Appeals Court Smacks Down Unconstitutional Injunction Obtained By A Lawyer To Silence Someone Who Left A Negative Review
from the you-can't-unprotect-speech-just-because-you-don't-like-it dept
Tennessee has long been home to a truly astounding amount of First Amendment violations, some of which were enabled by courts’ willingness to entertain far too many bogus defamation lawsuits. And Daniel Horwitz has been a constant thorn in these courts’ sides, securing wins for clients facing bogus lawsuits.
Fortunately, the legislature recently improved the state’s rather weak anti-SLAPP law, making it far more of a gamble for litigants filing questionable lawsuits by making it far easier for defendants to make plaintiffs pay their legal bills when lawsuits are dismissed.
But that’s not stopping people from finding new, but still unconstitutional ways, to silence and intimidate critics. That’s what happened to Mary Grace Anderson, who left a negative review of law firm Schell & Oglesby, LLC after feeling jerked around by one of its attorneys. Here’s the review:
Here’s what Anderson claims happened to her: Schell & Oglesby attorney Elizabeth Russell subpoenaed Anderson in a case Anderson says “had nothing to do with her.” Anderson was first told she wouldn’t need to appear in court. Then Russell told Anderson she would need to appear, which was a problem since Anderson was scheduled to work that day. This message to appear apparently arrived at 4:30 pm, 30 minutes before the law firm closed. Anderson spoke to Russell’s assistant, informing her she had been told she would not have to appear. The assistant allegedly responded with, “I’m hanging up now. We will see you tomorrow.”
Anderson arrived at court at 8:45 am and spent the entire day there, finally leaving at 4:45 pm. Russell never called her in to testify or present evidence. In fact, as Anderson later found out, Russell had actually released her from appearing, telling the court much earlier in the day Anderson’s appearance wouldn’t be necessary. Anderson says that Russell never informed Anderson of this change in plans, despite seeing her outside the courtroom on more than one occasion. Russell also apparently told the judge she had been unable to locate Anderson.
Apparently the review of the law firm angered Russell, who approached the court with a request for a restraining order against Anderson. Despite Anderson not being a party to the case Russell was litigating, the court granted [PDF] the request.
A mandatory injunction shall immediately issue which orders that the Defendants, Defendants agents, and Mary Grace Anderson immediately remove, delete, and otherwise take down any and all statements made regarding the Plaintiffs, Plaintiffs counsel, and the law firm of Schell & Oglesby LLC…
This would have been concerning enough if it had limited itself to the litigating parties. But it targeted Anderson, who was not involved in the lawsuit. And it appears to have been prompted by her negative review of the law firm following her apparent mistreatment by one of its attorneys.
Even more concerning, the order was signed by Judge Michael Binkley. Binkley was one of the founding members of Schell, Binkley & Davies, LLC, which is now Schell & Oglesby, LLC. So, this a judge issuing an injunction forbidding a non-party from badmouthing his old law firm. Seems a bit on the unethical side, but Judge Michael Binkley is no stranger to ethics violations.
Enter Daniel Horwitz, who acted quickly to get this bullshit, completely unconstitutional order struck down. His petition [PDF] on behalf of Anderson is a blast to read. Here a just a few of the best bits:
To impose a prior restraint against pure speech, a “publication must threaten an interest more fundamental than the First Amendment itself. Indeed, the Supreme Court has never upheld a prior restraint, even faced with the competing interest of national security or the Sixth Amendment
right to a fair trial.” P&G, 78 F.3d at 226–27. A negative Google review of a thin-skinned lawyer falls at least marginally below the publication of the Pentagon Papers in terms of evaluating these interests.
[T]he scope of the prior restraint imposed by the Williamson County Circuit Court goes far beyond proscribing speech that could plausibly be deemed unprotected. Instead, it also forbids the publication of “any and all” unmistakably non-defamatory, constitutionally-protected “statements made regarding the Plaintiffs’ [sic], Plaintiffs [sic] counsel, and the law firm of Schell and Oglesby LLC…
Prior restraints against speech do not just harm speakers, either. They also abridge the public’s right to hear what a speaker has to say—in this case, statements about how a lawyer has behaved and wielded the judicial subpoena power.
Horwitz also strongly suggests Judge Binkley shouldn’t be handling this case at all, given how extremely wrong his injunction order was.
Here, the extraordinary breadth and scope of the Williamson County Circuit Court’s illegal ex parte prior restraint against Ms. Anderson’s constitutionally protected speech merits reassignment. Issuing a speech-based prior restraint enjoining—and affirmatively compelling the subject of the order to remove—such plainly protected speech is so unfathomably unconstitutional that the appearance of justice alone requires reassignment upon remand. That the unconstitutional prior restraint was issued against a non-party over whom the Circuit Court lacked any plausible jurisdiction makes the order all the more unbelievable. Reassignment to a different judge upon remand is warranted as a consequence.
The Appeals Court has already responded [PDF] to Anderson’s request, and has acted quickly to reverse the entire order issued by Judge Binkley on behalf of the Schell & Oglesby attorney Elizabeth Russell. It doesn’t go so far as to move the litigation out of Binkley’s court, but it does have some harsh words to say about his actions.
Having reviewed all of the filings, the court concludes that the trial court’s February 19, 2022 Mandatory Injunction and Temporary Restraining Order so far departs from the accepted and usual course of judicial proceedings as to require immediate review. Thus, we grant the application for an extraordinary appeal and reverse trial court’s order.
That’s the end of Elizabeth Russell’s attempt to prevent the public from hearing about her alleged jerking around of a non-party witness she didn’t even bother asking to present evidence. The review stays live. And news is spreading about Russell’s inability to handle criticism maturely and Judge Michael Binkley’s inability to respect the Constitution, at least when it’s his old law firm being criticized. And it’s one more win for Daniel Horwitz, who continues to ensure Tennesseans won’t get screwed out of the First Amendment rights by bogus litigation and bullshit restraining orders.
Filed Under: 1st amendment, daniel horwitz, elizabeth russell, free speech, mary grace anderson, michael binkley, opinion, prior restraint, restraining order, reviews, tennessee
Companies: schell and oglesby
Comments on “Appeals Court Smacks Down Unconstitutional Injunction Obtained By A Lawyer To Silence Someone Who Left A Negative Review”
So, does this mean anything regarding Binkley? Will he get more than a verbal slap? Will he lose his job? If not, justice is not fully served.
Every case I’ve looked at, judges are either appointed or elected. Firing in either case would require a separate proceeding, an appeals court can’t fire a judge, only fire a judge from a case. They certainly can’t summarily fire a judge for a single bad result (which is all that would be in front of them).
Im not sure by what mechanism you’d assume this judge would be fired, as under the current court system judges are not held responsible, can’t be held responsible, for downright outrageous flaunting of direct instruction from higher courts directed at the specific judge.
Well, state judges aren’t immune to federal prosecution if they violate federal laws or the US Condtitution. 18 USC 241 (conspiracy against rights under color of law) would cover issuing an illegal order and anyone carrying it out, and that’s a felony crime.
Judges who broke the law as a presiding judge have been prosecuted under that statute in the past.
Re: Re: Re: Unless it's Michael Binkley
I tried to go after him for an illegal search and seizure of my home — he never held a real trial on it and issued a bench warrant for property he had no authority/jurisdiction over while holding me, my family and friends hostage in my home as they rifled through and seized property that they knew the judge had no jurisdiction over — this after S&O attorneys read an illegally obtained personal email where I questioned Binkley’s nonexistent ethics.
Even though Binkley and his agents illegally seized items from my grown sons that he had absolutely no authority or jurisdiction over, and held those items while charging me for illegally keeping them in the hands of his “former colleagues” for almost two years, no attorney in Nashville, Chattanooga or Memphis would touch the case because as soon as I said “Binkley” they refused to handle it and commented on the fact that they knew he was vindictive and didn’t follow the law.
The only attorney I could find out of Knoxville called me on a Friday and said he planned to file our suit on Monday in Williamson County (he’d been working in conjunction with a Nashville attorney friend who had clerked for Binkley). My attorney died Sunday night. Draw your own conclusions there. Everyone in Nashville knows just how corrupt these people are and no one will help our citizens.
I have met 18 other victims who are wanting justice, but none of us can find an attorney after the death of mine who is willing to go after Binkley and crew on our behalf.
Re: Re: Re:2 Reply to One of many Binkley victims
Binkley/Beeler/Story… the chain gang who have been “close family friends”, some for literally over FORTY YEARS!
But that shouldn’t compromise “impartiality”, should it? By God we are free thinking people! (I wonder why he refused to allow me to testify, and took every horrific word spoken by Story as if MATTER OF FACT?)
It’s as if the Tennessee Legislature and Court system has absolutely NO SHAME WHATSOEVER! (While not giving a SHIT about the PEOPLE, or their own Constitution.)
If I had to do it over again, I’d never enter the Court house. I could have gone fishing with a bucket of beer and nothing WORSE could have possibly happened to me as a result.
By the way, Williamson County Chancery Court is NOT a Constitutional Court! I see no authority for the State of Tennessee to force our participation or submistion to any unconstitutional (master/slave) system of abuses they have designed and maintained without transparency or accountability for decades.
Just my opinion, but I believe that my old underwear has more legal authority!
Re: Re: Re:3 Reply to And Yet Another
I tried to say, make that 19 now, HELLO!
It truncated my 19 into a 1. I feel manipulated. lol!
Williamson County Chancery isn’t a COURT OF LAW, and BINKLEY isn’t a JUDGE! He’s a highly prejudice, egomaniac, with a god complex! He’s a freaking CRIMINAL, racketeering, Hobbs Act, POS, extortionist, otherwise referred to in TN as “Official Oppression” and “Civil Rights Intimidation”.
He’s a BULLY, like he got picked-on his entire childhood and now he gets to play god to get his revenge.
He is also SPIRALLYING the last few years, and I don’t believe his present pace of making an ass out of himself, is sustainable without the Governor being called to task!
Every dog has his day. Trust me, he is a DOG!
Re: Re: Re: Re:
Not to be condenscending, but good luck trying to find someone to prosecute him for that! I’ve tried the FBI, the DOJ… believe it or not, our World is so screwed-up right now, he could probably shoot someone in the head in “his court room”, and get away with it. While I KNOW Attorney Story could pass a lie detector test afterwards, even with blood splattered all over her face!
These are MONSTERS! Not people who give a shit about the LAW, Constitution, Judicial Canons, Rules of Professional Conduct, just POWER for the sake of POWER, without transparency or accountability!
I have more respect for a dog pissing on a firehydrant!
Now ONE SINGLE LAW mattered when I was in that Court Room, and I have transcripts and AUDIO to prove it, while to this day nobody in the entire State or Feds give a shit!
The Board of Professional Conduct even refused to ACCEPT AND FILE my SERIOUS COMPLAINT against Attorney Story. I lived there forever and loved it, until 15 minutes inside a corrupt court, under pretense of law, while I had more FELONIES committed against me in 15-30 minutes, than I’ve had dirty thoughts in MY LIFE!
I’d be happy to work with ANY PROSECUTER (State or Federal) that anyone can find! I personally tracked down the FBI agent who arrested Corrupt Judge Casey MORELAND.
I thought that at least he has his feet on the ground in Nashville and KNOWS about the Judicial Corruption there. While I got tired of FBI call centers putting me off.
So I searched for Moreland’s arrest, got the agents name off it, and started calling FBI Field Offices, until I learned that Nashville is handled out of the MEMPHIS office, they put me on hold, contacted the Special Agent, and got his permission to put through my call to him.
We spoke for nearly an hour, and was a really nice, down to earth guy, who still gladly accepts all the informaiton that I will email him, but the FBI doesn’t like to share a lot about what (if anything) they are doing in return.
While it isn’t JUST Binkley, it’s BINKLEY and nearly a DOZEN of his closest FRIENDS, who all are an abomination of any rule of law or justice of any kind.
They all belong in PRISON, just like his predecessor and former benefactor, Corrupt Judge Casey Moreland, arrested by the FBI.
Tennessee is absolutely incapable of handling ANY of their own “judicial housekeeping”! 100%!
It is professional negligence if not worse that the TN Bouard of Judicial Conduct, or the House and Senate, or the TN Supreme Court, or somebody who wants to hide tennessee’s ASS, hasn’t impeached him yet already! If I had the SLIGHTEST CLUE that I was in such danger from a CIVIL COURT, I would have never purchased my beautiful property within their jurisdiction. But I was clueless.
From clueless to decimated, within 15 minutes, while paying TWO attorneys to stand there with their mouth’s open.
Anderson should get to bill Russell for the hours wasted that day at Russell’s hourly rate.
Lotta highly educated people here on Techdirt and ....
… Ms. Anderson does not seem quite so highly educated. Yet she seems to have gotten right to the heart of the issue about the attorney, which is a failure of basic professionalism. There is another issue that the attorney appears to have sussed out a weakness in the TN courts which lets the privileged and powerful clamp down on the free speech rights of Ms. Anderson. But the attorney was already far down the path of abusing the authority granted her by the Court against this poor woman.
Something something even the APPEARANCE of a conflict of interest.
Considering this lawyer directly LIED to the court that they were unable to locate the person they demanded appear one does wonder if misleading the court is standard procedure.
Keeping Tennessee barefoot and stupid
Sounds like Michael Binkley is doing his best to keep TN feudal. Clearly a fine example of a typical southern-gentile shitbag that misses the Good Ole’ Days.
About the best thing one can say about Tennessee is that it isn’t Mississippi. Yet.
Re: TN VS MS
Don’t dis Mississippi. I lived there for a decade and Tennessee for over twenty years. I’ll take Mississippi any day over Tennessee. Their justice system is superior by far. I know because I was married to an attorney who did hundreds of cases in Mississippi. I even lived in Louisiana. Never think for one minute that Tennessee is anything other than the absolute worst. There’s even a Harvard study that declared Nashville as one of the most corrupt cities in America (it ranked third–far above any city in the South).
A firm that only gets positive reviews because they sue critics
Rather than recuse themselves due to the huge conflict of interest the judge not only rules on the case but does so in such a terrible manner than a higher court feels justified in stepping in and overturning their ruling, even if the didn’t go as far as they should have and transferred it to a more qualified/less compromised judge.
Yeah, with behavior like that from a former member I can’t say I’m surprised that the legal firm is staffed by what could charitably called ‘scum’ currently.
Just like those former prosecutors who become Judges that deny hearings on new evidence in cases they prosecuted to protect their record, I mean their record matters more than an innocent being in prison.
Huh. It’s almost like John Smith’s nightmare scenario of lawyers badly reviewing other lawyers is an over-exaggeration or something.
So basically future searches for Schell & Oglesby attorney Elizabeth Russell will show what a thin-skinned, malicious conniving bitch she is.
Someone prepared to break the law, violate the constitution and all because she’s a terrible lawyer, shitty at her job and likely to lose any case she’s assigned because she’s such a terrible nasty human being.
I wonder if Schell & Oglesby attorney Elizabeth Russell also has skanky body odor. she seems the type.