Way back in July 2022, a federal court in Nashville imposed a gag order that prohibited civil-rights attorney Daniel Horwitz from talking publicly about a wrongful-death case he brought against a private prison. The court applied a local rule that presumes, without any evidence, that an attorney’s public comments about a broad swath of topics will prejudice court proceedings. The rule then imposes a burden on the attorney to prove that his speech is not prejudicial.
As a First Amendment attorney, Daniel knew the court’s gag order—and the local rule on which the court relied—was not just unconstitutional, but also imposed a special burden on civil-rights attorneys who sue the government. He partnered with the Institute for Justice (IJ) to challenge the court’s local rule that makes it too easy for the government and its contractors to silence public discussion about claims that they’ve violated the law.
Daniel knows from experience that a key part of public-interest litigation is speaking in the media about what the government and its contractors have done wrong. He doesn’t reveal any confidential or non-public information, but he understands that lawyers must be able to speak critically about the government policies and officials that they challenge. Media attention makes the public aware of the ways the government has violated the law, so that they, too, can advocate (or vote) for change. Court rules that prohibit attorneys from speaking publicly about their cases help entrench government wrongdoing. That’s why the First Amendment prohibits courts from silencing out-of-court speech unless there’s real evidence that it will undermine proceedings.
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The Middle District of Tennessee Wrongly Presumes that Discussing Public-Interest Litigation Is Unfairly Prejudicial to the Government & Its Contractors
Daniel Horwitz, a constitutional attorney based in Nashville, sues the government when it violates people’s civil rights. He brings lawsuits to protect free speech and election laws. And he frequently sues prisons over their conditions and their mistreatment of the people they confine. As a public-interest attorney, Daniel’s advocacy is not limited to the courtroom. He does interviews with news outlets and talks about his cases on social media. Or at least he used to.
Back in 2022, Daniel brought a wrongful-death case against a private prison in the U.S. District Court for the Middle District of Tennessee. During discovery, the prison filed a motion invoking the court’s Local Rule 83.04, which limits attorney speech. The prison wanted to prevent Daniel from discussing the lawsuit and its underlying facts with the media and on Twitter. It argued that Daniel’s public advocacy—even his general advocacy against the private prisons the government uses, divorced from any mention of the specific case—deprived the prison of its right to a fair trial. Daniel pointed out that the rule violated the First Amendment and that a gag order was especially unnecessary since the prison has settled every single one of Daniel’s cases well before it got to trial. Nevertheless, a federal magistrate prohibited Daniel from speaking publicly about the case and required him to delete all his social media posts about the prison. The court admonished Daniel for actively seeking media attention because “trials are meant to occur in the courtroom, not the media.” If Daniel continued to speak publicly about his case, the court warned that it would hold him in contempt. Daniel tried to appeal the decision, but the prison settled his client’s claims—just as Daniel predicted—before the court could rule on Daniel’s appeal.
Since then, Daniel has filed seven more cases against the same prison. These cases seek to vindicate the rights of those who suffer violence while confined in for-profit prisons run on behalf of the state of Tennessee. As civil-rights cases, however, they are not just about compensating individual victims—they are also about creating change. Achieving Daniel’s objective necessarily requires public advocacy to win over the public and induce Tennessee’s elected representatives to change how their state’s prisons are run.
As an advocate in public-interest cases, Daniel speaks to the media to ensure the issues in his cases get the coverage he thinks they deserve. An attorney’s ability to participate in—and even drive—the public conversation about the issues in their cases is both a vital part of public-interest litigation and the exercise of fundamental speech rights guaranteed by the First Amendment.
But the Middle District of Tennessee’s unconstitutional local rule and prior threats to hold Daniel in contempt have chilled his First Amendment right to talk about his cases against the prison. To resolve the uncertainty over his right to advocate publicly on his client’s behalf, Daniel repeatedly asked the court to clarify how its rule applies to him and public-interest litigation more generally. Each time, however, the case was resolved before the court ruled on Daniel’s First Amendment rights. Unwilling to continue to litigate his cases in silence, Daniel teamed up with IJ to file a case challenging the Middle District of Tennessee’s local rule.
The First Amendment Prohibits Courts from Silencing Out-of-Court Speech Without Actual Evidence the Speech Will Undermine Proceedings
The First Amendment to the United States Constitution protects the right to speak freely, especially about matters of public importance such as the ways that the government is acting unlawfully. This right extends to attorneys who publicly criticize the government and its contractors—even when, as in Daniel’s case, they have ongoing litigation to stop the conduct they’re complaining about.
Although courts have the power to protect the fairness of ongoing litigation, they must do so in a way that safeguards the First Amendment rights of litigants and their advocates. The court cannot suppress speech without a proper showing that the speech at issue threatens the administration of justice. A rule that limits attorney speech, therefore, is subject to heightened scrutiny because it restrains speech about matters of public concern through a content- and speaker-based regime that applies only to attorneys and their speech about ongoing cases. That means the party seeking a gag order must provide real evidence that they face specific harm and that the restriction they seek will prevent that harm to a material degree. And even then, the court must tailor any gag order to the least restrictive terms necessary to prevent the harm.
The Supreme Court has made clear for generations that the Constitution requires courts to presume that restrictions on speech are invalid unless the government (or any other party seeking to censor speech) can prove that its desired gag order is both justified and not unduly burdensome. It’s so important that the party seeking to censor speech carries the burden of proof because the line between protected speech and that which may be restricted is often finely drawn. With such fine margins, the presumptions courts make can often be outcome-determinative.
These limits on a court’s authority to silence speech are especially vital in cases against the government and its contractors that carry out public functions. The public has a fundamental right to hear from the people most knowledgeable about cases brought to stop the government from breaking the law. Government entities and contractors must tolerate even more negative publicity than might be appropriate in a purely private civil action. Critical media coverage is not enough to make a civil-rights trial “unfair” for the government and its contractors.
Despite these established First Amendment principles, the Middle District of Tennessee’s local rule presumes that lawyers will prejudice court proceedings whenever they speak publicly about things like the evidence in the case or the character and credibility of a party or witness. The court requires the attorney to prove that their speech won’t “pose such a threat.” Rather than making the proponent of a gag order produce evidence that the speech is prejudicial, as the Constitution requires, the court chills free speech by flipping that burden.
The Middle District’s gag rule prevents public-interest firms and attorneys from zealously advocating for their clients. Civil-rights attorneys like Daniel must be free to lay out their case in the media and explain how they expect to prove that the government has violated their client’s rights.
To protect his constitutional right to public advocacy, Daniel teamed up with IJ to ask the Middle District of Tennessee to declare that its attorney-gag-order rule is unconstitutional and to clarify that Daniel can speak publicly about his ongoing cases against the government and its prisons. Public-interest litigation requires public discussion. The type of public advocacy that Daniel is fighting to protect is inspired by the impact-litigation model that IJ helped pioneer.
The Litigation Team
Daniel Horwitz is represented by Institute for Justice Attorneys Jared McClain and Ben Field.
The Institute for Justice
Founded in 1991, the Institute for Justice is the national law firm for liberty. Defending free speech since its founding, IJ is the leading public-interest law firm fighting to protect the First Amendment right to speak critically of the government. IJ currently represents Sylvia Gonzalez, who was arrested on bogus charges after circulating a petition advocating for the removal of her city manager; William Fambrough, who was fined and had his van towed after he used it to campaign for his mayor’s opponent; and Justin Pulliam, who was arrested because he ran a YouTube channel on which he posted video he took of police encounters. We represent these individuals because just as the people must follow the law, so too must our government follow the Constitution.
