This story is a partnership between the Nashville Banner and the Nashville Scene. The Nashville Banner is a nonprofit, nonpartisan news organization focused on civic news. Visit nashvillebanner.com for more information.
The battle over the writings of the Covenant School shooter took a turn this week when a conservative outlet involved in the case was ordered by Chancellor I’Ashea Myles to show cause why they are not in contempt of court.
In response, the Tennessee Star has requested an emergency hearing on the constitutionality of the judge’s request.
This week, the Star published multiple stories using leaked documents from MNPD, not from court records. Chancellor Myles filed a motion on Tuesday ordering Michael Patrick Leahy of the Tennessee Star to appear in court on June 17 and show why his publishing of leaked information “does not violate the Orders of this Court subjecting them to contempt proceedings and sanctions.” Conservative media outlets have published a number of stories over the past year built around leaked police documents, generally focusing on the shooter’s gender identity.
On Wednesday afternoon, Leahy’s attorney responded to Myles’ order.
Petitioners push judge on public records exemption in first day of hearings
“The strong implication from this statement is that the Court believes an earlier order entered in this case restricted Mr. Leahy — a reporter — from publishing lawfully obtained documents to his readership,” the filing reads. “None of this Court’s earlier orders appears — at least to the undersigned — to contemplate such a drastic restriction. If this Court interprets one of its earlier orders that way, though, then the order is a prior restraint that suffers from serious constitutional infirmities and is presumptively unconstitutional.” Leahy is represented by First Amendment attorney Daniel Horwitz.
(Editor’s note: Horwitz has represented the Nashville Banner on First Amendment issues.)
Leahy’s motion calls for Myles’ order to be immediately set aside and warns that if it is not set aside by noon on Thursday, Leahy plans to seek emergency relief from the Tennessee Court of Appeals.
“Her question is whether the police department is required under the public records law to release the information and when, that’s her job,” says Deb Fisher, executive director of Tennessee Coalition for Open Government. “But it’s not her job, in my view, to determine what anybody publishes of any information about the Covenant shooting.”
On March 27, 2023, three children and three adults were killed by a lone shooter at the Covenant School. Since then, there has been a yearlong legal fight over the release of the shooter’s journal, with Metro police and families of the Covenant victims on one side trying to prevent it, and The Tennessean, the Tennessee Firearms Association, Tennessee Star and others petitioning to have the journal released to the public.
MNPD says it can release the documents at the conclusion of its investigation. But the Covenant families who intervened in the case as a third party argue the shooter’s journal should never be released due to the trauma it could cause survivors.
Myles’ order for a show cause hearing does not specify what previous order Leahy may have violated. In Leahy’s response, it is assumed that Myles was referencing an order from Feb. 25 that addressed leaked documents.
“The Court is concerned that the filing of such leaked information in the record of the Court may encourage the additional illegal leakage of documents by anyone who may have access to those documents and would wish to influence the outcome of these proceedings, usurp the rule of law and/or circumvent the legal process,” reads that order, which banned leaked documents from being filed in the court.
“To me, it’s really about the First Amendment, freedom of speech and freedom of the press to publish,” says Fisher. “And can the judge issue a gag order on a plaintiff who is a member of the press to not publish something about the case they’re in. And you know what? They’re in the case, because they’re trying to get access to the records.”
Leahy’s motion argues not only that Myles’ motion is potentially unconstitutional, but that it violates Tennessee’s shield law, “contravenes Tennessee’s contempt law” and “deprives Mr. Leahy of minimum due process guarantees.”
“Court orders like this one have the potential to chill the speech of those you order and others who are similarly situated,” says Paul McAdoo, a local attorney at Reporters Committee for Freedom of the Press. “Such orders are also concerning for press freedom to the extent they seek to punish truthful speech about a matter of public concern based on lawfully acquired information, which the U.S. Supreme Court has repeatedly held is not consistent with the First Amendment.”
A two-day hearing was held in mid-April over the release of the documents and a decision is expected from Myles soon.
