks out a lot of stupid laws. It’s been doing it for years, but things have accelerated recently as the state’s legislators seek to curtail rights for, well, pretty much everyone but white men. It has enacted book bans, anti-trans laws, and the Supreme Court’s Dobbs decision triggered its long-dormant anti-abortion law.

But it wasn’t enough to simply forbid women from getting abortions in the state. The government felt it must prevent residents from traveling to state where abortions are still legal to have the procedure performed. And that still wasn’t enough. The state also enacted an “abortion trafficking” law that forbade people from discussing out-of-state abortion options with minors. Fuck free speech, said the state. We simply can’t allow an unregulated marketplace of ideas, not when there are females to oppress.

Fortunately, that law is now dead, thanks to two tenacious plaintiffs (social services consultant Rachel Welty, state legislator Aftyn Behn) and their equally tenacious lawyer, Daniel Horwitz, who has done more than his fair share of dismantling unconstitutional rulings and laws. The federal court decision [PDF] opens up with an explanation of the “abortion trafficking” law, highlight exactly where the law goes wrong when it comes to regulating speech.

Recently, Tennessee enacted a so-called “abortion trafficking” law (“Chapter 1032”) that purports to forbid certain actions taken in connection with access to an abortion by an unemancipated minor—including, specifically, “recruit[ing]” such a minor “for the purpose of . . . procuring” an abortion. Tenn. Code Ann. § 39-15-220(a). If Tennessee had chosen to limit that prohibition to abortions performed illegally in Tennessee, then that enactment would likely have been within the tradition of prohibitions on speech facilitating unlawful acts. The Tennessee General Assembly, however, chose to take the extraordinary step of attempting to outlaw any “recruit[ment] . . . [of] a pregnant unemancipated minor within this state for the purpose of . . . [p]rocuring an act that would constitute a criminal abortion [in Tennessee] for the pregnant unemancipated minor, regardless of where the abortion is to be procured.” Tenn. Code Ann. § 39-15-220(a)(1) (emphasis added). Tennessee, in other words, has chosen to outlaw certain communications made in the furtherance of abortions that are, in fact, entirely legal.

That’s a big problem. It’s big enough the legislators pushing the bill must have been aware of it. Almost certainly they were. The court says this is an extremely easy call for it to make. The next paragraph opens up very bluntly.

It cannot do so.

Here’s why:

Tennesseans are Americans, and, as Americans, every state in the nation is presumptively open to them. It is, therefore, a basic constitutional fact—which Tennessee has no choice but to accept—that, as long as there are states in which abortion is permissible, then abortion will be potentially available to Tennesseans. Because obtaining an abortion out of state is a lawful option, moreover, Tennessee cannot make it a crime to communicate freely about that option.

This isn’t the legislative equivalent of rocket science. But the legislators chose to ignore these obvious facts because they thought they might get away with it, at least for a little while. And a little oppression is better than no oppression.

Intolerance and hate make people stupid. This stupidity is most notable when it involves people with enough power to make their stupidity plainly apparent.

No one associated with Chapter 1032 seems to have a particularly clear picture of what the provision is supposed to prohibit—not the prosecutors who will be called on to enforce it; not the state attorneys called on to defend the statute in court; and, it seems, not even the individuals who drafted the provision itself, who appear to have simply pulled the recruitment-focused language from other, preexisting statutes in which that language makes more sense. Whatever it means to “recruit” a person to receive a lawful abortion, however, such recruitment would inherently involve First Amendment-protected speech, meaning that the recruitment provision is subject to the ordinary restrictions that the First Amendment imposes.

And so it goes for several more pages. The law is simply indefensible. It cannot possibly be constitutional, no matter how much time and other people’s money the state is willing to throw away trying to defend it. However, they couldn’t be bothered to personally confront the potential outcomes of this abhorrent law. Almost all of the government’s defense was done via filings and court appearances by the state’s lawyers. Even when given a chance to avoid the lawsuit by simply stating in writing the law would not be enforced in the manner the plaintiffs sued over, they refused to respond.

Of course, the DAGs could simply explain that they are not, in fact, planning to enforce Chapter 1032 in the manner that Welty and Behn fear. That brings the court to the fourth Frisch factor—a refusal to disavow enforcement—which, in this instance, strongly supports a finding of standing. The defendants have had an unusual number of opportunities to explain how they will or will not enforce the statute. Welty sent them letters, and she gave them plenty of time to respond—so much time that it ultimately interfered with her ability to obtain a temporary restraining order. Nevertheless, the defendants completely ignored her. The defendants could have explained that refusal at the court’s hearing, but not one defendant even attended, let alone testified. At the hearing, the court made very clear that its consideration of the case would benefit from some shred of evidence regarding the defendants’ intentions—even simply signed declarations confirming that the lawyers representing them are accurately representing the defendants’ understanding of the statute. Still, however, they provided nothing.

That’s pretty ugly. That’s an extremely shitty blend of arrogance and cowardice. The government officials don’t like being challenged and appear to believe responding directly to the court and/or the plaintiffs is beneath them. Their refusal to make personal appearances also strongly suggests they’re not willing to be directly confronted by the likely victims of their unconstitutional law.

This inaction doesn’t help the state. It only makes it easier for the court to find in favor of the plaintiffs and issue an injunction.

The court finds that Welty and Behn are entitled to, and will receive, an injunction against all enforcement of the recruitment provision by the defendants against any party. The court does not reach that conclusion simply because this is an overbreadth challenge, but because such relief is necessary to prevent Welty’s and Behn’s own irreparable injuries. This is a case about the free flow of information, and it would be naive to think that the plaintiffs’ injuries can be addressed simply by preventing the application of the recruitment provision to them and them alone, while leaving their messages to die on the vine because no one else can pass them along.

The closing paragraphs forcefully drive the point home:

The freedom of speech guaranteed by the First Amendment is not simply a special protection that the Constitution grants to a few, high-profile speakers so that those speakers can hear themselves talk; it is a protection available to everyone, for the interconnected benefit of everyone, because messages do not gain their fullest power by being uttered, but by being spread.

Welty and Behn do not just have a right to speak their message; they have a right to live in a state where that message can be repeated by all who find it valuable to all who wish to hear it. Otherwise, there would be no actual freedom of speech—just freedom of a few speakers to address a silenced populace.

The law is blocked, but it’s as good as dead. Most likely, the state will appeal this decision. But this ain’t the Fifth Circuit so it’s unlikely to fall into the lap of a judge who thinks the First Amendment only applies to speech they agree with. The other option the state has to do the fastest, cheapest thing: strike the law from the books. But legislators who like wielding power more than they like respecting rights never take the easy way out. They just delay the inevitable since it costs them nothing to do so.

Filed Under: 1st amendment, abortion, censorship, daniel horwitz, free speech, tennesee

Judge Blocks Prosecutor From Using Unconstitutional Anti-Drag Law To Arrest People During Pride Festival

from the be-terrible-on-your-own-time,-counselor dept

It’s great to see hateful people being shut down by little things like, you know, the Constitution. Would that it happened more frequently. Or, more hopefully, would that the mere existence of the Constitution prevent hateful legislators from passing hateful laws that have zero chance of surviving a constitutional challenge.

It’s the land of the free, however. And that seems to mean lawmakers are free to pass performative laws meant to harass, harm, and oppress anyone that doesn’t comply with these white men’s (and it’s almost always white men) rolling-coal-over-Truck-Nutz version of human sexuality.

That’s how things are going all over the nation. This latest rejection of the worst (seemingly sexual) urges of lawmakers and the prosecutors who serve them comes from Tennessee, which recently passed an “anti-drag” law that was immediately shut down by the first federal court to examine it.

The state blew public money while holding its clipboards over its weird boners while defending the law, but saw itself on the losing end of the first decision, which pointed out the law did nothing to protect minors from “obscene” content but did everything to ensure performative lawmakers could violate the rights of people who actually know a thing or two about entertaining performances.

The federal court stated what was immediately obvious to everyone, even those whose continued employment required them to pretend otherwise:

This District Court does not find that the Tennessee General Assembly’s predominate concerns were “increase in sexual exploitation.” Rather, the Court finds that their predominate concerns involved the suppression of unpopular views of those who wish to impersonate a gender that is different from the one with which they were born.

The law was blocked. And yet the state — here taking the form of one particular county prosecutor — insists the law should remain valid so this prosecutor can engage in constitutional violations. Here’s the latest in the Tennessee anti-drag law embarrassment, as reported by Chris Geidner (a.k.a. Law Dork):

U.S. District Judge J. Ronnie Greer barred the Blount County, Tennessee, prosecutor and law enforcement in the county from enforcing the state’s new anti-drag law in advance of this weekend’s Blount Pride.

In issuing the temporary restraining order against District Attorney General Ryan Desmond, the county sheriff, and the two police chiefs in the county, Greer, a George W. Bush appointee, also barred the officials from “interfering” with the Sept. 2 pride festival “by any means.”

This TRO [PDF] is the result of other litigation against the state’s anti-drag law. But the end result is the same. The state can’t use a law almost certainly to be found unlawful to affect arrests or fine participants in the upcoming festival.

Despite (even admittedly!) the law being unlawful, local law enforcement (including DA Ryan Desmond) informed the host of the festival it would be enforcing a law another court in the state had already declared unconstitutional.

Three days ago, Blount Pride received a “Notice Regarding The Adult Entertainment Act” from Defendant District Attorney Desmond. Defendant Chief Crisp, Sheriff Berrong, and Chief Carswell also received the notice. District Attorney Desmond’s notice states that the Blount County District Attorney’s Office had fielded “numerous communications from law enforcement, local officials, and concerned citizens” that Blount Pride’s third annual festival is “marketing itself in a manner which raises concerns that the event may violate certain criminal statutes within the State of Tennessee.”

In the notice, District Attorney Desmond acknowledges that the United States District Court for the Western District of Tennessee has recently held that the Act is unconstitutional but states that the Western District’s “enjoinder is presently only applicable to the 30th Judicial District,” which serves Shelby County, Tennessee. District Attorney Desmond goes on to state that “violations of the AEA can and will be prosecuted by [his] office” and that he has “relayed to local law enforcement” his intent to prosecute any violators of the Act.

A petty man with some power and a bunch of hate hoped to mobilize law enforcement to punish people who chose to celebrate other strains of human sexuality. Obviously, this was the best use of law enforcement resources — an attempt to use a law subject to several lawsuits as a weapon against those the law was directly designed to punish: non-heterosexual people.

Law enforcement was no better about this. Chief Crisp reiterated the threat to the festival and appeared to be ensuring he had enough manpower on the clock to enforce an unconstitutional law.

Too bad, says the judge. The prosecutor and his law enforcement lackeys just need to sit put and entertain their masturbatorial law enforcement fantasies some other way. And pretending you didn’t mean the thing you absolutely meant (when threatening the pride event) doesn’t work, not when the Constitution is on the line.

_[D]istrict Attorney Desmond argues that his notice is not an enforcement warning letter because it states that “[i]t is certainly possible that [Plaintiffs’ shows] will not violate any of the criminal statutes.” But his reading of his own notice is a selective one, because throughout the notice, he warns would-be violators of the Act of his authority and his intention to prosecute them under the Act_…

[…]

[T]he Court cannot help but wonder, why would District Attorney Desmond send the notice to multiple local law enforcement officials—Chief Crisp, Sheriff Berrong, and Chief Carswell—if, as he now claims, his notice is merely a paper tiger and nothing more? The record, therefore, firmly satisfies the second factor [threat of prosecution].

So, in the end — at least for the length of the pride festival — DA Desmond and his Keystone Cops would need to find some actual crimes to prosecute. They were forbidden from using a bad law to engage in worse law enforcement. And another blow against bigoted lawmaking is delivered by a federal court, something that should, but probably won’t, discourage similar legislative efforts in the future.

Filed Under: 1st amendment, adult entertainment act, anti-drag law, blount county, pride festival, ronnie greer, ryan desmond, tennesee

Appeals Court Finally Shuts Down Bogus Lawsuit Targeting A School Official For Words A Journalist Wrote

from the PERRY-MASON-MOMENT-INCLUDED dept

At long last, one of the stupider defamation lawsuits in recent history is finally over. Last year, the ousted director of a Tennessee culinary school (Tom Loftis) sued over an article appearing in a local paper. The article, written by journalist Jim Myers, insinuated the departure of Loftis signaled a return to quality for the culinary program. It also spoke highly of his replacement, Randy Rayburn.

The article featured few direct quotes from Rayburn. The bulk of it consisted of Myers’ take on the program’s declining quality while Loftis was at the helm. So, naturally, Tom Loftis decided to sue his replacement, Randy Rayburn, who was responsible for none of the supposedly defamatory content contained in the article.

Loftis argued this was “defamation by innuendo,” all the while refusing to target the journalist and paper responsible for the alleged innuendo. He not only lost his lawsuit, but now owes legal fees for that attempt. Rather than accept this loss and cut a check, Loftis appealed. This recent state appeals court decision [PDF], via Randy Rayburn’s legal representative, Daniel Horwitz, has nothing positive to say about Loftis’ bogus lawsuit.

First, the court points out the obvious: Rayburn didn’t say the things Loftis is suing about.

To prevail on his defamation by implication or innuendo claim, Mr. Loftis must establish in his complaint that Mr. Rayburn published the statements and that the meaning reasonably conveyed by the statements was defamatory.

[…]

Mr. Rayburn is not the author of the article, and he is not quoted anywhere in the article. However, Mr. Loftis asserted in his amended complaint that during an interview with Mr. Myers, Mr. Rayburn spoke the words that Mr. Myers printed.

Even “liberally construing” Loftis’ argument doesn’t help. The court agrees that giving his allegations an extremely favorable reading supports his claim for “defamation by implication,” but when all the facts are in, the allegation is baseless.

Mr. Loftis does not question the literal truth of the statements in the article, but he argues they imply that he personally was to blame for the unqualified line cooks in Nashville. We do not agree. Mr. Myers’ statement that the school’s culinary program was not turning out qualified students appears to have been based on the feedback Mr. Rayburn got from other chefs in the area. The article does not suggest that all of the unqualified line cooks in the area received training at the culinary program at Nashville Tech or that Mr. Loftis was to blame for the dearth of qualified line cooks, as Mr. Loftis argues. Mr. Loftis is not mentioned at all until the second page, toward the end of the article, when Mr. Myers wrote: “They started by cleaning house from the top by removing director Tom Loftis.” Mr. Myers does not clarify who “they” were, and the article does not impugn Mr. Loftis personally. Contrary to Mr. Loftis’s argument, we do not believe the article can reasonably be interpreted as depicting Mr. Loftis as “personally responsible for the perceived deficiencies of the culinary program.”

It follows this up with a blunt take on Loftis’ creative legal thinking.

We are not bound by Mr. Loftis’s interpretation of the statements because we find they do not reasonably have the meaning he ascribes to them.

It also disposes of his “false light invasion of privacy” claim. While the statements made to the Tennessean reporter might satisfy the publicity requirement (in essence, Rayburn could assume that by speaking to a reporter his comments would be published in some form), this claim similarly fails because the statements were made by the reporter — not Randy Rayburn. And even if they were, they do not even approach the the “false light” standard.

We do not, however, believe that the statements can be considered “highly offensive to a reasonable person,” as they must be for Mr. Loftis to proceed with this claim. For the reasons we found the statements in Mr. Myers’ article fail to imply a defamatory meaning, we also find they are not susceptible to the requisite inferences casting Mr. Loftis in a false light. We do not believe a reasonable person would be justified, in the eyes of the community, of being seriously offended and aggrieved by the statements at issue.

Finally, there’s this: Tom Loftis’ attorney made a stunning admission during oral arguments. It’s a fact common to many bogus defamation cases, but one rarely stated so baldly by legal representation while still engaged in bogus litigation. Defamation lawsuits are a handy way to silence critics, especially when the target of the lawsuit is perceived to be ill-equipped to tackle the case in court. In response to the court’s logical question as to why Loftis chose to sue Randy Rayburn rather than the journalist or paper whose article Loftis found defamatory, his lawyer had this to say:

Judge Neal McBrayer: “Why isn’t the Tennessean the proper party here?”

Gary Blackburn (Attorney for Mr. 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.**“

This is Loftis’ lawyer saying he felt he had a better chance of winning against Randy Rayburn than against a newspaper that might have the legal team and resources to put up a fight. Blackburn tries to disguise it by saying Rayburn “uttered the words,” but the oral argument [beginning at 6:05] includes the court’s rebuttal that the article contains “no direct quotes.” This statement lays bare the lawsuit’s true aims: to ruin a replacement school official who seems to be better liked by Tennessean journalists, if nothing else.

Filed Under: anti-slapp, defamation, free speech, jim myers, randy rayburn, slapp, tennesee, tom loftis

Hotel That Charged Guest $350 For A Negative Review Now Facing A Lawsuit From State Attorney General

from the when-has-this-EVER-worked? dept

The American Dream: own your own business… be your own boss… run your reputation into the ground… charge people’s credit cards $350 for negative reviews… get sued by the government. Welcome to Nashville, Indiana, home of the Abbey Inn, whose absentee ownership, lack of on-duty staff, and hidden clauses have led to a precipitous decline in brand health, along with the opportunity to defend itself against a lawsuit brought by the state’s attorney general.

It all started with hotel guest Katrina Walker’s disastrous stay at the Abbey Inn.

The hotel room wasn’t just dirty. It was “a nightmare,” the guest said.

The air smelled like sewage. Hair and dirt covered the bed sheets, as if the linens hadn’t been cleaned after the last guests had left the Abbey Inn & Suites room that Katrina Arthur and her husband were renting in Nashville, Ind in March 2016. The air conditioner and shower in the room didn’t work right, either, Arthur told WRTV.

“We were just wanting to get away and have some alone time,” Arthur told the TV station. “It looked really pretty on the website.”

Walker left a negative review of Abbey Inn after an email from the hotel asked her to submit a review. This was followed by a (bogus) legal threat from someone who should definitely know better.

Attorney Andrew Szakaly, who owns the hotel, wrote a letter to Arthur on April 2, 2016 telling Arthur that her negative review included “false statements” that had caused “irreparable injury” to his business, according to Indiana’s attorney general.

If Arthur didn’t take down the negative review, Szakaly threatened to file a libel lawsuit against her, according to the attorney general’s office.

Andrew Szakaly isn’t just an attorney and the now-former owner of the Abbey Inn. At the point this legal threat occurred, Szakaly was also the attorney for the town of Nashville. At this point, he’s moved on to become the county’s chief deputy prosecutor. He’s also not willing to answer questions about the problems at Abbey Inn that occurred while he owned the business. He’s also nuked his own site, which had his phone number and email address. But it lives on at the Internet Archive, even if calls and emails are going unanswered.

He will likely have to provide some answers. After sending out the bogus legal threat, Szakaly billed Walker $350 for the negative review, citing a clause in Abbey Inn’s guest policy. Walker claims she never saw anything in the copy of the guest policy she received at the hotel. The clause also isn’t posted anywhere in the business where guests can view it. It can be found in archived snapshots of the Inn’s website — which has also been nuked following negative press coverage.

Now, Indiana’s state attorney general is taking the business to court. The complaint [PDF] (h/t Cyrus Farivar) lists dozens of things the Abbey Inn did wrong, on top of the $350 charge for “disparaging” an already-questionable hotel.

Abbey Inn Suites maintains an overnight phone number for times when an employee is not available on-site to address consumer issues, but signs in each guest room state a consumer must not call overnight phone number unless there is an emergency. The signs further state if a consumer calls the overnight phone number and there was not an emergency, Abbey Inn Suites will charge the consumer in the amount of $100.00.

[…]

During her stay, Ms. Arthur, experienced issues with a sewage smell in her room, issues with water pressure, problems with the air conditioner, and an unkempt room.

Ms. Arthur attempted to notify Abbey Inn Suites management of the issues, but there was no employee on site and her calls to the after-hours phone number went unanswered.

There was no employee at the front desk when Ms. Arthur checked out on March 13, 2016, to whom she could direct a complaint about the issues encountered during her stay.

This last part is especially important because it gives guests no other option but to “violate” the bogus clause in the guest policies that they never see [emphasis added]:

Guests agree that if guests find any problems with our accommodations and fail to provide us the opportunity to address those problems while the guest is with us, and/or refuses our exclusive remedy, but then disparages us in any public manner, we will then be entitled to charge their credit card an additional $350 damage. Should guest refuse to retract any such public statements legal action may be pursued.

The lack of staff makes it all but impossible for issues to be resolved before the guest leaves.

The attorney general accuses the business of violating state deceptive practices laws with its non-disparagement clause. The office seeks an injunction and fines of $5,000 per violation. As the complaint points out, the guest policy went far beyond discouraging negative reviews. It also prevented consumers from bringing grievances against the Inn.

The Policy also forces consumers to accept the Defendant’s final and binding “exclusive remedy” to resolve any situation or issue, regardless of what that remedy entails and whether it actually resolves the situation or issue to the consumer’s satisfaction.

[…]

The Policy not only attempted to limit negative online reviews, thus improperly shielding the Defendant from the consequences of providing consumers with a negative experience or unsatisfactory customer service during their stay, but would also prohibit a consumer from filing a consumer complaint with the Attorney General or Better Business Bureau, filing a lawsuit, or even a police report, as all could be considered a “disparagement” in a “public manner.”

The Abbey Inn’s reputation is now destroyed, thanks to a clause inserted by the attorney/owner who also happens to hold a government job as a prosecutor. Hopefully, this all lands in the lap of Brown County Chief Deputy Prosecutor Andrew Szakaly.

Filed Under: andrew szakaly, free speech, nashville, non-disparagement, reviews, tennesee
Companies: abbey inn & suites