Appeals Court Smacks Down Unconstitutional Injunction Obtained By A Lawyer To Silence Someone Who Left A Negative Review

Free Speech

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