Bound And Gagged: Judge Bans Civil Rights Attorney From Talking About Case

One of IJ’s newest cases is about a lawyer who sues governmental actors for violating his clients’ rights and informs the public about those constitutional violations. That’s what IJ does in every one of our cases—including through this very magazine. But a federal court in Tennessee bans that.

Daniel Horwitz is a civil rights attorney in Nashville. He’s worked with IJ before and takes inspiration from our work in his own practice. Like IJ, Daniel regularly talks about his cases to the traditional news media and on social media in order to inform the public.

That is, until Daniel spoke out about constitutional violations in Tennessee prisons administered by a government contractor called CoreCivic. CoreCivic invoked a local court rule to force Daniel to take down his social media posts and to stop talking to the media. For the past two years, Daniel has sought again and again to challenge the constitutionality of the rule that is gagging him, but the court has refused to answer his constitutional challenges. So the only option left was for Daniel to partner with IJ to sue the court itself to bring its rules into line with the First Amendment.

Of course, courts can regulate attorney behavior to ensure fair trials. And the U.S. Supreme Court has held that courts can limit attorney out-of-court statements—but only when there is real evidence the speech will prejudice a trial and only if the gag order is narrowly drawn to restrict no more speech than absolutely necessary. The problem with the local rule in the Middle District of Tennessee is that it flips that constitutional rule on its head. It presumes that most things a lawyer might say about a case will prejudice a trial, allowing censorious parties to gag an opponent’s counsel as a matter of course rather than as a last resort.

If the government and its contractors are able to silence lawyers who bring constitutional violations to light, everybody’s rights are less safe and the public as a whole is kept in the dark. That’s exactly what the First Amendment prevents, and it’s a principle we’ll vindicate in Music City.

Ben Field is an IJ attorney.