Speech rights of lawyers in Nashville federal court could change amid gag order fight

Yahoo

30-04-2025

A rule in Middle Tennessee's federal court district at the center of an ongoing lawsuit that allows judges to place gag orders on attorneys could see changes soon, but the proposed changes may not allow for more free speech.
After prominent Nashville attorney Daniel Horwitz filed a lawsuit against a U.S. District Court judge over a 2022 gag order barring him from speaking on social media against Brentwood-based private prison company CoreCivic, the case was dismissed in January for a lack of standing.
Now, amid an appeal, the court has proposed a change to the administrative rule that allows for the gag orders in the courts, expanding the circumstances in which a judge can restrict a lawyer's speech. Lawyers with the nonprofit public interest law firm Institute for Justice argue the changes will only exacerbate the First Amendment issues at the center of the case.
'We think the rule is still bad,' said Jared McClain, attorney at the Institute for Justice and counsel for Horwitz's case. 'And we think that this rule is still burdening Horwitz and every other attorneys' First Amendment rights in the Middle District of Tennessee.'
Horwitz, a First Amendment lawyer in Nashville, alongside the Institute for Justice, filed the lawsuit in October after U.S. Magistrate Judge Jeffery Frensley issued the gag order on Horwitz in July 2022, ordering him to delete tweets about a legal case against CoreCivic.
Gag orders issued by judges usually bar an individual — whether an attorney, witness or litigant — from making public comments on an ongoing case, usually with the aim to preserve neutrality in the proceedings.
Rules explicitly allowing gag orders to be placed on attorneys exist in the Middle and Eastern Districts of Tennessee, but not West.
Pursuant to the gag order, Horwitz was required to delete tweets about, and stop publicly discussing, lawsuits he previously brought against CoreCivic.
At the time the gag order was placed, Horwitz served as the attorney for the family of Terry Childress, an inmate who died in February 2021 after his cellmate assaulted him in CoreCivic's Trousdale Turner Correctional Center in Hartsville. The case was later settled.
More: 'They don't care': After another unexplained death at Trousdale Turner prison, family fights for justice
'The only purpose of gagging me here, and making me delete statements, is raw censorship," Horwitz said in an interview in response to the original gag order.
After Horwitz's lawsuit was dismissed, his lawyers filed an appeal. Then, on April 10, the court proposed a change to the rule. The local court district, by a majority of its judges, can adopt the new rule. If passed, it would would affect all lawyers in Middle Tennessee practicing in federal court.
Ryan Gustin, senior director of public affairs at CoreCivic, said in a statement that the company respects the process in which such local rules are "reviewed and modified."
"Our legal department will certainly review any changes to these rules, should they become modified and adopted," he said.
The proposed rule lists three categories of speech that, while not new, will now be considered to 'ordinarily' have a prejudicial effect on the proceedings, instead of the previous version of the rules, which stated that these were 'potentially' prejudicial speech categories.
In the newly proposed rules, the court does not define what 'ordinarily' means.
The categories include, but are not limited to, statements made on:
The 'character, credibility, or criminal record of a party, witness, or prospective witness'
The performance or results of any 'examinations or tests' or the 'refusal or failure of a party to submit' such things
Information that the lawyer 'knows or reasonably should know' is likely to be inadmissible as evidence and could create a 'substantial risk of prejudicing an impartial trial.'
In a notable nod to the lawsuit, the proposed rule change also begins with the sentence, 'Lawyers should try matters in court, not in the media' — nearly identical to the sentence read to Horwitz by Frensley, when the gag order was placed upon Horwitz and spurring this entire saga.
'The first sentence of the rule is now essentially lifted from (Horwitz's) gag order,' McClain said. 'That feels like a little bit of a thumb in the eye.'
The proposed changes also expand the situations in which a judge can place restrictions on the speech of lawyers and others. Previously, such an order was considered a 'special order in widely publicized and sensational cases.' The proposed new rule gets rid of any descriptive language, simply stating that a judge may place such an order on any case 'at the motion of either party or its own.'
'The government is full-throatedly defending the merits of the rule that we challenge, as they are simultaneously proposing amendments to get rid of those things,' McClain said.
The proposed rule is currently in an open-comment period until May 1. After comments are reviewed the rule could go into effect on May 15: the night before a notable filing deadline for Horwitz's case.
Lawyers should have equal First Amendment rights, McClain said, and silence enforced on lawyers only acts to quiet the impact of important cases.
But according to McClain, the court, along with CoreCivic, has argued that Horwitz is not necessarily gagged—just constrained to vague limitations.
'Their argument is that he's not currently gagged; that he's always free to talk,' McClain said. 'And then if he talks, anything that he says could be deemed 'offensive,' and then CoreCivic can institute an action against him.'
McClain said this is a classic burden on Horwitz's free speech, and has more far reaching effects than simply a lawyer's well-curated social media feed.
'Horwitz is a licensed attorney, and if he's threatened with contempt, and one of the punishments in that enforcement action is that he could have his client's case dismissed,' he said. 'So Daniel can't just play it fast and loose with these rules. He needs to err on the side of caution, which means airing on the side of silence.'
In Horwitz' case, being silenced on the topic of CoreCivic means being silent about a large quantity of his cases—some of which may have helped spur a federal investigation.
Horwitz' gag order lawsuit was filed shortly after the U.S. Department of Justice announced in late August that it was launching a civil investigation into the conditions at CoreCivic's Trousdale Turner Correctional Center, due to allegations of extensive understaffing, violence, contraband and sexual misconduct, according to officials.
And since that initial gag order, Horwitz has filed six more lawsuits against CoreCivic while repeatedly asking the court to allow him to speak about his cases.
According to the Institute for Justice, in some cases, motions sat for many months without the court deciding Horwitz's First Amendment arguments. All of the CoreCivic cases were either settled or transferred to other districts before motions on Horwitz's speech could be heard.
'If I were a lawyer in this district, I would not feel comfortable saying much that implicates the three remaining categories of (speech), because I don't know what 'ordinarily' means,' McClain said. 'I've seen how the court applies the rule in the past: It doesn't apply consistently with strict scrutiny or with the least restrictive means…and I would be really nervous, especially if I'm litigating against someone like CoreCivic, who has used this rule as a cudgel.'
The USA TODAY Network - Tennessee's coverage of First Amendment issues is funded through a collaboration between the Freedom Forum and Journalism Funding Partners.
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This article originally appeared on Nashville Tennessean: Nashville federal court: Proposal could impact lawyer speech rights