The Tennessee Court of Appeals on Monday upheld a lower-court ruling that the Nashville school board’s 2019 agreement with its former school director restricting negative comments about him was an unconstitutional violation of free-speech rights.
Former Nashville school director Shawn Joseph negotiated a severance agreement in 2019 that prevented school board members from saying anything disparaging about him. An appeals court in Nashville upheld a lower court ruling that the agreement was a violation of the free-speech rights of school board members.
Three school board members, each of whom voted against a severance agreement containing the non-disparagement clause, said the contract amounted to censorship and a prior restraint on speech that is protected under the First Amendment and the Tennessee Constitution.
The Metropolitan Nashville Board of Public Education voted to terminate school director Shawn Joseph in 2019 after a series of controversies, including one that resulted in the state recommending his education license be suspended.
The severance agreement approved by the board states that “[t]he Board will not make any disparaging or defamatory comments regarding Dr. Joseph and his performance as Director of Schools. This provision shall be effective for the Board collectively and binding upon each Board member individually.”
The agreement defined “defamatory” as a “statement or communication tending to harm a person’s reputation by subjecting the person to public contempt, disgrace, or ridicule, or by adversely affecting the person’s business.” It defined “disparaging” as a false statement that discredits or detracts from Joseph’s reputation.
It also stated that Joseph “does not waive any right to institute litigation and seek damages against any Board member in his/her individual capacity who violates the terms and conditions” of the agreement.
School board members: Contract prevents candid discussion about public matters
Board members Amy Frogge, Jill Speering and Fran Bush argued that the restriction prevented them, as elected officials, from speaking candidly and honestly with other elected officials and their constituents about matters essential to their official duties.
A Davidson County Chancellor ruled in favor of the school board members in September 2020, granting a permanent injunction against enforcement of the non-disparagement clause and awarding the three board members their attorney fees.
The school board, represented by Metro Nashville’s Legal Department, and Joseph filed an appeal. Daniel Horwitz represented the three school board members.
Clause prevented truthful speech by school board members
Appeals Judge Carma Dennis McGee noted in the ruling Monday that the three school board members said the non-disparagement clause prevented them from even truthful statements about the former school director. It could also prohibit them from cooperating with official investigations and making “constitutionally protected statements in their official and individual capacities regarding matters of public concern.”
McGee rejected arguments from the government lawyers that the case could not stand because Joseph and the school board had later stated that they “agree that the provision should be interpreted to limit only the speech of the School Board itself (or those speaking on behalf of the Board), not that of individual board members.”
“We agree with the trial court that the only reasonable construction of the Severance Agreement is that its non-disparagement clause purports to be, as it says, ‘binding upon each Board member individually.’ Its language is unambiguous. ‘This Court cannot rewrite the parties’ contract because its terms later prove to be burdensome,’” McGee’s ruling said.
McGee also rejected arguments that the three school board members could not seek relief in court because they had not expressed a desire to speak publicly about Joseph or been sued by Joseph for violating the non-disparagement clause. She concluded that the threat of enforcement outlined in the contract is credible.
The government’s lawyers also argued that the “obvious invalidity” of its own contract undercuts all arguments about enforcement of the contract, essentially agreeing that the contract language itself was flawed and unenforceable under the First Amendment.
But the appellate court disagreed again.
“(The school board members’) alleged injury is also redressable because the requested relief can accomplish something — it can declare that the non-disparagement clause is in fact unenforceable and unconstitutional and enjoin its enforcement.”
