A gag order against a prominent Nashville attorney can remain in place, preventing him from speaking out on social media about CoreCivic, a federal judge ruled on Tuesday.
Senior Circuit Court Judge Julia Gibbons of the 6th U.S. Circuit Court of Appeals, who was specially assigned to the case at the U.S. District Court for the Middle District of Tennessee, dismissed a lawsuit brought by attorney Daniel Horwitz and the nonprofit public interest law firm Institute for Justice.
The two filed a First Amendment lawsuit in October after U.S. Magistrate Judge Jeffery Frensley issued a gag order on Horwitz in July 2022 to delete tweets about a legal case.
Nashville attorney Daniel Horwitz, alongside the Institute for Justice, has filed a First Amendment lawsuit against a gag order that was placed on Horwitz in July 2022 prohibiting him from speaking or posting on social media about private prison company CoreCivic.
Gag orders issued by judges usually bar an individual — whether an attorney, witness or litigant — from making public comments on an ongoing case, usually with the aim to preserve neutrality in the proceedings.
“People deserve to know what the government and its contractors are doing, and silencing attorneys like me from discussing our cases prevents the public from getting this important information of public concern,” Horwitz said, in a statement following the Tuesday dismissal. “I will continue to fight for my right to discuss my cases and the public’s right to hear about them.”
In Tuesday’s ruling, Gibbons ruled Horwitz did not have standing to sue the judge, as the harms imposed by the gag order are currently “hypothetical,” because Horwitz did not allege that he planned to violate the rule.
“The Sixth Circuit has held that ‘it is not enough that the future injury is reasonably likely to occur—the threatened injury must be certainly impending,’” Gibbons said in her ruling.
Rules explicitly allowing gag orders to be placed on attorneys exist in the Middle and Eastern Districts of Tennessee, but not West.
“(Horwitz) does not have to break the law before he gets standing to vindicate his First Amendment rights,” said Institute for Justice Attorney Jared McClain. “This gag-order rule has been enforced against Daniel in the past, he is still bound by it, and the court threatened him with contempt if he violates it again. There shouldn’t be any question that the threat of enforcement has chilled (Horwitz’s) speech. He has had to turn down interviews about his cases as recently as last month.”
At the time the gag order was placed, Horwitz served as the attorney for the family of Terry Childress, an inmate who died in February 2021 after his cellmate assaulted him in CoreCivic’s Trousdale Turner Correctional Center in Hartsville. The case was later settled.
A woman holds a tissue and copy of a program during the funeral of Terry Deshawn Childress at Meadowlawn Garden of Peace on Saturday, March 13, 2021 in Toney, Ala. Childress was an inmate at the Trousdale Turner prison when he was killed in February. Officials have classified his death as a homicide, the third suspected murder at the facility in about a year.
In one court filing, the company called Horwitz’s posts “extraordinarily vicious in their verbiage.” He has filed a series of lawsuits against CoreCivic.
The gag order required Horowitz to delete tweets about, and stop publicly discussing, lawsuits he previously brought against CoreCivic. In the hearing for the gag order, U.S. Magistrate Judge Jeffery Frensley sided with CoreCivic, writing that “trials are meant to occur in the courtroom, not in the media.”
More: Tennessee treasury continues holding CoreCivic stock — even as DOJ begins civil probe
Since that initial gag order, Horwitz has filed six more lawsuits against CoreCivic and repeatedly asked the court to allow him to speak about his cases.
According to the Institute for Justice, in some cases, motions sat for many months without the court deciding Horwitz’s First Amendment arguments. All of these cases were either settled or transferred to other districts before motions on Horwitz’s speech could be heard.
Horwitz and the Institute for Justice plan to appeal the decision.
CoreCivic has not yet responded to a request for comment.
The USA TODAY Network – Tennessee’s coverage of First Amendment issues is funded through a collaboration between the Freedom Forum and Journalism Funding Partners.
Have a story to tell? Reach Angele Latham by email at alatham@gannett.com, by phone at 931-623-9485, or follow her on Twitter at @angele_latham
This article originally appeared on Nashville Tennessean: Gag order against prominent Nashville attorney over CoreCivic remains