Horwitz v. U.S. District Court for the Middle District of Tennessee

Plaintiff-Appellant Daniel Horwitz is a Tennessee civil-rights attorney who has filed suits against private prison companies. Horwitz’s cases are newsworthy. But the last time he spoke about one of his cases pending in the Middle District of Tennessee, he was threatened with sanctions under the district court’s Local Rule 83.04, which restricts speech on pending litigation.

So Horwitz brought a constitutional challenge to that local rule under the First Amendment. Horwitz alleged that Local Rule 83.04 was chilling his speech by, for instance, forcing him to turn down interview opportunities out of fear he would be sanctioned. Yet the district court dismissed his challenge, holding that Horwitz did not have standing to sue because he wasn’t currently being sanctioned for any speech.

Horwitz appealed, and FIRE has filed a friend-of-the-court brief supporting his appeal. FIRE’s brief explains that Horwitz’s challenge is a classic pre-enforcement suit, seeking to enjoin an unconstitutional prior restraint on speech before the rule is enforced against him again. It’s the sort of suit that many public-interest attorneys–FIRE included–file on a regular basis. Settled law firmly establishes that Horwitz doesn’t need to wait for Local Rule 83.04 to be enforced before he asserts his right to speak about pending litigation.

Moreover, Horwitz is right that the local rule is an unconstitutional prior restraint on speech. It prohibits him from talking about broad topics related to his cases. But Americans have a longstanding right to speak about pending legal proceedings. And when restrictions on that speech are permitted, it’s because they are narrowly tailored to further a compelling interest. Local Rule 83.04 lacks any such tailoring, presumptively banning lawyers’ speech and making it their burden to prove their speech is permissible. Local Rule 83.04 therefore violates the First Amendment.