The Volokh Conspiracy

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Free Speech

Dogs and Cats, Elections, and Prior Restraints

A Tennessee trial court "enjoined the parties [including a recent candidate for elected office] from making any public comments about each other and from making any 'negative or disrespectful comments' about each other to third parties."


From Kauffman v. Forsythe, decided Tuesday by the Tennessee Court of Appeals, in an opinion by Judge W. Neal Mcbrayer, J., joined by Judges Steven Stafford and Thomas R. Frierson II.

One Fourth of July evening, Tana Bishop's dogs entered Jack and Karen Kauffman's property and cornered one of their cats. Fearing for the safety of the cat, Mr. Kauffman fired two warning shots to scare the dogs away. When one of the dogs did not retreat, Mr. Kauffman fired again, injuring the dog's leg.

Two days later, Ms. Bishop complained about the incident on social media. In her post, she called Mr. Kauffman evil and accused him of overreacting. After reading Ms. Bishop's post, Jason Williams posted his own negative opinion about Mr. Kauffman.

In January 2018, Mr. Kauffman picked up a qualifying petition to run for a seat on the Rhea County Commission. Ms. Bishop and Mr. Williams continued to post negative comments about Mr. Kauffman throughout his election campaign. Mr. Williams posted, "[w]atch out for Jack (me off) Kauffman. He's running for district 4 county commission but get[s] arrested often[.]" In one post, Ms. Bishop questioned Mr. Kauffman's fitness for public office. Calling him "mentally unstable," she stated he had problems ranging "[f]rom child abuse investigations to burning down houses to animal cruelty issues."

Timothy Forsythe, the grandfather of Ms. Bishop's children, also voiced his negative opinion of Mr. Kauffman on social media. He posted two pictures of a Kauffman campaign sign, one standing upright and the other crumpled on the ground, with the following message: "Kauffman, if I ever see your **** in my yard again I'll hunt you down like the dog you are[.] I'm not a thirteen year old kid and I'll take you out." Mr. Forsythe later added a comment to his post, explaining that Mr. Kauffman "was told to leave my property and not come back, when we got home this is what we found. Very bad move." …

After Mr. Kauffman lost the election, he and his wife sued Ms. Bishop, Mr. Forsythe, and Mr. Williams (collectively, the Defendants) for defamation, false light invasion of privacy, and negligent and intentional infliction of emotional distress. The Kauffmans sought compensatory and punitive damages.

Defendants … filed a countercomplaint[, alleging] that Mr. Kauffman intentionally and/or recklessly shot Ms. Bishop's dog even though the dog was not a threat to Mr. Kauffman, his family, or his property. It also alleged that Mr. Kauffman or his agent placed a campaign sign in Mr. Forsythe's yard without permission. Ms. Bishop sought damages for conversion, trespass to chattels, and/or negligence. Mr. Forsythe asserted a trespass claim….

You can read the opinion for more on the non-speech tort claims, and for the discussion of the speech tort claims, which he court said could go forward because the plaintiffs alleged "actual malice" (here, "reckless disregard of whether [the statements were] false or not"). But here's the portion about the overbroad injunction against speech:

The court enjoined the parties from making any public comments about each other and from making any "negative or disrespectful comments" about each other to third parties. Defendants complain that the order unduly restricts their constitutional right to free speech….

Judicial orders forbidding speech "are classic examples of prior restraints." Such restraints must be "narrowly tailored to serve a compelling governmental interest." Loden v. Schmidt, No. M2014-01284-COA-R3-CV, 2015 WL 1881240, at (Tenn. Ct. App. Apr. 24, 2015).

Injunctions against defamatory speech are permissible in Tennessee. Id. at *8; In re Conservatorship of Turner, No. M2013-01665-COA-R3-CV, 2014 WL 1901115, at (Tenn. Ct. App. May 9, 2014). But there must be a judicial determination that the speech is, in fact, false. Loden, 2015 WL 1881240, at *9; In re Conservatorship of Turner, 2014 WL 1901115, at *20. And the injunction must be "sufficiently narrow." In re Conservatorship of Turner, 2014 WL 1901115, at *20.

None of these requirements have been met here. The Kauffmans' defamation action was dismissed without a finding that the published statements were, in fact, false. And the court's order was not limited to defamatory comments. It enjoined the parties from making any public comments about each other. The order was overly broad and infringed on constitutionally protected speech….