IJ Win Ungags Tennessee Civil Rights Lawyer

This magazine publishes lawyers talking about their cases. It’s a core component of what IJ does because public interest litigation requires public discussion. 

A federal court in Nashville saw things differently. It presumed almost anything attorneys said publicly about their cases would prejudice the opposing parties’ right to a fair trial—and promulgated a local rule that effectively banned attorneys from discussing their cases in public. 

Although the First Amendment requires courts to presume that speech is free, this rule did the opposite: An attorney had to prove their speech was not prejudicial or else face sanctions.

Back in 2022, the court used this rule to gag civil rights attorney Daniel Horwitz from discussing his cases against Tennessee’s privately run prisons. 

Daniel’s cases are not just about compensating individual victims; they are also about changing how the state’s prisons are run. So Daniel spoke to the media—just as IJ does—to ensure the issue got the coverage he thought it deserved. 

The court made Daniel delete all his public statements and threatened him with contempt if he discussed his litigation again.

Readers may be familiar with gag orders arising from some high-profile criminal proceedings where, in order to not interfere with the jury’s vital role, there are limited restrictions on public statements made by attorneys. But this court’s rule was unusually sweeping; it applied to civil litigation as well, including the type of civil liberties litigation that IJ routinely does. 

After trying unsuccessfully to challenge the rule within Daniel’s ongoing cases, IJ sued the court’s four judges to stop enforcing the rule. Even though the judges could not explain how their rule satisfied the First Amendment, they still fought for years to protect their power to silence attorneys. 

A week before the judges had to respond to IJ’s arguments in a federal appellate court, they suddenly reversed course and rescinded their unconstitutional rule—citing IJ’s public case against the rule. 

In other words, free speech won more free speech. 

Thanks to Daniel’s fight, Tennessee attorneys can now discuss their litigation without fear of reprisal.

Jared McClain is an IJ attorney.