The U.S. District Court for the Middle District of Tennessee shouldn't be allowed to enforce Local Rule 83.04 while his challenge plays out, attorney Daniel A. Horwitz told a Tennessee federal judge in a trio of filings Thursday.
"The judicial defendants suggest that federal judges can enact local rules that infringe the rights of attorneys and litigants, and that there's nothing people like Mr. Horwitz can do to challenge the constitutionality of those rules short of defending themselves in enforcement proceedings," Horwitz said in one of those filings, opposing the court's motion to dismiss the case.
"Moreover, Rule 83.04's unconstitutional features — its burden-shifting and vague categories of presumptively prejudicial speech — are currently chilling Mr. Horwitz's speech. The mere threat of enforcement is injury enough to justify injunctive relief," Horwitz added in another filing in support of his motion for injunctive relief against the rule's enforcement.
Horwitz, who brings public interest cases against the government and its contractors in Tennessee, sued the state's Middle District and all four of its district judges, claiming that the court's use of Local Rule 83.04 to impose a gag order on him in a lawsuit over the death of a prison inmate violated his free speech rights.
The Tennessee federal court has pushed back against that accusation, insisting that as a branch of the U.S. government, it is shielded by sovereign immunity. The court shouldn't be enjoined from enforcing the rule either, since Horwitz is unlikely to win his challenge or to suffer irreparable harm if injunctive relief isn't granted, according to the court's December filings.
"Since the late 1800s, attorneys representing parties in litigation have been cautioned that they must limit their speech to protect litigants' right to a fair day in court," attorneys for the Middle District of Tennessee said in their opposition to Horwitz's requests for a temporary restraining order and preliminary injunction.
"By filing this action, however, plaintiff seeks to cast off these accepted speech limitations so that he can speak unfettered about a specific defendant in two pending cases before the court," the court added.
The court's local rules committee is also scheduled to meet Tuesday to begin the process of reviewing its rules, including Local Rule 83.04, so any challenge to that rule should be put on hold until after that review process, the court added in a motion to stay the proceedings.
But the U.S. Supreme Court has said that sovereign immunity doesn't foreclose official-capacity claims for declaratory and injunctive relief when federal officials are acting unconstitutionally, Horwitz argued Thursday. And staying the proceedings would only further infringe his First Amendment rights while he waits to see if the Middle District fixes the rule, which he first challenged nearly three years ago.
"Mr. Horwitz is pleased to learn that the Middle District has belatedly begun to work its way through the process of possibly considering some changes to its unconstitutional local rule, maybe, at some future date. But he cannot wait several more months to find out whether he's allowed to talk about his cases without risking sanctions," Horwitz said in his opposition to the court's stay request.
The rule dispute stems from a prisoners' rights case Horwitz brought against private prison contractor CoreCivic of Tennessee LLC over the death of Terry Childress at Trousdale Turner Correctional Center.
After Horwitz spoke about the case with media outlets and posted about it on social media, CoreCivic used Horwitz's interview and "extraordinarily vicious" tweets to invoke the rarely used Local Rule 83.04.
The rule bars lawyers who litigate in the district from making "any extrajudicial statements (other than a quotation from or reference to public records)" that could be disseminated publicly and has a "substantial likelihood of materially prejudicing an adjudicative matter," according to Horwitz's complaint.
A magistrate judge gagged Horwitz and ordered him to delete his tweets about the private prison contractor. Horvitz has since unsuccessfully tried to challenge the rule on First Amendment grounds five times across five other cases, but those challenges have largely been dismissed as moot after the cases were settled, according to him.
"Daniel has been fighting to vindicate his right to speak publicly about his cases in the Middle District of Tennessee since the summer of 2022. And even now, after we took the extraordinary step of suing a court's worth of federal judges, they are trying to avoid a ruling on the fact that their local rule is unconstitutional," an attorney for Horwitz, Jared McClain at the Institute for Justice, told Law360 on Friday.
"Nowhere in their response to our motion for injunctive relief will you find any explanation of how Rule 83.04's unique burden-shifting and vague categories of presumptively prejudicial speech comply with the First Amendment. If anything, the motion for stay seems to indicate that they recognize the problems with their rule," McClain said.
Attorneys representing the Middle District of Tennessee did not respond to a request for comment Friday.
But the rule's burden-shifting provision, which makes it the attorney's responsibility to prove that his speech would not prejudice the company's right to a fair trial, does raise concerns, according to First Amendment experts.
"I think the big problem with this rule is that it essentially flips the presumption of whose burden it is in the litigation to show that there is harm," Jennifer Safstrom, director of the Vanderbilt Law School's Stanton Foundation First Amendment Clinic, told Law360 in December.
Horwitz is represented by Braden H. Boucek of the Southeastern Legal Foundation and Benjamin A. Field and Jared McClain of the Institute for Justice.
The Middle District of Tennessee is represented by Timothy Thompson and Jason Snyder of the U.S. Attorney's Office for the Western District of Kentucky.
The case is Horwitz v. U.S. District Court for the Middle District of Tennessee et al., case number 3:24-cv-01180, in the U.S. District Court for the Middle District of Tennessee.
--Additional reporting by Brandon Lowrey. Editing by Rich Mills.
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