A couple of years ago, private prison giant CoreCivic decided it had had enough. It went to court to secure an order blocking noted First Amendment lawyer Daniel Horwitz from talking about it. Horwitz was then currently engaged in multiple lawsuits against the private prison company, the most prominent being his representation of the family of Terry Childress, who died in one of company’s many prisons.
The gist of CoreCivic’s arguments was this: Horwitz was steadily tweeting out public records detailing CoreCivic’s many problematic prisons, as well as negative news coverage of the company and details about inmate deaths. According to CoreCivic, Horwitz’s free speech (and activism on behalf of his clients and their interests) was somehow going to prevent it from prevailing in these lawsuits. Not only that, but some of his social media posts were mean.
Mr. Horwitz’s social media posts are direct, a necessary requirement of Twitter, yet are extraordinarily vicious in their verbiage. Certain of Mr. Horwitz’s social media posts specifically mention Childress and contend that Defendants bear responsibility for his unfortunate death. Indeed, these posts call CoreCivic a “death factory” and contend that CoreCivic “kill[s]” people.
[…]
More than this, Mr. Horwitz’s public comments absolutely will prejudice Defendants’ ability to obtain a fair trial. They are intended for vast public consumption and specifically are directed to Mr. Horwitz’s nearly 8,000 Twitter followers and to the public at large. They have been retweeted and shared multiple times over, significantly increasing their reach. They also have been picked up by local media outlets with incredibly high volumes of readers and viewers, like Channel 4 and The Tennessean. The negative impact on Defendants and on their right to a fair trial with an impartial jury cannot be understated. And, if allowed to continue, the public comments by Mr. Horwitz only will worsen, particularly as the parties begin the written discovery and deposition phase of this lawsuit.
That’s a pretty wild claim. Most defendants are encouraged to not discuss lawsuits publicly in hopes of deterring the accidental release of anything that might undermine their defenses. But plaintiffs can certainly discuss cases if they’d like to without running afoul of civil litigation rules of procedure. And if an industry giant thinks it can’t secure a fair trial because the stuff Horwitz tweeted out portrayed it so negatively, the problem is with CoreCivic, not the factual, damning information being publicly released about it.
The sad thing is the court bought CoreCivic’s arguments and decided to engage in prior restraint. It issued an order that robbed the lawyer of his First Amendment rights, as the Institute for Justice explains.
Way back in July 2022, a federal court in Nashville imposed a gag order that prohibited civil-rights attorney Daniel Horwitz from talking publicly about a wrongful-death case he brought against a private prison. The court applied a local rule that presumes, without any evidence, that an attorney’s public comments about a broad swath of topics will prejudice court proceedings. The rule then imposes a burden on the attorney to prove that his speech is not prejudicial.
With the court refusing to roll back its unconstitutional order, Horwitz was left with the proverbial nuclear option. Represented by the Institute for Justice, Horwitz is suing the court itself to get the rule of procedure abused to silence him overturned as unconstitutional. It’s not often you see a complaint whose only defendants are the court and the judges staffing that court, but you’ll see it here as Horwitz takes on the Middle District of Tennessee and its four judges.
The complaint [PDF] makes it clear preventing a lawyer from talking about issues of public interest just because they also reference a target of his litigation violates the First Amendment.
This isn’t a case involving the publication of privileged communications or documents placed under seal by the court. This involves the dissemination of publicly-available information that should not be silenced just because CoreCivic doesn’t like what this information says about it.
The local rule is the problem here, especially the way the court has chosen to use it here.
Rule 83.04(a)(2) creates a presumption that anything an attorney says publicly about a broad range of things—like the evidence in the case or character of the parties—is likely to impact the proceedings. An attorney who wants to tell the public about his case must overcome that presumption and prove his speech is not prejudicial. But such presumptions against open dialogue are antithetical to the First Amendment.
Attorneys, like everyone else, have a First Amendment right to speak publicly about non-privileged matters. Although a court’s interest in ensuring a fair trial may sometimes justify tailored limitations on attorney speech, a court can restrict an attorney’s public speech only when there is actual evidence that speech will materially impact an impending trial. The further away a trial is, the more difficult it is to carry that burden. An opposing party’s general complaints of negative media coverage are not enough. And even when some statements do meet the high bar of being prejudicial, the court must limit any restrictions on an attorney’s speech to the least burdensome means available. Gag orders like the one imposed on Mr. Horwitz must be a last resort.
For more than two years, CoreCivic has managed to silence Daniel Horwitz. The district court has done all it can to help CoreCivic shut up Horwitz by repeatedly refusing to revisit its ruling or address any filings made in cases affected by this gag order. That leaves Horwitz with the unenviable option of suing the court directly to force a ruling on the merits of his constitutional challenge. For 26 months (following the deletion of months of social media posts), Horwitz has been unable to discuss his cases publicly, rejecting multiple requests from media outlets covering the ongoing litigation.
The only winner here is CoreCivic. And it’s a completely unearned victory. As this lawsuit notes, the rule of procedure is overbroad. On top of that, the way the court has applied it to Horwitz strongly suggests any litigator discussing their (publicly-available) litigation or the targets of their lawsuit in public will likely see themselves silenced as other lawsuit defendants begin to notice Rule 83.02(a)(2) is neat little anti-speech cheat code.
It’s an essential lawsuit. And this complaint is a fun one to read, especially the middle section where Horwitz and the IJ discuss (in a publicly-filed document) all the stuff CoreCivic has managed to prevent Horwitz from disclosing in interviews or via his social media accounts. For instance:
But for Rule 83.04, Mr. Horwitz would have informed the public about how CoreCivic has repeatedly violated his clients’ civil rights, such as recounting:
a. The details of how LaEddie Coleman—the decedent in Tardy—was stabbed to death in a severely understaffed, unsupervised pod at a CoreCivic facility mere minutes after another inmate was stabbed near-fatally in the same unsupervised pod.
b. The details of how Mr. Burchard was knocked unconscious and raped in an understaffed and unsupervised pod in a CoreCivic facility after Mr. Burchard had warned guards of the specific danger he faced, yet they took no steps to protect him..
c. The details of how Mr. Gordon was murdered in an understaffed CoreCivic facility that guards knew was riddled with contraband weapons; how guards knew Mr. Gordon’s life was in danger but took no steps to protect him; and how guards viewed Mr. Gordon’s murder live on a surveillance monitor but did not intervene to save his life as he bled out in an unsupervised pod.
d. The details of how a guard at a CoreCivic facility intentionally slammed a cell door shut on Mr. Shaw’s hand so hard that it severed his finger, and how the guard stood by and laughed at the maiming rather than getting Mr. Shaw immediate medical attention.
e. The details of how guards at a CoreCivic facility knew that an inmate was dangerous, had just assaulted a nurse, and had threatened to do something to get himself sent to maximum security unless CoreCivic transferred him there; and yet CoreCivic still placed that dangerous inmate alone in Mr. Farrar’s cell without bothering to search him for weapons.
You know, stuff like that. Evidence Horwitz plans to introduce in court and, once introduced, the court can then decide whether or not it’s relevant or prejudicial. And, at that point, the burden of proof will be where it should be: CoreCivic will have to demonstrate why this is prejudicial as it’s being presented. It simply should not be given the option to prevent anyone litigating against it from discussing the case at all, much less sharing information about other similarly terrible incidents occurring under the CoreCivic brand.
But it’s tough to get a court to change its mind about its own rules of procedure. And it’s going to be a lot tougher to convince it that it can’t enforce the rule this way without violating litigants’ First Amendment rights. Horwitz is asking for this clause of Rule 83.04 to be struck down for vagueness, as well as its seemingly unconstitutional shifting of the burden of proof to those being targeted with gag orders. Hopefully, he’ll get what he’s asking for. And while he’s litigating this one, hopefully he’ll keep filing motions and briefs containing all the other stuff this gag order has prevented him from saying.