Tennessee prosecutor who sent anti-drag law threat letter is sued
"The letter is a blatant attempt to chill Plaintiffs’ speech and expression protected under the First Amendment." Tennessee's AG, local law enforcement also named.
Tennessee’s Blount Pride and a drag queen scheduled to perform at this weekend’s scheduled pride event on Wednesday night sued the prosecutor who threatened the event with prosecution under the state’s anti-drag law — a law that was declared unconstitutional in June in a different lawsuit brought against another prosecutor.
Law Dork first reported the existence of a letter sent by District Attorney General for the 5th Judicial District Ryan Desmond — the Blount County prosecutor — on Aug. 29 declaring his intention to enforce the anti-drag law and issued in light of “concerns” about the upcoming event violating the law.
“The letter is a blatant attempt to chill Plaintiffs’ speech and expression protected under the First Amendment,” the lawsuit filed by Blount Pride, Inc., and Matthew Lovegood, whose stage name is Flamy Grant, states.
Blount Pride is scheduled to take place Sept. 2 at the Clayton Center for the Arts, a venue that describes itself as a “partnership project between the Cities of Maryville and Alcoa and Maryville College.“
Blount Pride and Lovegood are also suing Tennessee Attorney General Jonathan Skrmetti and the three local law enforcement leaders named as recipients of Desmond’s letter.
The complaint, which was filed in the U.S. District Court for the Eastern District of Kentucky late Wednesday, alleges three federal civil rights violations under Section 1983: alleged free speech and vagueness violations against all defendants and a retaliation allegation against Desmond in his personal capacity. It also raises a claim under Tennessee law, brought against Desmond and Skrmetti, that allows for declaratory and injunctive relief.
A motion requesting a temporary restraining order and preliminary injunction was filed with the complaint.
Due to the Sept. 2 date of Blount Pride, expect quick action in this case.
Law Dork covers LGBTQ legal issues in depth. Subscribe today.
In one of its most explosive claims not previously known, the complaint alleges that one of the sued law enforcement leaders, Maryville Police Chief Tony Crisp, contacted Maryville College to get a copy of the contract for the pride event and later notified the president of Maryville College that “officials at Maryville College, including [the president], could face prosecution for a misdemeanor if they violated the Act.”
The bulk of the complaint details the state’s history that led up to passage of the anti-drag law earlier this year, including a broader history of drag, and then addresses the June declaration that the anti-drag law is unconstitutional. Issued in the Friends of Georges case brought against the prosecutor in Shelby County, District Attorney General Steven Mulroy, the complaint asserts that the declaration applies to Desmond as well.
This is a key issue, and Skrmetti and Desmond claim otherwise. The plaintiffs chose to put their position on this question directly in the complaint, with extensive discussion, and not in a later argument in their requests for relief.
Sued in their official capacities, the complaint alleges that “both [prosecutors] are really the State of Tennessee” and “so both cases present ‘a suit against the State itself[,]’ rather than a suit against any defendant individually,” relying upon the Supreme Court’s ruling in Kentucky v. Graham. In other words, the local prosecutors are still a part of the state, not a separate entity. Because of that, the complaint claims, “In Friends of Georges, the State of Tennessee already litigated and lost the exact issue presented here, too, so the Friends of Georges declaration applies to this case.”
The complaint continues, “[W]hen determining whether the government is bound by an earlier adverse result, ‘[t]he crucial point is whether or not in the earlier litigation the representative of the [government] had authority to represent its interests in a final adjudication of the issue in controversy,’” citing the Supreme Court’s Sunshine Anthracite Coal Co. v. Adkins decision. As to what that means here? “That inarguably happened in Friends of Georges,“ the complaint alleges. “There, the Tennessee Attorney General’s Office was served with notice of the litigation and controlled the State’s defense as permitted by Tennessee law.”
Tennessee “cannot attempt to relitigate the issue anew” in Blount County, the complaint claims. “Instead, its remedy is appellate review” in the Friends of Georges appeal, which is ongoing. And where, as Law Dork noted on Aug. 29 and the complaint addresses as well, Tennessee did not even for the district court’s ruling to be put on hold during that appeal.
As to the four claims raised, the Desmond retaliation allegation is about the letter itself:
The Tennessee law allegation, brought against Desmond and Skrmetti, is described as follows:
The lawsuit was brought by several lawyers, including those representing Friends of Georges and the ACLU of Tennessee. The private lawyers include Justin Gilbert, Donati Law PLLC, and Horwitz Law PLLC.
This is a breaking news post. Check back at Law Dork for further developments.
Law Dork with Chris Geidner brings you independent, reader-supported legal and political journalism that seeks to hold government and other public officials accountable. Support this reporting by becoming a paid or free subscriber today.