Aaron Solomon Defamation Lawsuit

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

VERIFIED COMPLAINT OF AARON SOLOMON INTRODUCTION

“If you want truth to go round the world you must hire an express train to pull it; but if you want a lie to go round the world, it will fly; it is as light as a feather, and a breath will carry it. It is well said in the old Proverb, ‘A lie will go round the world while truth is pulling its boots on.’”

Charles Haddon Spurgeon

1. This matter is a perfect illustration of Mr. Spurgeon’s lament and the “post-truth” society that social media has wrought. Defendants have managed to systematically and intentionally destroy Plaintiff with spurious and malicious falsehoods that have no basis in reality. They are not concerned with what is true and what is not. They are only concerned with destroying Plaintiff and generating outrage on social media in an effort to raise money and sell products. While they have tried to paint themselves as noble defenders of “free speech,” in reality, this is a campaign of malicious bullying, cyber-stalking, generating clicks, and spreading lies. Plaintiff, as well as the unwitting consumers that Defendants are targeting, require immediate relief from this Honorable Court.

2. This matter originally springs from years of litigation between Aaron and Angelia Solomon arising from their divorce proceedings and legal wrangling over child custody issues. After hearing the proof and listening to the witnesses in 2014, Judge Phillip Smith of the Davidson County Circuit Court awarded the parties a divorce and placed custody of the children 77% of the time with Mr. Solomon. Judge Smith’s Order expressly stated that he made this determination due to his concerns with Ms. Solomon’s mental health and untruthful testimony.

3. In her limited time with her children, Ms. Solomon has spent the intervening seven years attempting to alienate her children from Mr. Solomon and, unfortunately, has been successful in doing so. Her own family has testified that this is the case. In addition to unrelentingly teaching her children to hate and fear Mr. Solomon, Ms. Solomon has repeatedly brought new actions and false claims of abuse against him in four different courts and has instigated at least seven separate child welfare investigations. All of these claims, without exception, have been found to be baseless and without merit.

4. Ms. Solomon’s conduct has been so egregious that the Honorable Judge Deanna Johnson of the Williamson County Circuit Court found that Ms. Solomon’s last legal salvo qualified as an “abusive civil action” within the meaning of Tenn. Code Ann. § 29-41-106. As a result, Judge Johnson enjoined Ms. Solomon from bringing new claims against Mr. Solomon for a period of six years. Judge Johnson’s final and unappealed Order is attached to this Complaint as Exhibit A.

5. Having been foreclosed from bringing new claims against Mr. Solomon and/or having lost time and time again in multiple courts in front of multiple judges, Ms. Solomon and her friends have taken her case to social media, publically accusing him of egregious crimes such as sexual abuse of his daughter, and the attempted murder of Ms. Solomon, and they have even

stated that he murdered his beloved son, Grant, who died tragically in a car accident last year. Upon information and belief, Ms. Solomon has encouraged her daughter, a minor child, to make similar claims about Mr. Solomon. Ms. Solomon’s own family believes she has systematically turned Gracie against her father and Ms. Solomon’s parental alienation has caused Gracie to believe abuse occurred that did not actually occur.

6. Upon information and belief, Ms. Solomon and/or Ms. Hicks has publically shared highly confidential documents and testimony from juvenile court proceedings that contain sensitive information about the parties’ children with the intent of having those confidential documents shared online.

7. These false and defamatory claims have been spread over social media by those in concert with her as well as well-meaning but duped online followers who have given these claims thousands of views and “shares.” As of this writing, the Instagram account at issue in this case had over 4,000 followers.

8. Not only has Mr. Solomon lost his son to a tragic accident and his daughter to Ms. Solomon’s campaign of parental alienation, but he is now forced to watch Ms. Solomon and the other Defendants systematically and maliciously destroy his reputation, his business, and his standing in the community.

9. Defendants’ social media activity is not simply a vindictive exercise in spreading hatred about Mr. Solomon, it is part of a concerted commercial scheme to sell products and raise money for Angie Solomon by misleading consumers with false statements to generate sympathy. As will be shown below, Ms. Solomon has a long and sordid history of using false claims to raise money for herself and/or defrauding others. This false advertising and malicious campaign is

harmful to the community at large, not just Mr. Solomon, and is subject to redress by this Honorable Court.

10. Moreover, the conduct by Defendants as described herein amounts to serious crimes under federal law, namely using computers in interstate commerce to extort, intimidate, and harass Mr. Solomon into giving up his valid custody rights. Moreover, Defendants have transmitted communications containing threats to injure his reputation and to falsely accuse him of a crime. Defendants’ commission of these crimes has breached their duty of due care to Mr. Solomon and has caused and continues to cause him great harm.

THE PARTIES

11. Aaron Solomon (“Mr. Solomon”) is a citizen and resident of Franklin, Tennessee.

12. Upon information and belief, Angelia Solomon (“Ms. Solomon”) is a citizen and resident of Franklin, Tennessee.

13. Upon information and belief, Anna Smith (“Ms. Smith”) is a citizen and resident of Franklin, Tennessee.

14. Upon information and belief, Kami Abbate (“Ms. Abbate”) is a citizen and resident of Franklin, Tennessee.

15. Upon information and belief, Melanie Hicks (“Ms. Hicks”) is a citizen and resident of Williamson County, Tennessee.

16. Upon information and belief, Wynn Hicks (“Mr. Hicks”) is a citizen and resident of Williamson County, Tennessee.

17. The Solomons were formerly married and had two children, Grant Solomon and Gracie Solomon.

18. Grant passed away last year in a tragic accident at the age of 18. Gracie Solomon is currently 14 years old and, upon information and belief, resides in Williamson County.

19. John Does 1-25 are individuals that are presently unknown who, upon information and belief, have contributed to and assisted Ms. Solomon with the tortious and criminal activities described herein.

VENUE AND JURISDICTION

20. Jurisdiction is appropriate in this Court pursuant to 28 U.S.C. § 1331 and 15 U.S.C. § 1121(a).

21. Venue is appropriate in this Court as the majority of the events giving rise to this Complaint occurred in this judicial district and concern a minor child who resides in this judicial district.

22. Upon information and belief, all named Defendants reside in this judicial district.

23. Upon information and belief, the John Doe Defendants also reside in this judicial district.

FACTS

24. Mr. Solomon filed for divorce from Ms. Solomon in Davidson County, Tennessee on or about May 13, 2013.

25. Throughout the pendency of that action, Ms. Solomon made numerous allegations that Mr. Solomon was abusive physically, mentally, and sexually, to herself and to the parties’ minor children.

26. The allegations that Mr. Solomon had abused Ms. Solomon stemmed from her claims that he had tried to strangle her with the power cord of a blow dryer and hang her from a

shower head (the “Shower Incident”). In reality, Ms. Solomon staged the Shower Incident as a suicide attempt in order to gain attention and sympathy.

27. While normally such claims might be dismissed as a “he said/she said” situation, in this case, Mr. Solomon was able to produce text messages from Ms. Solomon that definitively established that there was no attempted murder and instead that the Shower Incident was a staged suicide attempt. See Exhibit B, transcript of proceedings before the Honorable Phillip Smith, pp. 55-77. For example, Ms. Solomon sent text messages immediately after the Shower Incident as follows:

a. “But it’s over for me now. You live with it.”

b. “I’ll always be watching over you.”

c. “So this is my last writing on this earth.”

d. “I guess I will prepare for what exists for the cowards on the other side.”

e. “I staged [the Shower Incident] anyway, but who cares… Unfortunately, I wouldn’t kill myself, but you would memorialize my faking it to get attention and use it against me instead of love me.”

f. “I am not suicidal. I made a bad choice for attention, but I accept responsibility for that choice and have learned why I did it and won’t repeat it.”

g. “I’m hysterical, and I’m ending it all.”

h. “You are gone, and you took my babies again. I won’t be alive through this day.”

i. “I found one bullet in the chamber, and I left a note for the babies. I can’t live this way.”

j. “I called Mom, and I told her and Dad good bye. I never wanted to hurt myself, but I can’t stand this pain, and you won’t talk to me. You took my children. Again I hope one bullet does the trick because I sure don’t know what I’m doing.”

k. “I guess this is it for old Ang. I’m scared to do this, but I can’t live [without you] and Gracie and Grant. Here goes.”

28. Despite being presented with these text messages while on the witness stand (all of which came from Ms. Solomon’s phone number and some of which were still on her phone), and despite being under oath, Ms. Solomon refused to recant her false allegations that Mr. Solomon had tried to kill her. Instead, she made excuses, claiming, for example, that she did not remember the texts, or that she was bluffing about killing herself simply to get Mr. Solomon back. However, as the Court correctly stated at the time, Angie’s testimony “doesn’t add up and doesn’t make sense.”

29. On July 13, 2013, after the hearing where the Court heard the witnesses and examined the evidence, Judge Smith of the Davidson County Circuit Court entered an order noting the times that it found that Ms. Solomon lacked credibility and/or lied directly to the Court:

The Court finds that the most damaging testimony in this matter came from Ms. Solomon herself. The Court finds, simply stated, it does not believe Ms. Solomon’s testimony. The Court, as a finding of fact, finds that it does believe that Ms. Solomon attempted to commit suicide, although she testifies that such may have been for the purpose of getting attention. The Court is very concerned about Ms. Solomon’s behavior, her mental health and her most recent behavior. The Court, further makes the finding of fact that Ms. Solomon did text the parties’ son as demonstrated by the exhibit of such that has been placed in the record. The Court makes a finding that it does not believe for one minute that Ms. Solomon did not send the text to the parties’ son and Court was quite frank with Ms. Solomon. The Court makes a finding that it is quite concerned about the safety of the minor children, even in a supervised setting with the Mother.

Order (attached hereto as Exhibit A) p. 2.

30. And again, as it ultimately stated in its November 27, 2013 order, the Court found that Ms. Solomon obviously staged this event:

Further, the Court wants to determine if Ms. Solomon is continuing to accuse Mr. Solomon of attempting to kill her in light of the proof that the Court heard on the 21st of June, 2013, today’s hearing, and the text messages that the Court has reviewed from both of those hearings. The Court finds the real issue here is whether Ms. Solomon is dealing in reality at this point in light of the Court finding that it is crystal clear that Ms. Solomon staged this incident in May, 2013.

Compl. Exhibit. A, at 4 (quoting the November 27, 2013 Order).

31. Despite all the other lies she told in the divorce proceedings, Ms. Solomon did not testify that her children witnessed the Shower Incident and, instead, when attempting to get an Order of Protection (which she ultimately dismissed), definitely stated that they did not witness the incident.

32. During the pendency of the parties’ divorce, someone made a referral of child abuse regarding the parties’ minor children. Mr. Solomon asserted that the referral was made by Ms. Solomon herself in an attempt to gain leverage during the divorce proceedings. Ms. Solomon denied being the party that made the referral. In answer to a direct question from Judge Smith as to whether she was the one that made the referral to the Department of Children’s Services (“DCS”), Ms. Solomon answered: “No.”

33. Judge Smith ordered that the DCS case workers be brought before him to determine who made the referral and in order for him to evaluate the abuse allegations. After hearing the testimony from the DCS workers and viewing the paperwork, the Court concluded that Ms. Solomon did make the referrals, despite her sworn testimony to the contrary. Judge Smith’s January 8, 2014, Order states as follows:

The Court finds that Ms. Solomon was not honest with this Honorable Court as relates to the referrals to the Department of Children Services. She in fact made the reports herself. […] The Court finds that based upon the documentation from the Department of Children Services and the testimony of the custodian of records, that she in fact is the person who made both referrals. The Court also finds based upon the behavior of Ms. Solomon that the Court finds she has misrepresented very important facts to this Honorable Court. The Court finds it has no choice but to enjoin and restrain Ms. Solomon from making any further referrals to the Department of Children Services regarding the minor children, Grace and Grant Solomon, without first discussing such referral with her counsel. Id. (emphasis added).

34. In the January 8, 2014 Order, Judge Smith noted that he had had DCS workers appear before him to testify regarding the numerous abuse allegations made by Ms. Solomon and

that all four referrals had been found to be unfounded by DCS. Judge Smith went on to state in the January 8, 2014 Order as follows:

The Court finds that as relates to Ms. Solomon’s request for parenting time, that it will not order parenting time by Mother because of the court’s great concern with the false statements made and Ms. Solomon’s overall lack of honesty with this Honorable Court since these proceedings first began. Further, the Court is concerned with the allegations contained in the referrals she made to the Department of Human Services regarding sexual abuse and physical abuse to her and the children. Her allegations are without any basis. Therefore, the Court will not award any parenting time at this point out of concern for the children, other than supervised visitation with a third-party supervisor, which shall be at Ms. Solomon’s expense.

Id. at p. 5.

35. Moreover, Ms. Solomon’s allegations that Mr. Solomon was abusing the couple’s children were also found to be without merit after at least two hearings on the matter. After hearing the witnesses and considering the evidence, the Court found that none of these allegations was true, as did the Department of Children’s Services in its multiple investigations.

36. The Court went on to find that Ms. Solomon needed mental health treatment: The Court does find that Ms. Solomon needs mental health treatment. It is, ORDERED, ADJUDGED AND DECREED that Ms. Solomon is to report to Dr. Freeman for him to prepare an evaluation and report to ascertain the kind of help that would be most beneficial to Ms. Solomon. The Court admonishes Ms. Solomon that the Court Orders this evaluation for the sake of all parties involved. The Court is of the opinion that Mr. Solomon still loves Ms. Solomon and he really does not want this divorce, but he sees no other way. The Court admonished Ms. Solomon that it is really up to her at this point and time. The Court Orders that until it receives the evaluation back from Dr. Freeman it is not going to allow Ms. Solomon any parenting time. The Court is emphasizing that its concerns at this time are that great.

Id., p. 2-3 (emphasis added).

37. The Court went on to find that Ms. Solomon had “evidenced in the presence of this Honorable Court a severe mental health disability.” Specifically, the Court stated:

The Court is quite concerned that Ms. Solomon continues to engage in the type of behavior that she engaged in prior to the divorce as relates to such unfounded

allegations of abuse. The Court makes a finding of fact upon the Court’s observation of Ms. Solomon as a witness in the past, that she has evidence in the presence of this Honorable Court a severe mental health disability. The Court finds that she continues to make baseless allegations of abuse against Mr. Solomon, sexually and otherwise.

Id. at p. 6 (emphasis added).

38. Judge Smith was also concerned about the fact that Ms. Solomon sought an Order of Protection against Mr. Solomon in May of 2013, in which she made serious allegations against him and her own parents:

The Court finds that Ms. Solomon continues to be estranged from her parents and family. Further, the Court is mindful that Ms. Solomon has previously made allegations of sexual abuse against her own Father and Mother. The Court finds that her Father has previously testified in this Court. The Court found his testimony credible. The Court makes the finding of fact that the behavior she exhibited prior to the entry of the Final Decree continues and leaves this Honorable Court to make a finding that the Restraining Order must remain in place to protect the parties’ minor children. The Court finds that Ms. Solomon continues to pose a threat of substantial harm to the children by her behavior and her obvious mental health issues which have been apparent to this Court since prior to the entry of the final Decree of Divorce.

Id. (emphasis added).

39. Despite making these serious allegations, Ms. Solomon voluntarily dismissed her own Petition for an Order of Protection, a fact that the Court found further undermined her credibility and reliability.

40. At the conclusion of the divorce, Mr. Solomon was granted custody of the children for 77% of the time and Ms. Solomon’s visitation was supervised. After roughly five months of no contact in 2013 at Judge Smith’s order, Ms. Solomon was allowed to have supervised contact with the children.

41. Despite the limitations on Ms. Solomon’s access to the children, Mr. Solomon hoped that she would get well and she could resume more regular contact with the children because he believed it was in the best interest of the children to have a relationship with their mother.

42. Meanwhile, Ms. Solomon was constantly criticizing Mr. Solomon to the children, mischaracterizing his normal and completely reasonable parenting rules—such as an appropriate bedtime and limits on screen time—as “controlling and crazy.” She made up new false accusations like Mr. Solomon “told the children she had died,” that he failed to properly feed the children, and controlled the “times they could go to the bathroom.” See Declaration of Ms. Solomon’s Father, Dan Huffines, filed contemporaneously with this Complaint. She constantly hurled new accusations of abuse that allegedly occurred before the divorce but that she had never mentioned before. She complained to a close friend that Mr. Solomon had abused the children by “tak[ing] the children to swim in a motel pool” while visiting a relative. See Declaration of Lori Cameron, filed contemporaneously with this Complaint. In short, she relentlessly repeated her baseless accusations of child abuse to these impressionable children and anyone else that would listen.

43. More than one member of Ms. Solomon’s own family has testified that she is a compulsive liar. Her father has testified under oath in court and by sworn declaration that many of the things she says are untrue, that he believes Mr. Solomon is a good man who has not abused the children, and that Ms. Solomon has spent years trying to turn the children against him. Her father has testified that he believes she has systematically convinced the children of abuse that never happened and was completely fabricated. See generally Dan Huffines Declaration. Her sister testified in a sworn affidavit that Ms. Solomon has made “horrible” and “absolutely false” statements that her sister attributes to Ms. Solomon’s mental illness. Aff. Of Julie Huffines at ¶¶ 5-8. One of her former best friends similarly testified by sworn declaration that Ms. Solomon is

not truthful, will use her children to get what she wants, and lives in a “chaotic fantasy world.” See Cameron Declaration, at ¶ 33.

44. Rather than improve her mental health in order to increase her access to the children and act in a manner that was in the children’s best interest, Ms. Solomon resumed her campaign of attacking Mr. Solomon with false claims of abuse in the courts. Over the intervening seven years, Ms. Solomon brought additional litigation in Coffee County and Williamson County. She brought the action in the Juvenile Court for Coffee County (the “Coffee County Action”) shortly after the divorce was granted. In the Coffee County Action, she made serious allegations of abuse and neglect, much like the ones she had made in the Davidson County divorce litigation.

45. Despite the serious allegations in her sworn petition causing Mr. Solomon to spend time and money in refuting them, she voluntarily dismissed the Coffee County Action with prejudice upon Mr. Solomon’s Motion at the close of her proof. During the Coffee County Action, she instigated yet another DCS investigation, which, like all the others, was returned “unfounded.”

46. In August of 2018, Ms. Solomon filed another action, this time in the Juvenile Court of Williamson County (the “Williamson County Juvenile Court Proceeding I”). In her Petition, Ms. Solomon alleged sexual abuse, mental abuse, physical abuse, verbal abuse, and unhealthy atmosphere and that Gracie is terrified of her father. The vast majority of the allegations made in the Williamson County Juvenile Court Proceeding were the same allegations she had made in the Davidson County Divorce Litigation (which were determined to be without merit after a hearing) and the Coffee County Action that she dismissed with prejudice after a hearing.

47. After considering the proof and holding hearings, the Williamson County Juvenile Court entered an order on October 31, 2018 holding that Ms. Solomon failed to prove that either

Grant or Gracie Solomon was a neglected and dependent child under the law. The Court further held:

The Court finds that the allegations of sexual abuse were not proven, and further, these are the same allegations of sexual abuse that have previously been before the courts in Davidson and Coffee county that were dismissed, and assessed or investigated by the Dept. of Children’s services in Rutherford County.

Id. at p. 9.

48. As a result, the Williamson County Juvenile Court dismissed Ms. Solomon’s Petition and ordered that the children be returned to Mr. Solomon.

49. However, Gracie’s counselor recommended that Mr. Solomon not enforce parenting time immediately and instead allow Gracie to stay with Ms. Solomon while Mr. Solomon improved his relationship with Gracie through counseling. Mr. Solomon followed the counselor’s recommendations.

50. Ms. Solomon appealed the Williamson County Juvenile Court decision to the Williamson County Circuit Court on May 1, 2019 and a hearing was scheduled for August 21st and 22nd of 2019. On May 29, 2020, while represented by counsel, Ms. Solomon non-suited and dismissed her appeal without notifying her attorneys. Her attorneys subsequently moved to withdraw from representing her, stating as grounds, “Ms. Solomon is not cooperating with counsel, or communicating with counsel, and it is therefore unreasonably difficult to continue to represent Ms. Solomon.”

51. Despite having non-suited her appeal, Ms. Solomon changed her mind and asked the Williamson County Circuit Court to allow the appeal to proceed, which the Court did.

52. On December 16, 2019, Mr. Solomon filed a motion with the Williamson County Circuit Court to have Ms. Solomon’s appeal be declared an “abusive civil action” as defined in

Tenn. Code Ann. § 29-41-101 et. seq. because of her insistence on litigating the same disproven allegations time and time again.

53. After review of the motions, the entire case file, the arguments of counsel, the testimony of the parties and the children’s guardian ad litem, the Williamson County Circuit Court granted Mr. Solomon’s motion, found that the matter was an abusive civil action, and enjoined Ms. Solomon from suing him again for six years. See Exhibit A.

54. Tragically, on July 20, 2020, the Solomons’ son, Grant, was killed in a single car accident. He was 18 years old. All parties were understandably devastated.

55. The accident occurred when Grant’s truck apparently slipped out of gear and rolled backwards down a sloped parking lot and landed in a rocky ditch. Upon information and belief, Grant was either standing to the side of or behind the truck when it began to roll backwards. The accident occurred in broad daylight, during regular business hours, just feet away from an open and operational business, and in clear view of a busy road.

56. The Gallatin Police Department and District Attorney’s Office performed two investigations of this accident and found no evidence whatsoever of any foul play. See Declaration of Ronald Blanton, filed contemporaneously with this Complaint. Ms. Solomon was informed of the investigations. Id.

57. Having been foreclosed from bringing any new litigation against Mr. Solomon by the Williamson Circuit Court’s Order of February 19, 2020, and yet still wishing to interfere with Mr. Solomon’s custodial rights, Ms. Solomon had her friend, Defendant Melanie Hicks, file a Dependent and Neglect Petition on behalf of Gracie on October 9, 2020 wherein she alleged that Mr. Solomon had abused and neglected Gracie (Williamson County Juvenile Action II). This action contained the same disproved allegations of child abuse that Ms. Solomon had made so

many times before. In fact, since Mr. Solomon had not been alone with Gracie for two years, this proceeding necessarily addressed allegations that had already been adjudicated in Williamson County Juvenile Action I because no new incidents could have possibly occurred.

58. The trial on the Hicks Dependent and Neglect Petition (Williamson County Juvenile Action II) was held on March 30, April 12, and April 23, 2021. The Hicks Petition was found to be without merit and, in fact, the Court ruled that it was Ms. Solomon, not Mr. Solomon, that had neglected the parties’ minor child.

59. After Ms. Solomon and Ms. Hicks’ final attempt to improperly use the courts against Mr. Solomon failed, Ms. Solomon promptly took her case to social media. While Defendants have couched their campaign as a noble exercise in free speech, this is not the case.

60. Ms. Solomon and the other Defendants cannot plausibly hope to overturn years of final court decisions on which the time to appeal has long since passed. Instead, the purpose of her social media campaign is to extort Mr. Solomon into giving up his custody rights and to raise money for herself.

CREATION OF THE ACCOUNTS AND THEIR FALSE STATEMENTS

61. Upon information and belief, on or about May 12, 2021, Ms. Solomon created, or caused to be created, an Instagram account called FreedomForGracie (the “Instagram Account”). The Instagram Account referenced two highly defamatory videos posted on Youtube.com, as discussed herein. Shortly thereafter, similar accounts sprang up on other social media platforms, like Twitter and Facebook (collectively all of the “Freedom for Gracie” social media accounts will be referred to as the “Accounts”).1

1 FreedomForGracie (@freedomforgracie), Instagram, https://www.instagram.com/freedomforgracie; FreedomForGracie (@FreedomGracie), Twitter, https://twitter.com/FreedomGracie; Freedom For Gracie, Facebook, https://www.facebook.com/pages/category/Personal-Blog/Freedom-For-Gracie-

62. The Accounts purport to be “backed by a community of concerned citizens including teachers, attorneys, medical professionals, counselors, and friends.” Mr. Solomon asserts that John Does 1 through 25 are involved in the creation of the Accounts and their defamatory and false content as is set forth herein.

63. The Accounts have regularly and consistently posted false and defamatory content in violation of the rights of Mr. Solomon and others. A representative sample (but by no means all) of the false statements spewed by the Accounts is as follows:

a. That Mr. Solomon tried to kill Angelia Solomon prior to the divorce or otherwise physically abused her;

b. That Mr. Solomon sexually abused Gracie Solomon;

c. That Mr. Solomon physically and/or emotionally abused Grant and Gracie Solomon;

d. That Mr. Solomon murdered Grant Solomon and used his “influence” to see that no investigation was done;

e. That Mr. Solomon bought grave sites for Angelia and Gracie without Angelia’s knowledge as part of some “murder suicide plan”;

f. That Mr. Solomon was banned from participating in activities sponsored by the Williamson County Sports and Recreation Department because he was abusive to his wife, children, and others;

g. That he stole money from Grace Christian Academy and GCA “covered it up”

h. That he has filed “multiple bankruptcies”;

i. That he has “swindled” unknown and unnamed people;

j. That he was fired from Channel 4 because he had “inappropriate content on [his] computer and phone”’

k. That he was diagnosed as a narcissist, sociopath, and/or sex addict;

l. That he abused some unnamed ex-girlfriend; and

m. That he “drugged” certain unnamed women.”

110679161194219/; Freedom For Gracie, YouTube, https://www.youtube.com/channel/UCWt5DfWxGiZ4Fas8baIvZLg.

See Declaration of Aaron Solomon, filed contemporaneously with this Complaint.

64. All of these allegations are false, malicious, and made for the purpose of recruiting others to spread her falsehoods, selling products, and/or raising money for Ms. Solomon. They are further intended to harass and demean Mr. Solomon and to extort his valid custody rights from him.

65. This is not the first time Ms. Solomon has taken to social media to spread falsities in an effort to con others into giving her money. She did this during the parties’ divorce as well. She had to be admonished by Judge Smith for publically claiming that Mr. Solomon had stolen her children in an effort to raise money for herself. When confronted by Judge Smith over this falsehood, Ms. Solomon quickly back-tracked and claimed that “someone” had gotten into her account and that she didn’t mean to hurt herself, Aaron, or the children. Before she was ordered not to raise money by Judge Smith, Ms. Solomon raised at least $4,000 from well-meaning people who did not know the reality of the situation. Exhibit B at 78. 5-15.

66. Similarly, in the intervening years between the Solomon divorce and the current scheme with the Accounts, upon information and belief, others have made credible accusations against Ms. Solomon of credit card fraud and theft and that Ms. Solomon has threatened to “ruin them” with attacks of false and defamatory statements if the individual did not bend to her demands. The creation of the Accounts at issue here are just the latest scheme in a long line of scams.

67. After Grant Solomon’s death, concerned individuals donated roughly $14,000 for Gracie’s benefit. Ms. Solomon spent all of that money in a few months.

68. This time, Ms. Solomon has managed to convince others of her false version of events and persuaded them to join in her campaign of raising money for herself by use of false and malicious lies about Mr. Solomon and others.

69. It is clear that Ms. Solomon has supplied much of the content for the Accounts, despite her sworn testimony that she has not. The Accounts are posting information that they only could have received from Angie. For example, Post 44 of the Instagram account contains a video that Angie took on her phone in 2013 with a caption that contains information (albeit false) only Angie would know. Instagram Post 28 contains Angie Solomon’s private medical records. The Accounts have posted Angie Solomon’s text messages with Aaron Solomon or with the Sherriff of Williamson County. Assuming Mr. Solomon or the Sherriff did not leak these text messages, they could have only come from Angie Solomon.

70. By way of another example, the false and defamatory allegation that Mr. Solomon drugged women indisputably came from Ms. Solomon with the admission that the statement was being made and widely published with “no proof:”

71. By way of another example, the screen shot below further demonstrates that Angie Solomon’s sworn testimony that she is not associated with the Accounts is false. When writing about things that allegedly happened to “Angie,” she makes a mistake and refers to herself in the first person in the very next sentence:

72. Likewise, upon information and belief, both Angie Solomon and Melanie Hicks leaked highly confidential information from the juvenile court proceedings to the Accounts, which then posted the information. See Compl. Exhibit F (filed under seal). These posts included screenshots of confidential statements made by Gracie’s guardian ad litem and multiple posts about Gracie being taken from Angie and put into foster care.

73. Upon information and belief, Melanie Hicks is acting in concert with Ms. Solomon and the other Defendants and has provided false and defamatory information regarding Mr.

Solomon and caused it to be posted on the Accounts and/or has distributed false and defamatory information concerning Mr. Solomon to others, including members of the Huffine family.

74. Upon information and belief, Defendant Anna Smith is acting in concert with Ms. Solomon and the other Defendants to provide false and defamatory content regarding Mr. Solomon and has distributed this false information to others.

75. Upon information and belief, Wynn Hicks is acting in concert with Ms. Solomon and the other Defendants and has provided false and defamatory information regarding Mr. Solomon and has caused it to be posted on the Accounts.

76. Upon information and belief, Kami Abbate is publically publishing false and defamatory information about Mr. Solomon, namely that he has perpetrated abuse on Gracie Solomon.

77. The purpose of the Accounts is to defame Aaron Solomon with the discredited abuse allegations that Ms. Solomon has been making for years and to enflame the public into sending money to Ms. Solomon, as demonstrated below:

78. The Accounts make numerous false and defamatory statements about Mr. Solomon. For example, the Instagram Account’s first post, which has over 28,000 views, references a YouTube video2 featuring Gracie Solomon reading a statement that begins, “My brother died protecting me from my father, Aaron Solomon. My father is a monster.” She goes on to state, “My father raped me, hurt me, and I am not going to be a victim of this monster.” She states, “He is a rapist, he is a molester, he is a liar, and he is a killer.” The video continues for nearly 14 minutes in this vein. These statements are false and defamatory to the extreme. Numerous DCS investigations have looked into these same allegations of physical abuse and each time were returned as “unfounded.” Four different courts in five litigations have considered these same types of allegations and have concluded that they are not credible. Ms. Solomon’s own family does not believe her accusations because they believe her to be a compulsive liar and have witnessed her trying to turn the children against Mr. Solomon even before the parties’ divorce. The authorities in Gallatin have mounted two separate investigations into Grant’s accident and have concluded there is no probable cause to believe it was anything other than an accident.

79. Mr. Solomon did not kill his beloved son. Grant died just after getting out of his truck as he was preparing to go into a baseball training session—not in “protecting [Gracie] from [her] father.” Mr. Solomon had absolutely nothing to do with his son’s tragic death. These allegations of sexual abuse and murder are false and defamatory and are the result of Ms. Solomon’s years-long campaign of parental alienation.

80. On May 14, 2021, Wynn Hicks posted on his personal Instagram account calling Mr. Solomon “abusive, evil, and absolutely disgusting.” He stated that Mr. Solomon abused Ms. Solomon and threatened her every night. Mr. Hicks strongly implied that Mr. Solomon sexually

2 Freedom For Gracie, Gracie’s Story – A CRY FOR HELP, YouTube (May 12, 2021), https://www.youtube.com/watch?v=bpNRNuaFhAk&t=15s.

abused his daughter. The Instagram Account then reposted Mr. Hicks’ statements. These allegations are false and defamatory and are the result of Ms. Solomon’s years-long campaign of parental alienation of her two children.

81. On May 12, 2021, a YouTube video was posted on the YouTube channel “Freedom for Gracie” during which Anna Smith stated that Mr. Solomon sexually and physically abused his ex-wife and children, implied that Grant was murdered in order to prevent his testifying in court, and asserted that the courts have failed to protect Grant and Gracie.3 These allegations are false and defamatory and are the result of Ms. Solomon’s years-long campaign of parental alienation of her two children. The video contained at least the following defamatory statements:

 “Grant went on to tell me that his father, Aaron Solomon had molested Gracie, his younger sister.”

 “I asked Grant how long his father had been molesting Gracie and he explained that he remembered all the way back when she was a newborn.”

 “He said he had watched Aaron try to kill his mother but was luckily unsuccessful.”

 “Only a little bit later, Aaron took Grant and Gracie from their home and never took them back to see their mom.”

 “Later Aaron had told both of his children that Angie was dead.”

 “The Court system has once again failed and a child has once again been placed into the hands of an abuser.”

 “Because of the Court’s lack of concern and cowardly behavior, Gracie experienced her father inappropriately touching her on the North Carolina trip.”

 “Still, the Judge failed to help the innocent children from a dangerous abuser.”

 “Aaron is allowed at all events at GCA around hundreds of little kids for him to prey on.”

82. A screen shot of Ms. Smith’s video is shown below:

3 Freedom For Gracie, wynn’s testimony, YouTube (May 12, 2021), https://www.youtube.com/watch?v=0TmyVdC7_Q8.

83. Defendant Kami Abbate has likewise furthered these false allegations of abuse through numerous comments on the Instagram Account, including the following which implies that allowing Mr. Solomon to take Gracie off campus would be releasing Gracie to her “abuser”:

84. By way of another example, Ms. Abbate published the following comment which obviously refers to Mr. Solomon and falsely accuses him of abuse:

85. A post on the Instagram Account made on May 17, 2021, states that “Grant and Gracie were terrified because . . . Grant witnessed Aaron attempting to murder his mother by

wrapping a dryer cord around her neck and trying to hang her from the shower head in the bathroom.” This statement is false and defamatory. After a full hearing with live witnesses and consideration of the text messages between the parties, Judge Smith concluded that Ms. Solomon tried to commit suicide and that her claims that Mr. Solomon tried to murder her were not credible. Moreover, the proof showed that Ms. Solomon claimed at the time that the children were asleep and did not see her fabricated suicide attempt. See Cameron Declaration. The post appeared as follows:

86. By way of another example, the Instagram Account posted the image below, implying that Mr. Solomon was buying grave plots because he planned to kill Ms. Solomon or Gracie and explicitly stating that the plots were purchased “without Angie knowing anything.”

87. Based on this false statement, commentators claimed—and the Accounts agreed that Mr. Solomon is planning a “murder suicide[.]”

88. Later, the Instagram Account edited the caption of this same post and adopted the narrative that Mr. Solomon was planning a “murder, murder, suicide” as their own—furthering this false allegation:

89. However, in reality, the day after Grant’s death (on July 21, 2020), Mr. Solomon and Ms. Solomon, together with the funeral home director, picked out a burial plot for Grant. Mr. and Ms. Solomon jointly decided and agreed on purchasing the three plots beside Grant’s plot so that the entire family would have the ability to be buried next to Grant should they choose to do

so. Ms. Solomon insisted that Mr. Solomon pay for these three additional plots. See Declaration of Pam Stephens, filed contemporaneously with this Complaint. There was nothing untoward or improper about the purchase of these plots other than a grieving father wanting his son to be buried near his family.

90. The statements in this post are false and defamatory and are meant to whip up the Accounts’ followers into a frenzy so that they will donate money and widely share her false statements. When confronted with sworn third party testimony that these allegations and other allegations were false, Defendants did not retract them or remove them from the Accounts.

91. The Accounts have also claimed that Mr. Solomon wrote a fraudulent check to himself from the children’s school, Grace Christian Academy (“GCA”), that Mr. Solomon defrauded multiple individuals, and that Mr. Solomon has filed for bankruptcy multiple times. For example:

92. Again, all of these allegations are false. First, Mr. Solomon has only filed bankruptcy once—a joint filing with Ms. Solomon more than ten years ago. This fact is easily provable from a cursory review of bankruptcy court records. Second, Mr. Solomon has never “swindled” anyone, and there is no evidence that he has. Finally, Mr. Solomon never wrote a fraudulent check to himself from GCA. The Headmaster of GCA has testified by sworn declaration that Mr. Solomon was “owed the money at issue and the check was properly issued to him. Any statement, insinuation, or implication that Mr. Solomon stole or misappropriated money [from] GCA is false.” See Declaration of Robbie Mason filed contemporaneously with this Complaint

93. The Accounts have repeatedly and falsely stated that Mr. Solomon was banned from the Williamson County Parks and Recreation Center due to abusive behavior towards children, his family, and staff. For example:

94. Again, these allegations are provably false. Gary Hathcock, the Athletics Superintendent for the Williamson County Parks and Recreation Department, stated that they maintain records reflecting decisions to ban an individual from their facilities or leagues, and there is no record of any such action taken to exclude Mr. Solomon from any sports leagues, activities, or facilities. See Declaration of Gary Hathcock, filed contemporaneously with this Complaint.

95. In fact, Mr. Hathcock confirmed that Mr. Solomon is currently participating in an adult softball league associated with the Department. Id., at ¶ 5.

96. The Accounts have further stated that Mr. Solomon was mean and abusive to Grant and the children he coached in youth sports. This is also false. See Declaration of Scott Erby (filed contemporaneously with this Complaint) who has coached with Mr. Solomon and had a child on the same team as Grant for at least three years. Mr. Erby has testified that Mr. Solomon was supporting and encouraging of Grant, as well as all the children on the team. Id., at ¶ 4. Mr. Erby also testified that he never saw Mr. Solomon beco me verbally abusive or aggressive with anyone. Id., at ¶ 5. Based on his own personal observation over a lengthy period of time, he has always known Mr. Solomon to be a loving and supportive father who provided a loving and positive environment for his children. Id. at 9.

97. There are numerous more provably false statements made by the Accounts that Mr. Solomon will not address here for the sake of brevity. Moreover, there are numerous false and defamatory statements that do not relate in any way whatsoever to the Accounts’ supposed mission to address child abuse. For example, he Accounts have repeatedly stated false and defamatory reasons for Mr. Solomon’s alleged termination from WSMV more than ten years ago, have mocked his financial circumstances, have mocked his clothing, have mocked his church attendance, and have even mocked his anatomy.

DEFENDANTS’ SCHEME TO RAISE MONEY

98. Moreover, the Defendants, through the Accounts, are knowingly using Mr. Solomon’s and Gracie’s names, images, and likenesses in commercial advertising to sell products and solicit donations without Mr. Solomon’s permission or consent.

99. The Defendants are using Mr. Solomon’s and Gracie’s names, images, and likenesses (without Mr. Solomon’s authorization) to solicit donations through the Venmo account identified above (@Brighter-Day-Friends07) and through a GoFundMe website4 that can be and has been widely shared over social media:

4 Freedom4Gracie, GoFundMe, https://www.gofundme.com/f/freedom4gracie?utm_campaign=p_cp_display&utm_medium=copy_link& utm_source=customer (last visited May 20, 2021).

100. Even the GoFundMe contains fraudulent information. On Twitter, the Accounts claim that Gracie is receiving free legal representation, although on GoFundMe, they claim to be raising money for Gracie’s legal fees. For example, while arguing with an account they (incorrectly) believe is Mr. Solomon, the Accounts taunt that Gracie is receiving free representation from “the best lawyer in town”:

101. Likewise, the GoFundMe lists donations that were not actually made. For example, the GoFundMe indicates that Steve Berger, the former head pastor of Grace Chapel, donated to this effort. In reality, in his sworn declaration filed contemporaneously with this Complaint, Pastor Berger has testified that he made no such donation and this information is false:

102. Like the other falsehoods, this was done to generate outrage and clicks. For example, in the following screenshot, user “melissakirk5” illustrates exactly how Defendants’ plan worked:

103. The Accounts have also posted their intent to use Gracie’s name, image, and/or likeness on a t-shirt that the Defendants will sell for a profit. The Accounts also use Mr. Solomon’s name, image, and likeness to generate outrage and manipulate people into buying the t-shirts. A copy of the post promoting the t-shirt sales is below:

104. Mr. Solomon has not given his consent for the use of his name, image, or likeness in this manner to solicit donations and sell goods.

105. Mr. Solomon, as the custodial parent of minor Gracie, has not given his consent to use Gracie’s name, image, or likeness in this manner to solicit donations and sell goods.

DEFENDANTS’ CONTINUED CAMPAIGN OF LIES

106. On May 18, 2021, Mr. Solomon sent cease and desist letters to Anna Smith, Ms. Solomon, and Wynn Hicks, explaining that the allegations are false and demanding that the defamatory content be removed. Although they are of majority age, Mr. Solomon sent copies of these cease and desist letters to Anna Smith’s and Wynn Hick’s parents as well. Copies of these letters without their exhibits are attached as Exhibits C, D, and E.

107. None of the defamatory content was removed and, in fact, additional defamatory content was added and followers were encouraged to spread the defamatory content even further:

108. As the Accounts gained more followers, unknown individuals were sharing the false content and tagging local news media in an effort to further destroy Mr. Solomon’s reputation with these defamatory falsehoods. The frantic slinging of false and defamatory information has continued unabated until the current day. In fact, just before this Complaint was filed, the Twitter Account was falsely claiming that it was in touch with Mr. Solomon’s attorneys and implied (falsely) that it was in possession of facts indicating that Mr. Solomon’s lawyers do not believe his claims and that they would abandon him. None of this is true:

109. And, again, the Accounts are constantly tagging numerous press outlets in an effort to further and more widely distribute these falsehoods.

110. Both Ms. Solomon and Ms. Hicks have denied having any involvement in the Accounts under oath. Upon information and belief, these denials were false. The Accounts are rife with information that only Ms. Solomon could provide, such as her own medical records and her own text messages. And, more recently, Ms. Solomon—posting under the guise of the “FreedomForGracie” Instagram Account—described something that happened to “Angie.”

However, in the same post, she made the error of referring to herself as “I” instead of in the third person:

111. There can be little doubt that Ms. Solomon has lied regarding her involvement with the Accounts and instead has been the source of much of the Accounts’ false statements. However, upon information and belief, all Defendants, including the John Doe Defendants, also supplied and distributed false and defamatory information and acted with a common purpose—to destroy the character and reputation of Aaron Solomon in order to extort from him his valid custody rights, to harass and demean him, and to raise money for Angie Solomon. The Defendants each knew that the others intended to destroy Mr. Solomon’s reputation and acted with a common plan to further that goal. Each of the Defendants made an overt act, including posting and sharing false information about Mr. Solomon, in furtherance of the common conspiracy among the Defendants, including the John Doe Defendants.

THREATS OF HARM TO PLAINTIFF

112. Mr. Solomon is being subjected to threats and public scorn as a result of the false postings on the Accounts. For example, below is an example of a threatening direct message he has received from a complete stranger:

An additional example is the following comment posted to the Instagram Account by user “@bloodthirsty.butterfly”:

113. Another poster bragged about how the falsehoods spread by the Accounts prompted her to terminate her relationship with Merrill Lynch (Mr. Solomon’s employer) and remove all of her family’s accounts:

114. And just in case friends and acquaintances of Mr. Solomon managed to miss this massive social media campaign, individuals associated with the Accounts have direct messaged friends and acquaintances of Mr. Solomon with these same false claims of abuse, for example:

115. Moreover, the Accounts have worked in concert to stalk and harass Mr. Solomon by means of a computer. For example, the following Twitter posts are meant to threaten and alarm Mr. Solomon and imply that they are watching him at all times:

116. There can be no serious dispute that the acts as described herein have caused severe mental anguish, emotional distress, and other serious harm to Mr. Solomon. Mr. Solomon has been extremely concerned about the nasty and aggressive tone of these false communications. Numerous individuals have spoken to Mr. Solomon expressing concern for his safety. Moreover, these acts are causing serious harm to unwitting consumers who are donating to Ms. Solomon’s and the other Defendants’ schemes because they have been misled and enflamed by the Accounts’ false postings.

117. Mr. Solomon filed an action in Williamson Circuit Court on or about May 21, 2021, seeking a temporary and preliminary injunction. The Court declined to grant the temporary

injunction, but granted Plaintiff’s motion for expedited discovery, and set the preliminary injunction motion for a hearing on June 1, 2021. By agreement, the parties moved the hearing to June 22, 2021.

118. On June 8, 2021, certain Defendants filed a motion to dismiss pursuant to Tennessee’s Public Participation Act.

119. Plaintiff responded to Defendants’ motion to dismiss on June 17, 2021, demonstrating that the Act does not apply to this action because this is not a matter of public concern and because defamatory speech is not protected. Mr. Solomon also provided numerous third-party declarations establishing that many statements made by the Accounts are false and defamatory. In response, the Accounts have threatened these witnesses:

120. On June 21, 2021, the afternoon before the scheduled hearing, the Williamson County Circuit Court continued the hearing on Mr. Solomon’s Motion for Injunctive Relief some five weeks or until July 28, 2021.

121. Plaintiff took a non-suit in his case in Williamson Circuit Court on June 29, 2021, and filed the instant action immediately after.

CLAIM ONE DECLARATORY JUDGMENT AS TO ALL DEFENDANTS

122. All allegations above are incorporated by reference as if fully restated herein.

123. Pursuant to 28 U.S.C. § 2201, Plaintiff seeks a declaratory judgment from this Honorable Court that Defendants’ conduct as described herein amounts to false advertising pursuant to the Lanham Act at 15 U.S.C. § 1125(a), and a deceptive trade practice under Tenn. Code Ann § 47-18-109.

124. Plaintiff also seeks a declaratory judgement from this court that Defendants’ conduct as described herein amounts to cyber harassment pursuant to 18. U.S.C. §§ 2261a, 875(d).

125. The controversy between the parties is substantial, immediate, and real.

126. The parties have adverse legal interests.

127. Plaintiff has been damaged by the conduct described herein.

CLAIM TWO UNFAIR COMPETITION IN VIOLATION OF FEDERAL LAW

15 U.S.C. § 1125(a) AS TO ALL DEFENDANTS

128. Mr. Solomon repeats and re-alleges the allegations contained in the preceding paragraphs of this Complaint and incorporates such paragraphs herein by reference.

129. The Defendants have made false or misleading statements of fact in commercial advertising and in their marketing efforts concerning their products, commercial activities, and requests for donations. They further made literally false and misleading statements about the services of Mr. Solomon These false statements constitute an overall fraudulent system for extracting sympathy and donations out of misled consumers.

130. The false statements and unfair competition as described herein actually or tend to deceive a substantial portion of the intended audience.

131. The false statement and unfair competition as described herein are material in that it will likely influence the deceived consumer’s purchasing or donation decisions and or that consumer’s decision to share or more widely disseminate the false statements of fact that Defendants are propounding in the marketplace.

132. The advertisements and commercial promotions have been introduced into interstate commerce.

133. There is a direct causal link between the false and defamatory statements as alleged herein and harm to Mr. Solomon.

134. Unless restrained and enjoined by this Court, both consumers and Mr. Solomon will continue to experience irreparable harm.

135. Mr. Solomon has no adequate remedy at law.

136. Mr. Solomon is entitled to compensatory damages, Defendants’ profits, damages for corrective advertising, costs and attorney fees.

CLAIM THREE DEFAMATION AS TO ALL DEFENDANTS

137. All allegations above are incorporated by reference as if fully restated herein.

138. As described herein, the Instagram Account and other subsequent “Freedom for Gracie” accounts on other social media platforms contain multiple false statements, including but not limited to, statements accusing Mr. Solomon of sexually abusing his daughter, physically abusing his ex-wife and children, and killing his own son.

139. These statements created and shared by Defendants have exposed Mr. Solomon to wrath, public hatred, contempt, ridicule and have deprived him of the benefits of public confidence or social interaction.

140. All Defendants, including the John Doe Defendants, have communicated a false statement or statements that refer to Mr. Solomon.

141. The statements were and are defamatory.

142. The statements were heard and read by persons other than Mr. Solomon, including members of the general public, who understood the statements’ defamatory meaning and that they referred to Mr. Solomon.

143. Defendants broadcasted and continue to broadcast the false statements to individuals other than Mr. Solomon via social media.

144. All Defendants, including the John Doe Defendants, were negligent and/or acted recklessly in failing to determine if the statements were true before communicating them or, alternatively, the Defendants knew the statements were false before communicating them.

145. Mr. Solomon has been gravely injured and has suffered actual damages by the communication of the statements, and the statements alleging abuse, neglect, attempted murder, and murder are all false.

146. Mr. Solomon is entitled to compensatory damages for his economic losses, compensation for all injury to his reputation, and compensation for emotional distress caused by the defamation.

147. Because the Defendants are guilty of actual malice, wanton, reckless, and willful misconduct, Mr. Solomon is entitled to punitive damages.

148. Defendants do not enjoy any privilege that excuses or justifies the defamation.

CLAIM FOUR INVASION OF PRIVACY AS AGAINST ALL DEFENDANTS

149. All allegations above are incorporated by reference as if fully restated herein.

150. The Defendants, including the John Doe Defendants, intentionally intruded upon Mr. Solomon’s solitude or seclusion or his private affairs and concerns.

151. This intrusion is highly offensive to a reasonable person.

152. The intrusion has caused injury and loss to Mr. Solomon.

CLAIM FIVE FALSE LIGHT AGAINST ALL DEFENDANTS

153. All allegations above are incorporated by reference as if fully restated herein.

154. All of the Defendants have publicized information that places Mr. Solomon in a false light.

155. Defendants’ publicity of this false information is highly offensive to a reasonable person.

156. The Defendants knew or acted with reckless disregard to the falsity of the publicized matter and the false light in which Mr. Solomon would be placed.

157. The statements made by Defendants implied a basis in defamatory facts.

158. Defendants publicized these false statements with actual malice.

159. Defendants’ acts in publicizing this false information has caused extensive damage to Mr. Solomon.

CLAIM SIX

NEGLIGENCE PER SE AS AGAINST ALL DEFENDANTS AND ARISING FROM VIOLATIONS OF FEDERAL STATUTES TO PROTECT THE PUBLIC FROM CYBER HARASSMENT (18. U.S.C. §§ 2261A, 875(d))

160. All allegations above are incorporated by reference as if fully restated herein.

161. In spreading false and defamatory information about Mr. Solomon without a privilege to do so, Defendants have failed to use reasonable care in their dealings regarding Mr. Solomon.

162. In addition, Defendants were negligent per se in that their acts violated 18 U.S.C. § 2261A because they involved using the interactive computer services, electronic communication services, and electronic communication system of interstate commerce with the intent to injure, harass, and intimidate Mr. Solomon by engaging in a course of conduct that caused, attempted to cause, and would be reasonably expected to cause substantial emotional distress to Mr. Solomon.

163. Specifically, the Defendants used social media platforms, which are interactive, electronic communication services and systems of interstate commerce, with the intent of injuring, harassing, and intimidating Mr. Solomon by, among other things: ruining Mr. Solomon’s reputation in his community and across the country, ruining his relationship with his daughter, denying him his custody rights to his daughter, and ruining his professional career. This caused and reasonably would be expected to cause substantial emotional distress to Mr. Solomon.

164. Defendants were also negligent per se in that their acts violated 18 U.S.C. § 875(d) because they, with intent to extort from Mr. Solomon his custody rights, which is a thing of great value, transmitted a communication containing threats to injure the property and/or reputation of Mr. Solomon and threatened to accuse (and in fact did falsely accuse) Mr. Solomon of numerous crimes, including murder, theft, forgery, and/or assault and battery.

165. Specifically, Defendants transmitted communications containing threats to ruin (and communications actually attempting to ruin) Mr. Solomon’s reputation and threats to accuse (and actually accusing) Mr. Solomon of the crimes of murdering his son, attempting to murder his

wife, sexually abusing his daughter, physically abusing his family and others, and drugging women.

166. 18 U.S.C. §§ 2261A and 875(d) are federal penal statutes designed to protect the public and enable the courts to use the statutes to define a reasonably prudent person’s standard of care because both statutes establish specific standards of conduct.

167. Mr. Solomon belongs to the class of persons the statutes were designed to protect and Mr. Solomon’s injuries are the type of injures the statutes were designed to prevent.

168. Therefore, as Defendants have clearly violated both statutes, they have failed to meet the required standards of conduct and their behavior is negligent per se.

169. Defendants’ acts violating the statutes have caused and continue to cause Mr. Solomon extensive damages including, but not limited to, extreme emotional distress and injury to his reputation.

CLAIM SEVEN INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AS AGAINST ALL DEFENDANTS

170. All allegations above are incorporated by reference as if fully restated herein.

171. The Defendants’ actions as described herein are extreme, outrageous, intentional and reckless.

172. Defendants’ conduct is so outrageous that it cannot be tolerated by polite society.

173. The Defendants’ conduct has resulted in serious mental injury to Mr. Solomon. Accusing Mr. Solomon of raping his own child and killing his deceased son is so outrageous that no reasonable person should be expected to endure it.

CLAIM EIGHT CIVIL CONSPIRACY AS AGAINST ALL DEFENDANTS

174. All allegations above are incorporated by reference as if fully restated herein.

175. All Defendants have committed numerous predicate torts and crimes against Mr. Solomon, including at least the following: defamation, invasion of privacy, false light, negligence per se, fraud, and intentional infliction of emotional distress. Moreover, as set forth above, much of Defendants’ behavior amounts to crimes under federal law, such as violations of 18 U.S.C. § 2261A and 18 U.S.C. § 875(d).

176. There was a common design among the Defendants, including John Does 1-25, with each having the intent and knowledge of the other’s intent, to accomplish by concerted action an unlawful purpose or a lawful purpose by unlawful means. The unlawful purpose was to destroy Mr. Solomon’s reputation and standing in the community and thereby collect donations and sell products to benefit Ms. Solomon.

177. Each of these Defendants made an overt act in furtherance of the conspiracy.

178. Each of these Defendants have caused extensive damage to Mr. Solomon, entitling him to compensatory and punitive damages.

CLAIM NINE INJUNCTIVE RELIEF AS AGAINST ALL DEFENDANTS

179. All allegations above are incorporated by reference as if fully restated herein.

180. Mr. Solomon (as well as the community at large) has suffered and will continue to suffer immediate, irreparable injury if the Defendants are not enjoined from the further publication and distribution of the false and defamatory statements described herein.

CLAIM TEN

181. All allegations above are incorporated by reference as if fully restated herein.

182. Defendants are, without Mr. Solomon’s consent, using Mr. Solomon’s name, image, and likeness on the Instagram Account and other social media accounts as an item for

commerce for the purposes of (i) advertising products and goods, (ii) fundraising, and (iii) soliciting donations and purchases of products.

183. Defendants are, without custodial parent Mr. Solomon’s consent, using minor Gracie Solomon’s name, image, and likeness on the Instagram Account and other social media accounts as an item for commerce for the purposes of (i) advertising products and goods, (ii) fundraising, and (iii) soliciting donations and purchases of products.

184. Therefore, Defendants have violated and continue to violate the Tennessee Personal Rights Protection Act (Tenn. Code Ann. § 47-25-1101 et. seq.) through Defendants’ unauthorized uses of Mr. Solomon’s and Gracie Solomon’s name, image, and likeness.

185. Mr. Solomon has been damaged by Defendants’ actions and is entitled to all appropriate damages awardable under law.

CLAIM ELEVEN COMMON LAW PROCUREMENT OF BREACH OF CONTRACT AS TO ALL DEFENDANTS

186. Mr. Solomon repeats and re-alleges the allegations contained in the preceding paragraphs of this Complaint and incorporates such paragraphs herein by reference.

187. Defendants, by their actions as described herein, have induced by misrepresentation the breach or refusal to perform lawful contracts with Mr. Solomon’s employer in an effort to damage his relationship with his employer and have Mr. Solomon terminated or have his career and client relationships otherwise destroyed.

188. Defendants, in full knowledge of Mr. Solomon’s and his employer’s contracts with third parties, purposefully procured the breach of said contracts by falsely representing to those third parties that Mr. Solomon’s has filed numerous bankruptcy actions and committed certain abhorrent actions, which he did not commit. In particular, Defendants informed clients that

“everyone should be aware to do [their] own research if [they] are trusting Aaron Solomon with [their] money.”

189. Mr. Solomon has been injured by Defendants’ actions and entitled to damages, injunctive relief, and an award of his reasonable attorney fees.

CLAIM TWELVE

PROCUREMENT OF BREACH OF CONTRACT AS TO ALL DEFENDANTS IN VIOLATION OF TENN. CODE ANN. § 47-50-109

190. Mr. Solomon repeats and re-alleges the allegations contained in the preceding paragraphs of this Complaint and incorporates such paragraphs herein by reference.

191. Defendants, by their actions as described herein, have induced by misrepresentation the breach or refusal to perform lawful contracts with Mr. Solomon’s employer in an effort to damage his relationship with his employer and have Mr. Solomon terminated or have his career and client relationships otherwise destroyed.

192. Defendants, in full knowledge of Mr. Solomon’s and his employer’s contracts with third parties, purposefully procured the breach of said contracts by falsely representing to those third parties that Mr. Solomon’s has filed numerous bankruptcy actions and committed certain abhorrent actions, which he did not commit. In particular, Defendants informed clients that “everyone should be aware to do [their] own research if [they] are trusting Aaron Solomon with [their] money.”

193. Mr. Solomon has been injured by Defendants’ actions and entitled to treble damages, injunctive relief, and an award of his reasonable attorney fees.

CLAIM THIRTEEN INTENTIONAL INTERFERENCE WITH BUSINESS RELATIONSHIPS

194. Mr. Solomon repeats and re-alleges the allegations contained in the preceding paragraphs of this Complaint and incorporates such paragraphs herein by reference.

195. Defendants, by their actions as described herein, have intentionally and wrongfully interfered with Mr. Solomon’s business relationships by falsely representing to both his and his employer’s clients that Mr. Solomon has filed multiple bankruptcies and committed certain abhorrent actions, which he did not commit. In particular, Defendants informed clients that “everyone should be aware to do [their] own research if [they] are trusting Aaron Solomon with your money.”

196. Mr. Solomon has been injured by Defendants’ actions and entitled to damages, injunctive relief, and an award of his reasonable attorney fees.

CLAIM FOURTEEN VIOLATION OF TENNESSEE CONSUMER PROTECTION ACT AS TO ALL DEFENDANTS

197. Mr. Solomon repeats and re-alleges the allegations contained in the preceding paragraphs of this Complaint and incorporates such paragraphs herein by reference.

198. Defendants, by their actions as described herein, have willfully engaged in deceptive acts that have disparaged the services and business of Mr. Solomon by false and misleading representations of fact.

199. Mr. Solomon has been injured by Defendants’ actions and is entitled to treble damages, injunctive relief, and an award of his reasonable attorney fees.

CLAIM FIFTEEN FRAUD AS TO ALL DEFENDANTS

200. Mr. Solomon repeats and re-alleges the allegations contained in the preceding paragraphs of this Complaint and incorporates such paragraphs herein by reference.

201. As described herein, Defendants have made numerous false and misleading statements of fact and/or have concealed material facts for the purpose of misleading the

consumers they are targeting to raise money and sell products for Angie Solomon and Gracie Solomon.

202. Upon information and belief, the Defendants have conspired together as described herein to mislead consumers with false and misleading statements of fact in order to increase the audience for their false and defamatory campaign against Mr. Solomon so as to generate false outrage, sell products, and increase donations.

203. Consumers and others have relied upon Defendants’ false statements to their detriment and have suffered damages and losses as a direct and proximate result. Moreover, consumers have relied on these false and misleading statements to act so as to damage Mr. Solomon and his employer.

204. As a result of their egregious, willful, and malicious conduct, Defendants are liable to Mr. Solomon for punitive damages.

PRAYER FOR RELIEF

Having fully pled, Mr. Solomon prays for the following relief:

1. A declaratory judgment from this Court that Defendants’ conduct as described herein amounts to violations of the Tennessee Consumer Protection Act as well as the Lanham Act’s prohibition against false advertising.

2. A temporary and permanent injunction against all Defendants, their agents, employees, attorneys, and all persons acting in concert with them from any further use, posting, publicizing, dissemination, or distribution of false and defamatory content concerning Mr. Solomon, his marriage, his divorce, his ex-wife, or his children.

3. A temporary and permanent injunction against all Defendants, their agents, employees, attorneys, and all persons acting in concert with them requiring the removal of the Accounts

and all other “Freedom for Gracie” social media accounts that contain the defamatory content described herein, whether on Facebook, Twitter, and Youtube concerning Mr. Solomon.

4. A temporary and permanent injunction against all Defendants, their agents, employees, attorneys, and all persons acting in concert with them barring them from creating any other social media accounts publishing the defamatory content described herein.

5. A temporary and permanent injunction against all Defendants, their agents, employees, attorneys, and all persons acting in concert with them barring them from using Mr. Solomon’s and Gracie Solomon’s name, image, or likeness without Mr. Solomon’s consent in violation of the Tennessee Protection of Personal Rights Act.

6. An order allowing the expedited discovery of the identities of all individuals with administrative rights to the Accounts at issue in this case as well as the IP address of any individuals with access to the Account(s) or that have used the Account(s) to post and/or spread defamatory material concerning Mr. Solomon.

7. An order prohibiting the Accounts from selling products or raising money using false or defamatory information concerning Mr. Solomon or any other falsity which incites consumers to donate money for Ms. Solomon or to buy products.

8. An order allowing the expedited discovery of the identities of any individuals posting or sharing false and defamatory statements regarding Mr. Solomon.

9. A judgment against each Defendant for all compensatory damages that Mr. Solomon has sustained in an amount to be determined at trial.

10. A judgement of treble damages for Defendants’ violation of the Tennessee Consumer Protection Act and their procurement of breaches of contract with Plaintiff’s employer so as to destroy his career;

11. A judgment for his reasonable attorney fees under the Tennessee Consumer Protection Act for Defendants’ malicious and willful conduct;

12. A judgment against each Defendant for punitive damages in an amount to be determined at trial.

13. A judgements against all Defendants for any damages to which Mr. Solomon is entitled under the Lanham Act, including damages, punitive damages, funds for corrective advertising, and attorney fees and costs;

14. That Mr. Solomon be awarded any such further relief to which he might be entitled after a trial on the merits of these issues;

15. Mr. Solomon demands a jury to hear and try all issues properly submitted to the trier of fact.

Dated this 29th day of June, 2021.

Respectfully Submitted,

/s/ Paige Waldrop Mills

Paige W. Mills (BPR #016218)

Ashleigh D. Karnell (BPR #036074)

BASS, BERRY & SIMS PLC

150 Third Avenue South, Suite 2800

Nashville, TN 37201

Telephone: (615) 742-6200

Facsimile: (615) 742-6293

pmills@bassberry.com

akarnell@bassberry.com

Attorneys for Plaintiff Aaron Solomon

ELECTRONICALLY FILED

2021 Jun 17 5:34 PM - 21CV-200

Williamson County Circuit Court

EXHIBIT A

DECLARATION OF AARON SOLOMON

I, Aaron Solomon, have first-hand knowledge of the following facts:

1. The Instagram, Twitter, Facebook, and Youtube accounts at issue in the case (collectively, the “Accounts”) have made numerous false and defamatory statements about me. These false allegations include, but are not limited to the following, each of which will be addressed in turn below:

a. That I tried to kill Angelia (or “Angie”) Solomon prior to our divorce or otherwise physically abused her;

b. That I sexually abused Gracie Solomon;

c. That I physically and/or emotionally abused Grant and Gracie Solomon;

d. That I murdered Grant Solomon and that used my “influence” to see that no investigation was done;

e. That I bought grave sites for Angelia and Gracie without Angelia’s knowledge as part of some sort of “murder suicide plan;”

f. That I was banned from participating in activities sponsored by the Williamson County Sports and Recreation Department because I was abusive to my wife, children, and others;

g. That I was abusive and mean to children when coaching baseball;

h. That I stole money from Grace Christian Academy and GCA “covered it up;”

i. That I have filed “multiple bankruptcies;”

j. That I have “swindled” unknown and unnamed people;

k. That I was fired from Channel 4 because I had “inappropriate content on my computers and phone;”

l. That I was diagnosed as a narcissist, sociopath, and/or sex addict;

m. That I have repeatedly breached a restraining order put in place by the Williamson County Juvenile Court;

n. That I abused some unnamed ex-girlfriend;

o. That I “drugged” certain unnamed women” .

2. First, as set forth in the Complaint, I have never abused, sexually or otherwise, either of my children, Grant or Gracie Solomon. I deeply love my children and have tried my best to be a good father to them throughout my divorce from their mother, Angelia Solomon.

3. Angelia Solomon is habitually untruthful and she hates me. Rather than try to coparent our children in a way that allows them to love and respect both parents, she has taken every opportunity to teach them to hate and fear me as well. Please see the Declaration of Dan Huffines, Angie’s own father, for confirmation of this.

4. This behavior has destroyed my relationship with my children. In order to understand this dispute, it is important to understand the history between me and Angelia Solomon.

False Allegations that I tried to kill Angelia Solomon

5. During our divorce before Judge Phillip Smith, which was granted in August of 2014 Angelia Solomon leveled many accusations against me. She alleged that I tried to kill her by strangling her with the cord from a blow dryer and she alleged that I sexually and otherwise abused the children. These allegations were and are false. They were found not to be true by Judge Phillip Smith, after a full hearing in which he heard and saw witnesses testify live and he physically examined the evidence.

6. Prior to our divorce, I did not know or have any relationship whatsoever with Judge Smith. During our divorce proceedings, I had no improper or extra-judicial contact with Judge Smith of any kind. I have not had any contact whatsoever with Judge Smith since our divorce. To my knowledge, my attorneys had no improper or ex parte contact with Judge Smith of any kind regarding our divorce. He simply heard our divorce case like he hears thousands of

others. The allegations that the Accounts are making that I improperly influenced Judge Smith during the divorce proceedings are false and defamatory to me, my attorneys, and Judge Smith.

7. The Accounts have repeatedly alleged that Judge Smith was somehow “swayed by my wealth and celebrity.” This allegation is ludicrous. At the time of our divorce, both Angelia and I were unemployed (more on this below), I had not worked as a television broadcaster in two years, was deeply in debt, and Angelia and I were in bankruptcy.

8. The events that immediately precipitated the divorce were as follows. On or about 2:30 am on May 9, 2013, Angelia and I were discussing our problems in the living room. She said, “I’m going to go end it. I’ve been thinking about this. I know how to do it. I know what I’m going to do.” This was not unusual. She had threatened suicide on other occasions, but had never gone through with it. However, I was very concerned about these threats and they were one of the main reasons I believed she needed serious psychiatric help.

9. On this night, our children were asleep in the master bedroom. She went into the master bedroom and locked the door behind her. She then went into the master bath, and closed a set of double French doors that does not lock. Within the master bathroom, there was an inner chamber containing the toilet and the shower. She went in that chamber and locked the door. Three to five minutes after she left the living room, I followed her but it took a few minutes to find the keys to unlock the various doors. I found Angelia with a hair dryer cord wrapped around her neck hanging from the shower in our master bathroom. She appeared to be unconscious and was turning blue. I frantically unwrapped the cord and tried to revive her. When she came to, she became semi-violent. She pushed me away, she kicked at me, saying “Don’t try to help me!” At that point we left the master bath inner chamber and went back into the living room because I didn’t want the children to be awakened by this. They were still asleep. Angelia screamed that

she was going to “beat the hell out of me” for the next two and half hours until the kids woke up. She proceeded to attack me. This all took place at roughly 2:30 in the morning.

10. In order to deescalate the situation and not wake the children, I left the house and called her parents. Although her parents were aware that she had threatened suicide many times in the past, she had never carried things this far and both her parents and I were extremely concerned. I waited for daylight in the Kroger parking lot near our house, trying to decide what to do next. Because I was concerned that she would not be truthful and tell people that I tried to kill her, I decided to send her some texts in order to protect myself. A representative sample of these texts are discussed below. I filed for divorce in Davidson County Circuit Court shortly after this incident.

11. Angelia swore out an order of protection against me on or about May 11th , 2013 right after she got out of Parthenon Pavilion, falsely claiming that I had tried to kill her. In addition to the false allegation that I had tried to kill her, she alleged that I had knocked her to the ground in front of her parents. Her father has also put in sworn testimony that this allegation is false and never happened. See Declaration of Dan Huffines. Although she later dismissed the order of protection, in the divorce proceedings, she continued to maintain that I tried to kill her and that she did not try to commit suicide.

12. On June 21, 2013, Judge Smith held a hearing in which he heard testimony on Angelia’s Solomon’s allegations that I tried to kill her. A transcript of these proceedings are attached to this declaration. The proof at the hearing showed the following:

a. A declaration from Dr. Murphy was not admitted because it was hearsay and Angelia’s attorneys did not bring Dr. Murphy to appear in person at the hearing.

b. Angelia’s own father testified that she was a compulsive liar, that he was extremely concerned for her mental health; that she had falsely reported to him and his wife that I

had been arrested for “knocking Grant to the ground;” that in every conversation he has with her she tells “some untruth” and “something is going to be stretched;” that she has had problems telling the truth for five to eight years; that he knows she needs psychological help; he and his wife had been talking to Angelia for “months and months” about needing psychiatric help; and that he was very concerned about her being with his grandchildren at the time of the hearing.

c. Angelia had threatened suicide on multiple occasions in order to get me to “come home” and not end the marriage. After the filing of the divorce, Angelia wrote an email to me saying, “[t]his is my last writing on this earth;” and “I guess I will prepare for what exists for the cowards on the other side.” Angie testified in the hearing that she had let me think on other occasions that she was going to harm herself in order to get me to come home but that that “didn’t happen this time.”

d. In order to protect myself from Angelia’s allegations that I had tried to kill her, less than an hour after the incident I texted her that I had a picture of her hanging from the shower head. In reality, I did not have such a picture because when I found her I acted immediately to save her, without thinking to take a picture. She replied, “You took a picture before you tried to help me? That just shows me where this has gone. Just go find another. I staged that anyway, but who cares. Use it against me.” She also texted “I’m beyond hysteria. Got to calm down. All I wanted was to be loved, nothing more. Unfortunately, I wouldn’t kill myself, but you would memorialize my faking it to get attention and use it against me instead of love me.” She further texted “I’m hysterical, and I’m ending it all.”

e. In another text she stated, “You are taking y’all back to lake house to forever leave Mommy. I found one bullet in the chamber, and I left a note for the babies. I can’t live this way.” There were numerous texts in this vein. Although Angelia testified that she did not send these texts, Judge Smith asked to see her phone and located them on her phone.

f. Judge Smith also located the following text from me to Angelia on her phone in response to these texts, “Please don’t do anything drastic. I love you. The kids love you…you need to get help….Seriously I am not playing any games. I’m worried about you.”

g. Judge Smith also examined an email that Angelia sent me at this time that said, “Dr. Murphy is concerned for [the children] too. I am not suicidal. I made a bad choice for attention, but I expect – I accept responsibility for that choice and have learned why I did it and won’t repeat it.” Angelia testified that she stated this because “[i]n our marriage, when anything went awry or there was any violence, as long as I took ownership of it, Aaron would come home, and I would still have a marriage.”

h. In response, Judge Smith asked her, “And this is a man who you said put a cord from a hair dryer around your neck?...Why would you want that man back?” Angie replied, “That’s a watershed moment, your Honor. I wanted him back because I love him.”

i. In this hearing, Angelia testified that Grant was in the bed and not in the master bathroom at the time I allegedly tried to kill her. She does not testify that Grant witnessed this alleged “attempted murder.” She also did not make this allegation in her May 21, 2013, Petition for an Order of Protection. In fact, she told her friend, Lori Cameron, who

accompanied her to swear out the Order of Protection, that the children did not witness this incident. See Declaration of Lori Cameron.

j. Roughly six months or so before the divorce, Angelia started saying false things to the children to make them take her side. The morning after the fake suicide, Angelia told the children that “daddy left in the middle of the night to go sleep with a woman.”

k. During this time period, Angelia published or caused to be published on the internet that I had “stolen her babies,” and/or “kidnapped the children” in order to raise money. She raised a significant amount of money from these false statements nearly $4,000. Judge Smith admonished her for doing this stating, “Why would you tell people he had stolen your babies? I mean, I signed a restraining order, ma’am. If anybody is to blame, it is me.” Angelia quickly backtracked and claimed that someone had “gotten into her Facebook Account.” She testified that she told the people that were helping her to “take this thing down. I don’t want to do anything to hurt Aaron, the children, or me.”

l. Judge Smith examined evidence that Angelia had sent Grant a text from her phone number on his iTouch in violation of the Court’s restraining order, telling him that “Daddy had locked her in the house,” despite denying to the Court that she did so.

m. Judge Smith stated from the bench that he found Angelia to be untruthful, that she needed mental health treatment, that he believed she did try to commit suicide, that he believed she did text her son in violation of his order, and that he was very concerned about the safety of the children in her care, and that he was concerned she might try to commit suicide again with the children in her care.

n. Angelia was represented by counsel in this hearing and she did not appeal Judge Smith’s Order.

False Allegations of Sexual, Physical, and Emotional Abuse of the Children

13. I have never sexually or physically abused my children. Despite numerous DCS investigations opened as a result of such complaints from Angelia Solomon, each time the DCS has concluded that these allegations are unfounded. Attached to this Declaration as Exhibit A is a letter from DCS showing that it has never found me to be a perpetrator of child abuse or neglect and there are no open investigations regarding me.

14. Many of these allegations were made at the time of the original divorce, were the subject of a live hearing that took place on November 15, 2013, and were addressed by Judge Smith in his order in January of 2014.

15. At the November 15, 2013 hearing, Judge Smith required me to subpoena the DCS caseworkers so that they would be present to testify. I did so.

16. Angelia had maintained that she was not the one making referrals of child abuse to DCS.

17. After hearing the DCS caseworkers testify under oath in open court, Judge Smith found as follows:

a. Contrary to her representation to the Court, Angelia had in fact been the one who had made the referrals to DCS;

b. That based on the behavior of Angelia Solomon, he found that she had misrepresented very important facts to the Court;

c. Judge Smith did not order parenting time for Angelia because of his “great concern” with the false allegations made and her “overall lack of honesty” since the proceedings first began.

d. Judge Smith found that the allegations that she made to DCS of physical and sexual abuse were “without any basis.”

e. Judge Smith further found that “the Court has a long history and familiarity with this case…and everything presented to the Court leads the Court to believe that nothing of an inappropriate nature has occurred between Mr. Solomon and the parties’ minor child.”

f. Four referrals had been made to DCS and all were returned unfounded after the DCS investigations.

g. Based on his own personal observation of Angelia Solomon, Judge Smith was “quite concerned” that she continued to make unfounded allegations of abuse.

h. After his observation of Angelia, the Court found that she “evidenced in the presence of this Honorable Court a severe mental health disability.”

i. Judge Smith was concerned that Angelia continued to be estranged from her own family, that she had previously made allegations of abuse against her own parents, that the Court had heard her father testify and found him to be credible.

j. As a result, the Court found that she continued to pose a threat of substantial harm to the children by her behavior and her obvious mental health issues.

k. The Court continued the previous restraining order and allowed Angelia to have three phone calls per week with the children and six hours of supervised visitation on each weekend.

l. Angelia was represented by counsel and did not appeal Judge Smith’s Order.

18. Shortly after the Final Decree of Divorce was entered in Davidson County in August of 2014, Angelia filed a Sworn Petition to Declare Children Dependent and Neglected and for temporary Emergency Custody, on November 21, 2014 in the Juvenile Court for Coffee County, Tennessee.

19. In this Petition, Angelia alleged the following:

a. That I had abused Gracie by “inserting soap in her vagina.”

b. That I “required” Gracie to sleep in my bed “wearing only her underwear.”

c. That I insisted on accompanying Gracie to the bathroom, wiping her, and giving her a bath.

d. That Grant was suffering from malnutrition.

e. That Grant was showing signs of “muscle atrophy.”

f. That Grant was not fed sufficient amounts of food;

g. That I refused to provide the children with necessary allergy medication and antibiotics.

20. All of these allegations were and are false and I defended myself against them. The children were loved and well-taken care of in my care. After several court hearings on Angelia’s Petition, she voluntarily dismissed it six months later after my attorneys moved to dismiss for failure to make out her claims. She was represented by legal counsel at the time she dismissed her claims.

21. During this timeframe, DCS opened another investigation based on these allegations, which was also returned “unfounded.”

22. Angelia has repeatedly made several false allegations of abuse involving Gracie as a young child. The allegations that I “insisted on giving Gracie a bath” until she was seven or eight years old are false. She bathed herself as children of that age do. The allegations that I insisted on taking her to the bathroom and wiping her when she was as old as eight years old are

false. She handled her own hygienic needs as children of that age typically do. The allegations that I “forced her to take showers in [my] presence and remain nude so that [I] can personal dry her hair and body” are false.

23. The allegations that I “digitally penetrated her” or “inserted a bar of soap in her vagina” are false. It is true that I would occasionally give her a bath as a young child, but I did not insist that her mother not bathe her. That is false. Her mother bathed her often while we were still married. On the occasions that I did give Gracie a bath when she was very young, I washed her body in an appropriate fashion and did not “fondle her” or insert anything into her vagina and all suggestions that I did are completely false. Since these things did not occur, Gracie was never told “not to tell,” contrary to the baseless allegations of the Account. These allegations were fully investigated by DCS and determined to be unfounded. The allegations that I ever took inappropriate pictures of Gracie in the bathtub are false. I have never done any such thing and would not do so. Again, there has never been any evidence of this or any of the other allegations of abuse. From here on out, I will refer to all of these allegations collectively as “the Bathtub Claims.”

24. At this time, Gracie was only six or seven years old and would occasionally sit in my lap. Because I knew that Angie made false claims of abuse, whenever Gracie sat in my lap, I made sure to always have a pillow in my lap so that there could be no suggestion that there was any inappropriate contact. If she ever came and got into my bed in the night as young children do, I made sure that there were pillows down the middle of the bed to ensure a separation between us.

25. The allegations that I “forced” Gracie to sleep in my bed and would “berate her” until she agreed are false. The allegation that I “groomed” Gracie for further sexual contact are false.

26. I have also never physically or verbally abused either child. These allegations are false.

27. The repeated allegations that I told the children their mother was dead are false. I never told the children their mother was dead and would not have done so. After roughly five months of no contact in 2013 at Judge Smith’s order, Angie was allowed to have supervised calls with the children. Never, before, during, or after the five-month period did I ever tell either child that their mother was dead. This allegation is another complete fabrication.

28. Three years later, Angelia filed another Petition to Adjudicate

Children

Dependent and Neglected, and for Emergency Temporary Restraining Order on August 14, 2018, this time in the Williamson County Juvenile Court. She again alleged sexual abuse, mental abuse, physical abuse, verbal abuse, as well as an “unhealthy atmosphere.” In essence, these allegations were rehashings of the Bathtub Claims, and/or that I “yelled” at the kids and/or gave Grant an “Indian sunburn.” While it is possible that I raised my voice to my children on occasion, it certainly was not anything that rose to the level or abuse or exceeded normal, run-ofthe-mill parenting.

29. It was in this time frame that Angie first made allegations surrounding a trip to North Carolina that Gracie and I made to watch Grant play baseball (the “North Carolina Incident”). The allegations surrounding the North Carolina Incident have changed and morphed over the last several years. They originally consisted of a claim that I slept in the same bed with

Gracie with an “erect penis.” They later changed into allegations that I made various levels of contact with her in the bed. And now, more recently, they have changed to an allegation that I actually raped my child. All of these allegations are false. While it is true that Gracie and I slept in the same bed in the hotel room, I placed pillows down the middle to separate us. And I literally slept facing the opposite direction of Gracie. We both went to sleep and woke up the next morning without incident. All allegations to the contrary are completely false and fabricated.

30. After hearing the proof, the Juvenile Court found on October 31, 2018, that

a. Angelia had not proved the children were neglected;

b. It dismissed the allegations as regarding Grant Solomon;

c. It assessed costs against Angelia for the action.

31. On November 6, 2018, the Williamson County Juvenile Court found as follows:

a. After hearing testimony from both me and Angelia, the Court found that Angelia had failed to prove that Gracie was a dependent and neglected child;

b. That the allegations of sexual abuse were not proven and were largely the same allegations (the Bathtub Claims) that were made in the Davidson County divorce and the dismissed Coffee County case, and that were accessed by the Department of Children’s Services.

c. Likewise, DCS investigations resulting from the allegation of the North Carolina Incident were also returned as “unfounded.”

d. As a result, custody of the children was returned to me.

32. Despite having custody returned to me, I did not take custody of Gracie because Angelia appealed the findings to the Williamson County Juvenile Court but both side’s lawyers agreed that it should be appealed to the Williamson County Circuit Court. In addition, the children’s counselor, Emily Anderson, requested that I not force custody and work on repairing Gracie’s relationship (which had been damaged by her mother) in a counseling setting with her.

On May 1, 2019, Angelia, through her attorneys appealed the decision to the Williamson Circuit Court.

33. On May 29, 2019, Angelia, while represented by counsel, filed a “Notice of Voluntary Non-Suit” and “Order of Voluntary Dismissal” on her own without notifying her attorneys.

34. Her attorneys subsequently filed a Motion to Withdraw on July 18, 2019, stating that Angelia was not cooperating or communicating with her lawyers and it was therefore “unreasonably difficult to continue to represent” her. Her attorneys further stated in the motion that she prepared and filed the Motion and Order of non-suit on her own without prior notice to her counsel. The motion also stated that she told her counsel that she did not want to move forward with the appeal. She emailed the Notice and Order of non-suit to her lawyers on May 29, 2019, and requested her file be provided to her on May 31, 2019, which apparently was done.

35. Three days later, on June 3, 2019, she changed her mind and withdrew the nonsuit. Nonetheless, the Williamson County Circuit Court allowed the appeal to proceed.

36. On December 16, 2019, I, though my attorneys, filed a motion with the Williamson County Circuit Court to have Angelia’s appeal to be declared an “abusive civil action” as defined in Tenn. Code Ann § 29-41-101 et. seq because she continued to sue me and litigate the same baselessaccusations,despitehavinglostontheseissuesordismissingherallegationsseveraltimes.

37. After review of the motions, the entire case file, the arguments of counsel, the testimonyof the parties and the children’s guardian ad litem, the Williamson CountyCircuit Court granted my motion, and found that the appeal was an abusive civil action, and enjoined Angelia from suing me again for six years. See Exh. C.

38. The Accounts have alleged that Judge Deanna Johnson was biased because she went to our church. I did not and do not personally know Judge Johnson. I had never seen her before my appearance in the courtroom during Angelia’s appeal. I have never had any improper contact with Judge Johnson or, for that matter, any contact with her other than my appearance in her courtroom on this case. I did not know her through church. As far as I am aware, my attorney also did not have a personal relationship with Judge Johnson of any kind and had no inappropriate contact with Judge Johnson. Any suggestion to the contrary is defamatory to my attorneys, Judge Johnson, and me

39. Although I have not been able to parent Gracie since August of 2018, and to circumvent Judge Johnson’s Order, Angelia had her friend, Melanie Hicks, file a new Dependent and Neglected Petition against me in Williamson Juvenile Court in October of 2020. This Petition falsely alleged that the children had seen me be abusive to their mother and that this had resulted in “multiple concussions for mother.” Again, I have never physically abused Angelia. These allegations are completely false and were not even made in the divorce case, which was obviously much closer in time to when we were married. There are no police reports or medical reports to substantiatethesebaselessclaims.Angeliahadneverevenstatedtoherclosestfriendsthat Iabused her during the marriage. See the Declaration of Lori Cameron for confirmation. At this point, Angelia and I have been divorced for nearly seven years. We had had numerous court cases, hearings, and opinions in these intervening years. Angie has never produced any proof whatsoever that I had physically abused her or that she has had multiple concussions due to anything I have done to her. It is another false allegation. And, as stated above, she has filed a sworn petition that terrible physical abuse occurred in front of her parents. Her parents have denied that this ever happened. See Declaration of Dan Huffines.

40. The Hicks Petition also re-alleges the false claim that I abused Gracie during the North Carolina Incident. This allegation is false. Although there was only one bed in the hotel room, I placed pillows down the middle of the bed to ensure there was a separation between us. Absolutely nothing inappropriate happened. We went to sleep and woke up the next day without incident.

41. TheHicks Petition furtherre-alleges theBathtub Claims andthatItouched Gracie’s hair after Grant’s death1 in violation of her boundaries. Keeping in mind that by this time, Gracie had not been in my care for more than two years. There can be no doubt that these incidents had already been adjudicated. There was no allegation that there had been a rape during the North Carolina Incident.

42. There was an unsworn doctor’s note by a Dr. Brian Leeper attached to the Petition that stated Angie had informed him that I “had the diagnosis of psychopathic and narcissistic personality disorders.2” This allegation has also been made repeatedly on the Accounts and is completely false. There is no such diagnosis and absolutely no proof that there is. It is a complete fabrication. The doctor further states he had been told [by Angie] there was a history of sexual abuse (which was false), but noted that he was not making a judgment about the abuse allegations because he had not witnessed them. There was no mention of an allegation of rape in the doctor’s letter attached to the Hicks’ Petition, indicating that he had not been told that by Angie or Gracie at that time.

1 I admit that I did touch Gracie’s head during a “group hug” at the hospital after Grant’s death. It was the worst day of any of our lives and I felt compelled to comfort my daughter in some small way.

2 In addition to asserting falsely that I have been diagnosed with Narcissistic Personality Disorder, the Accounts have stated that I was diagnosed with a “sexual addition.” This is also false and a complete fabrication.

43. When it became clear that Angie, via Melanie, was not going to be successful in this Dependent and Neglect matter, Gracie made the video that has been widely and repeatedly published by the Accounts, alleging that I am a “rapist” among other horrible and false things.

44. Now the allegations about the North Carolina Incident have changed yet again into an allegation that I physically raped Gracie. Again, this is absolutely false in all respects.

45. I do not blame Gracie for these ever-changing allegations. I believe she is merely a victim of severe parental alienation by her mother. As confirmed by Angie’s own father, Dan Huffines, she has been hearing horrible and untrue things about me from her mother since she was a small girl. Nonetheless, the allegations are untrue and have been found to be untrue by various courts and DCS investigations time and time again.

False Allegations that I Murdered My Child, Grant Solomon

46. I did not murder my son, Grant Solomon, and I had nothing to do with the accident that caused his death. I dearly loved Grant and was devastated by his death. I have been in trauma counseling since he died to deal with my grief.

47. Not only have I suffered one of the most horrible fates that a parent can suffer the loss of child to be repeatedly and publicly accused of killing Grant is nearly unbearable.

48. The Accounts have stated in multiple posts that there was no investigation of Grant’s death and that I used my “influence” to see that no investigation was done. This is utterly false. The Gallatin Police Department and District Attorney’s Office have performed two investigations and found no evidence whatsoever of any foul play. See Declaration of Ronald Blanton. I have no “influence” in Gallatin to improperly assert and I did not do so. I did not know the police officers or anyone in the District Attorney’s Office. This allegation is false.

49. The Accounts have repeatedly publicized the false claim that I killed Grant “while he was protecting Gracie.” This is utterly false. Grant died in a freak accident that occurred while we were preparing to walk inside a facility for Grant to participate in pitching velocity training for baseball. The accident occurred in broad daylight in a parking lot on a busy road, just a few feet away from an open and operational business.

50. The Accounts have repeatedly asserted that I killed Grant because he had “turned 18” and was going to “testify against me as an adult.” If he had wanted to, Grant could have testifiedagainst me at anytime. Courts routinelyallowolder children to testify. Thereis absolutely no reason that his turning 18 would provide me with a motive for killing a son that I loved (along with Gracie) more than anything in the world. This allegation is false and fabricated.

51. The Accounts have repeatedly alleged that Grant “had no injuries other than a blow to the head.” While I am no doctor and have no medical training, I can say that the doctors told me that he had massive internal injuries from the accident. This allegation is false.

52. The Accounts have asserted that Grant’s baseball bat was “missing,” implying that it was the so-called murder weapon. This allegation is false. Grant’s baseball bats were with his gear after the accident as they should have been and were fully accounted for. I removed them from his gear after the accident to publicly display at the visitation and funeral, of which Angie would have been fully aware. Angie currently has Grant’s bats in her possession and allegations to the contrary are false.

False Allegations that I bought Grave Plots for Angie and Gracie Without Angie’s Knowledge

53. The Accounts have repeatedly stated that I bought grave plots for Angie, Gracie, and myself without Angie’s knowledge, implying that I am planning some sort of murder-

suicide. This is ridiculous and false. The day that Angie and I selected Grant’s grave plot, we jointly made the decision to select a plot where four plots could be side by side so that each of us could be buried with Grant.

54. Angie insisted that I pay for these, which I did. While I could not pay for them the day that we selected them because we had so many other expenses related to the funeral, we placed them on “hold” the day they were selected in conjunction with Grant’s burial arrangements. I went back and paid for them later and am currently paying for them on an installment basis. Pam Stephens, a co-owner of Williamson Memorial, assisted us in the selection of the plots and will confirm that this occurred with Angie’s full knowledge and allegations to the contrary are false. See Pam Stephens’ Declaration.

False Allegations that I have Been Diagnosed with Narcissism, Sociopathy, or Sex Addition

55. As stated above, the Accounts have repeatedly falsely alleged that I have been diagnosed as a narcissist, sociopath, and/or sex addict. These allegations have no basis in fact whatsoever. This is a complete fabrication.

False Allegations that I have Been Banned from Williamson County Sports and Recreation Department Activities

56. The Accounts have repeatedly alleged that I have been banned from Williamson County Sports and Recreation Department (Parks and Rec”) activities because of the way I “treated my wife and children” and because I was “abusive to others” or similar false claims. These allegations are false. Fortunately, the Parks and Rec Department keeps records of individuals that have been banned and have confirmed that this allegation is false through the Declaration of Gary Hathcock.

57. Similarly, the Accounts have repeatedly falsely asserted that I am abusive and mean to the kids that I have coached This too is false. See the Declaration of Scott Erby, who has coached with me and had a son on the same travel baseball team as Grant for three years. Mr. Erby testifies that I have always been very supportive and encouraging to Grant as well as to the other kids on the team. He further testifies that he has never seen me become verbally abusive or aggressive with anyone. And finally, he testifies that he has witnessed me be a loving and supportive father who provided a loving and positive environment for the children.

False Allegations that I Was Fired From Channel 4 more than ten years Ago for Having “Inappropriate” Content on my Phone and Computer

58. The Accounts have repeatedly alleged that I was fired from Channel 4 more than ten years ago because I had inappropriate material on my phone and computer. This is false in all respects.

59. At the time, I was co-anchor of the Morning Show with Holly Thomson. I loved this job and was extremely proud of the success and ratings growth that the show had experienced during my tenure. Prior to my time on the Morning Show, I had manned the sports desk.

60. The station hired a new general manager April 1, 2011. Two weeks later the new director informed me that he wanted me to go back to sports. I was shocked by this development and did not want to leave the morning slot.

61. Further, the news director wanted me to go on the air the next morning and announce that I did not want to work mornings anymore and that I wanted to go back to sports.

62. This was not true and I was very concerned that making this statement on air would prevent me from obtaining a morning show job at another station if that was the route I elected to go.

63. If I had agreed to make the statement, I could have remained at the station handling sports.

64. Because I did not want to make the statement, I was forced by the news director to leave the station.

65. Any allegation that I had inappropriate content on my computers and/or phones is utterly false.

66. Lori Cameron, one of Angie’s best friends at the time, has confirmed that Angie told her this same version of events at the time I left the station. Likewise, Holly Thompson’s contemporaneous Facebook Post, attached as Exhibit B confirms that it was my choice to not go back to the sports department.

67. The Accounts’ allegations with respect to this issue are completely false and fabricated.

False Allegations That I Stole Money From GCA Or “Swindled” People

68. The Accounts have repeatedly alleged that there was something improper about a check that I received from Grace Christian Academy (“GCA”) totaling around $1,100 in 2013. This allegation is false. GCA has confirmed that I was owed the money and there was nothing inappropriate about the check. See Declaration of Robbie Mason, Headmaster of GCA. Mr. Mason testified that any statement, insinuation, or implication that I sole or misappropriated money from GCA is false.

69. The Accounts have further made completely unsupported allegations that I “swindled” unknown individuals. This allegation is false and completely fabricated.

False Allegations that I Have Filed for Multiple Bankruptcies

70. The Accounts have alleged that I have filed for “multiple” bankruptcies, which is false. Angie and I jointly filed for a Chapter 13 bankruptcy October 19, 2010 during our marriage. That bankruptcy was ultimately converted to a Chapter 7 on April 28, 2011. This joint filing is the only time I have ever filed for bankruptcy. See Declaration of my attorney, Paige Waldrop Mills.

71. In contrast, Angie has filed for bankruptcy some eight times. It is false to connect me with Angie’s unrelated bankruptcies and use this information to attempt to destroy my career.

False Allegations That I Have Abused An Ex-Girlfriend Or “Roofied” Unknown Women

72. The Accounts have made the allegation that I abused an unknown ex-girlfriend and that I drugged women. These allegations are false and are completely fabricated. There is no evidence whatsoever that this ever occurred and it did not.

73. In this Declaration, I have attempted to address the most glaring lies that have been repeated and published by Wynn Hicks, Anna Smith, Angie Solomon, Melanie Hicks, Kami Abbate, and the other unknown individuals running the Accounts. This declaration should not be considered an exhaustive list, however, as there are other false statements that I reserve the right to address at a later date.

74. I declare under penalty of perjury and the laws of the United States that the foregoing is true and correct to the best of my knowledge, information, and belief.

EXHIBIT A

Office of Child Safety

UBS Building, 10th Floor

315 Deaderick St. Nashville, TN 37243

Aaron L. Solomon

2806 Manning Lane Franklin, TN, 37064

Date: 06/11/2021

Dear Aaron L. Solomon

We have received your request for a letter regarding your involvement with the Department of Children’s Services.

As of the date of this letter, you are not listed by DCS as a substantiated perpetrator of child abuse or neglect and we have discovered no open Child Protective Services investigations in which you are named as an alleged perpetrator of abuse or neglect.

Sincerely,

Andrea Graves Program Manager

EXHIBIT B

April 20, 2011

Dear friends- you may have noticed my long time friend Aaron Solomon hasn't been by my side at the news desk. I wanted to let you know Aaron has decided to resign. Some changes were coming & although he was asked to stay w/ Channel 4, Aaron decided to leave & concentrate on he & his wife's business. I will miss my friend as I'm sure you will too. I appreciate your concern & your loyalty to Channel 4. -Blessings-Holly

31

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Lori Hyde Dollar

Who will do Cool School Now?? Are they going to stop tht?

https://www.facebook.com/156891511017857/posts/dear-friends-you-may-have-noticed-my-long-time-friend-aaron-solomon-hasnt-been-b/201583433

Holly Thompson, WSMV Public Figure

Holly Thompson, WSMV ·

EXHIBIT B

Allegation/Lie Reality

Mr. Solomon tried to kill Angelia (“Angie”) Solomon during May 2013 and the children witnessed it.

In November 2013, based on Angie Solomon’s own emails and texts, Judge Phillip Smith found that “it is crystal clear that Ms. Solomon staged this incident in May, 2013.” Compl. Ex. A, at 4 (quoting the November 27, 2013 Order).

See e.g., FreedomForGracie Instagram, “Post 44,” May 24, 2021, https://www.instagram.com/p/CPQlSjsjy8W/.

Angie’s own father, Dan Huffines, believes that this event was a “staged . . . suicide attempt in order to get attention and express her frustration.” See Ex. C, Decl. of D. Huffines.

Angie’s friend, Lori Cameron, who went with Angie to file for an Order of Protection following the May 2013 incident, “do[es] not believe that Aaron tried to kill her but rather it was a suicide attempt that [Angie] staged for attention” Ex. D, at ¶ 39. Further, Ms. Cameron testified that Angie expressly told her and the authorities at Night Court when filing for the Order of Protection that the children were sleeping and saw nothing. Id., at ¶ 38.

Mr. Solomon sexually abused Gracie Solomon.

There have been at least seven different DCS investigations and DCS has never found evidence of abuse and Mr. Solomon has consistently maintained his innocence of these terrible charges. Compl. Ex. A, at 4, 6, 8-9. Additionally, at least three different courts have determined the same. Id.

See e.g., FreedomForGracie Instagram, “Post 35,” May 20, 2021, https://www.instagram.com/p/CPGL9ojjS5w/.

Angie’s father does not believe Mr. Solomon abused Gracie. In regards to the most recent allegations of the 2018 sexual assault in North Carolina, Mr. Huffines “believe[s] the entire thing was fabricated. [He] believe[s] that [Angie] has manipulated and influenced Gracie to believe something that did not happen.” Ex. C, at ¶ 33.

Ms. Cameron believes that “Gracie . . . is being used and manipulated to meet Angie’s agenda[.]” Ex. D, at ¶ 5.

Mr. Solomon physically and/or emotionally abused Grant and Gracie Solomon.

There have been at least seven different DCS investigations and DCS has never found evidence of abuse. Compl. Ex. A, at 4, 6, 8-9. Additionally, at least three different courts have determined the same. Id.

See e.g., FreedomForGracie Instagram, “Post 3,” May 13, 2021, https://www.instagram.com/p/CO0M0L5M1t1/;

FreedomForGracie Instagram, “Post 13,” May 15, 2021, https://www.instagram.com/p/CO5Sz-ajhSc/.

Mr. Solomon murdered Grant Solomon.

Again, people close to Angie do not believe that Mr. Solomon was ever physically or emotionally abusive with her or the children. See e.g., Ex. C, at ¶¶ 31, 33, 36, 37; Ex. D, at ¶¶ 21, 36, 42-43.

See e.g., FreedomForGracie Instagram, “Post 65,” June 9, 2021, https://www.instagram.com/p/CP51d7mFShl/; FreedomForGracie Twitter, May 23, 2021 at 1:14 PM, https://twitter.com/FreedomGracie/status/1396530072027377677

No investigation was done into Grant Solomon’s death.

There were two investigations done by the Gallatin Police Department into Grant Solomon’s death. See Exhibit H, Decl. of Assistant District Attorney C. Ronald Blanton. In both of these investigations, it was determined that Grant’s death was an accident and that there was no basis to bring any criminal charges. Moreover, Mr. Solomon has denied this and had no motive whatsoever to kill his dearly loved son. Ex. A, at ¶¶ 46-52.

See e.g., FreedomForGracie Instagram, “Post 34,” May 19, 2021, https://www.instagram.com/p/CPFCc01jJlc/

Mr. Solomon bought grave sites for Angie and Gracie without their knowledge.

Again, there were two investigations done. According to the Assistant D.A. Blanton, both investigations determined Grant’s death was a tragic accident. Ex. H, at ¶¶ 2-3.

See e.g., FreedomForGracie Instagram, “Post 24,” May 17, 2021, https://www.instagram.com/p/CO-7t58j7hZ/.

Mr. Solomon removed the grave marker and other items from Grant’s grave because he wanted Grant to have an unmarked grave.

According to Funeral Director and co-owner of the funeral home, Pamela Stephens, Angie Solomon was present with Mr. Solomon when they went to the funeral home together to pick out and purchase the grave sites. See Exhibit I, Decl. of Pam Stephens, at ¶¶ 4-5. According to Ms. Stephens, “[a]ny suggestion that these plots were selected or purchased without the knowledge or input of Angie Solomon is not accurate.” Id., at ¶ 11.

The funeral home temporarily removed the items from Grant’s grave in order to mow the area. Ex. I, ¶¶ 19 17. Ms. Stephens then returned the items to Angie and informed Angie that she could place the items back on the grave. Instead, Angie did not place the items back on the grave and further refused to place the temporary marker back on Grant’s gravesite as well. Id., at ¶¶ 26-27.

See Ex. I, Decl. of P. Stephens, at ¶ 29: “I later found out that someone posted on social media that the items were taken off Grant's grave. The implication was that Aaron Solomon had had

the items removed which, again, was not the case and had been explained to Ms. Solomon.”

Mr. Solomon was “kicked out of [his] own local rec center” (i.e., banned by the Williamson County Parks and Recreation Department.)

This never happened. According to Gary Hathcock, Athletics Superintendent for the Williamson County Parks and Recreation Department, Mr. Solomon was never banned or kicked out. According to Mr. Hathcock, there is “not . . . any record of any action taken by Parks and Rec to exclude Aaron Solomon from any of our sports leagues, activities, or facilities. Exhibit L, G. Hathcock Decl., at ¶ 4.

See e.g., FreedomForGracie Instagram, “Post 75,” June 15, 2021, https://www.instagram.com/p/CQHbDh0lrUU/.

Mr. Solomon stole “forged a check” to himself from Grace Christian Academy.

This did not happen. According to Robbie Mason, Headmaster of Grace Christian Academy (GCA), Mr. Solomon “was owed the money at issue and the check was properly issued to him. Any statement, insinuation, or implication that Mr. Solomon stole or misappropriated money [from] GCA is false.” See Exhibit K, Decl. of R. Mason, ¶¶ 3-4.

See e.g., FreedomForGracie Instagram, “Post 20,” May 16, 2021, https://www.instagram.com/p/CO9YTCFjpJL/.;

FreedomForGracie Instagram, “Post 75,” June 15, 2021, https://www.instagram.com/p/CQHbDh0lrUU/.

Mr. Solomon has filed multiple bankruptcies.

Mr. Solomon has filed bankruptcy only one time. See Ex. A, at ¶ 70; Exhibit J, Decl. of P. Mills.

See e.g., FreedomForGracie Instagram, “Post 39,” May 21, 2021, https://www.instagram.com/p/CPJN6XWM1ER/.

Mr. Solomon has “swindled money.”

This is not true and there is absolutely no evidence that it is. See Ex. A, at ¶ ¶ 68-69.

See e.g., FreedomForGracie Instagram, “Post 39,” May 21, 2021, https://www.instagram.com/p/CPJN6XWM1ER/.

Mr. Solomon was verbally abusive towards his wife and children during their sons’ baseball games.

This is not true. According to Scott Erby, the father of another boy on Grant’s baseball team and who was also an assistant coach with Mr. Solomon, stated that he “never saw Aaron become verbally abusive or aggressive with anyone.” Exhibit M, Decl. of S. Erby, at ¶ 5. Mr. Erby further stated that he

See e.g., FreedomForGracie Instagram, “Post 47,” May 26, 2021, https://www.instagram.com/p/CPXHAnmjIH8/.

Mr. Solomon has been diagnosed with narcissism, sociopathy, or a sex addiction.

“ha[s] always witnessed Aaron be a loving and supportive father who provided a loving and positive environment for his children.” Id., at ¶ 9.

Mr. Solomon has never been diagnosed with these disorders and does not have them. See Ex. A, at ¶ 42 & 42 n.2.

See e.g., FreedomForGracie Instagram, “Post 46,” May 26, 2021, https://www.instagram.com/p/CPV54ugj2ON/.

Mr. Solomon was fired from Channel 4 because he had “inappropriate content on [his] phone and computer[.]”

Mr. Solomon voluntarily resigned from Channel 4 news. Ex. A, at ¶¶ 58-67. This is confirmed by Lori Cameron, a friend of Angie’s. According to Ms. Cameron, “Angie told me that Aaron had left Channel 4 because they wanted him to go back to the Sports Desk but his passion was anchoring the morning show.” Ex. D, at ¶ 28.

See e.g., FreedomForGracie Twitter, May 25, 2021 10:36 PM, https://twitter.com/FreedomGracie/status/1397396148491628545.

This is also confirmed by a Facebook post by Holly Thompson, Mr. Solomon’s former morning show co-anchor, who posted in April 2011 that Mr. Solomon was resigning even after he was asked to stay on. See Exhibit B to Ex. A (A. Solomon Decl.)

Mr. Solomon “roofied” women or abused an ex-girlfriend.

These categorically did not happen, nor is there any proof. Ex. A, at ¶ 72.

See e.g., FreedomForGracie Instagram, “Post 47,” May 26, 2021, https://www.instagram.com/p/CPXHAnmjIH8/.

EXHIBIT C

DECLARATION OF DAN HUFFINES

My name is Dan Huffines. I am of majority age and have first-hand knowledge of the following facts:

1. I am the father of Angelia Solomon (“Angie”) and the grandfather of Gracie and Grant Solomon.

2. The reason I am giving this Declaration is because I cannot stand by and watch Aaron Solomon, my former son-in-law, and my wife and I be unfairly accused and attacked in social media posts. I want to set the record straight and let the truth come out. As far as we have ever seen, Aaron is a good man and a good father.

3. I am also giving this Declaration because I want my daughter, Angelia Solomon, to turn her life around and live a decent life with proper medical and/or psychological guidance. I want my granddaughter, Gracie Solomon, to be out of this drama and not used as a pawn against her father and, if at all possible, to have equal time with her dad.

4. Although it pains me to say it publically, my daughter Angelia Solomon is not always truthful in many of her statements. In my opinion, she has suffered from serious psychological problems for at least the last fifteen years.

5. I have known Aaron Solomon since 2001, both during his marriage to my daughter and after they divorced.

6. Although he is not perfect, as no man is, I have always known Aaron to be a good and loving father. I have never seen him mistreat or abuse the children in any way. I have always known him to love and care for the children. I have also never seen him abuse Angie in our presence.

7. Not having read them myself, I have been made aware that many false things have been said about Aaron and our family on the social media accounts called #freedomforgracie (the “Accounts”).

8. Specifically, I understand that the Accounts have claimed that Angie was abused growing up. This is false in all respects. Although Angie has made the false allegation that she and her sister were abused on more than one occasion, her sister has signed a sworn declaration that categorically denies this.

9. When Gracie and Grant in their early ages were small, we started noticing that Angie would frequently say negative things about their dad in front of the children, especially when the marriage began to deteriorate and after the divorce. It was my feeling that she was gradually turning them against their father. Angie suffers from jealously and I think she did not want the children to have a better relationship with Aaron than they did with her.

10. Angie is extremely intelligent and had a great career as a pharmacist. Her mother and I sent her to college at David Lipscomb University and paid for Pharmacy School at the University of Tennessee at Memphis. However, my wife and I started having strong concerns about her work ethic in that she could not seem to keep a job for very long. She would get a good job with good pay and benefits and then leave it quickly thereafter, which concerned us. We were also concerned about the couple’s money troubles and financial stability. We provided them a great deal of financial support during this time. Given that they were experiencing financial problems, we were perplexed as to why she would quit her job and not work for significant periods of time.

11. Towards the end of her marriage to Aaron, she started to exhibit more alarming behavior.

12. One night in May of 2013, Aaron called my wife and me in the early hours of the morning and told us that Angie had tried to kill herself by hanging herself in the shower by a

dryer cord. He was extremely alarmed. My wife and I went to Nashville to help with this situation, realizing our daughter was not mentally stable when we got there. It was our belief that she had staged a suicide attempt in order to get attention and express her frustration.

13. The three of us encouraged her to check herself into a psychiatric facility to get help. That was our paramount concern, as it always has been, that she get help and that our grandchildren are safe.

14. Rather than truly explore medical treatment for her mental health, she checked herself out of the hospital the next day. Angie is extremely personable, intelligent, and persuasive. She can be very convincing to anyone of anything. I believe she convinced the doctors that she did not need to stay but, in my opinion, this was not accurate nor was it the best thing for her.

15. After she left the hospital, she then swore out an order of protection against Aaron, claiming that he had tried to kill her the night before and that she had not tried to kill herself.

16. In the order of protection, she alleged that Aaron had hit her and knocked her to the ground in my presence. She reported that I said, “A husband was allowed to do that to his wife,” or “that is the privilege of a husband” or something to that effect. This is false in all respects. I have never seen Aaron hit her or mistreat her in any way. I would never say that it is a man’s prerogative to abuse his wife because this is not at all what I believe. This narrative was completely false.

17. Moreover, I have seen text messages that she sent Aaron the night of the incident that make it clear that she did try to commit suicide and that he did not try to kill her.

18. I was so concerned about her threats of suicide, her compulsive lying, and her possible negative influence on my grandchildren that I felt the children should live with Aaron after the divorce until Angie straightened out her life.

19. The judge did in fact award custody to Aaron and Angie only received limited supervised access to the children. Although it was a very painful situation, my wife and I agreed that this was the best way to protect the children from her erratic and alarming behavior.

20. After the divorce, Aaron kept in contact with my wife and me. He kept us up to date on the children and their activities and included us in their lives, which we appreciated.

21. After some time went by, we saw Angie making some notable improvements in her life. She got a good job in a pharmacy in Laverne that she was excited about and that appeared to be going well. But, unfortunately, it did not last long due to a supposed robbery. Angie told her mother and I that this robbery activated her PTSD and she could not longer work.

22. Aaron would check on her through us. He wanted our opinion as to whether she had improved enough that we could all get comfortable with her having more time with the children. He did not have to do this. He did it because he wanted the children to have a good relationship with their mother. We felt that he did it out of the goodness of his heart. He was not required to do so.

23. I would also like to say that my wife and I have never seen any bitterness in Aaron towards Angie after the divorce. He has expressed to us disappointment in the things that she has done, but he has not expressed hate or bitterness. He has tried to be kind to her, including paying certain bills that she could not pay when she was destitute. He has not talked about her in an ugly fashion. On the other hand, she will only say critical things about him.

24. Nonetheless, we were in favor of her getting more time with the children because we thought it was good for the children and Angie had made good strides in improving her situation. We made this decision because of our reasoning and her conversations with her mother. Unfortunately, we thought things were better than they actually were.

25. We would come to regret our encouragement of this.

26. Angie resumed her attempts to turn the children against their father.

27. She would constantly tell the children negative things about Aaron.

28. For example, she was very unsupportive of his attempts to impose very normal and responsible parental controls. Aaron tried to impose a reasonable bedtime and reasonable limits on TV and phones when the children were with him. Angie would characterize these normal parental requirements as “controlling” and “crazy.” She would lead the children to believe this was very unfair and unreasonable.

29. She would later mischaracterize things, like claim that Aaron controlled when the children could go to the bathroom or refused to give them sufficient food and things of that nature. We never saw any evidence of such behavior and I do not believe that it occurred. I agree with discipline and boundaries for children and I agreed with the boundaries that Aaron imposed.

30. I told her that this was not how to handle things--that those children needed a father and they were half his. I also pointed out that Aaron had gone above and beyond in letting the children share time with Angie, even though he didn’t have to. Unfortunately, Angie disregarded our advice.

31. Not only was she frequently saying negative things about Aaron to the children, she began to make claims that Aaron had abused the children. To my understanding, her accusations were never found to have any substance.

32. Angie’s most recent allegations that Aaron has sexually abused Gracie arise from a trip to watch Grant play baseball in North Carolina. Gracie rode with her father and spent the night in a hotel room with him. Angie also went to watch this game. On the way there, her tire blew out. She called us about this problem and we paid nearly $700 to get her a new tire and rim.

33. I mention this to show that we were in contact with her during this time and she never reported to us at that time that Gracie had been abused or raped by Aaron. Our communications were all about the tire problem. In my experience, Angie’s version of events will change and evolve until she gets the desired result. This is why the story of this alleged incident has changed so much over the years. Having seen Angie represent false matters so frequently over time, I do not believe any abuse occurred; I believe the entire thing was fabricated. I believe that she has manipulated and influenced Gracie to believe something that did not happen.

34. At one point, after she first raised these accusations, she sent a drawing to my wife allegedly made by Gracie that supposedly described the abuse she had suffered in North Carolina. It is my opinion that Angie either drew that picture or directed the drawing of the picture. She never told us that Aaron raped Gracie. That allegation is a new one. Very sadly, it is not unusual for Angie’s stories to change and evolve.

35. Because she knew that we did not approve of how she was raising the children to hate and fear Aaron, she began to cut me and my wife out of their lives.

36. Neither my wife or I have ever seen Aaron abuse the children in any way. Nor have the grandchildren ever reported any abuse to us. From away from the scene, we believe he was doing a good fatherly job raising them and trying to impose healthy rules and boundaries. On the other hand, when they were with Angie, she would not impose any rules. She allowed excessive freedom in an effort to make the children prefer to stay with her.

37. On two separate occasions, I asked Grant if there was anything he needed to talk about. I told him that I was in his corner and that he could count on me. On neither of these occasions did Grant report any abuse to me. Grant was very reserved to me.

38. To my observation, Grant had a good relationship with his dad. For example, they enjoyed baseball together and went to Titans games. I believe Grant had a high regard for his father and wanted to stay above the fray. He did not want to be drug into his parents’ problems. Unlike what has been portrayed on the Accounts, I believe that Grant loved his dad and appreciated what Aaron was doing for him, but he was low key about that in order not to upset his mother.

39. I believe that Angie systematically turned Gracie against Aaron and taught her to hate and fear him. She was unwilling to let Gracie be a daughter to her dad. It is my strong belief that she was so obsessed with not losing the children and their companionship that she turned the children against him so they would not leave her. I think this is a symptom of her psychological problems.

40. Angie has isolated Gracie from the rest of her family—on both sides—so that she is the only one in her ear.

41. I also believe Angie is definitely subject to some bad influences that are not helping her make good decisions with respect to Gracie. In my opinion, Melanie Hicks encourages this destructive influencing of Gracie and the isolation of her from the rest of her family. Melanie Hicks has sent the false material that the Accounts have put on the internet to members of our family, which we do not appreciate. I will say, however, that we were thankful that Ms. Hicks allowed them to use an apartment when the three of them had nowhere to go. Without this help from Ms. Hicks, Angie and the children even discussed having to move away from the children’s friends and school by moving to Gainsboro or Cookeville.

EXHIBIT D

EXHIBIT E

STATE OF TENNESSEE

I, RICHARD R ROOKER, Clerk of the Orcuit Court for Davidson County, in the State aforesaid, do hereby certify that the foregoing is a true and co"ect copy of tlte NOTICE OF FILING AND TRANSCRIPT heretofore .filed in the FOURTH Circuit Court for Davidson County, Tennessee, on the 14 day of NOVEMBER, 2013, in Docket Number 13Dl446 between SOLOMON. AARONL., Plttinti,ff, ami SOLOMON. ANGELIA, Defendant, as same renwins of record in the Minutes of said Court IN TESTIMONY WHEREOF, I hereunto subscribe my name and O:{fix the seal o,{said Court, at office, in Nashville, the 15 day of JUNE in the year two thousand twenty-one ami in the 244 year o.fAmerican Independence.

RICHARD R ROOKER, Cler/(, Deputy Clerk

IN TilE FOURTH CIRCU IT COURT FOR DAVlDSON COUNTY, TENNESSEE

A-ARON L. SOLOMON, )

PlaintifT.

ANGELIA SOLOMON, Defendant.

Counsel for Father hereby gives notice of filing of the transcript frofu t he hearing on June 21,2013.

MICIJ L K. PARSLEY, #23 817 PARSLEY, PARSLEY & STRICKLAND

219 Second Avenue, North, Suite 300

Nashville, TN 37201

(615)244 -8118

(615) 244-8842 Facsimile

CERT IFICATE OF SERVlCE

I hereby certify that a true and exact copy of the foregoing document has been served on John Drake, 120 E. Main Murfreesboro, TN 37130, by placing same in the .S. Mail, postage prepaid, on the _Jl}_}Lday of November, 2013. ,. / /

IN THE FOURTH CI RCUIT COURT <-. . FOR DAVIDSON COUNTY, /;L:; / l · AT NASHVILLE I

AARON L SOLOMON, ....,_

No. 13D-1446

ANGEL I A SOLOMON, )

TRAN S CRIP T OF P ROCEE DING S

J un e 2 1 , 2 013

Heard Befor e: HON . PHILIP SMITH, JUDGE

APPEARANCES :

Fo r t he Plaintiff: Mr . Scot t Parsley Mr . Michael Parsley Parsley & As soci a tes

For t he Defend a nt: Ms . Joanie Abe r n a thy

Prepared by:

Susan D. Mu r illo , CCR

118 Wheaton Hall Lane

Franklin, Ten n e ss ee 37069

(615) 791-4767 F ax: 791-1337

3

4

(Prospective witnesses duly sworn.}

THE COURT: Witnesses please step out

5 in the hallway. We'll call you when we're ready for

6 your testimony. Please don't discuss this case

7 amongst yourselves. Mr. Parsley, I think you filed

8 the first motion.

9

MR. PARSLEY: I think I did, your

10 Honor. The first motion we filed was June the 5th,

11 a motion for mental evaluation of Mrs. Solomon. I

12 think we may have an agreement on that . I'll let

13

14

Ms. Abernathy speak to that.

MS. ABERNATHY: We are not opposing

15 the motion for the evaluation. We agreed this

16 morning that husband would pay for it. We have not

17 been able to agree on who the evaluator would be.

18

19 Freeman. 20

THE COURT: That's easy. I'll do Brad

MS. ABERNATHY: That's perfect for us. 21

THE COURT: That's who I always use. 22

MR. PARSLEY: I thought since I was 23 paying I could pick.

THE COURT: No, it doesn't work that way.

1

2 way?

3

4

MR. PARSLEY: It doesn't work that

THE COURT: No.

MR. PARSLEY: I'll put that in my

5 memory. Your Honor, the next motion is a motion for

6 restraining order for Mrs. Solomon to quit going on

7 the Internet and Facebook and saying that father/

8 husband has kidna p ped t h e parties ' minor c-hildren .

9 I think there's an agreement on that.

10

MS. ABERNATHY: Th e re is. She would

11 dispute that it was she who started the chain of

12 communicat i on tha t he k i dnapped t h e children, but ...

13

14

15

with all that being said, she agrees

THE COURT: Okay

MS. ABERNA T HY : We would like it to be

16 the mutual restraining order that neither

17

THE COURT: I think that' s one that I 18 would make mutually.

19

MR. P ARSLEY: Your Honor, may it

20 please th e Court and I certainly understand that 21 maybe the mutual is the expedient thing to do, but

22 they won't have anything here to demonstrate that he 23 said anything. 24

THE COURT: I know. It's like t he

25 last case. You know, some things I will do mutual,

'

1 and that's one of them . So certain restraining

2 ord er s.

3

MR PARSLEY: I believe that concludes

4 the mo tio ns on beh al f of Mr. Solomon.

5

6

THE COURT: Okay .

MR. PARSLE Y: I'm sorry. I ap ologize

7 for that . We have one to strike If it please the

8 Cou rt, they fil ed a motion, and in that moti on they

9 stated it's the motion for mental evaluation,

10 Jud ge , an d they made so me statement as rel ate s to

11 what a Dr. Murphy say s

12 Then they say they're goi ng to file

13 his re po rt I ha ven' t see n h is report, but I would

14 suggest to the Court that all this hearsay should be

15 st rick en from the re cord, if it plea se th e Court, if

16 they actually filed it If they d idn't file it, I

17 want it stri c ken from th e moti o n th e statements that

18 they claim that this Dr. Murphy . . .

19

MR . MI CHAEL PARS L EY: Your Hon or,

20 we're moving to strike thei r resp on se to the motion

21 for evaluation, and we filed the motion to strike

22 th e only tim e we coul d hav e, thi s morning, because

23 we g ot th ei r motion or the re sponse to our motion

24 ye sterday about 4 : 30.

25

THE COURT: Well, I haven't see n the

1 responses. I'll be honest. I'm not inclined to

2 strike pleadings. Pleadings are not evidence. It Is

3 in the record. It do esn 't mean, you know, something

4 is said in a pleading is true, but I hadn't read . it,

5 and I don't intend to read it.

6

MR . SCOTT PARSLEY: Here's the

7 problem. It's not necessarily what a lawyer woul d

8 offer I understand that, but when a lawy er cites

9 as par t of a pleading what someone else told him,

10 most respectfully, that's hearsay. S he is saying

11 tha t her

12

THE COURT: But all pleadings are

13 hearsay. Is the Com plaint not hearsay?

14

MR. PARSLEY: Yes. The parties could

15 verify that. They're here. Dr. Murphy i s not here

16 for me to cross-examine him on what these

17 allegations or the se statement s are.

18

THE COURT: Wel l, I mean, I'm not

19 going to consider those. I mean, i f he's not here I 20 can't con sider it.

21

MR. PARSLEY: I understand, your

22 Honor. It's just unusual that people quote

23 som ething such as that.

24

THE COURT: Okay. Ms . Abernathy, I

25 bel ieve the floor is yours at this point.

MS. ABERNATHY: I have the motion to return the vehicle, the Tahoe car.

THE COURT: Okay.

MS. ABE RNAT HY : Maybe I included that 5 in my motion for temporary support .

6

MR. PARSLEY: · I haven't seen .it, 7 unless it' s included in something else.

8

MS. ABERNATHY: It's in our motion for 9 support.

10 11 12 13

14

THE COU RT: I don't remember se ei ng that. I got the motion for family support

MR. PARSLEY: It's not in the one I have .

THE COURT: Okay

MS. ABERNATHY: Here's what I thought I had done, but it may not be in th ere . We do need 17 to set tem porary support, if your Honor please. It 18 would need to include an amount for a vehicle or 19 return the Tahoe to her. Will your Honor want 20 testimony on the family's 21

15 16

motion to reinstate the health insurance .

THE COURT: No. What I would like to 22 do let me kind of do them in a little bit 23 different order; first of all, in regard to the 24 25

MR. PARSLEY: It's not necessary; your

1 Honor, but the health insurance never lapsed. He

2 had a job. That job

There was Cobra at

3 1700. He's gone out and gotten insurance at a much

4 less expensive rate, and we told them about that,

5 your Honor.

6

THE COURT: Do you know about that,

7 Ms. Abernathy?

8

MS. ABERNATHY: I was told this

9 morning that they had gotten State Farm Insurance

10 for 300 a month.

11

12

MR. PARSLEY: ,Farm Bureau.

'MS. ABERNATHY: Farm Bureau, that they

13 would send us some forms for her to fill out so she

14 could be added to the policy. If your Honor

15 remembers, she was taken to Centennial Hospital for

16 the evaluation. If COBRA is paid and he has signed

17 them up for COBRA when his job ended, he just hadn't

18 made that payment within 90 days. If the COBRA

19 payment is made, then her Centennial would be

20 covered because the COBRA is retroactive to the last 21 day he was covered under their regular insurance. 22

THE COURT: How much is her Centennial 23 bill? 24

MS. ABERNATHY: We have no idea

25 because it hasn't been billed. She gave them the

1 insurance card, or he did we don ' t know which

2 but it would be quite costly. Now, Mr . Parsley said

3 he would look into that, that for now she's covered

4 on insurance. It's just that I presume that

5 coverage takes effect after the filing of my motion.

6 Well, actually took effect yesterday, June 20, as

7 opposed to the better plan.

8

MR. PARSLEY: It doesn't take place

9 until July 1st. She still has to sign this.

10

THE COORT: Okay. Is the COBRA still

11 in effect right now?

12

MR. PARSLEY: The COBRA is $1500 a

13 month. Neither one of these parties are employed .

14

THE COURT: Well, I understand that,

15 but Mr. Parsley, if this COBRA if it's going to

16 cover her stay, was it Centennial or vanderbilt?

17

18

MS. ABERNATHY: It was Parthenon.

THE COURT: Parthenon.

MS. ABERNATHY: Centennial Parthenon. 20

19

THE COURT: I mean, isn't that go{ng 21 to be a lot more than $1500? 22

MR. PARSLEY: It would have to be paid

23 retroactively, your Honor. Be about $5,000. 24

THE COURT: But won't that still be a 25 lot less than what's owed to Centennial?

MR. PARSLEY: I don't know if they

... 2 will cover it or not, your Honor, but certainly I

3 assume it would be less than-- she wasn't there ten

4 hours. They let her go so I don't know what the

5 deal is. She should have gotten a bill because

6 that occurred before this divorce was filed.

7

THE COURT: Wouldn't that be a was

B COBRA in effect at that time?

9

MR. PARSLEY: Yes. It hadn't been

10 paid because neither one of them has worked.

11

12

THE COURT: Well, I mean

MS. ABERNATHY: I was glad to leave

13 that decision to the husband rather than to the

14 Court. I was just trying to make the point that I

15 think that's worth exploring for the financial

16 benefit of the family.

17

18

THE COURT: I absolutely agree.

MS. ABERNATHY: She can't do it

19 because she was not the employee 20

THE COURT: I understand.

MS. ABERNATHY: or the COBRA 22 person. 23

.21

MR. PARSLEY: It's not in effect until

24 it's paid. We understand that there's no binders, 25 so paying it doesn't necessarily mean they would

1 cover that, but she should have gotten a bill by

2 this time. It's been over a month, I think, since

3 she went for that ten hours. I mean, whichever one

4 is less, we'll take care of, but we haven't seen the

5 bill. We just thought one would be here by now.

6

THE COURT: He hadn't gotten one. I

7 don't guess if it wasn't in effect he wouldn't

8 get an EOB. So why don't the lawyers

9

MR. PARSLEY: I don't know how much it

10 was for ten hours, but whichever one is less we'll

11 take care of it.

12

MS. ABERNATHY: I'll be glad to put

13 that in the order, that he will either sign up for

14 COBRA or pay the Centennial bill, and in the

15 meantime she'll do this. Thank you for that order.

16

THE COURT: All right. The next

17 motion, let's talk about

18

MR. PARSLEY: I'm sorry, Judge.

19 Pardon my interruption. The 24th is the deadline

20 for COBRA, so she has to let us have a bill to tell

21 us what that is before then.

22

THE COURT: Why don't y'all call

23 Centennial today? 24

MR. PARSLEY We're not allowed to do 25 that.

MS. ABERNATHY: I'll put in the order

2 that she 'll produce something by Monday.

3

4

THE COURT: Is that timely enough?

MR. PARSLEY: That would be

5 suffic ient, Judge, as long as we have in our hands

6 by Monday. Ms. Abernathy can fax it over.

7

THE COURT: Let's just make sure

8 to get that to them on Mond ay so they can make

9 that decision. All right Before we get into the

10 tempor ary parenting plan or te mporary family

11 sup port, let's talk about the restraining order.

12

MR. PARSLEY : Monday is the 24th

13 though, Judg e, isn't it? We got to know by Monday

14 morning.

15

16 morning.

17

MS. ABERNATHY: We'll do it.Monday

THE COURT: Motion to resolve the

18 restraining order. Let's talk about that. This is

19 your motion, Ms. Abernathy?

20

MS. ABERNATHY: Yes, please. To the

21 extent that your Hono r will conside r dissolving the

22 restraining order in order to allow supervised

23 cont act with the children pending this agreed upon

24 evaluation, to the extent that she can have limited

25 phone contact with the children, go to their games,

1 is what we're asking .

2

3

THE COURT; Mr. Parsley?

MR. PARSLEY: We would like proof to

4 be put on, if it please the Court.

5

6 proof.

7

THE COURT: I don't generally allow

8

MR. PARSLEY: I'm sorry?

THE COURT: I don't generally allow

9 proof. Why would you be upset with supervised

10 visitation, phone contact or limited supervised

11 visitation, phone contact and her to go to the

12 games?

13

MR. PARSLEY: Because her behaviors

14 are bizarre, Judge. Since you had entered this

15 res tr-aining order, and then you dealt with the order

16 of protection, she has been incessant in the e-mails

17 and text messages that she sends to Mr. Solomon

18 where's she's going to kill herself. She said she's

19 going to let his dogs die.

20 She has apparently surreptitiously

24 25

to kill herself. Her parents are here, your Honor, . to testify today, which is a highly unusual

1 circumstance, but I proposed to them the suggestion

2 of supervising.

3 Unfortunately, her father said, "I

4 would not want her in my house and me be asleep."

5

6 hearsay?

7

MS. ABERNATHY: May I object to

MR. PARSLEY: I'll bring them in,

8 Judge. That's why I

9

THE COURT: Well, let me I mean,

10 first of all, before we get into any of the family

11 members, have you seen these alleged text messages

12 Mr. Parsley has?

13

MS. ABERNATHY: He showed me I was

14 just pulling it out. He showed me a document that

15 he thinks she sent to their son. She doesn't

16 recognize it. She would deny sending it, but at the

17 bottom it appears that it was a conversation between

18 he and an Ethan, but it says, "Gee, I love you. I'm

19 locked up at home."

20

It never says mom, and she didn't send

21 it. Now, she did after your Honor signed the

22 restraining order, Mr. Solomon came back ' horne, and

23 there's some dispute about that, but when between

24 the lOth of May and Memorial Day when he carne back

25 home, he had the dogs with him, and he and the

1 children were at until the 31st. He even left

2 the children in her care alone.

3 Then abruptly he and the children

4 moved out on May 31st and left the dogs this time.

5 She did on May 31st send him an e-mail that said

6 this is the last writing you will receive. It

7 never says I'm going to kill myself, but it

8 certainly infers that she is. She was she's been

9 under a psychiatrist's care for at least a year and

10 a half, a Dr. Reed, and this gentleman from

11 Parthenon who let her go after he did the evaluation

12 on May lOth.

13 I would not suggest that I've seen

14 anything that caused me to think she's suicidal, but

15 who am I? But to err on the side of caution, that's

16 why we're asking for supervised visitation.

17

THE COURT: Let me ask you this. And

18 I don't know what her parents are going to say, but

19 obviously, every judge that I know, and one thing

20 that I always looked at as a lawyer: If I had a

21 parent of a party saying, you know, that that party

22 shouldn't have a relationship or is not a fit

23 parent, you know, there's something that I always

felt that the court looked at and something that I look at too, and most every judge that I know looks

1 at that.

2

Assuming what Mr. Parsley is telling

3 me is true about her father saying this, you know,

4 that would indicate a tremendous concern by him.

5

MS. ABERNATHY: Wouldn't it, though?

6 And what should be concerning to the Court too is

7 the family history between she and her own parents.

8 In 2008 she sought an order of protection against

9 that gentleman who wants to come in and say I

10 wouldn't let her sleep in my house, so there is a

11 history of at least ten years about

12

THE COURT: What is that relationship

13 between her and her parents for the last year?

14

MS. ABERNATHY: Nonexistent, strained

15 is how I should say it. Strained.

16

THE COURT: You know , I think that at

17 this point I normally don't hear proof, but I

18 would like to hear from her parents individually at

19 this point.

20

MR. PARSLEY: May I call them, and if

21 I could, while they're coming in, if your Honor

22 would look at the motion to resolve the restraining

23 order that was filed, on behalf of Mrs. Solomon,

24 particularly, if it please the Court, paragraph two

25 wherein they state state that the evidence will

1 show she is not detached from reality, that she did

not threaten or attempt suicide.

4 5 6 7 8 9

10

Judge, I think your Honor wants people to tell the truth when they come in here, want s people to be credible Your Honor, you're going to find out that Ms. Solomon is not credible but, more impor tantl y, you're going to find that she has been less than candid with her couns el as to what her activities have been.

THE COURT: All right, sir Wou ld you

11 take the stand, pleas e.

MR. PARSLEY: Mr. Huffines, your

Honor.

DAN HUFFINES,

2 having been first duly sworn as a witness, on behalf

3 of the Plaintiff, was examined and testified as

4 follows:

5

THE COURT: Will you state your name

6 for the record.

7

8 9

THE WITNESS: Dan Huffines.

DIRECT EXAMINATION

10 BY MR. PARSLEY :

11 Q. Mr. Huffines, Angelia Solom on is your

12 daughter; is that correct?

13 A. That's correct.

14 Q. Did I pose a question to you earlier

15 this morning as to whether or not you would be

16 amenable to supervising parenting time for your

17 daughter and the children? Do you recall that

18 question?

19 A. Yes, I recall that question.

20 Q. Do you recall your response to me, 21 sir?

22 A. I would be very concerned to do that

23 at this time.

24 Q . Did you say you wouldn't want her

25 staying in the house whil e asleep?

1 2 3

MS. ABERNATHY: Object to the leading, your Honor.

THE COURT: Yes. Let 1 s don 1 t lead,

4 Mr. Parsley.

5 BY MR. PARSLEY:

6 Q. Tell us, sir. were you called to your

7 daughter and son-in-law's home by your son-in-law as

B relates to an attempted suicide by your daughter?

9 A. I was notified of that at

10 approximately 3:34 on a Sunday morning.

11 Q. Could you tell us what was stated to

12 you, sir?

13 A. Well, Aaron called me and told me

14 what had transpired, that he had found my daughter

15 in the bathroom with trying to injure herself,

16 whether it be the word that you 1 ve used or not, with

17 a dryer cord around her neck, and that he had to

18 fastly get the dryer cord from her neck, and that he

19 did not have time to take a picture with his cell

20 phone; and when he called me he was outside the 21 house, I think.

22 Q.

Did you and your wife subsequently go 23 to their home?

24 A. No. We discussed that, and Aaron

25 milled around the neighborhood there in Green Hills

1 until about 6 o'clock and went back to the house

2 when the children woke up so that they wouldn't be

3 concerned maybe why daddy was gone. We didn't go.

4 We waited. We just waited for time and prayed to

5 God about this matter, and we went on to our church

6 services that morning; and I can't remember exactly

7 when our next conversation with him was.

8 Q. Did sometime subsequent to that, did

9 you have conversation with your daughter as relates

10 to these incidents?

11 A. No, sir. I had not had any

12 conversations that I know of. I was very

13 concerned about her for this matter, but no

14 conversations.

15 Q. Did you discuss with her getting

16 treatment?

17 A . Yes, I have.

18 Q. Tell us what discussions you've had

19 with her getting treatment.

20

MS. AB ERNATHY: May I ask when to know

21 about relevance?

22 BY MR. PARSLEY: .. 24

Q. Sure. When did you have these discussions? A. Many times on the phone.

1 Q. How recently, sir?

2 A. Oh, in direct in direct refe rence

3 to needing help, within the last two to five weeks

4 on different occasions.

5 Q. And what events have caused you

6 concern to have such discussions with your

7 daughter?

8 A. Wel l , wh en you father a chi ld , you

9 know their characteri s tics and the things and

10 concerns that alert you to differences that are

11 occurring in people 1 s lives, and I think that she

12 wou ld tell that you that dad has told her several

13 tim es that I wasn 1 t I just was worried a bout her.

14 Th at 1 S the word that I always used, and I used that

15 broadly.

16 Q. Any particular thing that sticks out

1 7 i n your mi n d in the l as t coup l e of weeks that has

18 caused this concern in you?

19 A. Well, no, not t hat has caused this

20 concern other than the fact that I kn ow there 1 S been

21 many episodes of irregularities at their home that

22 has not been what a father or a grandfather would

23 lik e to know of.

24

THE COURT: Tell me about those.

25 BY MR. PARSLEY:

, Q.

2 A.

Tell Judge Smith about those.

Well, Judge, I'm a very-- I guess

3 they tell me I have an A type personality and

4

5 thing .

6

THE COURT: Don't take that as a bad

THE WITNESS: I'm not taking that as a

7 bad thing . That's just me, but I saw when we went

8 to help them move from the first location that they

9 moved from in Spring Hill to where they live now on

10 Abbott Martin Road, that things weren't right with

11 the house, and I saw things weren't right with the

12 cloth es.

13

I saw that things were not right with

14 the food preparation, the dishes and all of this I

15 was really concerned about that Then when we

16 received a phone call one night that her husband had

17 been arreste d and that he was in he was in the

18 local jail there I don't know whether it was

19 Sprin g Hill or what the local facility is and

20 that he had struck their son and knocked him to the

21 ground, and that they had a neighbor that came to 22 help them and that 23

This is just one Judge, this is

just one of many episodes that we have gone through as a mother and father over the last several months.

. Q. Did that happen?

A. No, it did not.

3 Q. It never happened?

4 A. It never happened.

5 Q. Did you and her mother and Aaron, did

6 y'all take her to Parthenon recently?

7 A. We took her on a Friday reluctantly.

8 Q . How long ago? The last couple of 9 weeks?

10 A. That was four weeks or five weeks ago

11 today that we took her to Centennial, and finally

12 was admitted to Parthenon sometime during the course

13 of 11:30 and 2:30 in the afternoon and 11:30 at

14 night, because we finally got to leave there because

15 she sent word to us that we didn't need to stay

16 around any longer. we need to go home.

17

That was worded mildly to me and my

18 wife through one of the nurses there, so we all left

19 hoping that if I say this out of order, I'm not

20 I'm not very versed at what I'm doing. My wife

21 has had problems in the past years, and we felt sure

22 that the first emergency room doctor that talked to

23 us, which was evidently a regular physician,

2

emergency room he told us that --

25

MS . ABERNATHY: May I object, if your

1 come to us to question all three of us, me and my

2 wife together and then Aaron by himself. Then we

3 stayed in the waiting room until probably 11

4 o'clock, and then we were told that we could go over

5 to Parthenon. when we went over to

6 Parthenon, and the lady that had interviewed us come

7 and told us

8 MS. ABERNATHY: May I object?

9 BY MR. PARSLEY:

10 Q. Can't tell us what they said. Were

11 you allowed to see your daughter?

12 A. No.

13 Q. Did you want to see her?

14 A. Certainly. No. I take that back. I

15 don't think it would have been good for us to have

16 seen her at that time. I don't think that she would

17 have wanted to see us under the circumstances we had

18 to admit her.

19

THE COURT: Let me ask you, Mr.

20 Huffines. I want you to be specific. What are

21 what are your concerns right now with behavior or

22 concerns about Mrs. Solomon's mental health issue,

23 any issue with that? Can you give me some things

24 that you have witnessed or that she has said to 25 you?

1 2

Honor please, to the hearsay?

MS. MILLER: Not for the truth of the

3 matter I think it has to do with what the

4 subsequent actions were.

5

THE COURT: Well, it's a statement in

6 response to medical diagnosis or

7

8

MR . PARSLEY: Yes.

MS. ABERNATHY: But the statements in

9 my response that he wanted stricken, although your

10 Honor didn ' t strike them, you said you wouldn't read

11 them, and the medical records I had are her

12 discharge notes that are going to contradict

13 whatever was said to him when she arrived.

14

15

THE COURT: Mr. Parsley?

MR. PARSLEY: Just ask what he did.

16 BY MR. PARSLEY:

17 Q.

18 conversation?

19

What did you do in response to the

THE COURT: Yeah. I'll sustain the

20 objection. Go ahead.

21

THE WITNESS: He informed 22

MR. PARSLEY: You can't tell us what 23 he said. I'm asking what did you do

THE WITNESS: 25 stayed around until we had personnel from Parthenon

What we did was: We

..

THE WITNESS: Well, the things that

2 she has said to my wife are a lot rougher than what

3 she has said to me.

4 BY MR. PARSLEY:

5 Q. We'll speak to her in a moment. Tell

6 us what she said to you.

7 A. She knows she knows how I feel

8 about her. I know that I know that we have - -

9 I've told her and I'll try to explain it this

10 way. I've told her that I have thought that there

11 was changes that need to be made, the way she was

12 raising her children. I thought she was being more

13 ·of a friend than a mother figure.

14 She's got two wonderful children, but

15 just to give you an instance, we were fortunate

16 enough to celebrate the oldest ones birthday this

17 past Friday night, and Judge, your Honor, we just

18 had a much mo re relaxed atmosphere, and I'm just

19 so hurt that I have to set here and say these

20 things. But I know if I can

21 I know the one thing I'm concerned

22 about . I want to see her to where she can reach

23 potential in her life that I know that she has, and

I know in a father's opinion, Judge, that she cannot do that, from a father's perspective, in the

1 condition t hat she's in at this time:

2

THE COURT: Tell me about the

3 condition itself/ what you have observed

4

5

6 position.

7

THE WITNESS: Okay.

THE COURT : I hate to put you in this

THE WITNESS: I'm going to tell you

8 because I love my daughter. She's a compulsive

9 liar. I cannot have a conversation with her. I

10 never look forward to her calling me, although I

11 love to hear her voice and tell me about the actions

12 of the kids . I can never expect to have a

13 conversation with her unless there's some untruth

14 that's going to be told 1 unless something is going

15 to be stretched .

16

We have we have taken care of them

17 through a year and a half of both of them having

18 difficult employment situations/ me and my wife

19 have/ along with Aaron's parents. I know that we've

20 been told - - I know that we've been told many

21 untruths about what we need this money for and what

22 we need that money for .

23

I'm a very tight individual. I worked

24 37 years in the grocery business, but we gave it

25 because two grandchildren; and secondarily/ two

1 people that I love, a daught er and a son-in-law , and

2 just hoping we wouldn't get to this point today.

3 But I've seen that . That 's the main objective .

4

THE COURT: Has this extended beyond

5 this period that yo u're talking about? Has she been

6 untruthful for a long k ime?

7

THE WITNESS: Absolut el y.

8 BY MR. PARSL EY :

9 Q.

Tell me how many years.

10 A. It's been we've had problems with

11 this for fi ve to eight years, something like that

12 and, you know, I even tried to reason with her and

13 tell her, k now, these are the things tha t we go

14 throu gh in life some times as you get if I can use

15 the word maybe "popu la r• in society, and I had a

16 problem with this because I was coaching.

17

I had a lot of succ ess coa ching. I

18 let it get to my head, and the first thing I knew I

19 was represen ting things stronger than what they

20 should have been represented, and she has and I

21 told her. I said you just got to ask God to help

22 you with thi s, to help you get through this, and

23 with the influence of some wonderful men that I had

24 in our church, I did away wi th it .

25 Q. Mr. Huffines, did you

1

2

MR. PARSLEY: Sorry, Judge.

THE COURT: Well, I was going to ask

3 I think you described that. What other issues or

4 concerns with her mental health?

5

THE WITNESS: Well, I think that she's

6 very nervous individual. When we're sitting

7 around a lot of times and we're talking, she is

8 fooling with her fingers, and this has been

9 something that ' s been prevalent with her for

10 sometime, and I'm just I'm just lost for any

11 other descriptions, your Honor.

12 BY MR. PARSLEY:

13 Q. Does she lose her temper easily, Mr. 14 Huffines?

15

MS. ABERNATHY: May I object to

16 leading, if your Honor please?

17

MR. PARSLEY: It's posed in the form

18 of a question, does she lose her temper.

19

THE COURT: It's close, but I'm going 20 to allow it.

21

THE WITNESS: Yes, she does. She 22 takes it after her dad.

23 BY MR. PARSLEY:

24 Q .

Could you give the Court some . examples 25 that you witnessed?

1 A. Well, I know, and I believe my

2 son-in-law has briefed us on --

3 Q . I'm asking things that you have

4 wit nessed .

5 A. The only time that she lost her temper

6 with me on the phone was the last conversation we

7 had.

8 Q. When was that conversation, Mr. 9 Huffines?

10 A. Two weeks ago Wednesday.

11 Q. What did she say to you, sir?

12 A. When I was trying to advise her as to

13 what I was wanting to do and why I cou ldn't come to

14 the phone, the time that she had calle d me on

15 Saturday and why I couldn't give her a t ime then, I

16 told her -- I said, yes, I was in the process of

17 trying to get an order made for my store, and I said

18 yes, I'm frustrated with you, frus t rated with you.

19 Then I called back. I ca l led her back

20 Wednesday, and she answered the phone, and we were

21 talking for a minute, and our conversation was

22 rath e r strong to each other, and she finally raised

23 h er voice with me on the phone and said, "Now you

24 listen to me," like that, and I just hung up the

25 phone at that time, your Honor.

1 Q. Has she come to you, Mr. Huffines,

2 suggesting that there's some emergency in her family

3 that required money from you, that you later found

4 out wasn't as represented? Has that happened?

5 A. Maybe not titled as emergencies, but

6 needs.

7 Q. Did you subsequently learn that she

8 had previously spent that money that you had given?

9

MS. ABERNATHY: May I object to

10 relevancy, if your Honor please? How does this go

11 to the meat of whether

MR. PARSLEY: Goes to credibility, if

13 it please the Court. Credibility is always an

14 issue. Your Honor, I had pointed out to you in the

15 motion for this restraining order, to resolve this

16 restraining order, they state that there is - - that

17 she didn't threaten or attempt suicide.

18

THE COURT: Well, I do think your

19 question is somewhat collateral, Mr. Parsley. I'm

20 going to let him answer it, but then at that point 21 let's 22

MR. PARSLEY: Sure. Then I'll call 23 Mrs. Solomon. 24

THE WITNESS: Reword your question.

MR. PARSLEY: Never mind, Judge.

3

4

BY

5 Q.

THE COURT : Ms. Abernathy?

CROSS EXAM I NATION

MS. ABERNATHY:

Would you describe the relationship

6 between you and your daughter as strained?

7 A No, ma'am .

8 Q Why are you here supporting Mr.

9 Solomon?

10 A. I know my daughter needs psychological

11 help . I know that.

12 Q What day was it that you received the

13

.. call?

14 A. What call?

15 Q. The call saying that Mr. Solomon had

16 found a cord around her neck.

17 A .

That was Sunday morning about

18 Q. You have already told us the time .

19 What date?

20 A. Sunday morning.

21 Q.

22 " A .

I said date .

Oh, I can't give-- it was five or six

23 weeks ago, maybe five weeks ago; six weeks ago this

coming Sunday morning, or five weeks ago this coming Sunday morning.

1 Q. Was it before the incident you

2 described at Parthenon Centennial?

3 A. Absolutely.

4 Q. About three or four days befor e then?

5 A. Yes. I guess that•s correct.

6 Q. What transpired, if anything, between

7 the Sunday morning you received the phone call and

8 the day tha t you assisted Mr . Solomon in taking her

9 to Centennial Parthenon?

10 A . we had disc ussed her her mother and

11 myself and her husband , as we had gone as far as we

12 cou ld go with trying to entice her and encourage

13 her, and her mother had talked to her excessively in

14 this regard to encourage her to ge t help.

15 Q. How long?

16 A. When it come to the point, we decided

17 on a Thursday We decided on a Thursday that we

18 would-- of course, Aaron wasn't at that house at

19 that time . He had left, so Jennie and I went down,

20 and we wa ited around until she got off of

21 con ference call, which took probably three hours,

22 and finally when the conference call had ended, I

23 went out in the outside, and I text her husband and

24

told him, because he was biding time there in Green Hills.

1 Q. How long had you and your wife been

2 trying to talk to your daughter about needing

3 psychiatric help?

4 A. Months, months, months and months.

5 Q. Had she ever hurt the children during

6 that period of time?

7 A. I never know of any time that she ever

8 hurt my grandchildren.

9 Q. Have the children been asking her?

10 A. I assume that, yes; not to me, but I

11 understand that to be correct.

Q. She missed the birthday party this

13 past week for Grant, did she not?

14 A. Yes, she did.

15 Q. She missed Mother's Day?

16 A. Yes, she did.

17 Q. Do you know when the last time was she

18 saw the children?

19 A. She would have seen them on the night .

20 the last part of the 36 hours that Aaron came

21 back home with the children.

22 Q. That was after

23 A. Before they went to bed. 24

Q. That was after this court entered the

25 restraining order, correct? That was Memorial Day?

1 A. I assume, yes .

2 Q.

Do you know when the

3 was filed, just out of curiosity?

4 A. I don't know the date, but I know that

5 he that was on Monday, and he called me at my

6 store, and he has kept me up to date along with my

7 wife on all actions that he has occurred with with

8 his attorneys.

9 Q . Do you support the children not seeing

10 their mother for any time to speak of since May 10?

11 A. Ma'am, I never support that, but I

12 know as a father and the actions and the -- the

13 subsequent things that has taken place with her in

14 the last several weeks, this is, by far, what needs

15 to be done at this time.

16 Q. But you haven't been able to tell us

17 anything specific she's done to put them in harm's

18 way. Obviously, you've told us about her inability

19 to tell the truth --

20 A. Right.

21 Q. -- and your concerns and issues with

22 her but, sir, may I ask, what can you direct us that

23 links her behavior to putting the children in fear

24 of harm's way?

25 A. Well, you know, I can't give you

1 anything def inite along that line, but when Aaron

2 wasn't at home and we knew, due to t he conversation

3 she was having with my wife, we didn't know at any

4 time if the kids would be put in the car and t ook

5 off, and we not know wher e they were. That was a

6 big fear that we had

7

THE COURT : Specifically, what was

8 your concer n on that? I mean, I understand you had

9 a concern, but I guess wha t part of her behavior was

10 causing that concern? Was she hallucinating? Was

11 she seeing things that didn't exist? Was she

12 paran oid? Was she, you know, peopl e out to get he r?

13

14

THE WITNESS : Oh, yes, yes.

THE COURT: Give me an example of

1 5 t h at. I ha te to ask you to do it, Mr . Huffines.

16

THE WITNESS: I ju st wish I coul d

17 reca ll them She's alway s had a very jeal ous hea rt

18 toward her hu sba nd, feelin g that he was always

19 involved with other women and she h as she's

20 expressed t hat to us a lot, and I don't know what

21 kind of illness that woul d be, und er what kind of

22 e ntitlement that would be under but, your Honor , I

23 just can't give you an exact illness . I know I

24 just know that I would be v ery concerned with her

25 being with my gra ndchildren at this time.

THE COURT: Even if it were

2 supervised?

3

THE WITNESS: I'm afraid then there

4 would be something said that one of those

5 grandchildren would not need to hear .

6

TH E COURT: Ms. Abernathy?

7 BY MS. ABERNATHY:

8 Q. What if Mr . Solomon was having

9 contact, communication or relationships with other

10 women? What if your daught er was real ly telling you

11 the truth about that, sir?

12 A. Ma'am, I'm a man of the Bible, and I

13 believe in truthfulness, and I try to you know, I

14 just despise in my life constantly hearing turmoil

15 and this going on and that going on and this going

16 on. I never

17 Q. I just asked you

18 A. I never believ ed that.

19 . Q. If I showed you proof, you would never

20 believe tha t?

21 A. I would neve r believe it until you 22 showed me proof .

23 Q. Did she take an order of pro tecti on 24 out on you in 2008?

25 A. She certainly did. r

2 Thank you.

3 4

MS. ABERNATHY: That's all I have.

REDIRECT EXAMINATION

5 BY MR. PARSLEY:

6 Q. Did she dismiss hers the day it was

7 supposed to be heard like she did against her

8 son-in-law? (sic.)

9 A. No. It stayed in effect the entire

10 time.

11 Q. Did you harm your daughter, sir?

12 A. Did I what?

13

Q. Di d you harm your daughter?

14 A. No.

15 Q. She alleged did you allegedly

16 threaten her?

17 A. I told her on the phone that if we

18 couldn't get things straightened out on the phone on

19 the accusations that she had made against her

20 mother, that families don't act like this, that I

21 will be down there when she don't expect me and

22 address this, and I felt that I had a right as a

23 father to say that.

Q . She went and took the order of protection out on you, didn't she?

1 A.

Well, it was after we carne to bring

2 Christmas gifts and knocked on the front door and

3 didn't think there was anyone there. We didn't get

4 to have Christmas with them that year, and we

5 decided that we would go ahead and take the

6 Christmas gifts and just see if we could leave them;

7 and no one answered the door. The next thing I

8 knew, on a Friday afternoon, I had the city police

9 in Gainesboro serve me with an order of protection.

10 Q. You had never spoken to her that day.

11 You just tried to leave gifts for the kids?

12 A. She told us she was scared.

13

THE COURT: Was the order of

14 protection granted, or was it

15

16 yes, it was.

MS. ABERNATHY: My records indicate

17 BY MR. PARSLEY:

18 Q.

Did you object to it?

19 A. Yes, I did. We contested it because 20 there was no date on the order. 21 Q.

And the court granted it anyway?

We carne here and Judge Wyatt no, 23 not Judge Wyatt. It's Wyatt, Judge Wyatt, Randall

22 A.

THE COURT: Why would he be doing an

1 order of protection?

2

THE WITNESS: Well, he sure did. we

3 came down here and contested it on the fact that I

4 wanted my name not to be in the records here in the

5 Metropolitan Davidson County, and they dismissed it

6 on that ground, but he said he wanted to hear this

7 case and set up another date that we could come

8 back Then I didn't -- I didn't contest it then .

9 Q. You didn't come back, did you?

10 A I just said let it go.

11 Q. John Aaron Holt.

12 A . Okay.

13 Q . Judge Holt. That's who it was. But

14 you never came back to contest it at the initial

15 hearing, did you?

16 A. No. 17

MR. PARSLEY: I have no further 18 questions, your Honor.

19

THE COURT : All right . Ms. Abernathy?

MS. ABERNATHY: I don't have any more 21 questions of this witness. 22

20

THE COURT : Mr. Huffines, thank you. 23 You can step down, sir. 24

MR. PARSLEY: Your Honor, I will cut 25 to the chase on Mrs . Solomon, if I may .

3

THE COURT: All right . It's really

Ms. Abernathy 's motion.

MR. PARSLEY: She can go if she wants

4 to. I'm sorr y.

5

6

MS. ABERNATHY: I'll be glad to go.

1 ANG ELIA SOLOMON,

2 having been first duly sworn as a witness, on behalf

3 of the Defendant, was examined and testified as

4 follows:

5

6

7 BY MS. ABERNATHY:

DIRECT EX AMINATION

8 Q. Are you Angie Solomon?

9 A. Yes.

10 Q. What is your profession, Ms. Solomon?

11 A. I'm a pharmacist. I have a doctorate

1 2 degree .

13 Q. Did you work as a pharmacist until

14 September of 2012?

15 A. Yes.

16 Q. Hav e you been a stay-at-horne mom since

17 then?

18 A. Yes

19 Q. Was that with your hu sba nd's

20 permission as far as you know?

21 A. Ye s, it was.

22 Q. Has there been trouble in your

2 3 marriage?

2 4 A. Yes.

25 Q. For how long?

1 A. Approximately five years.

2 Q. Have you been under the care of a

3 psychiatrist?

4 A. Within the last two-and-a-half, yes.

5 Q. What is his name, please?

6 A. Dr. Michael Reed.

7 Q. Does he prescribe any medicines for

8 you?

9 A. He does. He prescribes Pristiq, 100

10 mi 11 i grams and Kl onopin, . 5, three times a day.

11 Q. So what, if anything, has occurred

12 that has caused you to put the children in harm's

13 way or fear?

14 A . Nothing.

15

THE COURT: Let me stop you, Ms.

16 Abernathy. What is what is your diagnosis?

17

THE WITNESS: I was diagnosed, your

18 Honor, with depression, and is now in remission, so

19 now I don't have a diagnosis.

20

THE COURT : So you are not seeing a 21 psychiatrist still?

22

THE WITNESS: Continue to see, but I 23 have no axis to or any depression in my charting. 24

medication?

THE COURT: Are you still on

THE WITNESS: Yes.

THE COURT: Why is he prescribing that medication if you don't have an ailment or a disorder?

THE WITNESS: Currently 1 we're working to get off of both medications, but because of the severity of the situation personally that I'm going through right now, he felt it best that I wait until things had calmed down a little bit in my life before we started reversing that, and I agreed with that.

THE COURT: Ms. Abernathy.

BY MS. ABERNATHY:

Q. Did an incident occur that caused your mom and dad and your husband to take you to Centennial Hospital?

A. Yes.

Q.

What date was that?

A. Of the incident?

Q . The date that you were taken.

A. The date I was taken. On the lOth/ but I refused/ Jeanie, to go with them. I felt safer to go with police ambulance or any other escort that would take me, so I actually went in the ambulance.

....

1 2

Q . So is your . daddy correct when he says he and his wife and your husband took you?

3 A. No.

4 Q. You went by ambulance?

5 A. That's correct. I refused to go.

6 Q. Who called the ambulance?

7 A. Aaron called someone. I don't know

8 who he called, but he did call someone.

9 Q. How long did they keep you?

10 A. I was there from I guess 1:30 on

11 Friday the lOth until -- unless looking at the

12 medical records so I can be accurate, and I don't

13 have them here, around 8:30 or 9 o'clock on

14 Saturday. It might have been 8 o'clock on Saturday,

15 the 11th.

16 Q. Were you suicidal?

17 A. No.

18 Q. And had there been an incident that

19 occurred the Sunday before, as your father

20 testified? 21 A. No.

22 Q. No. Did your father get a call from 23 Aaron on a Sunday?

24 A.

That I don't know unless I looked at 25 the phone records.

1 Q. So he described an incident where you

2 put a cord around your · neck, right? Did that occur?

3 A. No.

4 Q. Do you know what your father is

5 talking about?

6 A. I have a feeling I know what he's

7 talking about but

8 Q. Did a situation develop between you

9 and your husband that caused you to take out the

10 order of protection against him?

11 A. Yes.

12 Q.

And do you stand by the version of how

13 you typed it how it is written in your order of

14 protection?

15 A. I did not in fact write that, but I

16 stai1.d by it. I might have added some to it.

17 Q. So why did you dismiss the order of

18 protection?

19 A. Because through third party, which are

20 my parents, it was related that if that was

21 dismissed, then the restraining order and the

22 divorce would also be dismissed because they weren't

23 quote real, so I obviously wanted to make things

24 right with my family, and I dismissed my order of

25 protection and immediately was served with a

1 restraining order and divorce.

2 Q. And did your husband come home after

3 the restraining order was signed?

4 A. Yes, ma'am.

5 Q How long or how many days were he and

6 the children there?

7 A. They came home on Memorial Day for

8 about four or five hours with my parents there to

9 supervise. · Aaron came back on the Tuesday by

10 himself, and on that day we had relations; and then

11 on Wednesday he brought Gracie back home. Grant was

12 staying with a friend, and Thursday the four of us

13 went to pick Grant up. Then we obviously all moved

14 back in, including the two dogs. Then on Friday

15 morning when I awoke they were all fine. The two

16 dogs were still there.

17 Q.

So did you miss Mother's Day and your 18 child's birthday?

19 A. Yes, ma'am.

20 Q. Have gotten to talk to either 21 child on the telephone? 22 A. No. 23 Q. Have you gotten to see either child

May 31st? A. No.

1 Q. When he was there a few days before

.

2 May 31st, did he leave you alone with the children? ,.

3 A. Sure.

4 Q. Why are you willing to have supervised

5 visitation until a psychological can be done?

6 A. It's very simple, your Honor and

7 Joanie. I will do anything, anything at this point

8 to be able to see my babies.

9 Q. Do you have people willing to

10 supervise?

11 A . I do.

12 Q. Who are here today?

13 A. Yes.

14 Q. Is one a psychiatric nurse, retired?

15 Another one a pediatric nurse, retired?

16 A . Correct.

17 Q. And you do have other friends that can

18 supervise?

19 A. Yes, I have many.

20 Q. You a l so are musically inclined. Am I 21 correct about that?

22 A. Yes, ma'am.

23 Q. How long have you been singing or

24 entertaining?

25 A . I've been musically inclined since I

,1 was born, but actively singing since I was seveni

2 3

then performing in bands up until my age today.

Q. Do you describ e your relationship with

4 your mother and father as strained?

5

A.

6 7 8

Q. money later,

Yes, significantly strained. Has anyone

MS. ABERNATHY: well, get into the is that right, Judge, or should I ask

9 her a few questions about the money while she's up 10 here?

THE COURT: Well, I ' have a couple of questions about it. I can get to that later on. But both of these parties are unemployed. I don't know what I'm going to do in this situation.

BY MS. ABERNATHY:

Q. How were the bills being paid before May the lOth, or before the divorce was filed on the 13th?

A. Aaron would pay the bills.

Q. What source of funds was put into the joint acco unt to pay the bills?

A. Money from his trust, a trust that he received.

Q. Did you give me a withdrawal slip from

25 the joint account that showed he withdrew 10,000 on

1 the day he filed the divorce complaint?

2 A. Yes.

3 Q. May I?

4 A. Yes, that's it .

5 MS. ABERNATHY: May I have that marked

6 as an exhibit? 7 u111! 8 (Exhibit One received into 9 evidence to this hearing.}

10

11 BY MS. AB ERNATH Y:

12 Q. Did that leave you any money in the

13 account after the divorce was filed?

14 A. Jeanie, there' s approximately $753

15 left i n the account. Because of the circumstances

16 that I was left in, I was not able to go immediately

17 to get that money. I'm sure we'll discuss that

18 later, but when I did withdraw, I withdrew $700 .

19 Had I not gotten it on that Tuesday, there were

20 checks written, and those checks would have put that

21 account over on the following Wednesday, so actually

22 there was $200 left for me in the account.

24 25

13th? A. I think I've had $300 from the joint

1 .. account . That's all, and I h ave had

2 Q. Except for borrowing money, of course?

3 A. Exactl y, or friends , strange rs .

4 Q. What will the joint bank records show

5 was the source of the deposit that was supporting

6 your family before May 1 3?

7 A. Without seeing it in front of me, I

8 ca n tell you that it would say something similar to

9 deposit for Aaron Solomon out of the Ruth Pi nel

10 estat e, which is a trust.

11 Q. That's a relat i ve of his who set up a

12 trust?

13 A. Yes.

14 Q. When was the last time he was

15 employed?

16 A. I really need to look at a calendar

17 for that, but the lOth was of May, so I believe

18 two weeks or three weeks prior to that on a

19 Thursday.

20 Q. And who drove the T ah oe? 21 A. I did.

22 Q. How is it that it was paid for? 23 A. By the bills, when he paid the bills.

24 Q . Meaning t he joint account? 25 A. Yes, ma 'am.

1 Q. Just out of curi osity, wrot e the

2 check f or the la st Tahoe payment out of the joint

3 accoun t ?

4 A. I did.

5 Q. So he didn't restrict your use of

6 spending the trust deposi ts th at were made in to th e

7 joint acco unt?

8 A. No 1 Joanie. He actually asked me to

9 make the paymen t bec ause he was afraid it wo uld be

10 taken, the Taho e.

11 Q. So you wrot e a ch ec k for three

12 paym ents to catc h it up?

13 A. Yes, I did .

14 Q. . When was the last tim e you saw the 15 Tahoe?

16 A. On the lOth. Well, actua lly I did see

17 the Tahoe when I carne horne on Memorial Day weekend.

18 Q . When was the l ast time you got to

19 driv e the Taho e?

20 A

The morning of the lOth when I drop ped 21 the children off at school.

22 Q. Did he eve r dr ive the Tah oe?

24 25

toge t her as a fa mily, but he has his own car th a t his mo t her gav e him .

1 Q. Where is that car now?

2 A. It' s parked in my driveway locked.

3 Q. Do you need that car removed and the

4 Tahoe ba ck?

5 A. Yes.

6 Q. Have you b een interviewin g for

7 pharmacist jobs since you were serve d with the

8 divorce?

9 A. Yes, I have.

10 Q. Do you need transportation in order to

11 get a job, keep a jo b?

12 A. Yes.

13 Q. How much money ar e you asking for for

14 grocer ie s, food, clothes, gas, until we can do

15 something fur the r?

16 A. I know we had one colu mn just for the 17 children and then one column just me .

18 Q, Ju st for you.

19 A. As for me I'm not sure without looking

20 at it. I t hink it was around 25, 2800, and we

21 were n't sure about the insurance at t hat point.

22 That push ed it up a litt le higher, but probably 23 around 3,000.

24 Q.

Do you have any other sour ce of money? 25 A.

Not right now, no.

.1 Q. Do you hav e a ny food in your

2 refrigerator?

3 A . No.

4 Q. How often do you want to see the

5 children under this visitation supervision?

6 A . How often? Well, your Hono r , Joanie,

7 as mu ch as pos sible

8

T.HE COURT : For the record let's ref er

9 to her as Ms Abernathy.

10

11 as possible .

TH E WITNES S : Ms. Ab ernat hy, as muc h

12 BY MS. ABERNA THY:

1 3 Q. You will take anything?

14 A. Yes.

15 MS. ABERNATHY: I guess that's all.

16

17

18

T HE COURT : Cros s-ex amina tion?

CROSS EXAMINAT I ON

19 BY MR. PAR SLEY:

20 Q.

You didn't try to hurt yourself, Mrs . 21 Solomon?

22 A. No, sir. 23 Q. You didn't? 24 A . No. 25 Q.

Let me ask you about this e-mai l to

1 your h usb and d ated May th e 3 1st. Do y ou have a copy

2 in front of you?

3 A . I have .

4 Q. Do y ou reco gniz e that doc ument?

5 A . Yes.

6 7 ( Ex hibit Tw o re ceived i nto

8 evide n c e to this he aring . )

9

10 BY MR . PA RSLEY:

11 Q. Did you write t hat docume nt?

12 A . I d i d.

1 3 Q. "M y life, An gie Huffi nes Solomo n, I

14 lo ve you mo re than word s can s ay , Aaro n. I never

15 thought you wou l d do t h is t o me. As yea rs go by, do

1 6 you r ea lize I d id n't des erve this tort ure? But it ' s

1 7 over for me n o w. Yo u l ive wi t h it . " Wha t does t hat

1 8 mea n?

1 9 A. He had le ft wi th the chil dren. When I

20 wok e that mor ning th ey were g one. I wa s ve ry

21 d esp erate an d fra n tic t o f i nd t he m. T hat line

22 basic all y mean s it' s ove r fo r me an d y ou, ob vio usly.

23 Q. Let's jump up t wo p aragr aphs. ''I l ove

2

y ou forever, my bes t f r iend. I'll a lway s be watch ing over you . Wish I had go t to k iss a n d h u g

.1 you one more time." What do you mean by that?

2 A. Wished I had got to kiss and hug him

3 one more time?

4 Q. Par don ?

5 A. Wished I had gotten to kiss and hug

6 him on e more time?

7 Q. Kiss and hug you one more time .

8 A. Well, I did. They were gone, and he

9 wouldn't respond to any of my texts or calls . I did

10 wish. I knew they were gone . My mother told me

11 they were gon e.

12 Q . Let me ask you about some t exts that

13 you

14

THE COURT: Well, let me ask you,

15 because I got more questions.

16

17 pretty quick.

18

MR. PARSLEY: I can zero in on it

THE COURT: Mrs. Solomon, I'm going to

19 say Mrs. Solomon, that doesn't read that way to

20 me. Then you say up here and I haven't even read 21 the full paragraph, but just go two lines up about

22 you know, abov e. It says, "So this is my last wri t ing on this earth." I mean, when I read that, 24 that just really kind of tells me your

25 interpretation of what you're telling me is not

1 2 3 4

reall y tr ue.

MR. PARSLE Y: THE COU RT : sorry to interru pt

5 BY MR. PARS L EY:

6

7 8 9

Ma y I ask o ne other? Go ah ea d and a sk . I'm

Q . gue ss I wil l p rep are for what

exist s f or the cow ards o n t he othe r s ide." o t her side o f what?

On t he A . I'm no t sure what that was . I know

10 that any t ime in t he past that I hav e - - I don' t

1 1 br idge into t his discussion, but if I le t Aaron

12 th i nk s omething is go i ng to happen , or i f I t ake

1 3 owner ship of th ings , he come s home. I t didn' t

14 hap pen thi s time.

15

1 6

Q

So "I'v e never wan t ed to hu r t mysel f , but t h i s pain a nd uncert aint y is un bear able. " What

17 doe s that mea n?

18 A . It wa s unbearable. -

1 9 20 21

Q.

S o t his is n ' t a lett er where y ou ins inuate tha t you ' r e g o i ng t o kil l y ou rself ?

A . This was to try to get him to come

2 2 home. Q. So you we re 23 24 25

I wrote it. Maybe it's a mistake th a t I wr ote i t, but if you l ived with us, you wo uld

A

1 understand why I wrote it.

2 Q. So you were kind of - - so it's your

3 testimony you were making up stuff, making up lies

4 to get what you wanted then, right?

5 A . No. I felt it was unbearable pain.

6 Q. Let's do another. You know you've

7 been pretty prolific in sending texts to them, don't

8 you?

9 A. Yes. I have counted them with you.

10 Q. Let's talk about some you sent on May

11 the 9th. The bottom of the page, Mrs. Solomon, a

12 copy for your Honor, also. From Aaron, do you see

13 that, the third sentence from the bottom, Mrs.

14 Solomon? "And I have a picture of you in the shower

15 when you tried to hang yourself with the hair

16 dryer," and you respond, "Oh, Aaron"

1 7

Flip over to the next page. You see

18 where your husband responded, but let's look what

19 you say the fourth line down from Angie. HYou took

20 a picture before you tried to help me? That shows . 21 me where this has gone . Just go find another. I

22 staged that anyway, but who cares. Use it against

23 me. Now I'm a complete wreck. I won't be making

24 25

any field trip or to the school."

Move down another. "I'm beyond

1 hyster ia . Got to calm down. All I wanted was to be

2 loved, nothing mo re. Unfortunately, I wouldn't kill

3 mysel f, but you would memorialize my faking it to

4 get attention and use it aga inst me ins tead of love

5 me. "

6

So you did he did find you in t he

7 shower with the h a ir dry er co rd around your neck,

8 didn't he?

9 A. No. ·

10 Q. You're still go ing to "deny it?

11 A. I can't state that t hat 's my text.

12 Q . It's not your te x t?

13 A. I do n't see my number on there

14 Q. You don't. So it's your te s timony

15 this didn' t happen. These texts did not occur,

16 corr ect?

17 A. I would you repeat that.

18 Q. It's your testimony these tex ts did

19 not happen. You didn't write this text , the se

20 series of tex ts, did you?

21 A . I don't recall that in that way, and I

22 don't s ee my number or

23 Q.

Wh at 's you r number?

24 A . My phone number, 615-585-0363.

25 Q. So it 's yo ur testimony under oath in

1 - front of Judge Smith today , that th ese texts do not

2 emanate from your cell phone; is that correct,

3 because I'm going to show them to you.

4 A. You can show the m to me, but I'm not

5 saying that I did it.

6 Q. Can you no t remember, ma'am, if you

7 did th ese texts or not?

8 A. I don't recall these texts, no.

9 Q. Did you erase the texts from your

10 phone?

11 A. I frequently era se texts from my

12 phone, but I don't recall doing this, writing this

13 serie s of texts at all.

14 Q. Let's move on two more pag es back,

15 ma'am. Top of the page from Angie: "Sending out my

16 pictu re you mad e bef ore helping me. You tri ed to ':··

17 hang me." So it's your testimo ny that your husband

18 tried to hang you, co rre ct?

19 A. Yes .

20 Q.

Why didn' t you go through wit h this

21 order of protection when this man tried to hang you

22 from the shower noz zle with the blow dryer cord?

23 A.

Why di d I I'm sor ry. Why did I 24 what?

25 Q.

Why didn't you go th rough with this

1 order of protection? Why did you come up here and

2 tel l Judg e Smit h you didn't want it?

3 A. Becau s e it was through a third party,

4 my family, that if I dropp ed the order of

5 protection, that there was no divorce, there was no

6 restraini ng or der , a nd that ·he was coming home, and

7 actually Mike told my attorney that day .

8 Q • Let' s mov e on a couple of mor e pa ges

9 where you start around 5, 5 o'clock in the mo r ning

10 on May the 9 t h .

11

MR PARSLEY: Judge a nd I apologize

12 for these not being numbered. They are so prolific,

13 we didn't have time to g et them all.

14

1 5 you at?

TH E WITNESS : I'm sorry Where are

16 BY MR. PARS LE Y :

17 Q. I ' m on th e p age wh ere it b e gins with

18 the date May the 9th, 5 : 18 a.m. That s ho uld be

19 seven pag es back, ·Mrs. Solomon Tell me when you're

20 there

21 A . May 9, 2 013, 5 : 1 8?

22 Q. Yes, ma'am. From Angie, •I'm hurting

23 bad l y in my back . I'm sure I did a l l of t his to

mysel f , of course. No f iel d tri p, no scho o l, no rehearsal, no Dr. Reed, no pract i ce " I don't kn ow

.1 what practice I guess that means pract ice,

2 correct?

3 A. I don't know.

4 Q. You don't know. You didn't text that, 5 correct?

6 A. No. I do not recall texting that.

7 Q. Let's go down a coupl e of two

8 paragraphs. From Angie, "You'r e gone. That's all I

9 know since 4 a.m. You broke my trus t and called my

10 parent s on me again. You took a picture of me

11 before helping me. That's real concern for

12 situation in my life. I'm hurt and you aren't

13 here."

14

What picture are you making reference

15 to that he says he took of you?

16

Well again, if I don' t recognize these

17 texts then I don't I don't know what I would be

18 refer e ncing, unless you're trying to draw me back to

19 the initial conversation, but that' s not what I'm 20 going to do.

21 Q. Le t's assume you did n 't send any of 22 these tex ts. Did you hav e a ny discussion with your

23 husba n d about him taking a picture of you in the

24 shower?

25 A. Yes.

Q.

And what were you concerned about if

2 you had not tried to harm yourself? What would make

3 a difference if he took a picture of you in the

4 shower?

5 A . I did not I did not try to harm

6 myself. I was concerned that he didn't dial 9-1-1

7 instead of making a picture of me.

8 Q. I'm sorry. One more time

9 A. That he wouldn't have dialed 9-1-1 if

10 he-- if he had tr ied to harm me, than · to make a

11 picture of me instead .

12 Q . I'm sorry. I don't understand what

13 you're saying.

14 A. We had a conversation face-to-face

15 about it. He said he made a picture of me in the

16 condition that he left me in. Why would you mak e

17 Q. What condition were you left in?

18 A Pardon?

19 Q. What condition did he leave you in, . 20 ma'am?

21 A. He left -- what condition he left me 22 in?

23 . Q . Yes, ma'am . What condition were you

in?

25 A. I wa s without the cord on my neck and

1 out the door and attending to my son who was

2 aw ake ned by the entire ordeal.

3 Q. Okay. I didn't hear you. You were

4 wh at?

5 A. Let me go back and let you maybe ask

6 th e question again.

7

THE COU RT: You just said som ething

8 about a cord aroun d your neck?

9

THE WITNESS: Yes. I took that off

10 and ran out of the bathroom. He was gone, and Grant

11 was awake in the be d.

12 BY MR. PARSLEY;

13 Q. How · . did you get a cor d around you r -

14 neck, ma' am?

15 A. He put it there.

16 Q. He put it ther e. Then he went and 17 called 9-1-1?

18 A. I said no. That was what my conc ern

19 was when we had our personal conversation

20 one-on-on e, was why woul d you make a pi ct ure of me 21 instead of calling 9-1-1?

24 25

him, weren't yo u? I'll giv e you mine . You see this in front of you? .....

1 A. Yes.

2 Q. Did you write this e-mail?

3 A. May I read it, please?

4 Q. Yes, ma'am, go ahead.

5 THE COURT: I'm going to mark this for

6 I.D., three.

7

8

(Exhibit Three so marked for

9 I.D . only to this hearing.) 10 11

MR. PARSLEY: I may not be necessarily

12 going through that one.

13 BY MR. PARSLEY :

1 4 Q. L et me read the third sentence. "I am 15 not suicidal. I made a bad choice for attention,

16 but I accept responsibility for that choice and have 17 learned why I did it and won't repeat it. "

18

What bad decisions did you make for 19 attention?

20 A. I d idn' t make any bad-- I didn 't make

21 any bad I know what the e-mail says .

22 Q. What are you talking abou t in this 23 e- mail? 24 A.

In order for Aaron to s tay at home 25 with me, I had to take ownership of what has

1 happened.

2 Q . Tell us what you are taking

3 responsibility for, what bad choice you made. What

4 were you trying to do to get attention?

5 A. I didn't take responsibility for what

6 happened in the shower that night so that he will

7 come home and then protect his public image.

8 Q. So what you're telling us, Mrs.

9 Solomon, is in this e-mail this is a copy for

10 your Honor. In this e-mail you lied to Mr. Solomon

11 and about trying to harm yourself to get

12 attention. Never happened, right?

13 A . I'm not going to say that I lied and

14 it never happened.

15 Q. I don't suppose you would say that you .":.·.

16 lied. I understand that.

17

THE COURT : Mr. Parsley, let me stop

18 you. Ma'am, I'm going to have to ask you. A l.ot of -

19 your testimony · isn't adding up to me. This e-mail

20 on May the 16th -- and I think it was before you 21 were served with the divorce.

22

THE WITNESS: May the 16th I actually 23 knew about the divorce.

THE COURT: You knew about it. Hadn't 25 been served?

24

THE WITNESS : Correct .

{Exhibit Four received into

4 evidence to this hearin g.)

5

6

THE . COURT: Says he re from you, at

7 4:04 : 38 a.m. · , subject : "Still throwing up. It's

8 3:5 5. It happens every night, and I'm worrying

9 about you guys, and I hope G and GG's little minds

10 are okay . I never got over my mom being removed

11 from me. I never was sure what was around the next

12 door. Dr. Murphy is concerned for them too. I am

13 not suicidal I made a bad choice for attention,

14 but I expect -- I accept responsibility for that

15 choice and have learned why I did it and won't

16 repeat it."

17

18

THE · WITNESS: Uh-huh

THE COURT: Mrs. solomon, this

19 question is a very important question, and it could

20 be key to this case . I want you to explain to me

21 why you would put that language, "I made a bad

22 choice for attention" in this corre spondence, and

23 again this is a watershed moment i n t his case.

Okay?

THE WITNESS : Uh-huh.

THE COURT: Why did you put tha t in

2 there?

3

THE WITNESS: Because in our marriage,

4 when anyt hing went awry or t here wa s an y viol ence ,

5 as long as I took ownership of it, Aaron would com e

6 home, and I would still have a marri age.

7

THE COURT: And this is a man who you

8 said put a cord from a hair dry er around your neck ?

9

10

THE WITN E SS: Yes

THE COURT: Why would you want that

11 ma n back? ..

12

THE WITNESS: That's a watershed

13 momen t, your Hon or . I wanted him back becau se I

14 1ove him. I loved him then. When he cam e back

15 Memorial Day everything had so -ca lled worked. When

16 he to ok the kid s ou t o n Thursday, and I got up

17 Friday mo rning and they wer e go ne , at th at point I

18 was done.

19

T HE COURT: But what you 're say i ng to

20 me doesn't make sens e to me. 21

22 :,.iti' .

THE WITNE SS: Which part?

THE COURT: Well, th e par t tha t you

23 say if you take own ershi p he'l l come ba ck home. I .. 24 25

mean, I'm beginning -- I'm going to

MR. PARSLEY : I'll interrupt y our

1 2

thought, Jud ge. I think I can conclude this quickly.

3 BY MR. PARSLEY :

4 Q. Mrs. Solomon, if you woul d, please,

5 ma'am, these are texts related to May the 31st,

6 2013. Sev en th line from the bot to m, "I'm

7 hysterical, and I'm ending it all." Did you text

8 that, ma'a m?

9 A. I do not recall that. I do not see

10 anything on here that says I did .

11

THE COURT: I'll tell you what let's

12 do . Mr. Solomon, do you have it on your phone?

13

14

MR. SO LOM ON: Which set of texts?

MR. PARSLEY: Most respectfully, we'll

15 submit the se . We did this for convenience to read

16 them, but they are on the we've got them on

17

THE COURT: I want to show it on the

18 phone. Let me say this. What is it da te d?

19

MR. PARSLEY: May the 31st, your 20 Honor. 21

THE COURT : She should still have it

22 on her phone because there's a statutory injunction, 23 that prevents her from - -

MR . PARSLEY: Against destroying evidence.

1

THE COURT: To prevent her from

2 deleting any text messages.

3

MS. ABERNATHY: Here's her phone, so

4 find i t on your phone.

5

MR. PARSLEY: Your Honor, I'm sorry.

6 We have like 80 pages, and we're trying to cull the

7 most important ones. Forgive us.

8

THE COURT: Tel l you what I'm going to

9 do. I ' m going to take five minutes. I got a

10 sandwich back there. I'm going to eat it real

11 qu ick.

12

13

MR. PARSLEY : How many?

THE CO URT: One for me. Why don't you

14 and Ms . Aber nat hy look at those texts?

15

16

17

(Recess was take n.)

THE COURT: Be seated.

MR . PARSLEY: We have scrolled the

18 cell phone appropriately. She's identified her

19 phone number. I have a couple of questions I want

20 to ask her just to get this te xt stuff out of the

21 way if I could. I want to know what order your

22 Honor wants it. I would like to do this first.

23 Then we'll show you through him that they'r e here, 24 she did them. 25

T HE COURT : Al'l right.

{Exhibit Five received into

2 evidence to this hea ring. }

3 4 BY MR.

PARSLEY:

5 Q. Do you have the document I just passed

6 you, a series of text messages for the record?

7 A. Yes.

8 MR. PARSLEY: Your Honor, do you have

9 your copy?

10

11 BY MR.

THE COURT : I do.

PARSLEY:

12 Q. Seve n lines from th e bottom, May 31st,

13 2013 . "I'm hysterical, and I'm ending it all." Did

14 you text that, ma'am?

15 A. May I loo k ?

16 Q. You don't know if you told him you 17 were going to e nd it all?

18 A. I don't recall t e lling him I'm going

19 to end it all, but I know that that would get him to

20 come back home.

21 Q. - Let's go down a little bit. "You

22 aren't responding, and so I assume the worst. You

23 are gone, and you took my babies again. I won't be

24 aliv e through t h is day " Did y ou text that?

25 A. Again I do n't I would have to look

1 here to see if I te xted it. I don't recall, but

,

2 there was so much pain, and my heart was so broken,

3 I'm surprised I didn't go through with it that day .

4 I wasn' t going to hurt my self , but I was

5 h ear tbroken.

6 Q. Let's flip to another page About

7 halfw ay down the page, "Y ou are tak ing y'all back to

8 lake house to forever leave Mommy. I found one

9 bullet in the chamber, and I left a note for the

10 babies. I can' t li ve thi s way." Wh at should h e

11 interpret from that text from you, ma'am, when you

12 say there' s a bu l let in the chamber, and you left a

13 note for the ba bies ? Wha t do es tha t mean?

14 A. I was going to end it, I guess, but I

15 don't have any bullets.

16 Q.

so were you lying?

17 A. No.

18 Q.

So you were t elling the truth? ·

19 A . I wanted to look it up on here rig ht

20 here to be sure.

21

THE COURT: Look it up.

22 BY MR. PARSLEY:

23 Q. 11:02 a.m . , May the 31st I'm sorry.

24 That's correct. 11:02 a.m., May the 31st, 2013.

25 A. May the 31s t

.

1 Q.

Be mindful, Mrs. Solomon, that Judge

2 Smith, he sees your text there too.

3

MS . ABERNATHY: May I object to Mr.

4 Parsley making comments?

5

THE COURT: Yes. I'm going to ask

6 both counsel to approach at this point also. That

7 wasn't an appropriate comment. I'll strike that for

8 the record. This one was .. .

9

10

11

THE WITNESS: 11:02.

THE COURT: 11:02.

MR. PARSLEY: Oh, I thought you wanted

12 us to ap proach , your Honor. I'm sorry.

13

THE WITNESS: I have a 10:46 a .m.

14 right there, May 31st, 2013. Then I have May 31st,

15 2013, 11:06

16 BY MR. PARSLEY :

17 Q. So you don't hav e them on your phone?

18

THE COURT: What does it say?

MS. ABERNATHY : Read the one before. 20 It's not my e xamination. I'm so sorry. 21

19

MR. PARSLEY: That's all right.

22 You're doing well. 23

THE WITNESS: I sai d on May 31st,

24 201 3, 11:06, I said, "I'll be a good wife and won't 25 ask any questions. I don't want to die. Please

,

1 help me . "

2

3

THE COURT: Wasn't there more to it?

MR. PARSLEY: I guess she could tell

4 us, your Hon or, why she wou ld die then.

5

THE WITNESS : I don't I guess if

6 you take that literally as die, but if you also ta ke

7 it as you're heart 's broke n and you a re hurting so

8 bad you're going to die

9

10

11

THE COURT : Let me see your cell

THE WITNESS: Yes, go a head.

THE COURT: wait a minute now.

12 Ther e ' s more to this messag e tha n you read. Says

13 this is on your phone, ma'am . Says, "You' re taking

14 y'all back to the lake hou se to for ever leave Momm y.

15 I fou nd one bul l et i n the chamber, and I have l eft a

16 note for the babi es . I can't live this way. "

17 Couns el 18

MR. PARSLEY: S h e just told this Court

19 that was not on tha t cell phone.

2 0

THE COURT : It's 11:06. 21

THE WITNESS: Right . I thought you 22 were wanting 11:02. 23

MR . PARSLEY: I ma y have said 1 1:02, 24 becau se there's different times 25

THE WITNESS : That's fine .

MR. PA RSLEY: Yo ur Hon or, does it have the does it have an entry subsequent to tha t that says, "I called Mom, and I told her and Dad good bye. I never wan te d to h urt myselfr but I can't stand this pain, and you won't talk to me You took my children. Again I hope one bul let does the trick becaus e I sure don 't know what I'm doin g.n

THE COURT: What time would it have been?

PARSLEY: It woul d have be en

there's a minu te or two leeway between those ·proc essing.

THE COURT: 11 : 06, one bullet. Then it jumps to 12:55 p m.

1 1 his phone indicates 11:50 a.m . , but appa rently 12 13 14 15 16

31st .

MR. PARSLEY: We'll sho w it on hisr 17 Judge, if it's not on hers 18 19 20 21

Honor?

THE COURT: What time was it?

BY MR. PARS LEY : Q. So you don' t have an ent ry "I g uess this is it for old Ang . I'm scared to do thi s , but I can't live without you and Gracie and Grant. Here 22 goes." That wa s not on that phone eit her, your 23 24 25

MR. PARSLEY: Judge, it 's subs equent

1 to the 10 : 40 an d before the 11:50 a.m., May the 31st

2 where it say s , "I fo und on e bullet in the ch amb er

3 and I left a note." Your Honor found that one?

4

THE COURT : Yeah, I did. It's on

5 there.

6

MR. PAR SLEY : I t should be pretty

7 sho rt ly after that, Judge.

8

9

THE WITNESS: 11:50 a.m.?

THE COURT : "I gues s this is it for

10 old Ang. I'm scared to do this, but I can't live W

11 0 U and Grant and Gra ci e. Her e goes." Yes, th at' s

12 on there

13

MR. PA RSLE Y: W 0 U is high-tech

14 texting. Judge, I'm concerned about t h e one that

15 sa ys, "I called Mom and . to ld her an d Dad go od-b ye

16 and everyone if I hurt myself. I hope one bullet

17 will do th e tr ick." Th at sho uld be sh ort ly

18 th er eafter.

19

20 Pa rsl ey

21

22

T HE COURT: It's no t on the re, Mr.

MR. PARSLEY: Okay

THE COURT : Her e is th e nex t one. It

23 is one from Mr. Solomon. "Please don't do anything

2 4 dr ast ic . I love you. The kid s lov e you." Says,

25 "You nerr to get more help." I guess that's a typo.

.

1 "S erious l y, I'm not playing any games I'm worried

2 about you."

3

MR. PARSL EY: I'll le t him b e looking

4 for that, Judge.

5

TH E COURT: I think Mr. P a rsley, I

6 think I've probably heard enou gh at this point from

7 Mrs. Solomon.

8 BY MR. P ARSLEY:

9 Q .

Let me ask you something. You to ld

10 his Honor that you do n' t have a ny money, but you

11 ra ised $17,000 ov er the Int ern et by telling people

12 he stole yo ur bab ie s. What did you do wi th that

13 money?

14 A. First of all, I d idn' t tell anyone I

15 needed 17,000. Second of all

16

17

18

19

THE COU RT: Did you raise 17,000?

THE WITNES S : No.

THE COU RT: How much did you raise?

TH E WITNESS : So f ar I've only b een

20 ab le to acq uir e $3900.

2 1 BY MR. PARS LE Y :

22 Q.

So you are not broke, are you?

23 A. I don't hav e that money be caus e I used

24 it to retain my attorney s until I c ou ld pay them the 25 balance .

THE COURT: Why would you tell people

2 he had stolen your babies? I mean, I si gned a

3 rest raining order, ma'am. If anyb ody is to blame

4 it's me.

5

THE WITNESS: That was a prayer chai n

6 that was started by a young lady named Hope Conrad

7 at Grace Christian . That was what it was intended

8 to be. I didn't do anythin g until I was texted. I

9 thin k it was the next day and said it's getting out

1 0 of hand on here, and I actually c ame on and realiz ed

11 somebody got into my Facebook account so I said

12 le t's take this thin g down . I don't wan t to do

13 anything to hu rt Aaron, the c hildren or me. J ust

14 pleas e pray for all . I th anked Hope.

1 5

MR PARSLEY: If we could, Judge, on

16 June the 7th we filed this motion for restraining

17 or der . We attached to that these Facebook chain or

18 whatever it is, Judge. Let me, if I may, read some

19 of these and see if Mrs. Solomon wil l admit this.

20 BY MR. PAR SLEY:

21 Q. You stated in this chain, "I love you.

22 I shouldn't be leaving until noon. Callin g the bank

23 right now. I have until then to get the money,

24 That's your writing, isn't it?

25 A. No. I didn't need $17,000 .

1 Q .

Ma'am, it's your testimony that you

2 did not put that e ntry on that Facebook chai n or

3 whatever it is where you were trying to raise

4 $17,000?

5 A. That is correct, but it is my

6 testimony that I did com e on aro und 11 some thin g, I

7 mean, somewhere the next day and say please, we've

8 got to take this c hain down .

9 Q. Ma' am, how much money hav e you pa id

10 these lawyers?

11

MS. ABE RNATH Y: . I obj ect to the

12 relevancy, if your Honor please.

13

14

THE CO URT: Ye ah .

MR. PARS LEY: If it please the Court,

15 she said she didn't raise but $3900 on this.

16

TH E WITNESS: I didn't ra ise it on the 17 Facebook account .

18 BY MR . PARSLEY:

19 Q.

Where did you get the money? How much 20 did you pay your law yers ? 21

MS. ABERNATHY: I said I object to

22 relevancy, if yo ur Honor ple ase.

23

THE COURT: Again, Ms. Abernathy, I'm

24 not concerned about your - - you're worth ev ery penny

25 you got and more, but let me say, you know, I think

2

I do need to hear what money has come into her hands. There's an issue of temporary support out

3 there.

4

BY

MR . PARSLE Y:

5 Q. How much have you paid your lawyers so

6 far?

7 A. $3900.

8 Q. So it's your testimony today, all you

9 have paid your lawyers thus far is $3900; is that

10 correct?

11 A. Ye s.

12 Q. Now you then send to the children

13 certain things telling them that you're locked up at

14 the house, right?

15 A. No.

16 Q. That their dad let roe ask you som e

17 things

18

MR. PARSLEY: One for the Cou rt ...

19 BY MR . PARSLEY :

20 Q. Pull these co nvers ati ons up on your

21 phone that you had with Grant on June the 3rd, 2013

22 at 12:53 p.m. You said you didn't say that. Go to

23 your phone, pull it up, June 3rd, and it may not be

24 exactly 12:53, but a minute th ere before.

25 A. See, he won't be on here . We

1 don't communicate. 2

4 5 6 7 8 9 10 11

Q.

Ma'am, you got a text message. Ju s t check, please, ma'am, and s ee if you have a text. We don't communicat e via text

A . I di d. mes sag es, like I ca n ' t communicate with my iPhone to his iT ou ch.

MR. PAR S LEY: Let me pass Grant's i Touch up to you and se e if you said these st atem en ts. That's your phone number at the top.

THE WITNESS: That's what we're lo okin g at. I ha ven 't moved it . I was ju st try in g

12 to see it.

13 14 15 16

MR. PARSLEY: was . Th e nu mb er comes up . y our ph one nu mber is ag ai n,

THE WITNE S S :

17 BY MR . PARSLEY: 18 19 20

Put it back wh er e it Tell Judge S mith what ma 'am Tha t ' s my number.

Q. That's y our so n's iTouch, so you' re say in g to the judge you d idn' t send th ose , right?

A I don't recall sending those, no.

21 Q. got to ge t y'all, but I don't know

22 where yo u are. No . Er as e ev er ythin g I send yo u . "

23 2 4 25

You didn't tell him to erase everything you send him then ei ther, did you?

A. No. I wouldn't wa n t him to e r ase

1 2

eve ryth i ng I send him.

Q.

I me an , h e didn't. I mea n, it's

3 there, right? Why would you tell a child to erase

4 communications from you?

5 A. I did not tell him to erase

6 co mmun ica tio ns

7

8 9

10 11 12

14

THE COURT: Mr . Parsley, I've heard

enough from her. Let me hear fro m Mr. Solomon.

say day , like

it 1 but I I guess. to ente r

MR. PARSLEY: got 60 or 70

THE COURT:

MR. PARSLEY: those as the

15 se quen ti al order .

16

17 Ms. Abernathy?

18

Okay, Judge. I hate to more pages, but another Another day.

Your Honor, we would next exhibit, whatever

THE COURT: Is there any objection,

MS. ABERNATHY: No. The summaries of

19 the texts or e-mails, is that what you're asking 20 for, Scott?

MR. PARSLEY: Yes. (Exhibit Six received into evid en ce to thi s hearing .}

,

1

THE COURT: Mr. Solomon, take the

2 stand, please. What I want to address at this point

3 I know what I'm going to do on parenting time,

4 but I do want to hear on the support issue. Tha t's

5 all I want to focus on.

6

MR. PARS LEY: Okay, Judge. 7

AARON SO LOMON ,

2 having been first duly sworn as a witn ess, on behalf

3 of the Plaintiff, was examined and testified as

4 f ollo ws:

5

6 DI RECT EX AMINATION

7 BY MR. PARSLEY:

8 Q. Mr. So lom on, sta te your name, please,

9 sir. 10 A. Aaron Solomon.

11 Q. Ar e you employed, sir ?

12 A. Not presently, no .

13 Q. Wh en was the last ti me yo u were

14 employed?

15 A . Apri l 27th was my termination da te

16 from Morgan Stanley.

17 Q Prior to that time ho w long ha ve you

18 been unemployed?

19 A. I worked for six weeks at Morgan

20 Stanley. I was unemployed previ o usly sin ce la st

21 March of 2012 at a radio station. In the meantime

22 l ast summ er and fal l I was working tow ard s get ti ng a

23 posit io n of coaching and teaching at Grace Christian

24 Academy wh er e ou r k ids have been going to sch ool,

25 and I was get t ing mo net ary cre dit towards their

tuition for my coaching, and they were going to

2 create a position for me for this next schoo l year.

3 That was the original plan .

4 Q. Mr Solomon, yo u and Mrs So lomon have

5 b een in bankruptcy, correct?

6 A. Correct

7 Q. Hadn't made a house payment in three

8 or four years, h av e you?

9 A. Not at th e Ab bo tt Martin residen ce,

1 0 no. We have rented at other locations.

11 Q. You received so me money fr om an

12 inheritance; is that correct?

13 A. Yes . I had a great au n t pass aw ay

14 last summer.

1 5 Q. Tha t estate has not been settled or 16 distributed, has it?

17 A It actually just st art e d to get

18 di s tributed this week, last week.

19 Q. You got so me up-front money from them

20 by telling them about your financial situation, did 21 you not?

22 A. Co rr ect, em e rge ncy adv ance.

23 Q. That's your separate property, isn't

24 it?

25 A. It 's suppos ed to be in the trust. The

1

trust is, yes .

2

Q.

Bu t you did n 't hav e any way to pay the

3 bills or feed the fami l y, so you as ked them to

4 adv a nce th e money , didn' t you?

5 A . Yes. We borrow e d a lot of money f r om

6 family member s and things. Nobo dy els e co uld help

7 at any po int.

8 Q.

You did tha t. Let me Judg e, I

9 guess you want income an d expense statements?

10

11

(Exhibit S eve n rec ei ved into

12 evidence to th i s hearing. )

13

14

(Exhib it Eight received into

15 ev iden ce to this hearing.)

16

17

18

19

THE COU RT: Ms. Abernathy

MR. P ARSLEY: I gave her a copy.

THE COU RT: I need hers . Let me ask

20 you, Mr. So lomon. Will you be ge tting any 21 distr ibut ion f rom th e trust? 22

THE WITNES S : Ther e' s nothing set up 23 right now. Right now on the trust the re's a farm

24 a nd i nves tme nts li ke st ocks, bon d s, thi ngs lik e

25 that, but no thin g se t up to get a certain

2

THE COURT : Do you have any idea what

3 you will receive from the settl eme nt of the estate?

4

TH E WITNESS: As far as what do you

5 mean?

6

7

8

9

THE COURT: Do you know

TH E WITNESS: the monetary value?

THE COURT: Yes.

THE WITNESS: Yes. The investments

10 are roughly $300,000. Th e farm is separate. It was

11 appraised last year for 740,000.

12

TH E COURT : Are you the sole

13 benefi ciar y of the trust?

14

15 child ren are.

16

17

THE WITNESS: Until I die. Then my

THE COURT: Generation skipping trust?

THE WITNESS: I don't know the terms.

18 I know I'm the beneficiary, and if I die my 19 childr en

20

THE COURT: It's not a generation 21 skipping trust then.

22 BY MR. PARSLEY:

23 Q.

24 to realize 25 A.

But that farm has to be sold for you

It's a farm sitting there right now.

..

1 2

Q . It's not sold? A. Corr ec t .

3 Q .

You understand that's your separate

4 pr oper ty, an d she doesn't hav e any rig hts to it.

5 You understand t h at?

6

THE ·CO URT : Mr. Parsley, th at' s not

7 qu ite right. Can't separate property be considered

8 fo r support?

9

10 next question.

11

MR PAR S LEY : I di dn' t get to ask my

THE CO URT : Jus t making sure that I

1 2 didn't have to se n d you back t o NSL.

13

MR. PARSLEY: This isn't my first ..

1 4 rodeo, your Honor.

15 BY MR. PARSLEY:

1 6 Q.

You're willing to use what mon ey you

17 ca n to try to get t hrou gh thi s to h elp suppo rt the

18 family, correct?

19 A. Yes . 20 Q .

You have bee n doing that af ter a ll?

MR. PARSLEY: That hel p? 23

TH E COURT: That will help. Thank

MR. PARSLEY: Judge, I certainly don't

1 2

know how to pick or what you're going to say, but I don't want to be hesitant and l et this go without my

3 client expr ess ing his concerns about what st ate he

4 found his wi fe in the bathtub.

5 THE COURT: I'll allow it.

6 BY MR. PARSLEY:

7 Q. Mr. Solomon, these texts and e-mai l s

8 that we have put in as e xhibits today, you received

9 those in ex cha nge with your wife, did you not, sir?

10 A. Yes, I did.

11 Q. Hav e you fab ric ate d any of this 12 evidence, sir? No. 13 14 15 16 17

A. Q. Do you have these texts between y o u and she on your phone right now? A. Q. 18 cor rec t? A.

Yes. The ju dge can look at every Correct.

one,

Q. Have we retyped th ese just fo r the convenience of th e court? Correct.

Q. And you reviewed those subsequent to their being tr ans cr ibed by a se cret ar y onto th e 25 paper, correct?

1 A. I actually I physically transcribed

2 everything from the phone onto the paper, yes.

3 Q. But you have on your phone. You have

4 not deleted any of these, have you?

5 A. Correct.

6 Q . These things on the iTouch, how did

7 you discover those she says she can't remember to

8 the ch i ld?

9 A. I figured she would try to communicate

10 with Grant i n some way, and on the iTouch it's an ap

11 that allows you to text via something. I don't

12 know the tech word.

13 Q. The question is pretty simple. Did

14 you find it on his iTouch?

15 A. I found it on his iTouch.

16 Q. Did it ind i cate that it came from her 17 phone?

18 A . Yes. It has her phone number at the 19 top.

20 Q All right, sir. Let me ask you. She 21 said she didn't attempt suicide. Tell Judge Smith

22 about this incident that you say occurred in the 23 bathtub.

24 A. Yes. It was we were in our living 25 room t o gether. She was not happy . We had been

1 arguing; over what, I don't even know. Arguments

2 happen a lot. Sh e said, "I'm going to go end it.

3 I've been th inking ahout this. I know how to do it.

4 I know what I'm going to do."

5 She walked o u t of the roo m. From our

6 living room our kids were asleep in our bedroom, in

7 our master bedroom. She went through the master

8 bedroom into the master bathroom which is

9 connected. She locked the bedroom door behind her.

10 Then she locked she went into the bathroom, a nd

11 there's a French double door that doesn't lock.

12 Then there's an inner part of the

13 re str oom that has the toilet and the shower. She

14 went in there and locked that door . Locks on the

15 door are the kind that just have the little

16 holes that you have to we hav e a key, but it's

17 not really a key. It's kind of a we ird loc k that

18 you have to

19 Q. We know what you're talking about.

20 A.

So as soon as she walked in and locked

21 those, I fol lowed in behind, and I got the little

22 key thing . It took a couple of minutes to get

23 through both set s of door s.

24 Q .

25 th ro ugh?

What did you find when you got

1 A.

When I got thro ugh bo th sets o f

2 doors, I opened the s e cond door, and I couldn't

3 believe it. She .. . She had wrap ped the hair dryer

4 cord arou nd her neck three or four time s, and the

5 hair dryer was resting like here, and th e other end

6 which she plugged in, she had attached to the shower

7 head.

8 She was slumped down in the bottom of

9 the shower, and I immediately co uld tell that she

10 had not snapped her neck. I know that that's how

11 you die wh en you hang yourself and but she was

12 turning colors . Her hands were turning purple. He r

13 face was turning re d . It was tight. It was taut .

14

And so I immediat el y undid it from the

15 shower head first, and then al lowe d me to get it out

16 from arou nd her neck, and it took I don't know.

17 It took maybe three or fou r minutes for her to co me

18 to. She was breathing. She had a pulse . I got a

19 cold clot h and rub bed it on her h ead and tri ed to

20 get her to co me to.

21

It took three or four minutes mayb e.

22 When she came to she bec ame semi-violent . Sh e

23 wanted to push me aw ay , get away from me. She

kicked at me. Don't try to help me. Then that becam e that' s transferred it ba ck into th e liv ing

1 room because I've always tried to protect anything

2 from the kids, and they were in our bedroom right

3 there.

4 They were not awake . They were not

5 awaken ed by the incid ent. We went into the living

6 room where she proceeded to get violent wi t h me and

7 said that she was going to beat the hell out of me

8 for the nex t two-an d-a-hal f hours until the kids

9 woke up. It was roughly 2:30-ish when this

10 happened.

11 She proceeded to attack me, tried to

12 hit me, scratch, pull, all that. At that time I

13 tried to defend myself, get away, grabbed my cell

14 phone which was charging, and I went out the front

15 door, got in our car, drove to the Kroger, which is

16 roughly three or four blocks down Abbott Martin .

17

And on the way I immediately called

18 her father just to let him know what had just

19 happened, and that she had escalated, and that she

20 had threatened suicide many times in the past, but

21 had never carried anything out to the point of

22 making it look like she had done it or tried it

23 or

24

And that really bothered me that she

25 had threatened it many times, but never to this

1 degree of doing something like that, and that's why

2 I called them because we had already talk ed ab out

3 the fact that we needed to somehow get her help in

4 some way.

5 Q. Let me ask you, Mr. Solomon.

6 A. Yes.

7 Q . You've heard her say up here on this

8 stand that you tri ed to hang her, you tried to hurt

9 h er. Do you remember she t ook th e order of

10 protection out on you?

11 A. I know, I know. We took her to

12 Centennial the next day.

13

MR. PARSLEY: We'll pass a certified

14 copy of th a t order of protection.

15

MS. "ABERNATHY: I've seen it. It's

16 the order of protection?

17

THE COURT : It is.

18 BY MR. PARSLEY:

19 Q. You were up here when Mr . Strickland

20 and Mike Parsley came up on the order of prote ction, 21 correct? 22 A .

Correct.

23 Q. She said that you tried to hang her

24 with the blow dryer cord in the bathroom of your 25 horne, correct?

1 A That's what the order of protection

2 states, yes.

3 Q. She swore to it. It never happened,

4 did it, sir?

5 A. I ' ve never tried to kill her, ever.

6 Q. Never laid a hand on her, did you?

7 A. No. I've never hit her, struck her.

8 I've defended myself, physically tried to keep her

9 away from me a number of times.

10 Q . Well, this shower incident, this is

11 the same incident she says in these text messages

12 that she faked to get attention, isn't it?

13 A. Correct . When I drove down to Kroger

14 to help settle the situation because she was also --

15 when she became physically violent, she also

16 escalated her voice and getting very loud. I was

17 really worried that the kids were going to wake up

18 and see this . That's why I left, to calm the

19 situation, drive a few blocks down.

20 While I was down there I said I

21 composed myself. I probably should try to I

22 probab ly need to text her and tell her I have a

23 picture of her to get her to admit that she had

24 done it, because she might try to say that I did 25 it.

1 2

Q. A.

She did, didn't she? Yes. When we took her to Parthenon

3 that day, she told the police there, and she told to

4 5 6 7 8

my knowledge the doctor tha t I tried to.

Q. did you?

A.

Q.

You never laid a hand o n this lady, No. In some of these texts messages sh e is

9 apologizing for is th at correct?

A.

Q.

Correct. You are asking for fin a nces. Tell Ju dge Smith what she did with the last $700 y'all had in th e checking account be f ore you go t this trust t o give you some money. she went?

Do you remember where

A.

Q. A. Q. A .

T hree differen t tr ips. Any of it go for groceries? No. Spent it all?

$864 trip to Dick's. Two weeks later a $1300 trip to Dick's Sporting Goods, and two weeks later 480 or $90 trip to Dick's Sporting Good s .

Q. Every dime y'all had in the world she we nt and sp ent at Dick's Sp or ting Goods, did n't she?

A. Especially the $1300 .

1

2

3

THE COU RT: Why? What would she buy th ere ?

THE WI TNESS : Lots of spor tin g clothe s

4 for her a n d the children, s ome other sp orts -typ e

5 "' t hings that none o f it wa s needed.

6 BY MR . PAR SL EY:

7 Q.

8

9

10

11 pr ob lem?

12

Mr. Solomon

THE COU RT: Hold on.

MR. PA RSLEY: I'm sorr y, Judg e.

TH E COU RT : Does she have a spen ding

T HE WITNESS: Yes. She has had a

1 3 ma jor spe ndin g pr ob lem a t various times ove r th e

14 la st fi ve or six years, but that was the first time

15 it had re are d its head in awhile.

1 6

THE CO URT: Tell me about the other

17 times. Were they stuff she' d b uy off the T V or

18

TH E WITNES S : No. There was a time

19 where we we re living in Leip er' s Fork when she was

20 workin g in Fairvi e w as a pha rmaci st ; no t full time,

21 but part time. Ther e was a gift shop as part of the

22 ph ar macy, and sp eci fically she came hom e and h ad

23 just brought bag s a nd bags and bags of thi ngs.

2 4

And the y were goo d deals, but it still

25 added up to hund reds of doll ar s t hat we didn ' t have

1 at the tim e We hav e been cash strapped for five

2 years. Been throu gh bankruptcy alr eady an d hav e so

3 much debt now we need another ba nkru ptc y that we

4 can't have.

5

6

THE COU RT: Let me ask you.

THE WITNESS : There's been multipl e

7 times where she had spending spr ees.

8

THE COURT: Does she have access to

9 any money that you know of?

10

11

THE WITNESS: Not that I know of .

THE COURT : What -- I gue ss I'm asking

12 you this. You know, I know you do n't have a job,

1 3 but what are you proposing as far as the support

14 issue? She is asking for temporary supp ort from

15 you.

16

THE WITNESS: I haven't sit and tried

17 to ca lculate what that might be. I mean, we bot h

18 had good j ob s.

19

MR. PARSLEY: She is a licensed 20 pharmacist, corre ct ?

21

THE WITNESS: Yes. I think her

22 li ce nse is still valid.

23

25

·

MR. P ARSLEY: We checked. It's still 24 valid, isn't it?

THE COURT : Let's think about that for

THE WITNESS: sure . I would like her

t o get help a nd then g et a job .

T HE COUR T: Oka y.

THE WITNESS: My primary co nc ern from da y one tha t startedfon --really started on May 9, but beca me May 10 when we too k her to Parth e n on t o - - my primary goal is to protect the child r en from s e eing what they have seen, which has not been good, and to ge t her help, ser ious help that she d oes n't r e alize that she need s.

BY MR. PARSLEY :

Q.

Mr. S olomo n, I 'm rea ding the j udge 's

14 mi nd, but I think he is asking, is there a nything

15 you can do to help financially until we over

1 6

T HE COURT: He answ ered o ne o f my

17 questions, a nd that's for her to get bett e r and th e n

18 g e t a job. I appreciate that What can you do to

19 help her finan ciall y?

20 BY MR. PARS L EY :

21 Q . Can you get any more from this trust?

2 2 A. That 's th e only thin g I can do at the 23 mo ment, is se e if I ca n call th e trustee a nd see i f 24

I can get another adv a nce to help us or whoever to get thro ugh th e

'

1

THE COURT: Do you think you can get

2 an advance from the trustee?

3

4

5

6

7

THE WITNESS: Perhaps.

THE COURT : Who is the trustee?

THE WITNESS: John Carrington

THE COURT : Any relation to you?

THE WITNESS: No.

8 BY MR. · PARSLEY:

9 Q This is a this estate is in

Illin ois?

A Correct . 12 Q. You haven't had money to even pay your

14 A. No. I paid you partially.

15 BY MR. PARSLEY: 16 Q. A lit tle bit? 17 A. Yes. 18 Q. Y'all have been strapped financ i ally 19 for years, haven't you? 20 A. Oh, yes 21 Q. One more thing. 22 A. Can I add one more thing - -

Sure.

about my

You asked other

1 .

Q. You are conc ern ed about if you give

2 her money, what she is going to do with it?

3 4 5

6 7 8 9 10 11 12 13

A.

Of course. I'm concerned about what she may do with money.

Q. Did you leave some money in the checking account

A.

Q . A. Q.

I did. - - when you left. Yes, two different times, yes. Can you tell the judg e what happened, what you did with that money?

A. Well, the · reaso n I took out the money to be gin with, that came from my trust to the

14 account, was the previous spen ding habits, and she

15 had told her mother on the phone that sh e -- all of

16 a sud de n some money appea red in the acc ount. She

17 was going to go get it out, and so I was obv iously

18 fearfu l she might go get it out herself; I don't

19 know, take the kids somew here or spend it.

20 Q. It left 3 or $400 fo r groc erie s?

21 A. The first time I left over $700 in

22 there, and actu ally ther e was anoth er 250 in the

23 other accou nt.

24

25

Q A.

How long did that last? She went out and got it. She went and

1 got it out, and then she is correct in the two

2 checks that I had forgotten about, which did it.

3 She took it down. She also had her parents come two

4 we eks in a row an d went grocery shopping with her to

5 get her g r oceries.

6 Q. They won't giv e her money, but they 7 did buy groceries?

8 A. Yes. They went and bought her

9 groceries, too k her to eat, those kinds of things.

10 Then we left. We did go home for roughly a 36-hour

11 period.

12 Q. Tell the judge real quick what

13 hap pe ned. It's getting late. You went the re, took

14 the kids?

15 A. Yes.

16 Q. What happened?

17 A . I was willing to she was saying all

18 the right things to me and her parents, and I still

1 9 wanted some proof that she was having some further

20 counseling with Dr. Murphy, which she didn't really

21 want to provide.

22 Q. Tell us wha t happ ened whe n you were in

23 the house t hat caused to you leave.

24 A . We were there. Me and Gracie went

25 back on Wednesday night and everything, and it was.

1 fine, fine We nt to bed. Got up th e nex t mo rnin g.

2 Went to get Grant. On the way back from getti ng

3 Grant she got upset becaus e she dis cove red I guess

4 that I had a new ce ll pho ne with a new cell number,

5 which she already knew that I had a new cell phone,

6 I know, because she said that on May 31st, is the

7 first ti me me and the kid s went and had a sup ervi sed

8 visit with her parents.

9

I wanted them the re the first time we

10 all c ame to hav e a somewh at safe setting. Sh e said,

11 "Oh, so you have a new phone . When were you going

12 to tel l me ab out that?"

1 3 That was on May 31st. S o I ass umed

14 that she knew that I had a new number. I was

15 advised by you guys to get a new phone when I first

16 met with you be ca use she had been tr ac king me o n my

17 phone that I had had f or a couple of yea rs , had been

18 t ra cking me, tracked where I went.

19 Q. T e ll the judge.

20 A. She got upset that I had -- sh e s aid

21 she got upset be cau se I had a new phone number, and

22 she f e lt that I had been keeping it from her and

23 been deceptive in me coming back. We had only bee n

24 home about 24 hour s. We went to get Gra nt She

25 discov e red tha t o n the wa y horne. She got up set I

1 knew she was ups e t. I kind of anticipated a rough

2 evening coming.

3

We ate dinner with the kids. That was

4 very uncomfortable. She did not want to eat with

5 the kids at first. She was going to go to her room.

6 I said, "We just came home. Sit down and eat."

7 Dinner was uncomfortable . She went

8 and found some bedding We had the kids sleeping on

9 Aerobeds in the living room because they had been

10 sleeping in our bedroom, against my wishes, since

11 last August. She went and found some bedding for

12 that. I had made or I had done so me thing to he lp

13 the kids .

14

She got angry at me for helping the

15 kids. She said, "D o not make Grant's bed. I want

16 to make the bed."

17 She went and fou nd the bedding. She

18 came back. She started making the bed, and then she

19 griped in front of the kids about having to go find

20 the stuff to make the bed, but she had told me not

21 to make the bed, Grant's b e d, because she wanted

22 to.

23 Q. Is it just back and forth like that

24 the whole time?

25 A. All the time.

·

1 Q.

Tell the Court what she did.

2 A. Then it escalated. I cou ld tell she

3 was upset. I could tell it wasn't going to be a

4 goo d evening. Wh en the kid s fina lly we nt to sleep,

5 I went i nto t h e bedroom. She h ad st a rted just

6 getting upset about me h a ving a new pho ne , being

7 deceptive . I said, look I told her I said,

8 "The a t torneys suggested I get a new phon e ."

9 There's a whole lot of stuff for us to figure out

10 because we had been away for a couple of weeks.

11 ···,..(.!

1 2

13 esc al ated.

14

15 looking for.

16

THE COU RT: How did it end?

THE WITNESS: I t didn't end well. It

MR. PARSLEY: That's what we're

THE WITNESS: She went u pstairs one

17 time and cried and carne bac k. She went to the couch

18 one time and cried and carne back, and when the k i ds

19 went back upstairs, she carne back downstairs. I

20 would follow up, try to talk and wasn't getting

21 anywhere. At one point she took a pillow, her

22 medical records and a folder and cell phone and

23 walked out and sat on th e front porch.

24

I said, "What are you do ing ?"

25 BY MR. PARSLEY:

1

2 3 4 5 6

Q. A. Q. A. o'clock. night.

What time is this?

Thi s is roughly 2 in the morning.

Go ahead .

It al l the y went to sleep about 10 This went all night. This went al l

Around 2 o'clock s he took her pillow,

7 medical records, cell phone and went out on the

8 front porch.

9

She said, "I'm waiting for a ride to take me to a shel ter ." She said, "I won't tell you where I 'm going. I'm just going to leave."

I said, "Okay."

I s aid , " What are you doing? " 10 11 12 13 14 15 16

She came back in. She didn't like the fa ct that I said oka y. S he cam e back in. I was sitting on the couch where the kids were because I

17 just wanted to be nea r them thro ugh all thi s. She

18 comes back in and says, "All right, her e I go. I'm 19 going to go." 20

21

Sh e threw her cell

1 Q. Where did she throw her cell phone

2 at?

3 A. S he threw - - she threw it. She looked

4 to me l ike she was throwing it at me. It hit me on

5 the arm.

6 Q. It hit you, didn't it?

7 A. It did hit me. Yes . She immediately

8 apologized and said she me ant to th row it into t he

9 bed, but it . hit me h a rd. I was just trying to get

10 h e r to calm down. I said, "There's still stuff for

11 us to work through." But there was only four or

12 five people that knew I had a new phone: You guys,

13 my immediate family. She had already escalated to

14 throwing s om e thing a t me t he fi r st nigh t.

15 Q. Is what caused to you leave?

16 A. She stayed up until - - about 5:45 she

17 went t o sleep. I sat there, didn't know what to do.

18 I said what do I need to do? In l e ss than 24 hours

19 we're back to roughly the same e nv i ronm ent that we

20 l eft.

21 Q. Did you get the children and leave?

22 A. I waited until they woke up. I fed

23 the dog . I made noise. I made a lot of noise . She

24 fell ' asleep, but at roughly 8:30 when the kids woke

25 up I said, "Let's go to Donut Den, get some donuts.

1 I to ok them to ge t donuts I called my parents an d

2 Mr. Mike Parsley to see what I should do.

3

I thought I should leave because it

4 would be an escalat ed situation. I wanted to leave,

5 and I didn't want it to be the point where I needed

6 to call the police to say I needed to leave with the

7 cu st ody of my children. We left and wen t back to my

8 parents' house .

9 Q .

Are you fe a rful if she has visitation

10 with the children a t this time without treatment?

11 A.

12

13

14

Yes I am concerned about

MR. PARSLEY: No further questions.

THE COURT: Cross- ex amination?

15 CROSS EXAMINATION

'

16 BY MS. ABERNATHY:

17 Q. Am I correct in saying that she was

18 the one , that dr ov e the Tahoe before the divorce

19 complaint was f i led?

20 A. Probably half a nd half. We both drove 21 it a lot.

22 Q. You drove a car your mother had and 23 still has that's titled in your mother's name. Is

24 25

tha t accurate? A.

They had let me bo rr ow/ yes, one of my

1 Tahoe?

2 A. No. I'm fine with giving her back the 3 Tahoe.

4 Q. Can you do that tonight, sir, or today

5 when you leave the courthouse?

6 7 8 9

A. I can't today because I need to get things out of it. I honestly don't want to pay for the Tahoe. I don't want the Tahoe.

Q. Well, she's got to have something to 10 drive, does she not? 11 A. True. 12 13 14 15 16

Q. Especially if you expect her to go to counseling sessions and evaluation and treatment and then get a job?

A.

Q.

Correct. So you just tell us what you want her 17 to drive, when you can get it, and that you need to 18 pay for it.

19 A. I will get her the Tahoe. I'll figure 20 out whether we need to keep paying for it, whether 21 we need to trade it for something else and downgrade. The payment is too high.

MR. PARSLEY: We can send someone to jump that Tahoe off. It was running

THE COURT: The Volvo.

1

2

MR. PARSLEY: Yes, the Volvo. But it was running when we left. we can get it jumped off .

3 BY MS. ABERNATHY:

4 Q. That would be great . Where does she

5 pick up the Tahoe?

6 A. I need to figure t hat out.

7 Q.

8

9

10

And when?

THE COURT: Le t 's do it tomorrow.

THE WITNESS: I can do it t omorrow.

T HE COURT: The Volvo will need to

11 run. I would l ike t he m to make the exchange in a

12 very pub l ic plac e . I would like to do the excha n ge

13 in a way that Mr. Solo mo n does not have to be

14 there.

15

MR. PARSLEY: That's why I had

16 suggested that we get someone to go jump that Volvo

17 or whatever it's so-called, get it jumped off. They

18 can whoever does that 19

THE COURT: can drop the Taho e . 20

MR. PARS LEY: Can drive it down to the 21 Kroger and then I mea n, we can do the logistics 22 of that. 23

MS. ABERNATHY : Absolutely.

MR. PARSLEY: I prefer it wasn't 25 tomorrow, but we'll do whatever your Honor

instructs .

THE COURT : Well, she nee ds a car, and let's do it by 4 p.m. tomorrow afternoon.

MS. ABE RNATHY: She'll be horne to receive whomever.

MR. PARSLEY : We need to know where the key is . If she can leave the key out there.

MS. ABERNATHY : You have the key to the Volvo, correct?

THE WITNESS: How do we know the battery is dead?

THE COURT: You got a key to the Volvo, right?

THE WITNESS: I have one .

MR. PARS LEY: Should be a key there because she's got the brief case out of it. That's all I'm suggesting . I can send someone and just leave the key.

BY MS. ABERNATHY:

Q.

Sir, do you want a divorce? You filed a divorce. Do you want a divorce?

A. Considering everything that's happened I think it would be hard to continue to be married, yes.

Q.

And you filed that divorce on May the

1 13th, cor re ct?

2 A. Yes.

3 Q . On that same day did you withdraw

4 $10,000 from the joint bank account?

5 A. Yes.

6 Q. And where did what was th e source

7 of that money? Was th a t your trust?

8 A. Yes.

9 Q. How muc h had been in there before you

10 started withdrawing the mon ey? What was the amount

11 of that trust deposit, I guess?'

12 A The amount of the trust deposit was

13 15,000

14 Q. And that was not the first deposit you 15 had taken from the trust, is it?

16 A. Advance, no.

17 Q. Yes. Had you gotten advances for

18 something between 45 and $60,000 in the year 2013?

19 A. No There have been four adv anc es

20 since October that tot al 50 .

21 Q. All right So in the last eight

22 months you have re cei ved advanc es of $50,000? 23 A. Correct.

24 Q. Any advances before that? 25 A. No.

1 2

Q. Did you start those advances in October because you r wife's employment ended in

3 September?

4 5

A. Q.

Correct

Did you tell her I want you to stay at

6 home and be a mom at that time?

7 8

A. Q .

No. You didn't support her s t aying at home

9 with ' the ch ildren?

10 A. No. The original plan when she got

11 t he job that she got last summer, was for her to

12 have that job an d for me to try to become a coach

13

14 15

16 17 18

and a teacher at Grace Christian Academy. I kept even when she lo st her job, her goal was to try to find another similar to it . I was going to try to begin at the school because I had already established that to t ry an d develop a job there.

Q. What specific concern do you have

19 about her having supervi s ed time with the

20 children?

21 22

A. children.

What she is going to tell the I noticed about six or seven months ago

23 we were having an argument, and she said, "My firs t

24 husband, I never to l d him I was going to divorce

25 him, but I'm telling you right now, I'm going to

1 divorce you."

2

Not lon g after that I noticed her

3 saying things and doing things that looked like she

4 was trying to make the kids be on her side.

5 Q. And how long has that been going on?

6 A. Six or sev en months. I started

7 getting concerned.

8 Q. So that is your continued fear, that

9 she'll say these things that she started saying s ix,

10 seven months ago?

11 A. Yes, and h er e's an example. Th e

12 morning of the attempted suicide or fa ke suicide in

13 our shower, I had left to go to Kroger, and I came

14 bac k. I wanted to be back when the kids woke up,

15 and I didn 't wa nt to be gon e when they wok e up . I

16 wanted to be there. I came back aft er she had

17 settled down some .

18

Not long after th ey had gotten up for

19 school she escalated again, and she said in front of

20 the children, that your daddy left in the middle o f

21 the night to go sleep with a woman.

22

I said, "Angie, why ar e you sayi ng

23 that?" I said, "Why are you saying that?" I said,

"Do you want me to tel l the m that I had to leave

25 because you were trying to attack me and physically

1 abuse a nd sh e said, "Th at was only in

2 self-defense."

3 So those kinds of things in front of

4 our ch il dre n, am ong s t man y other thi ng s, ye s, I'm

5 fearful for wh at she might say to our children

6 either negatively untrue about me because she has a

7 serious pro bl em wi th lying.

8 Q . Did you l eav e the children una tt ended

9 with her during this Memorial Day pe riod?

10 A. No t at all , no t at all, n ot at all.

11 Q. Did she say anything in your presence

12 to the childr en that she shouldn't h a ve said?

13 A. S he -- tha t sh e shouldn' t have said?

14 Q. Yes. Did she say something that y ou

15 di dn 't ap p rove of to the children?

16 A. T he eve nin g th at sh e was u pse t, sh e

17 said a couple of things th at were str ained in front

18 of the kids, tha t you c ou ld tel l that things were

19 strai n ed ag ain alre a dy. I said, "Look, we're al l

20 here. Please come out and eat." So she came out.

21

Sh e sai d , "I'll eat, but I don't want

22 t o. I'll eat, but I don't want to."

23

That's a sign of strain in the fa mily

24 when she's obviously no t happy, th a t I do n' t want to

25 e at wi th yo u, bu t I will anyway. Later on when sh e

1 was making the bed, she said in front of the kids,

2 had to go find the bedding, an d now I got to mak e

3 the bed," when she had just told me, ordered me not •

4 to make the bed because she was going to do it for

5 her child.

6 Q. So your concern is the children

7 hearing that?

8 A. Yes. Those things and also other

9 things I told you. She told the kids I left the

10 house to go sleep with a woman.

11 Q . So what is the worst thing she's ever

12 said to the children?

13 A .

In my presence, your dad left in the

14 middle of the night to go sleep with a woman, and

15 that she was herself when I said I left

16 becauie she was beating me up.

17

18

MS. ABERNATHY: Okay. Thank you.

THE COURT: Mr. Solomon, you may step

19 down. Okay. We've got the Volvo and Tahoe worked

20 out by about 4 p.m. tomorrow afternoon. She will

21 receive the Tahoe. He 1 ll receive the Volvo. I

22 don't know what I'm going to do about paying the

23 note. Neither one of these parties are employed.

24 25

You know, this is not a good situation at all. I heard the testimony of Mr. Dan Huffines

1 who is a very believable person, although he didn't

2 testify much in the way of specifics. Perhaps the

3 most damaging testimony to Mrs. Solomon came from

4 Mrs. Solomon herself. Simply stated, Mrs. Solomon,

5 I do not believe you.

6

I do believe you attempted to commit

7 suicide. I do believe it may have been for purposes

8 of getting his attention. I don't know why, but I ' m

9 very concerned about you, your mental health and

10 your recent behavior. I believe you texted your

11 son. I do not believe for a minute that you didn't,

12 and I'm going to be quite frank . I am concerned

13 about the safety of these children even in a

14 supervised situation.

15 At this time I'm not going to award

16 any parenting time until I get Dr. Freeman ' s report.

17 Ma'am, that is not to punish you. It ' s not your

18 interest that I have to look to. It's the best

19 interest of these two minor children, and I am very

20 concerned about your mental state, and I don't know

21 whether, you know, one of these times you ' re going

22 to be serious regarding a suicide threat, or whether

23 it's just to get attention, but what I'm concerned

24 about is if you decide to qo it when those children

2 5 are with you, and so I · am · extremely concerned at

1 2 3

this point in time.

I do think that you need to get help. · Dr. Freeman will help us to ascertain what kind of

4 help you need, and I hope you get it for the sake of

5

6 7 8 9

10 11 12 13

14

both you; the two children most of all, but to a less extent Mr. Solomon and your parents . I hope that you do because, you know, in looking at Mr. Solomon testify and his hesitancy in answering Ms. Abernathy's question, I know that he still loves you.

I know that he doesn't want this divorce, but he doesn't see any other way. It's really up to you at this point, so at this point time, until we get the evaluation back from Dr.

in

15 Freeman, I'm not going to allow any parenting time .

16 This is something that I don't think I've done in

17 the past, but my concerns are that great.

18

Mr. Solomon, in regard to the support,

19 sir, we're going to have to do what we have to do.

20 I don't believe she is in a condition to work at 21

this point. She's going to have to have a place to live. You are unemployed. All you've got are these emergency distributions that you can take, if you can take them, but I am going to order the sum of $2,000 a month to be paid to Ms . Abernathy. Okay .

1

And Ms. Abernathy, I want you to write her a check

for rent.

3

MR. PARSLEY: Judge, I'm sorry. I

4 don't mean to interrupt. She is living in the

5 marital residence. It's been in the bankruptcy.

6 They haven't come after them . They haven't paid a

7 house note in four years. She can still live there.

8

9

10

THE COURT: Okay.

MR. PARSLEY: There's no rent on that.

THE COURT: Okay. I'm going to

11 order the same amount but, Ms. Abernathy, you're

12 going to pay the electric bills, what other utility

13 bills are there. I would like for you to somehow

14 investigate and I'm going to make her responsible

15 for the Tahoe payment out of that right now since

16 she doesn't have rent to pay .

17

I'd like to investigate the

18 opportunity for you to buy cards that can be used at

19 Kroger's for food. I don't want to put money in her

20 hands right now.

21

MR. PARSLEY: Kroger has those like

22 debit cards. You can pre-load them.

23

24 25

be used elsewhere . I don't know, but I'd like to do that.

2

MS. ABERNATHY: We'll figure . it out.

THE COURT: I will revisit this in 90

3 days. I'd like to do it on a Friday, and at that

4 point I want to know where Mrs. Solomon is. I hope

5 that she is through treatment and has a job at that

6 point.

7

8

MS. ABERNATHY: Okay.

THE COURT: But at this point in time

9 I've struggled with this. Mrs. Solomon, I've got

10 to say I think were suicide attempts or

11 threats to commit suicide, and I simply do not

12 believe you. Okay. Mr. Parsley, will you draw the

13 order?

14

MR. PARSLEY: I will, your Honor, and

15 I will send them to Ms. Abernathy.

16

THE COURT: Ms. Abernathy, you have

17 done a wonderful job. This is in no way directed at

18 you. I hope you know that.

19

MS. ABERNATHY: Of course, and we'll

20 continue on. Thank you so much.

21

22

THE COURT: Thank you.

(Whereupon, this was all the evidence

23 heard in this cause, this the 21st day of June,

REPORTER'S CERTIFICATE

3 I, susan D. Murillo, Certified Court

4 Re port er in an d fo r the State of Tennessee, do

5 her eby certify that the above pro ce edin gs were

6 reported by me and that the foregoin g 121 pag es of

7 the transcript is a t rue an d accu rat e rec ord to t he

8 be st of my knowledge, ski ll s and ab ilit y.

9

I fu rt her cer tif y that I am not

10 rela t ed to nor an employee o f counsel or any of the

11 pa rtie s to th e act ion , no r am I in any way

12 fi nancially int ere sted in the outcome o f this ca se.

13

I fu rt her ce rtify tha t I am d uly license d by t h e Tennes s ee Board of Court Repor t ing as a Li ce nse d Court Reporter as evidenc ed b y th e LCR num ber an d expir a tion d ate fo llowing my name below. ..

#2 24

Expiration Date: 6-3 0-1 5 1 1 8 Wheaton Hall Lane Franklin, Tenne sse e 37069

TRANSCRIPT OF COURT'S RULING

June 21, 201 3

Heard Before: HON. PHILIP SMITH, JUDGE

APPEARANCES:

For the Plaintiff: Mr. Scott Parsley

Mr. Michael Parsley

Parsley & Associates 219 Sec ond Avenu e North Suite 300 Nashville, Tennessee 37201

For the Defendant: Ms. Joanie Abernathy Attorney at Law 136 Fourth Avenue South Franklin, Tennessee 37064

Prep are d by: Sus an D. Murillo, CCR 118 Wheaton Hall Lane Franklin, Tennessee 37069 (615) 791-4767 Fax: 791-1337 ,

THE COURT: Okay. We've got the Volvo

4 and Tahoe worked out by about 4 p.m. tomorrow

5 afternoon. She will receive the Tahoe. He'll

6 7

receive the Volvo. I don't know what I'm going to do about paying the note. Neither one of these

8 parties are employed.

You know, this is not a good situation I . heard the testimony of Mr. Dan Huffines who is a very believable person, although he didn't testify much in the way of specifics. Perhaps the most damaging testimony to Mrs. Solomon came from Mrs. Solomon herself.

at all.

Simply stated, Mrs. Solomon,

I do not believe you.

I do believe you attempted to commit suicide. I do believe it may have been for purposes

18 of getting his attention. I don't know why, but I'm 19 very concerned about you, your mental health and

your recent behavior. I believe you texted your son. I do not believe for a minute that you didn't, and I'm going to be quite frank. I am concerned about the safety of these children even in a supervised situation.

At this time I'm not going to award

any parenting time until I get Dr. Freeman's report. Ma'am, that is not to punish you. interest that I have to look to.

It's not your It's the best interest of these two minor children, and I am very concerned about your mental state, and I don't know whether, you know, one of these times you're going to be serious regarding a suicide threat, or whether it's just to get attention, but what I'm concerned about is if you decide to do it when those children are with you, and so I am extremely concerned at this point in time.

I do think that you need to get help. Dr. Freeman will help us to ascertain what kind of help you need, and I hope you get it for the sake of both you; the two children most of all, but to a less extent Mr. Solomon and your parents. I hope that you do because, you know, in looking at Mr. Solomon testify and his hesitancy in answering Ms. Abernathy's question, I know that he still loves you .

I know that he doesn't want this divorce, but he doesn't see any other way. It's really up to you at this point, so at this point in time, until we get the evaluation back from Dr . Freeman, I'm not going to allow any parenting time.

1

This is something that I don't think I've done in

2 the past, but my concerns are that great.

3

Mr. Solomon, in regard to the support,

4 sir, we're going to have to do what we have to do.

5 I don't believe she is in a condition to work at

6 7

this point. She's going to have to have a place to live. You are unemployed. All you've got are these

8 emergency distributions that you can take, if you

9 can take them, but I am going to order the sum of

$2,000 a month to be paid to Ms. Abernathy. Okay. And Ms. Abernathy, I want you to write her a check for rent.

MR. PARSLEY: Judge, I'm sorry. I don't mean to interrupt. She is living in the marital residence. It's been in the bankruptcy. They haven't come after them. They haven't paid a house note in four years. She can still live there.

THE COURT: Okay.

MR. PARSLEY: There's no rent on that.

THE COURT: Okay . I'm still going to

21 order the same amount but, Ms. Abernathy, you're ·

22 going to pay the electric bills, what other utility

23 bills are there. I would like for you to somehow

24 investigate -- and I'm going to make her responsible

25 for the Tahoe payment out of that right now since

1 she doesn't have rent to pay. I'd like to

2 investigate the opportunity for you to buy cards

3 that can be used at Kroger's for food.

4 to pu t money in her hands right now.

5 6 7 8

MR . PARSLEY: Kroger has those like debit cards. You can pre-load them .

THE COURT: Yes. They may be able to be used elsewhere. I don't know, but I'd like to do

that.

MS. ABERNATHY: We'll figure it out.

THE COURT: I will revisit this in 90 days. I'd like to do it on a Friday, and at that point I want to know where Mrs. Solomon is. I hope that she is through treatment and has a job at that point.

MS . ABERNATHY: Okay .

THE COURT: But at this point in time I've struggled with this. Mrs. Solomon , I've got 19 to say I think these were suicide attempts or

threats to commit suicide, and I simply do not

believe you. Okay. Mr. Parsley, will you draw the

order?

MR . PARSLEY: I will, your Honor, and 24 I will send them to Ms. Abernathy

THE COURT: Ms. Abernathy, you have

done a wonderful job. This is in no way directed at you. I hope you know that.

MS. ABERNATHY : Of course, and we'll cont inue on. Thank you so much.

THE COURT: Thank you .

3

I, Susan D. Murill o , Certified Court

4 Reporter in and for the Stat e of Tennessee, do

5 hereby certify that the abov e proceedings were

6 reported by me and that the for egoi ng 6 pages of the

7 transcript is a true and accurate record to the best

8 of my knowledge, sk ills and ability.

9

I further certify that I am not

10 related to nor an employ ee of counsel or any of the

11 parties to the action, nor am I in any way

12 financially interested in the outcome of this case.

13

I fur ther cer tify that I am duly

14 licensed by the Tenn es see Bo ard of Court Reporting

15 as a Lic ense d Court Repor ter as evi denc ed by the LCR

16 number and expiration - date following my name below . 17

Susan Murillo, LCR #224 Expirat ion Date: 6-30-15

118 Wheaton Hall Lane Franklin, Tennessee 37069

EXHIBIT F

EXHIBIT G

Office of Child Safety

UBS Building, 10th Floor

315 Deaderick St. Nashville, TN 37243

Aaron L. Solomon

2806 Manning Lane Franklin, TN, 37064

Date: 06/11/2021

Dear Aaron L. Solomon

We have received your request for a letter regarding your involvement with the Department of Children’s Services.

As of the date of this letter, you are not listed by DCS as a substantiated perpetrator of child abuse or neglect and we have discovered no open Child Protective Services investigations in which you are named as an alleged perpetrator of abuse or neglect.

Sincerely,

Andrea Graves Program Manager

EXHIBIT H

EXHIBIT I

EXHIBIT J

DECLARATION OF PAIGE WALDROP MILLS

My name is Paige Waldrop Mills. I am majority age and have first-hand knowledge of the following facts:

1. I am an attorney of record for Plaintiff Aaron Solomon in this matter.

2. On or about May 25, 2021, I performed a search of bankruptcy filings in the Middle District of Tennessee using the website Pacer.

3. I searched for bankruptcy filings in either the name Aaron Solomon or Angelia Solomon. What follows is the result of that search, of which I took a screenshot:

4. This screenshot is a true and accurate depiction of the results of my search.

5. As indicated, Aaron Solomon has made one bankruptcy filing, jointly with Angelia Solomon, on or about October 19, 2010. At that time, the Solomons were married.

6. The records did not reveal any additional bankruptcy filings by Mr. Solomon. There were at least eight additional filings by Angelia Solomon that did not include Aaron Solomon.

7. I declare under penalty of perjury pursuant to the laws of the United States that the foregoing is true and correct to the best of my knowledge, information, and belief.

Dated this 17th day of June, 2021.

Paige Waldrop Mills

30872273.1

EXHIBIT K

EXHIBIT L

IN THE CIRCUIT COURT FOR WILLIAMSON COUNTY, TENNESSEE

AARON SOLOMON )

Plaintiff,

V.

ANGELIA SOLOMON, ) MELANIE HICKS, )

DOCKET NO. 2021-200

WYNN HICKS ) JURY DEMANDED

ANNA SMITH, ) KAMI ABBATE, and

JOHN DOES 1 THROUGH 25

Defendants.

DECLARATION OF GARY HATHCOCK

My name is Gary Hathcock. I am of majority age and have first-hand knowledge of the following facts:

1. I am the Athletics Superintendent for the Williamson County Parks and Recreation Department (“Parks and Rec”).

2. I am advised that on the Instagram Account #freedomforgracie someone posted that Aaron Solomon was banned from the Williamson County Rec Center in 2014 because of “how he treated the youth” and “how he was observed treating his wife and children.”

3. Parks and Rec does keep records on individuals that have been banned from our facilities or leagues for bad behavior.

4. I have searched the Parks and Rec’s records going back to 2007 and we do not have any record of any action taken by Parks and Rec to exclude Aaron Solomon from any of our sports leagues, activities, or facilities.

EXHIBIT M

DECLARATION OF SCOTT ERBY

My name is Scott Erby. I am of majority age and have first-hand knowledge of the following facts:

1. I have known Aaron Solomon since 2014, when our sons were baseball teammates at the Franklin Baseball Club. My son became very good friends with Aaron’s son, Grant.

2. When our sons were both twelve years old, Aaron and I were both assistant coaches for their baseball team called “Showtime.”

3. Our sons continued to play baseball together from the ages of thirteen to sixteen, during which time they were on the same traveling baseball team.

4. Both as a coach and as a father, Aaron was always very supportive and encouraging, not just of his own son, Grant, but of all the kids on the team.

5. I never saw Aaron become verbally abusive or aggressive with anyone.

6. Aaron always supported our sons’ teams with anything necessary. In particular, Aaron ran batting practice for any of the players who wanted to hit before the games, and he was always the parent who watched the games of our sons’ upcoming opponents, in order to scout out the other teams.

7. Like many of the dads, Aaron also contributed financial assistance whenever necessary, so that the teams could buy uniforms, food, or hotels when traveling. Aaron often took videos and photographs of our sons’ games and shared them on social media to promote their success.

8. During the time our sons played baseball team together, I got to know Aaron and Angie Solomonbothverywell.Wetravelednearlyeveryweekendtogetherandbecameabaseballfamily.

9. I have always witnessed Aaron be a loving and supportive father who provided a loving and positive environment for his children.

10. I declare under penalty of perjury of the laws of the United States that the foregoing is true and correct to the best of my knowledge, information, and belief.

Dated this ______ day of June, 2021.

Scott Erby

EXHIBIT N

EXHIBIT O FILED UNDER SEAL

EXHIBIT P

THE CIRCUIT COURT FOR WILLIAMSON COUNTY, TENNESSEE

AARON SOLOMON )

Plaintiff,

V.

ANGELIA SOLOMON, ET AL.

Defendants.

DOCKET NO. 2020-200

COMPENDIUM OF UNREPORTED AND EXTRAJURISDICTIONAL AUTHORITIES CITED IN MR. SOLOMON’S RESPONSE IN OPPOSITION TO JOINT DEFENDANTS’ AMENDED PETITION TO DISMISS PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION

B&B Enterprises of Wilson Co., LLC v. City of Lebanon, 318 S.W.3d 839 (Tenn. 2010) ....................................................................................................1

Beauharnais v. People of State of Ill., 343 U.S. 250 (1952) ...................................................................................................................2

In re Conservatorship of Turner, No. M2013-01665-COA-R3-CV, 2014 WL 1901115 (Tenn. Ct. App. May 9, 2014) ..........................................................................................................................................3

Funk v. Scripps Media, Inc., 570 S.W.3d 205 (Tenn. 2019) ....................................................................................................4

Gider v. Hubbell, No. M2016–00032–COA–R3–JV, 2017 WL 1178260 (Tenn. Ct. App. Mar. 29, 2017) ....................................................................................................................................5

Johnson v. City of Clarksville, 2003 WL 21266937 (Tenn. Ct. App. 2003) ...............................................................................6

Loden v. Schmidt, No. M2014-01284-COA-R3-CV, 2015 WL 1881240 (Tenn. Ct. App. Apr. 24, 2015) ..........................................................................................................................................7

Lothschuetz v. Carpenter, 898 F.2d 1200 (6th Cir. 1990) ...................................................................................................8

South Cent. Tennessee R.R. Auth. v. Harakas, 44 S.W.3d 912 (Tenn. 2001)

Total Car Franchising Corp. v. L & S Pain Works, Inc., 981 F. Supp. 1079 (M.D. Tenn. 1997) .....................................................................................10

United States v. Stevens, 559 U.S. 460 (2010) .................................................................................................................11

Zius v. Shelton, 2000 WL 739466 (Tenn. Ct. App. June 6, 2000)

318 S.W.3d 839 Supreme Court of Tennessee, at Nashville.

B & B ENTERPRISES OF WILSON COUNTY, LLC et al. v. CITY OF LEBANON et al.

No. M200800572SCR11CV. |

Feb. 11, 2010 Session. |

Aug. 31, 2010.

Synopsis

Background: Developer of residential subdivision brought inverse condemnation action against the city and others alleging that the city's planning commission had denied it all economically beneficial use of its property by wrongfully refusing to approve final plans for two phases of subdivision. The Circuit Court, Wilson County, No. 14108, John D. Wootten, Jr., J., denied city's motion for summary judgment and found that developer's action was timely. City applied for interlocutory appeal, which was granted. The Court of Appeals, Middle Section, 2009 WL 130188, reversed. Developer applied for permission to appeal, which was granted.

West Headnotes (23)

[1] Judgment Presence of question of law

Summary judgments are appropriate in virtually every civil case that can be resolved on the basis of legal issues alone. Rules Civ.Proc., Rule 56.04.

4 Cases that cite this headnote

[2] Judgment Absence of issue of fact

A summary judgment is appropriate only when the undisputed facts, and the inferences in the non-movingparty'sfavorreasonablydrawnfrom these facts, require granting a judgment as a matter of law to the party seeking the summary judgment. Rules Civ.Proc., Rule 56.04

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[3] Appeal and Error Summary Judgment

Orders granting a summary judgment are not entitled to a presumption of correctness on appeal. Rules Civ.Proc., Rule 56.04.

[4] Appeal and Error Plenary, free, or independent review

Holdings: The Supreme Court, William C. Koch, Jr., J., held that:

[1] statute of limitations began to run when planning commission denied plans for the second time;

[2] exhaustion of administrative remedies did not toll statute of limitations;

[3] ripeness doctrine did not toll statute of limitations; and

[4] equitable estoppel did not apply to toll statute of limitations.

Court of Appeals' judgment affirmed.

Procedural Posture(s): Motion for Summary Judgment.

Appellate courts reviewing an order granting a summary judgment must make a fresh determination that the requirements of rule governing summary judgment have been satisfied. Rules Civ.Proc., Rule 56.04

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[5] Appeal and Error Summary Judgment

The court reviewing an order granting summary judgment must consider the evidence in the light most favorable to the non-moving party and must resolve all reasonable inferences in the non-moving party's favor. Rules Civ.Proc., Rule 56.04.

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[6] Eminent Domain What Constitutes a Taking;  Police and Other Powers Distinguished

A “regulatory taking” results when a governmental regulation places such a burdensome restriction on a landowner's use of its property that the government has for all intents and purposes taken the property.

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[7] Limitation of Actions Injuries to property in general

For the purposes of the statute of limitations, a taking occurs when the injury to property reasonably appears to be a permanent injury rather than a temporary one. West's T.C.A. § 29–16–124.

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[8] Limitation of Actions Injuries to property

Landowners must be vigilant and must file their suit within one year after they know or reasonably should have known that a taking has occurred. West's T.C.A. § 29–16–124.

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[9] Limitation of Actions Injuries to property

Statute of limitations for residential subdivision developer'sregulatorytakingsclaimbegantorun when city planning commission declined for the second time developer's plans for two phases of subdivision; this unequivocal action by the planning commission plainly put developer on notice that the actions of the city had frustrated its reasonable, investment-backed expectations regarding the development of this subdivision, and judicial proceedings arising from denial were irrelevant to determining when developer was put on notice. West's T.C.A. § 29–16–124

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Courts confronted with a defense predicated on the running of the statute of limitations for takings claims must look to the facts in the particular case under consideration to determine when the statute of limitations began to run. West's T.C.A. § 29–16–124

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[11]

Administrative Law and Procedure Nature and purpose

The “exhaustion of administrative remedies doctrine,” which prompts courts to stay their hand until an administrative proceeding is completed, reflects the courts' acknowledgment that administrative agencies have special expertise with regard to the subject matter of the proceedings before them.

2 Cases that cite this headnote

[12] Administrative Law and Procedure Nature and purpose

In most circumstances, the courts deem it appropriate to permit administrative agencies to develop their final position with regard to the matters before them prior to undertaking to review the agency's decision.

2 Cases that cite this headnote

[13] Administrative Law and Procedure Finality in General Administrative Law and Procedure Nature and purpose

In most circumstances, the courts deem it appropriate to permit administrative agencies to develop their final position with regard to the matters before them prior to undertaking to review the agency's decision; by doing so, the courts not only demonstrate their respect for the administrative process, they also assure the existence of a complete administrative record should judicial review of the agency's decision be sought.

[10]

Limitation of Actions Injuries to property in general

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[14] Limitation of Actions Pendency of Action or Other Proceeding

Exhaustion of administrative remedies doctrine did not apply to toll statute of limitations in regulatory takings action by residential subdivision developer; planning commission's proceedings were plainly completed when it rejected developer's application, and developer's subsequent petition for writ of certiorari were not simply a continuation of the administrative proceedings, rather, their purpose was to determine, based on the completed record of the proceedings before the planning commission, whether the planning commission had exceeded its jurisdiction or had acted illegally, fraudulently, or arbitrarily. West's T.C.A. § 29–16–124.

The “ripeness doctrine” focuses on whether the dispute has matured to the point that it warrants a judicial decision; the central concern of the ripeness doctrine is whether the case involves uncertain or contingent future events that may or may not occur as anticipated or, indeed, may not occur at all.

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[18] Action Moot, hypothetical or abstract questions

Determining whether a particular dispute is ripe entails a two-part inquiry; the first question is whether the issues in the case are ones appropriate for judicial resolution, and the second question is whether the court's refusal to act will cause hardship to the parties.

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[15]

Limitation of Actions Injuries to property in general

Ripeness doctrine did not apply to toll the statute of limitations in regulatory takings action brought by residential subdivision developer arising from city planning commission's refusal to grant approval of two phases of subdivision; dispute became ripe on the date the planning commission denied refused to grant approval for the second time as, on that date, developer knew that planning commission had interfered with its reasonable investment-backed expected use of phases of the subdivision. West's T.C.A. § 29–16–124

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[16] Action Moot, hypothetical or abstract questions

Doctrines such as ripeness assist the courts in determining whether a particular case presents a justiciable legal issue.

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[17] Action Moot, hypothetical or abstract questions

[19] Action Moot, hypothetical or abstract questions

The court will decline to act pursuant to the “ripeness doctrine” where there is no need for the court to act or where the refusal to act will not prevent the parties from raising the issue at a more appropriate time.

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[20] Limitation of Actions Knowledge as to extent of harm or damage

A statute of limitations is not tolled until the injured party knows the full extent of its damages.

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[21] Limitation of Actions Estoppel to rely on limitation

Doctrine of equitable estoppel did not apply to toll statute of limitations in regulatory takings action brought by residential subdivision developer arising from city planning commission's refusal to grant approval of two phases of subdivision; fact that the planning commission may have acted arbitrarily or

capriciouslywhenitdeclinedtoapprovetheplats

the phases of the subdivision was not the sort of misconduct that triggered the application of equitable estoppel. West's T.C.A. § 29–16–124.

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[22] Limitation of Actions Estoppel to rely on limitation

“Equitable estoppel” only applies to toll the statute of limitations where the opposing party has engaged in misconduct; this misconduct consists of attempting to gain an unfair advantage by maintaining inconsistent legal positions.

2 Cases that cite this headnote

[23] Limitation of Actions Estoppel to rely on limitation

Limitation of Actions Concealment of Cause of Action

Equitable estoppel only applies to toll the statute of limitations where the party to be estopped must have: (1) engaged in conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) intention, or at least expectation that such conduct shall be acted upon by the other party; and (3) knowledge, actual or constructive, of the real facts.

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Attorneys and Law Firms

*842 G. Frank Lannom and Melanie R. Bean, Lebanon, Tennessee, for the appellants, B & B Enterprises of Wilson County, LLC and Hal Bone d/b/a Hal Bone Enterprises.

Derrick C. Smith, Nashville, Tennessee, for the appellees, City of Lebanon, City of Lebanon Planning Commission, Patsy Anderson, Ronnie Kelley, David Cook, Don Fox,

ClaudeWilson,JoeHolbrook,NickLocke,JanMangrum,Joe Hayes, and Johnnie Peyton.

OPINION1

1

Some of the facts contained in this opinion have been gleaned from prior proceedings in this case and related cases. See B & B Enters. of Wilson Cnty.,LLC,v.CityofLebanon, No.M2003–00267–COA–R3–CV, 2004 WL 2916141 (Tenn.Ct.App. Dec. 16, 2004) (No Tenn. R.App. P. 11 application filed); B & B Enters. of Wilson Cnty., LLC v. City of Lebanon, No. M2006–02464–COA–R9–CV, 2007 WL 1062216 (Tenn.Ct.App. Apr. 9, 2007) (No Tenn. R.App. P. 11 application filed). Because we are permitted to take judicial notice of the facts from earlier proceedings in the same actionandfrompriorproceedings, State v. Lawson, 291 S.W.3d 864, 869–70 (Tenn.2009), we have included facts from the earlier proceedings to provide a clearer understanding of the context in which this case arose.

WILLIAM C. KOCH, JR., J., delivered the opinion of the Court, in which JANICE M. HOLDER, C.J., CORNELIA

A. CLARK, GARY R. WADE, and SHARON G. LEE, JJ., joined.

Opinion

WILLIAM C. KOCH, JR., J.

This appeal involves the application of the one-year statute of limitations in Tenn.Code Ann. § 29–16–124 (2000) to a temporary regulatory taking claim. The developer of a residential subdivision in Wilson County filed suit in the Circuit Court for Wilson County against the City of Lebanon and others alleging that the city's planning commission had denied it all economically beneficial use of its property by wrongfully refusing to approve the final plans for two phases of its subdivision. The City moved for a summary judgment onthegroundthatthestatuteoflimitationsinTenn.CodeAnn. § 29–16–124 had expired before the developer filed suit. The developer responded that the limitations period was tolled while it sought judicial review of the planning commission's decision. The trial court held that the developer's lawsuit was timely because the statute of limitations did not begin to run until the entry of the Court of Appeals' opinion

invalidating the planning commission's action. Both the trial court and the Court of Appeals granted the City's application for an interlocutory appeal in accordance with Tenn. R.App. P. 9. *843 The Court of Appeals thereafter reversed the trial court and determined that the developer's lawsuit was not timely because the statute of limitations began to run when the planning commission declined to approve the final subdivision plans. B & B Enters. of Wilson Cnty., LLC v. City of Lebanon, No. M2008–00572–COA–R9–CV, 2009 WL 130188 (Tenn.Ct.App. Jan. 14, 2009). We granted the developer's application for permission to appeal and now affirm the Court of Appeals.

would lower their property values. On January 22, 2002, the Planning Commission declined to approve the plans for Phases Two and Three. B & B Enterprises brought the project back to the Planning Commission on February 26, 2002, and the Planning Commission again declined to approve the plans for Phases Two and Three despite its staff's conclusion that these plats met all applicable requirements.

2 These parties will be referred to collectively as “B & B Enterprises.”

I.

In1998,JohnHillbegantodeveloptheChaparralSubdivision on property located in the City of Lebanon. Even though the project complied with all applicable land use requirements, the City of Lebanon Planning Commission (“Planning Commission”)declinedtoapprovethesubdivisionbecauseof opposition by neighboring property owners. Mr. Hill sought judicial review of the Planning Commission's decision in the Chancery Court for Wilson County. The Chancery Court found that the Planning Commission had acted arbitrarily and capriciously.

Following his victory in the trial court, Mr. Hill redesigned the project in an effort to address the neighbors' objections. He purchased additional property and developed a plan to construct 106 homes on approximately 35 acres in three phases. Phase One involved the construction of homes on 34 lots on approximately 10 acres. The Planning Commission's staff recommended approval of the subdivision plan and the plan for Phase One, conditioned on several minor technical corrections. On July 24, 2001, the Planning Commission approved the revised preliminary plat for the entire subdivision and the final plat for Phase One, subject to the staff recommendations.

Mr. Hill sold the development to B & B Enterprises of Wilson County, LLC and Hal Bone.2 In 2002, B & B Enterprises submitted the final plats for Phases Two and Three of the subdivision to the Planning Commission for approval. The Planning Commission's staff recommended approval of these plats “with corrections.” However, neighboring property owners continued to object to the development because they believed that it was not compatible with the surrounding neighborhood, that it would increase traffic, and that it

B & B Enterprises, like Mr. Hill, sought judicial review of the Planning Commission's decision in the Chancery Court for Wilson County. The Chancery Court held that the Planning Commission had acted arbitrarily and capriciously when it declined to approve the plans for Phases Two and Three. The Planning Commission appealed to the Court of Appeals. In its December 16, 2004 opinion, the Court of Appeals held that “because the planning commission has no legal or factual basisfordecliningtoapprovePhasesTwoandThree,ithasno option other than to follow the law and approve these plats.” B & B Enters. of Wilson Cnty. v. City of Lebanon, 2004 WL 2916141, at *7. The appellate court remanded the case to the Chancery Court for proceedings consistent with its opinion.

*844 On December 2, 2005, B & B Enterprises initiated a two-pronged attack against the City of Lebanon, the Planning Commission, and the individual members of the Planning Commission.3 First, it filed a complaint in the Circuit Court for Wilson County seeking monetary damages from the City of Lebanon defendants based on claims of regulatory taking and violation of civil rights. Second, it filed a motion in the Chancery Court for Wilson County to amend its original petition for writ of common-law certiorari to add regulatory taking and violation of civil rights claims. 4 The City of Lebanon defendants removed the Circuit Court action to the United States District Court for the Middle District of Tennessee. However, the District Court remanded the case to the Circuit Court after B & B Enterprises voluntarily dismissed its civil rights claim.

3 These defendants will be referred to collectively as “City of Lebanon defendants.”

4 This appeal does not involve the later proceedings in the Chancery Court. After the Chancery Court permitted B & B Enterprises to amend its petition, the Court of Appeals granted an interlocutory appeal, vacated the trial court's order,

and remanded the case with instructions to deny the motion to amend because claims for judicial review of decisions of government bodies cannot be combined with claims for damages. B & B Enters. of Wilson Cnty., LLC v. City of Lebanon, 2007 WL 1062216, at *2

Finding itself back in state court, the City of Lebanon defendantsmovedforasummaryjudgmentonthegroundthat the condemnation claim was barred by the one year statute of limitationscontainedinTenn.CodeAnn.§29–16–124(2000) because the suit had not been filed within one year of the Planning Commission's February 26, 2002 denial of the plans for Phases Two and Three. B & B Enterprises responded that the Planning Commission's action should not be considered final for statute of limitations purposes until December 16, 2004, the date that the Court of Appeals filed its decision reversing the Planning Commission's decision.

On October 24, 2007, the Circuit Court denied the City of Lebanon defendants' motion for summary judgment, holding that“theappropriatetriggeringeventtocommencethestatute of limitations is the [December 16, 2004] filing ... of the Court of Appeals decision.” The City of Lebanon defendants sought, and were granted, permission to seek interlocutory appeal. The Court of Appeals reversed the Circuit Court after concludingthat“thestatuteoflimitationswastriggered,atthe latest, when the plaintiffs' writ of certiorari action was filed, which was April 12, 2002.” B & B Enters. of Wilson Cnty., LLC v. City of Lebanon, No. M2008–00572–COA–R9–CV, 2009 WL 130188, at *3 (Tenn.Ct.App. Jan. 14, 2009). We grantedB&BEnterprises'sTenn.R.App.P.11applicationfor permission to appeal to address the issue of first impression regardingwhenthestatuteoflimitationsbeginstorunincases of this sort. II.

[1] [2] The standards by which appellate courts customarily review decisions to grant or deny motions for summary judgment are well-known by the bench and bar. Summary judgments are appropriate in virtually every civil case that can be resolved on the basis of legal issues alone. Green v. Green, 293 S.W.3d 493, 513 (Tenn.2009); Fruge v. Doe, 952 S.W.2d 408, 410 (Tenn.1997); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993). They are not appropriate when genuine disputes regarding material facts exist. Tenn. R. Civ. P. 56.04. Accordingly, a summary judgment is appropriate only when the undisputed facts, and the inferences in the

non- *845 moving party's favor reasonably drawn from these facts, require granting a judgment as a matter of law to the party seeking the summary judgment. Eskin v. Bartee, 262 S.W.3d 727, 732 (Tenn.2008); Griffis v. Davidson Cnty. Metro. Gov't, 164 S.W.3d 267, 283–84 (Tenn.2005); Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn.2000)

[3] [4] [5] Orders granting a summary judgment are not entitled to a presumption of correctness on appeal. Bailey v. Blount Cnty. Bd. of Educ., 303 S.W.3d 216, 226 (Tenn.2010); Maggart v. Almany Realtors, Inc., 259 S.W.3d 700, 703 (Tenn.2008). Thus, appellate courts reviewing an order granting a summary judgment must make a fresh determination that the requirements of Tenn. R. Civ. P. 56 have been satisfied. Eskin v. Bartee, 262 S.W.3d at 732; Eadie v. Complete Co., 142 S.W.3d 288, 291 (Tenn.2004) The reviewing court must consider the evidence in the light most favorable to the non-moving party and must resolve all reasonableinferencesinthenon-movingparty'sfavor. Mills v. CSX Transp., Inc., 300 S.W.3d 627, 632 (Tenn.2009); Green v. Green, 293 S.W.3d at 514. There are no genuine disputes of material fact in this case, and, therefore, the issues presented to this Court may be decided as a matter of law.

III.

[6] Beforeaddressingthesubstantivequestionregardingthe application of the statute of limitations, we turn our attention to B & B Enterprises's cause of action. B & B Enterprises is seeking to recover monetary damages based on the allegedly illegal manner in which the City of Lebanon defendants administered the city's land use planning ordinances and rules. In common parlance, B & B Enterprises is asserting a “regulatory taking” claim. 5 More specifically, B & B Enterprises is asserting a temporary regulatory taking claim because it is not alleging that the City of Lebanon defendants permanently deprived it of all beneficial use of its property.

5 A regulatory taking results when a governmental regulation places such a burdensome restriction on a landowner's use of its property that the governmenthasforallintentsandpurposes“taken” the property. In 1922, a near unanimous United States Supreme Court noted that a regulation that goes “too far” is a taking of property, presumably asmuchasaphysicaltakingorinvasionofproperty is a taking. Pennsylvania Coal Co. v. Mahon, 260

U.S. 393, 415–16, 43 S.Ct. 158, 67 L.Ed. 322 (1922); see also 11 Eugene McQuillan, Law of Municipal Corporations § 32.31, at 582–86 (3d ed. rev.vol.2010); David L. Callies, Takings: An Introduction and Overview, 24U.Haw.L.Rev.441, 443 (2002)

Temporary regulatory takings claims based on the Takings Clause of the Fifth Amendment to the United States Constitution are governed by the principles set out in Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 123–28, 98S.Ct.2646,57L.Ed.2d631(1978). See Tahoe–Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 334–36, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002). However, this Court has not yet held that a regulatory takings claim can be asserted under Article I, Section 21 of the Tennessee Constitution. Currently, we have recognized only two types of takings claims—physical occupation takings claims and nuisance-type takings claims. Edwards v. Hallsdale–Powell Util. Dist., 115 S.W.3d 461, 465 (Tenn.2003); Jackson v. Metro. Knoxville Airport Auth., 922 S.W.2d 860, 862 (Tenn.1996).Regulatorytakingsdonotfallintoeitherofthese categories. *846 Consol. Waste Sys., LLC v. Metro. Gov't of Nashville & Davidson Cnty., No. M2002–02582–COA–R3–CV, 2005 WL 1541860, at *12 (Tenn.Ct.App. June 30, 2005) (No Tenn. R.App. P. 11 application filed).6 Because of its procedural posture, this case is not the proper vehicle for deciding the existence or scope of a regulatory takings claim under Article I, Section 21. For the purpose of this opinion, it willbesufficienttopresumethatArticleI,Section21isbroad enough to include regulatory takings claims.

6

Inverse condemnation claims are likewise limited to physical takings. The chief difference between a condemnation claim and an inverse condemnation claimisthattheformerisinitiatedbyagovernment entity while the latter is initiated by the landowner. See Tenn.Code Ann. § 29–20–105 (2000). IV.

The applicable statute of limitations for a temporary regulatory taking claim would be the statute of limitations found in Tenn.Code Ann. § 29–16–124 (2000). This statute provides:

twelve (12) months after the land has been actually taken possession of, and the work of the proposed internal improvement begun; saving, however, to unknown owners and nonresidents, twelve (12) months after actual knowledge of such occupation, not exceeding three (3) years, and saving to persons under the disabilities of infancy and unsoundness of mind, twelve (12) months after such disability is removed, but not exceeding ten (10) years.

Even though this statute is couched in terms of physical takings,itappliesequallytoalltakingsclaims. STS/BAC Joint Venture v. City of Mt. Juliet, No. M2003–00171–COA–R3–CV, 2004 WL 2752809, at *8 (Tenn.Ct.App. Dec. 1, 2004), perm. app. dismissed (Tenn. Apr. 29, 2005).

[7] [8] For the purposes of Tenn.Code Ann. § 29–16–124, a “taking” occurs when the “injury to ... property ... reasonably appears ... to be a permanent injury rather than a temporary one.” Knox Cnty. v. Moncier, 224 Tenn. 361, 367, 455 S.W.2d 153, 156 (1970). Landowners must be vigilant and must file their suit within one year after they know or reasonably should have known that a taking has occurred. OsborneEnters.,Inc.v.CityofChattanooga, 561S.W.2d160, 166 (Tenn.Ct.App.1977). In the context of a claim such as the one B & B Enterprises has asserted in this case, the Court of Appeals has held that “the triggering event [for the running of the statute of limitations] ... is the date the landowner knew that the government was depriving it of the economic use of itsproperty.” STS/BAC Joint Venture v. City of Mt. Juliet, 2004 WL 2752809, at *9

The owners of land shall, in such cases, commence proceedings within

[9] [10] Courts confronted with a defense predicated on the running of the statute of limitations in Tenn.Code Ann. § 29–16–124mustlooktothe“factsintheparticularcaseunder consideration” to determine when the statute of limitations began to run. Knox Cnty. v. Moncier, 224 Tenn. at 367, 455 S.W.2d at 156. In this case, it is undisputed that B & B Enterprises knew on February 26, 2002, that the Planning Commission had declined for the second time to approve the plansforPhasesTwoandThreeoftheChaparralSubdivision. This unequivocal action by the Planning Commission plainly put B & B Enterprises on notice that the actions of the City of Lebanon defendants had frustrated its reasonable,

investment-backed expectations regarding the development of this subdivision.

B & B Enterprises does not dispute that it had actual notice of the Planning Commission's February 26, 2002 refusal to approve its plans for Phases Two and Three. *847 However, it insists that the Planning Commission's action should not be considered “permanent” or “complete” for the purpose of Tenn.Code Ann. § 29–16–124 because it sought judicial review of the Planning Commission's decision. Instead, it insists that the action became complete on December 16, 2004, when the Court of Appeals filed its opinion affirming the trial court's conclusion that the Planning Commission had acted arbitrarily and capriciously.

We disagree that B & B Enterprises's decision to pursue judicial review of the Planning Commission's February 26, 2002 decision did not prevent the Planning Commission's action from being “permanent” or “final” for the purpose of Tenn.Code Ann. § 29–16–124. The focus here is on the actions of the Planning Commission, not the subsequent actions of the courts which would have been unknown in February 2002. The United States Supreme Court made this precise point when it held that “[a] final decision by the responsible state agency informs the constitutional determination whether a regulation has deprived a landowner of ‘all economically beneficial use’ of the property, or defeated the reasonable investment-backed expectations of the landowner to the extent that a taking has occurred....” Palazzolo v. Rhode Island, 533U.S.606,618,121S.Ct.2448, 150 L.Ed.2d 592 (2001) (citations omitted).

We agree with the United States Supreme Court. The Planning Commission's action on February 26, 2002, put B & B Enterprises on notice that its reasonable investmentbacked expectations for the use of its property had been frustrated. Regardless of the eventual outcome of the judicial proceedings, the Planning Commission began interfering with B & B Enterprises's economically beneficial use of its property by no later than February 26, 2002. While the duration of the judicial proceedings might later be relevant to determining the length of time that B & B Enterprises was denied the use of its property, it is not relevant to determining when B & B Enterprises was put on notice that a taking had occurred. Therefore, we hold that Tenn.Code Ann. § 29–16–124's one-year statute of limitations on B & B Enterprises's claim began to run on February 26, 2002.

V.

B&BEnterprisesarguesthatevenifthestatuteoflimitations inTenn.CodeAnn.§29–16–124begantorunonFebruary26, 2002, considerations of public policy favor tolling the statute of limitations under the facts of this case because it pursued judicial review of the Planning Commission's decision in a timely manner. Specifically, it falls back on the doctrines of exhaustion of remedies, ripeness, and equitable tolling. We have concluded that these doctrines provide no comfort to B & B Enterprises.

A.

[11] [12] [13] The courts fashioned the jurisprudential “exhaustionofadministrativeremedies”doctrineindeference to administrative agencies. This doctrine, which prompts courts to stay their hand until an administrative proceeding is completed, Bailey v. Blount Cnty. Bd. of Educ., 303 S.W.3d 216, 235 (Tenn.2010), reflects the courts' acknowledgment that administrative agencies have special expertise with regard to the subject matter of the proceedings before them.

Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 839 (Tenn.2008); Southern Ry. v. State Bd. of Equalization, 682 S.W.2d 196, 199 (Tenn.1984); Martin v. Sizemore, 78 S.W.3d 249, 269 (Tenn.Ct.App.2001). Accordingly, in most circumstances,thecourtsdeemitappropriate *848 topermit administrative agencies to develop their final position with regard to the matters before them prior to undertaking to review the agency's decision. By doing so, the courts not only demonstrate their respect for the administrative process, they also assure the existence of a complete administrative record should judicial review of the agency's decision be sought.

Colonial Pipeline Co. v. Morgan, 263 S.W.3d at 838–39.

[14] The exhaustion doctrine has no application to this case because the actions of the administrative agency— herethePlanningCommission—werecompletedonFebruary 26, 2002. No further deference to the agency was required after that time. The administrative proceedings ended on February 26, 2002, and the judicial proceedings began when B & B Enterprises filed its petition for common-law writ of certiorari. The judicial proceedings were not simply a continuationoftheadministrativeproceedings.Theirpurpose was to determine, based on the completed record of the proceedings before the Planning Commission, whether the Planning Commission had exceeded its jurisdiction or had

actedillegally,fraudulently,orarbitrarily. Hoover Motor Exp. Co. v. R.R. & Pub. Utils. Comm'n, 195 Tenn. 593, 604, 261 S.W.2d 233, 238 (1953); Powell v. Parole Eligibility Review Bd., 879 S.W.2d 871, 873 (Tenn.Ct.App.1994).

The doctrine favoring the “exhaustion of administrative remedies”priortothecommencementofjudicialproceedings is intended to promote the completion of administrative proceedings. It has no application, and the interests it promotes are not furthered, but employing it as a tolling device to prevent the application of a statute of limitations. BecausethePlanningCommission'sproceedingswereplainly completed on February 26, 2002, the doctrine cannot save B & B Enterprises from the running of the statute of limitations in this case.

as amended at 42 U.S.C.A. § 7607 (1997 & 2010 Supp.)); accord Martin v. Washmaster Auto Ctr., Inc., No. 01–A–01–9305–CV00224, 1993 WL 241315, at *2 (Tenn.Ct.App. July 2, 1993) (No Tenn. R.App. P. application filed). The court will decline to act “where there is no need for the court to act or where the refusal to act will not prevent the parties from raising the issue at a more appropriate time.” AmSouth Erectors, LLC v. Skaggs Iron Works, Inc., No. W2002–01944–COA–R3–CV, 2003 WL 21878540, at *6 (Tenn.Ct.App. Aug. 5, 2003) (No Tenn. R.App. P. 11 application filed) (quoting Window Gallery of Knoxville v. Davis, No. 03A01–9906–CH–00225, 1999 WL 1068730, at *3 (Tenn.Ct.App. Nov. 24, 1999) (No Tenn. R.App. P. application filed)) (emphasis omitted).

B.

[15] B & B Enterprises next argues that the statute of limitations in Tenn.Code Ann. § 29–16–124 should be tolled because its takings claim was not ripe. It insists that its claim did not become ripe until the Court of Appeals filed its opinion on December 16, 2004, because the full extent of its damages could not have been ascertained until that time.

[16] [17] Doctrines such as ripeness assist the courts in determining whether a particular case presents a justiciable legal issue. Norma Faye Pyles Lynch Family Purpose LLC v. Putnam Cnty., 301 S.W.3d 196, 203 (Tenn.2009). The ripeness doctrine focuses on whether the dispute has matured to the point that it warrants a judicial decision. The central concern of the ripeness doctrine is whether the case involves uncertain or contingent future events that may or may not occur as anticipated or, indeed, may not occur at all. See Lewis v. Cont'l Bank Corp., 494 U.S. 472, 479–80, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). It is closely related to the “exhaustion of administrative remedies” doctrine. 13B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3532.1.1 (3d ed.2008)

[18] [19] Determining whether a particular dispute is ripe entails a two-part inquiry. The first question is whether the issues in the case are ones appropriate for judicial resolution. The second question is whether the court's refusal to act will cause hardship to the parties. Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), partially superseded by statute, Clean Air Amendments of 1970, *849 Pub.L. No. 91–604, 84 Stat. 1676 (codified

This dispute became ripe on February 26, 2002. On that date, B & B Enterprises knew that the Planning Commission had interferedwithitsreasonableinvestment-backedexpecteduse of Phases Two and Three of the Chaparral Subdivision. It also knew that it started to incur economic damages. Thus, by February 26, 2002, B & B Enterprises was aware of (1) the occurrenceofanallegedlywrongfulact,(2)theidentityofthe actor who had committed the allegedly wrongful act, and (3) the fact that it had been damaged by the alleged wrongful act.

[20] In other contexts, it has become axiomatic that a statute of limitations is not tolled until the injured party knows the full extent of its damages. Shadrick v. Coker, 963 S.W.2d 726, 733 (Tenn.1998); Wyatt v. A–Best Co., 910 S.W.2d 851, 855 (Tenn.1995). The same rule applies in this case. Adoptingtheinterpretationoftheripenessdoctrineadvocated by B & B Enterprises would frustrate the purpose of the statute of limitations which is to ensure fairness and justice by preventing undue delay in filing lawsuits. Tigg v. Pirelli Tire Corp., 232 S.W.3d 28, 32–33 (Tenn.2007); Quality Auto Parts Co. v. Bluff City Buick Co., 876 S.W.2d 818, 820 (Tenn.1994). B & B Enterprises had a justiciable claim on February26,2002andwasprivytoalltheinformationneeded topursuethatclaim.Accordingly,fromandafterFebruary26, 2002, a concrete enough controversy existed between B & B Enterprises and the City of Lebanon defendants to obviate the application of the ripeness doctrine.

[21] [22] [23] Finally, B & B Enterprises argues that equitable estoppel should toll the statute of limitations. Equitable estoppel only applies where “the opposing party

C.

ha[s] engaged in misconduct.” Norton v. Everhart, 895 S.W.2d 317, 321 (Tenn.1995). This misconduct consists of “attempting to gain an unfair advantage by maintaining inconsistent legal positions.” Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303, 315 (Tenn.2009). In other words, the party to be estopped must have engaged in:

(1) Conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert;

(2) Intention, or at least expectation that such conduct shall be acted upon by the other party; [and] (3) Knowledge, actual or constructive[,] of the real facts.

Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d at 315–16 (quoting Werne v. Sanderson, 954 S.W.2d 742, 745 (Tenn.Ct.App.1997)).

The fact that the Planning Commission may have acted arbitrarily or capriciously when it declined to approve the plats for *850 Phases Two and Three of the Chaparral

Subdivision is not the sort of “misconduct” that triggers the application of equitable estoppel. This record lacks any evidence that the City of Lebanon defendants ever misled B & B Enterprises or took inconsistent legal positions during thecourseofeithertheadministrativeorjudicialproceedings. Accordingly, we find no factual basis sufficient to trigger the application of the doctrine of equitable estoppel in this case.

VI.

Insummary,wefindthatB&BEnterprises'sclaimagainstthe City of Lebanon defendants accrued on February 26, 2002. Wealsofindthat,intheabsenceoftheappropriateapplication of any tolling doctrines, the statute of limitations applicable to B & B Enterprises's takings claim, Tenn.Code Ann. § 29–16–124, expired in February 2003 and, therefore, that B & B Enterprises's complaint filed on December 2, 2005 was not timely as a matter of law. Accordingly, we affirm the judgment of the Court of Appeals and remand the case to the trial court with directions to enter an order dismissing B & B Enterprises'scomplaint.Wetaxthecostsofthisappeal,jointly and severally, to B & B Enterprises of Wilson County, LLC and Hal Bone for which execution, if necessary, may issue.

72 S.Ct. 725, 96 L.Ed. 919

KeyCite Yellow Flag - Negative Treatment

72 S.Ct. 725

Supreme Court of the United States

BEAUHARNAIS v.

PEOPLE of the STATE OF ILLINOIS.

No. 118. | Argued Nov. 28—29, 1951. |

Decided April 28, 1952. |

Rehearing Denied June 9, 1952. |

See 343 U.S. 988, 72 S.Ct. 1070.

Synopsis

Prosecution for violating an Illinois statute forbidding any person from exhibiting any lithograph which portrayed lack of virtue of a class of citizens. The Municipal Court of Chicago, Joseph H. McGarry, J., rendered a judgment of conviction, and defendant appealed. The Illinois Supreme Court, Fulton, J., 408 Ill. 512, 97 N.W.2d 343, affirmed the judgment. On writ of certiorari, the United States Supreme Court, Mr. Justice Frankfurter, held that the statute was valid.

Affirmed.

Mr. Justice Jackson, Mr. Justice Douglas, Mr. Justice Reed, and Mr. Justice Black dissented.

jurisdictions, a meaning confirmed by Supreme Court, of that state in upholding the conviction, and therefore, United States Supreme Court, which had granted certiorari in case, would not ‘parse’ statute as grammarians or treat it as abstract exercise in lexicography, but would read it in animating context of welldefined usage and state court construction. S.H.A.Ill. ch. 38, s 471; U.S.C.A.Const. Amend. 14

10 Cases that cite this headnote

[2]

Libel and Slander Presumptions and burden of proof

Under Illinois law, for defense of truth to prevail in prosecution for libel, truth of all facts in utterance must be shown together with good motive for publication. S.H.A.Const. art. 2, § 4; S.H.A. ch. 38, § 404.

4 Cases that cite this headnote

[3] Libel and Slander Questions for jury

In libel prosecution, trial court properly, under Illinois law, decided, as matter of law, libelous character of utterance, leaving to jury only question of publication. S.H.A.Const. art. 2, § 4; S.H.A. ch. 38, § 404.

3 Cases that cite this headnote

[4] Libel and Slander Nature and elements in general

The gravamen of the offense of libel, under Illinoislaw,isthetendencytocausebreachofthe peace. S.H.A.Const. art. 2, § 4; S.H.A. ch. 38, § 404.

West Headnotes (25)

[1]

Federal Courts Criminal matters

The Illinois criminal libel statute, forbidding publication of any lithograph exposing any race to contempt or productive of breach of peace or riot, was not a ‘catch all’ enactment, but was a law specifically directed at a defined evil, its language drawing, from history and practice in Illinois and in more than a score of other

2 Cases that cite this headnote

[5] Libel and Slander Justification

Libel of an individual was a common-law crime, and thus criminal in the colonies; and at common-law, truth or good motive was no defense.

4 Cases that cite this headnote

Called into Doubt by Nuxoll ex rel. Nuxoll v. Indian Prairie School Dist. # 204, 7th Cir.(Ill.), April 23, 2008

[6] Constitutional Law Absolute nature of right

Constitutional Law Defamation

Constitutional Law Obscenity in General

The “Freedom of Speech” protected by the Constitution is not absolute at all times and under all circumstances, and there are well defined and narrowly limited classes of speech thepreventionandpunishmentofwhichdoesnot raise any constitutional problem, including the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words, which by their very utterance inflict injury or tend to incite an immediate breach of the peace. U.S.C.A.Const. Amend. 14.

70 Cases that cite this headnote

[7] Libel and Slander Libelous words and acts

It is libelous falsely to charge another individual with being a rapist, robber, carrier of knives and guns, or user of marijuana.

2 Cases that cite this headnote

[8] Constitutional Law Law Enforcement;  Criminal Conduct

United States Supreme Court could not deny to State power to punish, when directed at defined group, utterance which, if directed at individual, couldbeobjectofcriminalsanctions,unlesssuch court could say that State's action in that regard constituted a willful and purposeless restriction of individual liberties, unrelated to the peace and well-being of the State. U.S.C.A.Const. Amend. 14

and religious strife in that state, and its frequent obligato of extreme racial and religious propaganda,thatIllinoisLegislaturewaswithout reason in seeking ways to curb false or malicious defamation of racial and religious groups, made in public places and by means calculated to have powerful emotional impact on those to whom it was presented. S.H.A. ch. 38, § 471; U.S.C.A.Const. Amend. 14

14 Cases that cite this headnote

[10] Constitutional Law Criminal Law

In passing upon validity of legislation designed to mitigate racial and religious tension by imposing sanctions against libel directed at defined groups, it would be out of bounds for judiciary to deny Legislature choice of policy, provided it was not unrelated to problem and not forbidden by some explicit limitation on state's power. S.H.A.Ill. ch. 38, § 471; U.S.C.A.Const. Amend. 14

[11] United States In general;  nature

The science of Government is the science of experiment and is the most abstruse of all sciences,practicallyconsistinginlittlemorethan the exercise of a sound discretion applied to exigencies of state as they arise.

[12] Constitutional Law Criminal Law

[9]

Libel and Slander Constitutional and statutory provisions

In passing on validity of Illinois criminal libel statute forbidding publication of any lithograph exposing any race to contempt or productive of breach of peace or riot, the United States Supreme Court would be denying experience to say, in the face of the history of racial

The due process clause does not require state Legislatures to be in vanguard of science, especially sciences as young as human ecology and cultural anthropology, and while it would not be within Supreme Court's competence to confirm or deny, in case involving validity of Illinoisgrouplibellaw,claimsofsocialscientists as to dependence of individual on position of his racial or religious group in community, it would be arrant dogmatism, quite outside scope of court's authority in passing on powers of State, to deny that State Legislature could warrantably believe that man's job, and his educational opportunities and dignity accorded him, could depend as much on reputation of

racial and religious group to which he willynilly belonged, as it did on his own merits; and this being so, court would be precluded from saying that speech concededly punishable when immediately directed at individuals could not be outlawed if directed at groups with whose position and esteem in society affiliated individuals could be inextricably involved.

S.H.A.Ill. ch. 38, § 471; U.S.C.A.Const. Amend.

14.

16 Cases that cite this headnote

[13] Constitutional Law Equal Protection

With regard to group-protection on behalf of the individual, the United States Supreme Court recognizes that economic rights of an individual may depend for effectiveness of their enforcement on rights in group, even though not formally corporate, to which he belongs.

3 Cases that cite this headnote

[14] Constitutional Law Criminal liability

The possibility of abuse would be poor reason for denying to State power to adopt, in form of criminal statute punishing group libel, measures against criminal libel sanctioned by centuries of Anglo-American law, since while the United States Supreme Court sits it retains and exercises authority to nullify action which encroaches on freedom of utterance in guise of punishing libel.

S.H.A.Ill. ch. 38, s 471; U.S.C.A.Const. Amend.

14

14 Cases that cite this headnote

[15] Constitutional Law Freedom of Speech, Expression, and Press

Discussion cannot be denied, and right as well as duty, of criticism must not be stifled.

4 Cases that cite this headnote

[16] Libel and Slander Nature and elements in general

The rubric “race, color, creed or religion” which described the type of group, libel of which was

made punishable by Illinois criminal statute, had attained too fixed a meaning to permit political groups to be brought within it. S.H.A.Ill. ch. 38, s 471; U.S.C.A.Const. Amend. 14.

18 Cases that cite this headnote

[17] Libel and Slander Constitutional and statutory provisions

Libel and Slander Privileged communication

Political parties, like public men, are, as it were, public property, and therefore whole doctrine of fair comment, as indispensable to democratic political process, would come into play if court were called upon to determine validity of statute seeking to outlaw libels directed at political parties.

3 Cases that cite this headnote

[18] Constitutional Law Particular Offenses

Libel and Slander Constitutional and statutory provisions

The Illinois criminal statute punishing group libels provided adequate standards to guide judges and juries applying it and was therefore not unconstitutionally vague. S.H.A. ch. 38, § 471.

3 Cases that cite this headnote

[19] Federal Courts Questions of fact, verdicts, and findings

The benefits of hypothetical defenses, never raised below or pressed upon reviewing court, are not to be invoked in abstract; and therefore, where defendant in criminal libel prosecution had not, by proffer of evidence, requests for instructions, or motions before or after verdict, sought to justify his utterance as ‘fair comment’ or as privileged, and had not urged as ground for reversing his conviction that his opportunity to make those defenses had been denied below, question as to whether prosecution for libel of racial or religious group was unconstitutionally invalid where state had denied defendant such

opportunities would not be before United States Supreme Court. S.H.A.Const.Ill. art. 2, ss 4, 17.

2 Cases that cite this headnote

[20] Libel and Slander Justification

Under Illinois statutory and constitutional provisions making truth, when published with good motives and for justifiable ends, defense to prosecution for criminal libel, both elements are necessary if defense is to prevail. S.H.A.Const. art, 2, § 4; S.H.A. ch. 38, § 404.

3 Cases that cite this headnote

[24] Constitutional Law Criminal Law

Finding by United States Supreme Court that Illinois criminal statute punishing group libel was not constitutionally objectionable carried no implication of approval of wisdom of legislation or of its efficacy. S.H.A.Ill. ch. 38, § 471; U.S.C.A.Const. Amend. 14.

2 Cases that cite this headnote

[25] Constitutional Law Wisdom

[21]

Criminal Law Offer of proof

In prosecution for violation of Illinois statute prohibiting group libel, even if defendant's offer of proof directed to truth of published matter was adequate, offer of proof with regard to good motiveswasinsufficient.S.H.A.Ill.ch.38,§471; S.H.A.Const.Ill. art. 2, §§ 4, 17.

1 Cases that cite this headnote

[22] Constitutional Law Defamation

Constitutional Law Criminal liability

Libelous utterances are not within area of constitutionally protected speech, and therefore, in prosecution for violation of Illinois statute prohibitinggrouplibel,itwasunnecessary,either for State court or for United States Supreme Court in reviewing constitutional questions, to consider issues behind phrase “clear and present danger”, limiting constitutional guarantee of free speech. S.H.A.Ill. ch. 38, § 471; U.S.C.A.Const. Amend. 14.

60 Cases that cite this headnote

[23] Constitutional Law Criminal liability

Libel and Slander Constitutional and statutory provisions

The Illinois criminal libel statute, forbidding publication of any lithograph exposing any race to contempt or productive of breach of peace or riot, is constitutional. S.H.A. ch. 38, § 471; U.S.C.A.Const. Amend. 14.

It is not for United States Supreme Court to make legislative judgments; and therefore, even though questions, as to wisdom of legislation or of its efficacy, might raise doubts in minds of court, as well as in others, court would not be at liberty to erect those doubts into fundamental law. S.H.A. ch. 38, § 471; U.S.C.A.Const. Amend. 14

2 Cases that cite this headnote

Attorneys and Law Firms

**728 *251 Mr. Alfred A. Albert, New York City, for petitioner.

Mr. William C. Wines, Chicago, Ill., for respondent.

Opinion

Mr. Justice FRANKFURTER delivered the opinion of the Court.

The petitioner was convicted upon information in the Municipal Court of Chicago of violating s 224a of Division 1 of the Illinois Criminal Code, Ill.Rev.Stat.1949, c. 38, s 471. He was fined $200. The section provides:

‘It shall be unlawful for any person, firm or corporation to manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place in this state any lithograph,

moving picture, play, drama or sketch, which publication or exhibition portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which said publication or exhibition exposes the citizens of any race, color, creed or religiontocontempt,derision,orobloquy or which is productive of breach of the peace or riots. * * *’

Beauharnais challenged the statute as violating the liberty of speech and of the press guaranteed as against the States by the Due Process Clause of the Fourteenth Amendment, and as too vague, under the restrictions implicit in the *252 same Clause, to support conviction for crime. The Illinois courts rejected these contentions and sustained defendant's conviction. 408 Ill. 512, 97 N.E.2d 343. We granted certiorari in view of the serious questions raised concerning the limitations imposed by the Fourteenth Amendment on the power of a State to punish utterances promoting friction among racial and religious groups. 342 U.S. 809, 72 S.Ct. 39

The information, cast generally in the terms of the statute, charged that Beauharnais ‘did unlawfully * * * exhibit in public places lithographs, which publications portray depravity, criminality, unchastity or lack of virtue of citizens of Negrorace and color and which exproses (sic) citizens of Illinois of the Negro race and color to contempt, derision, or obloquy * * *.’ The lithograph complained of was a leaflet setting forth a petition calling on the Mayor and City Council of Chicago ‘to halt the further encroachment, harassment and invasion of white people, their property, neighborhoods and persons, by the Negro * * *.’ Below was a call for ‘One million self respecting white people in Chicago to unite * * *.’ with the statement added that ‘If persuasion and the need to prevent the white race from becoming mongrelized by the negro will not unite us, then the aggressions * * * rapes, robberies, knives, guns and marijuana of the negro, surely will.’ This, with more language, similar if not so violent, concluded with an attached application for membership in the White Circle League of America, Inc.

The testimony at the trial was substantially undisputed. From it the jury could find that Beauharnais was president of the White Circle League; that, at a meeting on January 6, 1950, he passed out bundles of the lithographs in question, together with other literature, to volunteers for distribution

on downtown Chicago street corners the following day; that he carefully organized that distribution, giving detailed instructions for it; and that *253 the leaflets were in fact distributed on January 7 in accordance with his plan and instructions. The court, together with other charges on burden of proof and the like, told the jury ‘if you find * * * that the defendant, Joseph Beauharnais, did * * * manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place the lithograph * * * then you are to find the defendant guilty * * *.’ He refused to charge the jury, as requested by the defendant, that in order to convict they must find ‘that the article complained of was likely to produce a clearandpresentdangerofaserioussubstantiveevilthatrises for above public inconvenience, annoyance or unrest.’ Upon this evidence and these instructions, the jury brought in the conviction here for review.

**729 [1] [2] [3] [4] The statute before us is not a catchall enactment left at large by the State court which applied it. Cf. Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Cantwell v. State of Connecticut, 310 U.S. 296, 307, 60 S.Ct. 900, 904, 84 L.Ed. 1213. It is a law specifically directed at a defined evil, its language drawing from history and practice in Illinois and in more than a score of other jurisdictions a meaning confirmed by the Supreme Court of that State in upholding this conviction. We do not, therefore, parse the statute as grammarians or treat it as an abstract exercise in lexicography. We read it in the animating context of well-defined usage, Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232, and State court construction which determines its meaning for us. Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049; Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031

The Illinois Supreme Court tells us that s 224a ‘is a form of criminallibellaw’.408Ill.512,517,97N.E.2d343,346.The defendant, the trial court and the Supreme Court consistently treated it as such. The defendant offered evidence tending to prove the truth of parts of the utterance, and the courts below considered and disposed of *254 this offer in terms of ordinary criminal libel precedents.1 Section 224a does not deal with the defense of truth, but by the Illinois Constitution, Art. II, s 4, S.H.A., ‘in all trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense.’ See also Ill.Rev.Stat., 1949, c. 38, s 404. Similarly, the action of the trial court in deciding as a matter of law the libelous characteroftheutterance,leavingtothejuryonlythequestion

of publication, follows the settled rule in prosecutions for libel in Illinois and other States.2 Moreover, the Supreme Court's characterization of the words prohibited by the statute as those ‘liable to cause violence and disorder’ paraphrases the traditional justification for punishing libels criminally, namely their ‘tendency to cause breach of the peace.'3

1 408 Ill. 512, 518, 97 N.E.2d 343, 346, 347. Illinois law requires that for the defense to prevail, the truth of all facts in the utterance must be shown together with good motive for publication. People v. Strauch, 247 Ill. 220, 93 N.E. 126; People v. Fuller, 238 Ill. 116, 87 N.E. 336; cf. Ogren v. Rockford Star Printing Co., 288 Ill. 405, 123 N.E. 587

2 See,e.g.,Statev.Sterman,199Iowa569,202N.W. 222; State v. Howard, 169 N.C. 312, 313, 84 S.E. 807, 808; cf. Ogren v. Rockford Star Printing Co., supra.

3 See, e.g., People v. Spielman, 318 Ill. 482, 489, 149 N.E. 466, 469; Odgers, Libel and Slander (6th ed.),368;Kennerlyv.Hennessy,68Fla.138,66So. 729, 19 A.L.R. 1470. Some States hold, however, that injury to reputation, as in civil libel, and not tendency to breach of the peace, is the gravamen of the offense. See Tanenhaus, Group Libel, 35 Cornell L.Q. 261, 273 and n. 67.

[5] [6] Libel of an individual was a common-law crime, and thus criminal in the colonies. Indeed, at common law, truthorgoodmotiveswasnodefense.Inthefirstdecadesafter the adoption of the Constitution, this was changed by judicial decision, statute or constitution in most States, but nowhere was there any suggestion that *255 the crime of libel be abolished.4 Today, every American jurisdiction—the fortyeight States, the District of Columbia, Alaska, Hawaii and Puerto Rico—punish **730 libels directed at individuals. 5

‘There are certain well-defined *256 and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. Theseincludethelewdandobscene,theprofane,thelibelous, and the insulting or ‘fighting’ words—those which by their very utterance **731 inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances *257 are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearlyoutweighedbythesocialinterestinorderandmorality.

‘Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.’ Cantwell v. State of Connecticut, 310 U.S. 296, 309, 310, 60 S.Ct. 900, 906, 84 L.Ed. 1213.' Such were the views of a unanimous Court in Chaplinsky v. State of New Hampshire, supra, 315 U.S. at pages 571—572, 62 S.Ct. at page 769.6

4 ForabriefaccountofthisdevelopmentseeWarren, History of the American Bar, 236—239. See also correspondence between Chief Justice Cushing of Massachusetts and John Adams, published in 27 Mass.L.Q. 11—16 (Oct.1942). Jefferson explained in a letter to Abigail Adams, dated September 11, 1804, that to strike down the Alien and Sedition Act would not ‘remove all restraint from the overwhelming torrent of slander which is confounding all vice and virtue, all truth and falsehood in the US. The power to do that is fully possessed by the several state legislatures.’ See Dennis v. United States, 341 U.S. 494, 522, note 4, 71 S.Ct. 857, 873, 95 L.Ed. 1137. See Miller, Crisis in Freedom, 168—169, 231—232. See also provisions as to criminal libel in Edward Livingston's famous draft System of Penal Law for Louisiana, 2 Works of Edward Livingston 100—108.

5 In eight States the offense is punished as at common law, without legislative enactment. State v. Roberts, 2 Marv., Del., 450, 43 A. 252; Cole v. Commonwealth, 222 Ky. 350, 300 S.W. 907; Robinson v. State, 108 Md. 644, 71 A. 433; Commonwealth v. Canter, 269 Mass. 359, 168 N.E. 790; State v. Burnham, 9 N.H. 34; State v. Spear, 13 R.I. 324; State v. Sutton, 74 Vt. 12, 52 A. 116; State v. Payne, 87 W.Va. 102, 104 S.E. 288, 19 A.L.R. 1465. Twelve other jurisdictions make ‘libel’ a crime by statute, without defining the term. Ala.Code 1940, Tit. 14, s 347; Alaska Comp.Laws Ann.1949, s 65—4—28; D.C.Code 1940, s 22—2301; Fla.Stat.Ann. s 836.01; Burns' Ind.Stat.1933, s 10—3201; Miss.Code 1942, s 2268; Neb.Rev.Stat.1943, s 28—440; N.J.Stat.Ann. s 2:146—1; N.C.Gen.Stat.1943, s 14—47; Page's Ohio Gen.Code 1939, s 13383; Wis.Stat.1949, s 348.41; Wyo.Comp.Stat.1945, s 9—1601. Thus, twenty American jurisdictions

punish ‘libel’ as defined by the case-by-case common-law development.

The remaining jurisdictions have sought to cast the common-law definition in a statutory form of words. Two formulas have been popular. Eleven jurisdictions, Illinois among them, have accepted with minor variations the following:

'A libel is a malicious defamation, expressed either by printing, or by signs or pictures, or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation or publish the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, ridicule, or financial injury.' Smith-Hurd Ill.Ann.Stat.1936, c. 38, s 402. Ariz.Code Ann.1939, s 43—3501; Ark.Stat.1947, s 41—2401; Deering's Cal.Penal Code 1949, s 248; Colo.Stat.Ann.1935, c. 48, s 199; Ga.Code Ann.1936, s 26—2101; Idaho Code 1947, s 18—4801; Mont.Rev.Codes 1947, s 94—2801; Nev.Comp.Laws 1929, s 10110; P.R.Codigo Penal 1937, s 243; Utah Code Ann.1943, s 103—38—1; cf. Virgin Islands Code 1921, Tit. IV, c. 5, s 36. The other version, again with minor variations, has found favor in twelve jurisdictions.

'A libel is a malicious defamation of a person, made public by any printing, writing, sign, picture, representation, or effigy, tending to provoke him to wrath or expose him to public hatred, contempt, or ridicule, or to deprive him of the benefits of public confidence and social intercourse; or any malicious defamation, made public as aforesaid, designed to blacken and vilify the memory of one who is dead, and tending to scandalize or provoke his surviving relatives or friends.' Iowa Code Ann. s 737.1; Kan.Gen.Stat.1949, s 21—2401; Dart's La.Crim.Code 1935, Art. 740—47, LSA—R.S. 14:47; Me.Rev.Stat.1944, c. 117, s 30; Minn.Stat.1949, s 619.51, M.S.A.; Mo.Rev.Stat.1949, s 559.410, V.A.M.S.; McKinney's N.Y.Consol.Laws c. 40, Penal Law, s 1340; N.D.Rev.Code 1943, s 12—2801; Okl.Stat.Ann. Tit. 21, s 771; Purdon's Pa.Stat.Ann. Tit. 18, s 4412; Williams' Tenn.Code 1934, ss 11021, 11022; Remington's Wash.Rev.Stat.1932, s 2424.

The remaining nine jurisdictions have definitions ofcriminallibelwhichfallintonocommonpattern. SeeConn.Gen.Stat.1949,s8218;HawaiiRev.Laws

1945, s 11450; Mich.Comp.Laws 1948, s 750 —370; N.M.Stat.1941, ss 41—2701, 41—2708; Ore.Comp.Laws 1940, s 23—437; S.C.Code 1942, s 1395; S.D.Code 1939, s 13. 3401; Vernon's Tex.Penal Stat. 1948, Arts. 1269, 1275; Va.Code 1950, s 18—133.

Our examination of the homogeneity of these statutory definitons of criminal libel might well begin and end with the words ‘virtue’ and ‘ridicule.’ Of thirty-two jurisdictions, twelve outlaw statements impeaching the ‘virtue’ of another;elevenofthese,andfifteenmore—twentysix in all—prohibit utterances tending to bring another into ‘public ridicule.’

For the common-law definition, applicable in the twenty jurisdictions first noted above, see L. Hand, J., in Grant v. Reader's Digest Ass'n, 2 Cir., 151 F.2d 733, 735, where he speaks of defining libel ‘in accordance with the usual rubric, as consisting of utterances which arouse ‘hatred, contempt, scorn, obloquy or shame,’ and the like.' Cf. Restatement, Torts, s 559, comment (b); Odgers, Libel and Slander (6th ed.), 16—17; Newell, Slander and Libel (4th ed.), 1—2.

Even a cursory examination of these enactments and common-law pronouncements demonstrates that Illinois, in s 224a, was using a form of words which invoked the familiar common law of libel to definetheprohibitedutterances.Thedefendantand the Illinois courts, as we have seen, understood this and acted upon it.

6 InallbutfiveStates,theconstitutionalguaranteeof free speech to every person is explicitly qualified by holding him ‘responsible for the abuse of that right.’ See Pennekamp v. State of Florida, 328 U.S. 331, 356, note 5, 66 S.Ct. 1029, 1042, 90 L.Ed. 1295. See Jefferson in Kentucky Resolutions of 1798 and 1799, 4 Elliot's Debates 540—541, and in an undated draft prepared, but not used, for his December 8, 1801, Message to Congress, Library ofCongressJeffersonPapers,Vol.119,Leaf20569. In Carlson v. People of State of California, 310 U.S. 106, 112, 60 S.Ct. 746, 748, 84 L.Ed. 1104, we noted that the statute there invalidated made ‘no exceptions with respect to the truthfulness and restraint of the information conveyed * * *.’

[7] [8] [9] No one will gainsay that it is libelous falsely to charge another with being a rapist, robber, carrier of

knives and *258 guns, and user of marijuana. The precise question before us, then, is whether the protection of ‘liberty’ in the Due Process Clause of the Fourteenth Amendment prevents a State from punishing such libels—as criminal libelhasbeendefined,limitedandconstitutionallyrecognized time out of mind—directed at designated collectivities and flagrantly disseminated. There is even authority, however dubious, that such utterances were also crimes at common law.7 It is certainly clear that some American jurisdictions have sanctioned their punishment under ordinary criminal libel statutes.8 We cannot say, however, that the question is concludedbyhistoryandpractice.Butifanutterancedirected at an individual may be the object of criminal sanctions, we cannot deny to a State power to punish the same utterance directedatadefinedgroup,unlesswecansaythatthisawilful and purposeless restriction unrelated to the peace and wellbeing of the State.

7 ComparereportsofKingv.Osbornein2Barn.K.B. 138, 166, 94 Eng.Rep. 406, 425; 2 Swans. 503, n (c), 36 Eng.Rep. 705, 717; W.Kel. 230, 25 Eng.Rep. 584 (1732). The present Attorney General of England asserted that this case obviated the need of special group libel legislation for Great Britain. See The (London) Times, March 26, 1952, p. 2, col. 4. See also Odgers, Libel and Slander (6th ed.),369;Tanenhaus,GroupLibel,35CornellL.Q. 261, 267—269.

8 One of the leading cases arose in Illinois. People v. Spielman, 1925, 318 Ill. 482, 149 N.E. 466, sustaining a conviction for libel on the members of the American Legion. The authorities are collected and discussed in Tanenhaus, Group Libel, 35 Cornell L.Q. 261, 269—276.

Illinois did not have to look beyond her own borders or await the tragic experience of the last three decades *259 9 to conclude that wilful purveyors of falsehood concerning racial and religious groups promote strife and tend powerfully to obstruct the manifold adjustments required for free, ordered life in a metropolitan, polyglot community. **732 From the murderoftheabolitionistLove-joyin1837totheCiceroriots of 1951, Illinois has been the scene of exacerbated tension between races, often flaring into violence and destruction.10 In many of these outbreaks, utterances of the character here in question, so the Illinois legislature could conclude, played a significant part.11 The law was passed on June 29, 1917,

at a time when the State was struggling to assimilate vast numbers of new inhabitants, as yet concentrated in discrete racial or national or religious groups—foreign-born brought to it by the crest of the great wave of immigration, and Negroes attracted by jobs in war plants and the allurements *260 ofnorthernclaims.12 Nineyearserlier,intheverycity where the legislature sat, what is said to be the first northern race riot had cost the lives of six people, left hundreds of Negroeshomelessandshockedcitizensintoactionfarbeyond the borders of the State.13 Less than a month before the bill was enacted, East St. Louis had seen a day's rioting, prelude to an out-break, only four days after the bill became law, so bloody that it led to Congressional investigation.14 A series of bombings had begun which was to culminate two years later in the awful race riot which held Chicago in its grip for seven days in *261 the summer of 1919. 15 Nor **733 has tension and violence between the groups defined in the statute been limited in Illinois to clashes between whites and Negroes.

9 See, e.g., Loewenstein, Legislative Control of Political Extremism in European Democracies, 38 Col.L.Rev. 591 and 725; Riesman, Democracy and Defamation, 42 Col.L.Rev. 727, 1085 and 1282; Public Order Act, 1936, 1 Edw. VIII and 1 Geo. VI, c. 6, and 317 H.C.Deb. 1349—1473 (5th ser. 1936); 318 H.C.Deb. 49—193, 581—710, 1659— 1785, 2781—2784 (5th ser. 1936); 103 H.L.Deb. 741—773, 961—972 (5th ser. 1936).

10 See generally The Chicago Commission on Race Relations, The Negro in Chicago, 1—78, and passim (University of Chicago Press, 1922); Research Memorandum No. 5, First Annual Rep.Ill. Inter-Racial Comm'n (1944).

11

The May 28, 1917, riot in East St. Louis, Illinois, was preceded by a violently inflammatory speech to unemployed workmen by a prominent lawyer of the town. Report of the Special Committee Authorized by Congress to Investigate the East St. Louis Riots, H.R. Doc. No. 1231, 65th Cong., 2d Sess. 11; Chicago Commission on Race Relations, TheNegroinChicago,75.Andseeid.,at118—122 for literature circulated by real estate associations and other groups during the series of bombings leading up to the Chicago riots of 1919. For the Commission's comments on the role of propaganda

in promoting race frictions, see id., at 589, 638— 639.

12 Tables in Drake and Cayton, Black Metropolis, 8, show that between 1900 and 1920 the number of foreign-born in Chicago increased by over 1/3 and the Negro population trebled. United States census figures show the following population growth for the State as a whole and selected counties: Cook County

these liberties (of speech and of the press). The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the states appropriately may punish.’ 16 This was the conclusion, again of a unanimous Court, in 1940. Cantwell v. State of Connecticut, supra, 310 U.S. at page 310, 60 S.Ct. at page 906

16

Foranaccountofthesevastpopulationmovements entailing great social malad-justments, see Drake and Cayton, Black Metropolis, 8—18, 31—65; Chicago Commission on Race Relations, The Negro in Chicago, 79—105; Carl Sandburg, The Chicago Race Riots, 9—30.

13 See Walling, Race War in the North, 65 The Independent529(1908).Thisarticleapparentlyled to the founding of the National Association for the Advancement of Colored People. Ovington, How the National Association for the Advancement of Colored People Began, 8 Crisis 184 (1914). See also Chicago Commission on Race Relations, The Negro in Chicago, 67—71.

14

Report of the Special Committee Authorized by Congress to Investigate the East St. Louis Riots, H.R. Doc. No. 1231, 65th Cong., 2d Sess. See also The Massacre of East St. Louis, 14 Crisis 219 (1917).

15 Chicago, Commission on Race Relations, The Engro in Chicago 122—133.

In the face of this history and its frequent obligato of extreme racial and religious propaganda, we would deny experience to say that the Illinois legislature was without reason in seeking ways to curb false or malicious defamation of racial and religious groups, made in public places and by means calculated to have a powerful emotional impact on those to whom it was presented. ‘There are limits to the exercise of

The utterances here in question ‘are not,’ as a detached student of the problem has noted, ‘the daily grist of vituperative political debate. Nor do they represent the frothy imaginings of lunatics, or the ‘idle’ gossip of a country town. Rather, they indicate the systematic avalanche of falsehoods which are circulated concerning the various groups, classes and races which make up the countries of the western world.' Riesman, Democracy and Defamation; Control of Group Libel, 42 Col.L.Rev. at 727. Professor Riesman continues: ‘Such purposeful attacks are nothing new, of course. * * * What is new, however, is the existence of a mobile public opinion as the controlling force in politics, and the systematic manipulation of that opinion by the use of calculated falsehood and vilification.’ Id., at 728.

[10] [11] [12] [13] It may be argued, and weightily, that this legislation will not help matters; that tension and on occasion *262 violence between racial and religious groups mustbetracedtocausesmoredeeplyembeddedinoursociety than the rantings of modern Know-Nothings. 17 Only those lacking responsible humility will have a confident solution for problems as intractable as the frictions attributable to differences of race, color or religion. This being so, it would be out of bounds for the judiciary to deny the legislature a choice of policy, provided it is not unrelated to the problem and not forbidden by some explicit limitation on the State's power. That the legislative remedy might not in practice mitigate the evil, or might itself raise new problems, would only manifest once more the para-dox of reform. It is the price to be paid for the trial-and-error inherent in legislative efforts to deal with obstinate social issues. ‘The science of governmentisthemostabstruseofallsciences;if,indeed,that canbecalledasciencewhichhasbutfewfixedprinciples,and practically consists in little more than the exercise of a sound discretion, applied to the exigencies of the state as they arise. It is the science of experiment.’ Anderson v. Dunn, 6 Wheat.

204, 226, 5 L.Ed. 242. Certainly the Due Process Clause does not require the legislature to be in the vanguard of science— especially sciences as young as human ecology and cultural anthropology.SeeTignerv.StateofTexas,310U.S.141,148, 60 S.Ct. 879, 882, 84 L.Ed. 1124

17

See, e.g., L. Hand, J., in a symposium in The Saturday Review of Literature, Mar. 15, 1947, pp. 23—24; Report of the Committee on the Law of Defamation, Cmd. 7536, 11 (1948).

Long ago this Court recognized that the economic rights of an individual may depend for the effectiveness of their enforcement on rights in the group, even though not formally corporate, to which he belongs. American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 189, 42 S.Ct. 72, 73, 66 L.Ed. 189. Such group-protection on behalf of the individual may, for all we know, be a need not confined to the part that a trade union plays in effectuating rights abstractlyrecognizedasbelonging *263 toitsmembers.Itis not within our competence to confirm or **734 deny claims of social scientists as to the dependence of the individual on the position of his racial or religious group in the community. It would, however, be arrant dogmatism, quite outside the scope of our authority in passing on the powers of a State, for us to deny that the Illinois Legislature may warrantably believe that a man's job and his educational opportunities and the dignity accorded him may depend as much on the reputation of the racial and religious group to which he willynilly belongs, as on his own merits. This being so, we are precluded from saying that speech concededly punishable when immediately directed at individuals cannot be outlawed if directed at groups with whose position and esteem in society the affiliated individual may be inextricably involved. [14] [15] [16] [17] [18] We are warned that the choice open to the Illinois legislature here may be abused, that the law may be discriminatorily enforced; prohibiting libel of a creed or of a racial group, we are told, is but a step from prohibiting libel of a political party.18

18

It deserves emphasis that there is no such attempt in this statute. The rubric ‘race, color, creed or religion’ which describes the type of group, libel of which is punishable, has attained too fixed a meaning to permit political groups to be brought within it. If a statute sought to outlaw libels of political parties, quite different problems not now before us would be raised. For one thing, the whole

doctrine of fair comment as indispensable to the democratic political process would come into play.

See People v. Fuller, supra, 238 Ill. at page 125, 87 N.E. 336 at pages 338—339; Commonwealth v. Pratt, 208 Mass. 553, 559, 95 N.E. 105, 106. Political parties, like public men, are, as it were, public property.

Every power may be abused, but the possibility of abuse is a poor reason for denying Illinois the power to adopt measures against criminal libels sanctioned by centuries of AngloAmerican law. ‘While this Court sits' it retains and exercises authority to nullify action which encroaches on freedom of utterance *264 under the guise of punishing libel. Of course discussion cannot be denied and the right, as well as the duty, of criticism must not be stifled.

The scope of the statute before us, as construed by the Illinois court, disposes of the contention that the conduct prohibited by the law is so ill-defined that judges and juries in applying the statute and men in acting cannot draw from it adequate standardstoguidethem.Theclarifyingconstructionandfixed usage which govern the meaning of the enactment before us were not present, so the Court found, in the New York law held invalid in Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840. Nor, thus construed and limited, is the act so broad that the general verdict of guilty on an indictment drawn in the statutory language might have beenpredicatedonconstitutionallyprotectedconduct.Onthis score, the conviction here reviewed differs from those upset in Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117; Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; and Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131. Even the latter case did not hold that the unconstitutionality of a statute is established because the speech prohibited by it raises a ruckus.

It is suggested that while it was clearly within the constitutional power of Illinois to punish this utterance if the proceeding were properly safeguarded, in this particular case Illinois denied the defendant rights which the Due Process Clausecommands.Specifically,itisarguedthatthedefendant wasnotpermittedtoraiseatthetrialdefensesconstitutionally guaranteed in a criminal libel prosecution: (1) the defense of truth; (2) justification of the utterance as ‘fair comment’; and (3) its privilege as a means for redressing grievances.

[19] Neither by proffer of evidence, requests for instructions, nor motion before or after verdict did the

defendant seek to justify his utterance as ‘fair comment’ or as privileged. Nor has the defendant urged as a ground for reversing his *265 conviction in this Court that his opportunity to make **735 those defenses was denied below. And so, whether a prosecution for libel of a racial or religious group is unconstitutionally invalid where the State did deny the defendant such opportunities is not before us. 19 Certainly the State may cast the burden of justifying what is patent defamation upon the defamer. The benefits of hypothetical defenses, never raised below or pressed upon us, are not to be invoked in the abstract.

19

Indeed, such defenses are evidently protected by Illinois law. See Ill.Const. Art. II, s 17, guaranteeing the right of the people to apply for redress of grievances. And see People v. Fuller, 238 Ill. 116, 125, 87 N.E. 336, 338—339, on the defense of ‘fair comment’ in criminal libel prosecutions.

[20] [21] As to the defense of truth, Illinois in common with many States requires a showing not only that the utterance state the facts, but also that the publication be made ‘with good motives and for justifable ends'. Ill.Const.

Art. II, s 4. 20 Both elements are necessary if the defense is to prevail. What has been called ‘the common sense of American criminal law,’ as formulated, with regard to necessary safeguards in criminal libel prosecutions, in the New York Constitutional of 1821, Art. VII, s 8, has been adopted in terms by Illinois. The teaching of a century and a half of criminal libel prosecutions in this country *266 would go by the board if we were to hold that Illinois was not within her rights in making this combined requirement. Assuming that defendant's offer of proof directed to a part of the defense was adequate, 21 it did not satisfy the entire requirement which Illinois could exact.22

20

The present constitution, adopted in 1870, is Illinois' third. The first two preserved the defense of truth in certain types of libel prosecutions: ‘In prosecutions for the publication of papers investigating the official conduct of officers, or of men acting in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels the jury shall have the right of determining both the law and the fact, under the direction of the court, as in other cases.’

Ill.Const.1818, Art. VIII, s 23; Ill.Const.1848, Art. XIII, s 24. The combined requirement of truth and good motives and justifiable ends, available as a defense in all libel suits, was adopted with the Constitution of 1870.

21 Defendant offered to show (1) that crimes were more frequent in districts heavily populated by Negroes than in those where whites predominated; (2) three specific crimes allegedly committed by Negroes, and (3) that property values declined when Negroes moved into a neighborhood. It is doubtful whether such a showing is as extensive as the defamatory allegations in the lithograph circulated by the defendant.

22 The defense attorney put a few questions to the defendant on the witness stand which tended toward elaborating his motives in circulating the lithographcomplainedof.Whenobjectionstothese questions were sustained, no offer of proof was made,incontrasttotheratherelaborateofferwhich followed the refusal to permit questioning tending to show the truth of the matter. Indeed, in that offer itself, despite its considerable detail, no mention was made of the necessary element of good motive or justifiable ends. In any event, the question of exclusion of this testimony going to motive was not raised by motion in the trial court, on appeal in Illinois, or before us.

[22] Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary, either for us or for the State courts, to consider the issues behind the phrase ‘clear and present danger.’ Certainly no one would contend that obscene speech, for example, may be punished onlyuponashowingofsuchcircumstances.Libel,aswehave seen, is in the same class.

[23] [24] [25] We find no warrant in the Constitution for denying to Illinois the power to pass the law here under attack.23 But **736 *267 it bears repeating— although it should not—that our finding that the law is not constitutionally objectionable carries no implication of approval of the wisdom of the legislation or of its efficacy. These questions may raise doubts in our minds as well as in others. It is not for us, however, to make the legislative judgment. We are not at liberty to erect those doubts into fundamental law.

23

The law struck down by the New Jersey court in State of New Jersey v. Klapprott, 127 N.J.L. 395, 22 A.2d 877, 880, was quite different than the one before us and was not limited, as is the Illinois statute, by construction or usage. Indeed, in that case the court emphasized that ‘It is not a case of libel,’ and contrasted the history at common law of criminal prosecutions for written and spoken defamation.

Affirmed.

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS concurs, dissenting.

This case is here because Illinois inflicted criminal punishment on Beauharnais for causing the distribution of leaflets in the city of Chicago. The conviction rests on the leaflet's contents, not on the time, manner or place of distribution. Beauharnais is head of an organization that opposes amalgamation and favors segregation of white and colored people. After discussion, an assembly of his group decided to petition the mayor and council of Chicago to pass laws for segregation. Volunteer members of the group agreed to stand on street corners, solicit signers to petitions addressed to the city authorities, and distribute leaflets giving information about the group, its beliefs and its plans. In carrying out this program a solicitor handed out a leaflet which was the basis of this prosecution. Since the Court opinion quotes only parts of the leaflet, I am including all of it as an appendix to this dissent.

I.

That Beauharnais and his group were making a genuine effort to petition their elected representatives is not disputed. Even as far back as 1689, the Bill of Rights exacted of William & Mary said: ‘It is the Right of the Subjects to petition the King, and all Commitments and *268 Prosecutions for such petitioning are illegal.' 1 And 178 years ago the DeclarationofRightsoftheContinentalCongressproclaimed to the monarch of that day that his American subjects had ‘a right peaceably to assemble, consider of their grievances, and petition the King; and that all prosecutions, prohibitory proclamations, and commitments for the same, are illegal.' 2 After independence was won, Americans stated as the first unequivocal command of their Bill of Rights: ‘Congress shall make no law * * * abridging the freedom of speech, or of the

press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.’ Without distortion, this First Amendment could not possibly be read so as to hold that Congress has power to punish Beauharnais and others for petitioning Congress as they have here sought to petition the Chicago authorities. See e.g., Bridges v. State of California, 314 U.S. 252, 277, 62 S.Ct. 190, 201, 86 L.Ed. 192. And we have held in a number of prior cases that the FourteenthAmendmentmakesthespecificprohibitionsofthe First Amendment equally applicable to the states.3

1 1 William & Mary, Sess. 2, c. 2 (1689).

2 Eighth Resolution of the Continental Congress of 1774.

3 E.g., Grosjean v. American Press Co., 297 U.S. 233, 244, 245, 249, 56 S.Ct. 444, 446, 447, 448, 80 L.Ed. 660; Lovell v. City of Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 668, 82 L.Ed. 949; Schneider v. State of New Jersey, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155; Thornhill v. State of Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 740, 84 L.Ed. 1093; Minersville School District v. Gobitis, 310 U.S. 586, 593, 60 S.Ct. 1010, 1012, 84 L.Ed. 1375; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628; Thomas v. Collins, 323 U.S. 516, 529—530, concurring opinion, 545, 65 S.Ct. 315, 322, 329, 89 L.Ed. 430; Pennekamp v. State of Florida,328U.S.331,349,66S.Ct.1029,1038,90 L.Ed. 1295

In view of these prior holdings, how does the Court justify its holding today that states can punish people for exercisingthevitalfreedomsintendedtobesafeguardedfrom suppression by the First Amendment? The prior holdings are not referred to; the **737 Court simply acts on the bland assumption that the First Amendment is wholly irrelevant. It is not even accorded the respect of a passing mention. This follows logically, I suppose, *269 from recent constitutional doctrine which appears to measure state laws solely by this Court's notions of civilized ‘canons of decency,’ reasonableness, etc. See, e.g., Rochin v. People of California, 342 U.S. 165, 169, 72 S.Ct. 205, 207. Under this ‘reasonableness' test, state laws abridging First Amendment freedoms are sustained if found to have a ‘rational basis.’ But in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628, we said:

‘In weighing arguments of the parties it is important to distinguish between the due process clause of the Fourteenth Amendment as an instrument for transmitting the principles of the First Amendment and those cases in which it is applied for its own sake. The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappearswhenthespecificprohibitions oftheFirstbecomeitsstandard.Theright of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a ‘rational basis' for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds.’

Today's case degrades First Amendment freedoms to the ‘rational basis' level. It is now a certainty that the new ‘due process' coverall offers far less protection to liberty than would adherence to our former cases compelling states to abide by the unequivocal First Amendment command that its defined freedoms shall not be abridged.

The Court's holding here and the constitutional doctrine behind it leave the rights of assembly, petition, *270 speech and press almost completely at the mercy of state legislative, executive, and judicial agencies. I say ‘almost’ because state curtailment of these freedoms may still be invalidated if a majority of this Court conclude that a particular infringement is ‘without reason,’ or is ‘a wilful and purposeless restriction unrelated to the peace and well being of the State.’ But lest this encouragement should give too much hope as to how and when this Court might protect these basic freedoms from state invasion, we are cautioned that state legislatures must be left free to ‘experiment’ and to make ‘legislative judgments. We are told that mistakes may be made during the legislative process of curbing public opinion. In such event the Court

fortunately does not leave those mistakenly curbed, or any of us for that matter, unadvised. Consolation can be sought and must be found in the philosophical reflection that state legislative error in stifling speech and press ‘is the price to be paid for the trial-and-error inherent in legislative efforts to deal with obstinate social issues.’ My own belief is that no legislature is charged with the duty or vested with the power to decide what public issues Americans can discuss. In a free country that is the individual's choice, not the state's. State experimentation in curbing freedom of expression is startling and frightening doctrine in a country dedicated to self-government by its people. I reject the holding that either state or nation can punish people for having their say in matters of public concern.

II.

The Illinois statute upheld by the Court makes it a crime:

1. for ‘any person, firm or corporation’,

2. to ‘manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place’,

**738 *271 3. any ‘lithograph (construed to include any printed matter), moving picture, play, drama or sketch,’

4. which portrays ‘depravity, criminality, unchastity, or lack of virtue’,

5. of ‘a class of citizens, of any race, color, creed or religion’,

6. and exposes such a class to ‘contempt, derision, or obloquy’,

7. or ‘is productive of breach of the peace or riots.’

Thisstatuteimposesstatecensorshipoverthetheater,moving pictures, radio, television, leaflets, magazines, books and newspapers. No doubt the statute is broad enough to make criminal the ‘publication, sale, presentation or exhibition’ of many of the world's great classics, both secular and religious.

The Court condones this expansive state censorship by painstakingly analogizing it to the law of criminal libel. As a result of this refined analysis, the Illinois statute emerges labeled a ‘group libel law.’ This label may make the Court's holding more palatable for those who sustain it, but the sugarcoating does not make the censorship less deadly. However tagged, the Illinois law is not that criminal libel which has been ‘defined, limited and constitutionally recognized time out of mind’.4 For as *272 ‘CONSTITUTIONALLY

RECOGNIZED’THATCRIMEhasprovidedforpunishment of false, malicious, scurrilous charges against individuals, not against huge groups. This limited scope of the law of criminal libel is of no small importance. It has confined state punishment of speech and expression to the narrowest of areas involving nothing more than purely private feuds. Every expansion of the law of criminal libel so as to punish discussions of matters of public concern means a corresponding invasion of the area dedicated to free expression by the First Amendment.

4

The Court's finding of a close kinship between ‘criminal libel’ and ‘group libel’ because both contain the word ‘libel’ and have some factors in common is reminiscent of what Earl Stanhope said in 1792 in discussing Mr. Fox's Libel Bill. He was arguing that a jury of laymen might more likely protect liberty than judges, because judges were prone to rely too heavily on word books. ‘He put the case, that an action for a libel was brought for using a modern word, not to be found in any grammar or glossary, viz. for saying that a man was ‘a great bore;’ a jury would laugh at such a ground of prosecution, but the judges would turn to their grammars and glossaries, and not being able to meet with it, would say they could not find such aphraseas‘agreatbore,’buttheyhadfoundawild boar, which no doubt it meant; and yet it could not be, as a wild boar had four legs, and a man was a two legged animal; then it must mean, that the plaintiff was like a wild boar in disposition, which was a wicked libel, and therefore let the defendant be hanged.' 29 Hansard, Parliamentary History of England, p. 1412.

Prior efforts to expand the scope of criminal libel beyond its traditional boundaries have not usually met with widespread popular acclaim. ‘Seditious libel’ was such an expansion and it did have its day, particularly in the English Court of Star Chamber. But the First Amendment repudiated seditious libel for this country. And one need only glance through the parliamentary discussion of Fox's Libel Law passed in Englandin1792,tosensethebadodorofcriminallibelinthat country even when confined to charges against individuals only.

The Court's reliance on Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 770, 86 L.Ed. 1031, is also misplaced. New Hampshire had a state law making it an offense to direct insulting words at an individual on

a public street. Chaplinsky had violated that law by calling a man vile names ‘face-to-face’. We pointed out in that context that the use of such ‘fighting’ words was not an essential part of exposition of ideas. Whether the words used in their context here are ‘fighting’ words in the same sense is doubtful, but whether so or *273 not they are not addressed to or about individuals. Moreover, the leaflet used here was also the **739 means adopted by an assembled group to enlist interest in their efforts to have legislation enacted. And the fighting words were but a part of arguments on questions of wide public interest and importance. Freedom of petition,assembly,speechandpresscouldbegreatlyabridged by a practice of meticulously scrutinizing every editorial, speech, sermon or other printed matter to extract two or three naughty words on which to hang charges of ‘group libel.’ The Chaplinsky case makes no such broad inroads on First Amendmentfreedoms.NothingMr.JusticeMurphywrotefor the Court in that case or in any other case justifies any such inference.

Unless I misread history the majority is giving libel a more expansive scope and more respectable status than it was ever accorded even in the Star Chamber. For here it is held to be punishable to give publicity to any picture, moving picture, play, drama or sketch, or any printed matter which a judge may find unduly offensive to any race, color, creed or religion. In other words, in arguing for or against the enactment of laws that may differently affect huge groups, it is now very dangerous indeed to say something critical of one of the groups. And any ‘person, firm or corporation’ can be tried for this crime. ‘Person, firm or corporation’ certainly includes a book publisher, newspaper, radio or television station, candidate or even a preacher.

It is easy enough to say that none of this latter group have been proceeded against under the Illinois Act. And they have not—yet. But emotions bubble and tempers flare in racial and religious controversies, the kind here involved. It would not be easy for any court, in good conscience, to narrow this Act so as to exclude from it any of those I have mentioned. Furthermore, persons tried under the Act could not even get a jury trial except *274 as to the bare fact of publication. Here, the court simply charged the jury that Beauharnais was guilty if he had caused distribution of the leaflet. Such trial by judge rather than by jury was outlawed in England in 1792 by Fox's Libel Law.

This Act sets up a system of state censorship which is at war with the kind of free government envisioned by those who forced adoption of our Bill of Rights. The motives behind the

state law may have been to do good. But the same can be said about most laws making opinions punishable as crimes. Historyindicatesthaturgestodogoodhaveledtotheburning of books and even to the burning of ‘witches.’

No rationalization on a purely legal level can conceal the fact that state laws like this one present a constant overhanging threat to freedom of speech, press and religion. Today Beauharnais is punished for publicly expressing strong views in favor of segregation. Ironically enough, Beauharnais, convicted of crime in Chicago, would probably be given a hero's reception in many other localities, if not in some parts of Chicago itself. Moreover, the same kind of state law that makes Beauharnais a criminal for advocating segregation in Illinois can be utilized to send people to jail in other states for advocating equality and nonsegregation. What Beauharnais said in his leaflet is mild compared with usual arguments on both sides of racial controversies.

We are told that freedom of petition and discussion are in no danger ‘while this Court sits.’ This case raises considerable doubt. Since those who peacefully petition for changes in the law are not to be protected ‘while this Court sits,’ who is? I do not agree that the Constitution leaves freedom of petition, assembly, speech, press or worship at the mercy of a case-by-case, day-by-day majority of this Court. I had supposed that our people could rely for their freedom on the Constitution's commands, rather *275 than on the grace of this Court on an individual case basis. To say that a legislative body can, with this Court's approval, make it a crime to petition for and publicly discuss proposed legislation seems as farfetched **740 to me as it would be to say that a valid law could be enacted to punish a candidate for President for telling the people his views. I think the First Amendment, with the Fourteenth, ‘absolutely’ forbids such laws without any ‘ifs' or ‘buts' or ‘whereases.’ Whatever the danger, if any, in such public discussions, it is a danger the Founders deemed outweighed by the danger incident to the stifling of thought and speech. The Court does not act on this view of the Founders. It calculates what it deems to be the danger of public discussion, holds the scales are tipped on the side of state suppression, and upholds state censorship. This methodofdecisionofferslittleprotectiontoFirstAmendment liberties ‘while this Court sits.’

If there be minority groups who hail this holding as their victory, they might consider the possible relevancy of this ancient remark:

‘Another such victory and I am undone.’

*276 APPENDIX.

PEOPLES EXHIBIT 3

**741 *277 Mr. Justice REED, with whom Mr. Justice DOUGLAS joins, dissenting.

The Fourteenth Amendment of our Constitution forbids that any person be deprived by a state of liberty or property without due process of law. This Illinois conviction subjects petitioner to a fine of $200. The petitioner challenges the validity of the sentence on the ground that his conviction under s 224a, Division 1, of the Illinois Criminal Code1 violates substantive due process. The petition for certiorari phrasestheissuethus:‘IstheIllinoisstatute***asconstrued * * * or applied * * * invalid * * * because it infringes upon the constitutional guarantee of free speech, press and of assemblage as guaranteed’ by the Fourteenth Amendment?

1

‘It shall be unlawful for any person, firm or corporation to manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place in this state any lithograph, moving picture, play, drama or sketch, which publication or exhibition portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which said publication or exhibition exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots. Any person, firm or corporation violating any of the provisions of this section, shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not less than fifty dollars ($50.00), nor more than two hundred dollars ($200.00).’

The Supreme Court of Illinois upheld the conviction of petitioner under an information which charged:

‘that defendant on January 7, 1950, at the City of Chicago, did unlawfully publish, present and exhibit in public places, lithographs, which publications portrayed depravity, criminality, unchastity or lack of virtue of citizens of Negro race and color and which exposes citizens of Illinois of the Negroraceand *278 colortocontempt,derision,orobloquy, which more fully appears in Exhibit A, which is attached hereto and made a part thereof.'2

2 People v. Beauharnais, 408 Ill. 512, 514, 97 N.E.2d 343, 344—345. The Exhibit A referred to in the information is the lithograph referred to in the instructions to the jury as People's Exhibit 3.

The evidence was sufficient to justify the jury in finding that Beauharnais caused the lithograph referred to in the information to be published and distributed in public places. The jury did so find under certain general instructions as to the proper attitude of jurors but essentially and specifically under the following instruction:

‘(1) The Court instructs the jury that if you find from the evidence that the defendant, Joseph Beauharnais, did on or about January 7, 1950 manufacture, sell,orofferforsale,advertiseorpublish, present or exhibit in any public place the lithograph, which was allowed in

evidence in this case as Peoples Exhibit Number 3, then you are to find the defendant guilty and fine him not less than $50.00 nor more than $200.00.’

Thus, the judge did not leave to the jury but decided himself, doubtless as a matter of law, that the publication of the lithographviolatedthestatute.Nocomplaintwasmadeofthis state method of trial.

At trial, petitioner filed a motion to quash the information and objected to the above specific instruction. He also moved for a peremptory instruction of ‘not guilty’ and for judgment notwithstanding the verdict. All these contentions wereoverruledbythetrialcourt,andalthoughtherecorddoes not show a precisely pleaded objection to the conviction on the ground that s 224a is unconstitutional, nonetheless the Supreme Court of Illinois treated petitioner's contention that the statute was *279 too vague and by virtue of that fact was so broad that it abridged free speech in violation of the Fourteenth Amendment.3 The petition for certiorari brings these questions here.

3

408Ill.512,atpages515—516and517,97N.E.2d 343, at pages 345—346. If the highest court of the state treats the federal question as properly before it, and decides the question, the question is reviewable here, regardless of the manner in which it was raised in the inferior courts of the state. See Whitney v. People of State of California, 274 U.S. 357, 361, 47 S.Ct. 641, 643, 71 L.Ed. 1095, and cases there cited.

**742 In carrying out its obligation to conform state legal administration to the ‘fundamental principles of liberty and justice’ imposed on the states by the Fourteenth Amendment,4 this Court has steadily affirmed that the generalprincipleagainstabridgmentoffreespeech,protected by the First Amendment, is included in the command of the Fourteenth.5 So important to a constitutional democracy is the right of discussion that any challenge to legislative abridgment of those privileges of a free people calls for careful judicial appraisal.6 It is when speech becomes an incitement to crime that the right freely to exhort may be abridged.AmericanCommunicationsAss'n.,C.I.O.v.Douds, 339 U.S. 382, 395, 70 S.Ct. 674, 682, 94 L.Ed. 925; Herndon v.Lowry,301U.S.242,255,57S.Ct.732,738,81L.Ed.1066.

4 Hebert v. State of Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270; Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288; Adamson v. People of State of California, 332 U.S. 46, 66, 67 S.Ct. 1672, 1682, 91 L.Ed. 1903

5 Gitlow v. People of State of New York 268 U.S. 652, 666, 672, 45 S.Ct. 625, 629, 632, 69 L.Ed. 1138; Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 707, 51 S.Ct. 625, 627, 75 L.Ed. 1357; Pennekamp v. State of Florida, 328 U.S. 331, 335, 66 S.Ct. 1029, 1031, 90 L.Ed. 1295

6 De Jonge v. State of Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 260, 81 L.Ed. 278: ‘The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means.ThereinliesthesecurityoftheRepublic,the very foundation of constitutional government.’

*280 When a state conviction is challenged here on the ground that free speech has been abridged, this Court must first decide whether the portion of the statute upon which the charge is based is so broad ‘as to permit within the scope of its language the punishment of incidents fairly within the protection of the guarantee of free speech’. Winters v. People of State of New York, 333 U.S. 507, 509, 68 S.Ct. 665, 667, 92 L.Ed. 840. In the Winters case we set aside the conviction because the indefinite character of the statutory language, as construed by the Court of Appeals of New York,wassobroadthatprotectedspeechwasprohibited.This Court reversed, even though it assumed that Winters' conduct could constitutionally be punished by a statute expressing its prohibitions in reasonably narrow and definite form.7

7 See 333 U.S. at page 520, 68 S.Ct. at page 672. Cf. Thornhillv.StateofAlabama,310U.S.88,60S.Ct. 736, 84 L.Ed. 1093; Herndon v. Lowry, 301 U.S. 242, 263—264, 57 S.Ct. 732, 741—742, 81 L.Ed. 1066.

every portion of the statute upon which the information was drawn must be constitutional. In Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, Stromberg had been convicted in the California courts for violating a statute of that state forbidding the display of a red flag.8 On appeal, this Court did not consider whether Stromberg's conduct, as shown by the record, was protected by the Constitution. Instead, despite the fact **743 that the second and third clauses of the California statute were unquestionably valid under the Federal Constitution, this Court *281 reversed the state court because its conviction of Stromberg might have been based upon the first clause, holding that ‘if any of the clauses in question is invalid under the Federal Constitution, the conviction cannot be upheld.' 9 The first clause, forbidding a display of a red flag as a symbol of opposition to organized government, was deemed invalid because it was so broad that it permitted ‘punishment of the fair use of (the) opportunity (for free political discussion, and was therefore) repugnant to the guaranty of liberty contained in the Fourteenth Amendment.’ Id., 283 U.S. at page 369, 51 S.Ct. at page 536

8 283 U.S. at page 361, 51 S.Ct. at page 533: ‘Any person who displays a red flag, banner or badge or any flag, badge, banner, or device of any color or form whatever in any public place or in any meeting place or public assembly, or from or onanyhouse,buildingorwindowasasign,symbol or emblem of opposition to organized government or as an invitation or stimulus to anarchistic action or as an aid to propaganda that is of a seditious character is guilty of a felony.’ Then s 403a of the California Penal Code.

9 283U.S.atpage368,51S.Ct.atpage535.Seealso Williams v. State of North Carolina, 317 U.S. 287, 291—292, 63 S.Ct. 207, 209—210, 87 L.Ed. 279. Cf. Thomas v. Collins, 323 U.S. 516, 529, 65 S.Ct. 315, 322, 89 L.Ed. 430; Cramer v. United States, 325 U.S. 1, 36, note 45, 65 S.Ct. 918, 935, 89 L.Ed. 1441.

This requirement means that when the verdict and judgment flow, as here, from the information as a whole, each and

The judgment in this present case followed from a determinationofjudgeandjurythatpetitioner'spublicationof thelithographviolatedthestatute.Fromthegeneralverdictof guilty, nothing appears to show what particular words of the statute the Illinois courts determined the lithograph offended. This conviction must stand or fall upon a determination whether all definitions of the acts proscribed by the statute and charged in the information may be banned under the

principles of the First Amendment, for, as the foregoing discussion shows, it is impossible to tell upon what phrase of thestatutepetitioner'sconvictionwasbased.Ourexamination can begin and end with the inquiry as to what meaning lies in the act's declaration, as charged in the information, that it is unlawful to portray in a lithograph a ‘lack of virtue of a class of citizens * * * which * * * exposes (them to) derision, or obloquy.’

The majority opinion asserts that Illinois has given sufficiently clear and narrow meaning to the words ‘virtue,’ ‘derision’ and ‘obloquy’ by characterizing s 224a as ‘a form of criminal libel law.’ But the mere description of this statute as a criminal libel law does not *282 clarify the meaning of thesevaguewordsinthestatute.Tosaythatthemerepresence of the word ‘virtue’ in the individual libel statute10 makes its meaning clear in the group libel statute is a non sequitur. No case is cited which defines and limits the meaning of these words. Reliance is also placed by the Court upon Illinois' unfortunate experience with clashes between races. How that experience gives content to the vague words is not explained. The opinion further relies upon ‘the clarifying construction and fixed usage which govern the meaning of the enactment before us'. (Emphasis added.) No opinions containing such clarification are cited. In addition to the case before us, we find only two reported adjudications on s 224a in the Illinois courts.11 Without caviling that one of these cases is so recent that it follows the instant case in the reports, certainly neitherofthemcontainsanywordswhichgivethat‘clarifying construction’ claimed for Illinois law.

10

11

Smith-Hurd Ill.Ann.Stat.1936, c. 38, s 402, quoted in majority opinion at note 5.

People v. Simcox, 379 Ill. 347, 40 N.E.2d 525; People v. White Circle League of America, 1951, 408 Ill. 564, 97 N.E.2d 811. See also Fox Film Corp. v. Collins, 236 Ill.App. 281; Bevins v. Prindable, D.C., 39 F.Supp. 708, affirmed 314 U.S. 573, 62 S.Ct. 116, 86 L.Ed. 465

The majority certainly do not supply that construction by intimating that the publications prohibited by s 224a are only those ‘liable to cause violence and disorder’. Moreover, that phrase was used by the Illinois court, not to limit the prohibition of s 224a, but to describe the lithograph published by Beauharnais. See 408 Ill. at page 517, 97 N.E.2d at page 346. The quoted **744 language does not limit the statutory words ‘virtue,’ ‘derision’ or ‘obloquy.’12

12 Indeed, if the Illinois courts had been inclined to interpret their statute as this Court now interprets it, they could have done so only by reading out of their statute the disjunctive clause ‘or which is productive of breach of the peace or riots.’ (Quoted 343 U.S. 251, 72 S.Ct. 728 of majority opinion.) If the Illinois courts were inclined to read this disjunctive as a conjunctive, theywouldpresumablyhavereversedBeauharnais' conviction, for the information in this case did not charge that publication of his lithograph would be productive of breach of the peace or riots.

*283 The Court speaks at length of the constitutional power of a state to pass group libel laws to protect the public peace. This dissent assumes that power. What is under discussion is whether the conviction of Beauharnais on a general charge of violation of the statute can stand when the statute contains without statutory or judicial definition words of such ambiguous meaning and uncertain connotation as ‘virtue,’ ‘derision,’ or ‘obloquy.’ The Court does not attempt to speak specifically as to that contention.

The importance of a definite ruling on that point is manifest. Racial, religious, and political biases and prejudices lead to charge and countercharge, acrimony and bitterness. If words aretobepunishedcriminally,theConstitutionatleastrequires that only words or expressions or statements that can be reasonably well defined, or that have through long usage an accepted meaning, shall furnish a basis for conviction.

13

13 ‘The Constitution never intended to invest judges with a discretion which cannot be tried and measuredbytheplainandpalpablestandardoflaw.

* * * On a special verdict for murder, the life of the prisoner does not depend upon the religious, moral, or philosophical ideas of the judges. * * * If he is condemned * * * his conduct is brought to a precise, clear, intelligible standard, and cautiously measured by it; it is the law, therefore, and not the judge, which condemns him. * * *’

Argument in the King's Bench in the Dean of St. Asaph's case (1783—1784), 21 Howell's State Trials 847, 1006.

These words—‘virtue,’ ‘derision,’ and ‘obloquy’—have neither general nor special meanings well enough known to apprise those within their reach as to limitations *284 on speech. Compare Connally v. General Construction Co., 269

U.S. 385, 391—392, 46 S.Ct. 126, 127—128, 70 L.Ed. 322.

Philosophers and poets, thinkers of high and low degree from every age and race have sought to expound the meaning of virtue, but each teaches his own conception of the moral excellence that satisfies standards of good conduct. Are the tests of the Puritan or the Cavalier to be applied, those of the city or the farm, the Christian or non-Christian, the old or the young? Does the Bill of Rights permit Illinois to forbid any reflection on the virtue of racial or religious classes which a jury or a judge may think exposes them to derision or obloquy, words themselves of quite uncertain meaning as used in the statute? I think not. A general and equal enforcement of this law would restrain the mildest expressions of opinion in all those areas where ‘virtue’ may be thought to have a role. Since this judgment may rest upon these vague and undefined words, which permit within their scope the punishment of incidents secured by the guarantee of free speech, the conviction should be reversed.

Mr. Justice DOUGLAS, dissenting.

Hitler and his Nazis showed how evil a conspiracy could be which was aimed at destroying a race by exposing it to contempt, derision, and obloquy. I would be willing to concede that such conduct directed at a race or group in this country could be made an indictable offense. For such a project would be more than the exercise of free speech. Like picketing, it would be free speech plus.

I would also be willing to concede that even without the element of conspiracy there might be times and occasions when **745 the legislative or executive branch might call a halt to inflammatory talk, such as the shouting of ‘fire’ in a school or a theatre.

My view is that if in any case other public interests are to override the plain command of the First Amendment, *285 the peril of speech must be clear and present, leaving no room for argument, raising no doubts as to the necessity of curbing speech in order to prevent disaster.

TheFirstAmendmentiscouchedinabsoluteterms—freedom of speech shall not be abridged. Speech has therefore a preferred position1 as contrasted to some other civil rights. For example, privacy, equally sacred to some, is protected by the Fourth Amendment only against unreasonable searches and seizures. There is room for regulation of the ways and means of invading privacy. No such leeway is granted the invasion of the right of free speech guaranteed by the First Amendment. Until recent years that had been the course and

direction of constitutional law. Yet recently the Court in this and in other cases2 has engrafted the right of regulation onto the First Amendment by placing in the hands of the legislative branch the right to regulate ‘within reasonable limits' the right of free speech. This to me is an ominous and alarming trend. The free trade in ideas which the Framers of the Constitution visualized disappears. In its place there is substituted a new orthodoxy—an orthodoxy that changes with the whims of the age or the day, an orthodoxy which the majority by solemn judgment proclaims to be essential to the safety, welfare, security, morality, or health of society. Free speech in the constitutional sense disappears. Limits are drawn—limits dictated by expediency, political opinion, prejudices or some other desideratum of legislative action.

1 Murdock v. Com. of Pennsylvania, 319 U.S. 105, 115, 63 S.Ct. 870, 876, 87 L.Ed. 1292; Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 322, 89 L.Ed.430;Saiav.PeopleofStateofNewYork,334 U.S. 558, 561, 68 S.Ct. 1148, 1150, 92 L.Ed. 1574.

2 Dennisv.UnitedStates,341U.S.494,71S.Ct.857, 95 L.Ed. 1137; Feiner v. People of State of New York,340U.S.315,71S.Ct.303,95L.Ed.267.Cf. Breardv.CityofAlexandria,341U.S.622,71S.Ct. 920, 95 L.Ed. 1233; American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed.925;Osmanv.Douds,339U.S.846,70S.Ct. 901, 94 L.Ed. 1328

An historic aspect of the issue of judicial supremacy was the extenttowhichlegislativejudgmentwouldbe *286 supreme in the field of social legislation. The vague contours of the Due Process Clause were used to strike down laws deemed by the Court to be unwise and improvident. 3 That trend has been reversed. In matters relating to business, finance, industrial and labor conditions, health and the public welfare, great leeway is now granted the legislature, 4 for there is no guarantee in the Constitution that the status quo will be preserved against regulation by government. Freedom of speech, however, rests on a different constitutional basis. The First Amendment says that freedom of speech, freedom of press, and the free exercise of religion shall not be abridged. That is a negation of power on the part of each and every department of government. Free speech, free press, free exercise of religion are placed separate and apart; they are above and beyond the police power; they are not subject to regulation in the manner of factories, slums, apartment houses, production of oil, and the like.

3 Lochner v. People of State of New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937; Coppage v. State of Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441; Ribnik v. McBride, 277 U.S. 350, 48 S.Ct. 545, 72 L.Ed. 913

4 Nebbia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940; West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703; Lincoln Federal Labor Union No. 19129, A.F. of L. v. Northwestern Iron & Metal Co., 335 U.S. 525, 69 S.Ct. 251, 93 L.Ed. 212; Day-Brite Lighting, Inc., v. State of Missouri, 342 U.S. 421, 72 S.Ct. 405.

The Court in this and in other cases places speech under an expanding legislative **746 control. Today a white man stands convicted for protesting in unseemly language against our decisions invalidating restrictive covenants. Tomorrow a negro will be haliled before a court for denouncing lynch law in heated terms. Farm laborers in the west who compete with field hands drifting up from Mexico; whites who feel the pressure of orientals; a minority which finds employment going to members of the dominant religious group—all of these are caught in the mesh of today's decision. Debate and argument even in the courtroom are not always calm and dispassionate. Emotions sway speakers and audiences alike. Intemperate *287 speech is a distinctive characteristic of man. Hot-heads blow off and release destructive energy in the process. They shout and rave, exaggerating weaknesses, magnifying error, viewing with alarm. So it has been from the beginning; and so it will be throughout time. The Framers of the Constitution knew human nature as well as we do. They too had lived in dangerous days; they too knew the suffocating influence of orthodoxy and standardized thought. They weighed the compulsions for retrained speech and thought against the abuses of liberty. They chose liberty. That should be our choice today no matter how distasteful to us the pamphlet of Beauharnais may be. It is true that this is only one decision which may later be distinguished or confined to narrow limits. But it represents a philosophy at war with the First Amendment—a constitutional interpretation which puts free speech under the legislative thumb. It reflects an influence moving ever deeper into our society. It is notice to the legislatures that they have the power to control unpopular blocs. It is a warning to every minority that when the Constitution guarantees free speech it does not mean what it says.

Mr. Justice JACKSON, dissenting.

An Illinois Act, construed by its Supreme Court to be a ‘group libel’ statute, has been used to punish criminally the author and distributor of an obnoxious leaflet attacking the Negro race. He answers that, as applied, the Act denies a liberty secured to him by the Due Process Clause of the Fourteenth Amendment. What is the liberty which that clause underwrites?

The spectrum of views expressed by my seniors shows that disagreement as to the scope and effect of this Amendment underlies this, as it has many another, division of the Court. All agree that the Fourteenth Amendment does confine the power of the State to make printed *288 words criminal. Whence we are to derive metes and bounds of the state power is a subject to the confusion of which, I regret to say, I have contributed—comfortedintheacknowledgment,however,by recalling that this Amendment is so enigmatic and abstruse that judges more experienced than I have had to reverse themselves as to its effect on state power.

Theassumptionofotherdissentsisthatthe‘liberty’whichthe Due Process Clause of the Fourteenth Amendment protects againstdenialbytheStatesistheliteralandidentical‘freedom of speech, or of the press' which the First Amendment forbids only Congress to abridge. The history of criminal libel in America convinces me that the Fourteenth Amendment did not ‘incorporate’ the First, that the powers of Congress and of the States over this subject are not of the same dimensions, and that because Congress probably could not enact this law it does not follow that the States may not. I.

Asalimitationuponpowertopunishwrittenorspokenwords, FourteenthAmendment‘liberty’initscontextofstatepowers and functions has meant and should mean something quite different from ‘freedom’ in its context of federal powers and functions.1

1

First Amendment: ‘Congress shall make no law *

* * abridging the freedom of speech, or of the press

* * *.’ Fourteenth Amendment:

This Court has never sustained a federal criminal libel Act. One section of the Sedition **747 Act of 1798 was close to being a ‘group libel’ Act.2 While there were convictions *289 under it, no attack on its validity reached this Court.

I think today's better opinion regards the enactment as a breach of the First Amendment and certainly Mr. Justice HolmesandMr.JusticeBrandeisthoughtso.3 Buteveninthe absence of judicial condemnation, the political disapproval of the Sedition Act was so emphatic and sustained that federal prosecution of the press ceased for a century. It was resumed with indictment of The Indianapolis News and The New York World for disclosures and criticisms of the Panama Canal acquisition. Both were indicted in the District of Columbia and under the District Code, on the ground that some copies circulated there. That prosecution collapsed when Judge AndersonrefusedtheGovernment'sapplicationtoremovethe Indiana defendants to the District of Columbia for trial.4

2 1 Stat. 596 (1798) s 2: ‘And be it further enacted, Thatifanypersonshallwrite,print,utterorpublish * * * any false, scandalous and malicious writing or writings against the government of the United States,oreitherhouseoftheCongressoftheUnited States, or the President of the United States, with intent to defame the said government, or either houseofthesaidCongress,orthesaidPresident,or to bring them, or either of them, into contempt or disrepute * * * such person * * * shall be punished by a fine not exceeding two thousand dollars, and byimprisonmentnotexceedingtwoyears.’Section 3: ‘* * * it shall be lawful for the defendant * * * to give in evidence in his defence, the truth of the matter contained in the publication charged as a libel. And the jury who shall try the cause, shall havearighttodeterminethelawandthefact,under the direction of the court, as in other cases.’

3 Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173

4 United States v. Smith, D.C., 173 F. 227. In discharging the defendants, Judge Anderson said: ‘To my mind that man has read the history of our institutions to little purpose who does not look with grave apprehension upon the possibility of the success of a proceeding such as this. If the history of liberty means anything, if constitutional guaranties are worth anything, this proceeding must fail.

‘If the prosecuting officers have the authority to select the tribunal, if there be more than one tribunal to select from, if the government has that power, and can drag citizens from distant states to the capital of the nation, there to be tried, then,

as Judge Cooley says, this is a strange result of a revolution where one of the grievances complained of was the assertion of the right to send parties abroad for trial.’ 173 F. at page 232.

The World, circulated at West Point, was indicted in New York on the theory that an 1825 Act to protect *290 fortifications assimilated the New York State law punishing criminallibel.ThatventurelikewisecametogriefwhenJudge Hough rejected that construction of the federal statute and was upheld by this Court. United States v. Press Publishing Co., 1911, 219 U.S. 1, 31 S.Ct. 212, 55 L.Ed. 65. While there has been a demand from official sources for a resumption of criminal libel prosecution, it has not been acceded to. 5 Thus, while the jeopardy of such federal prosecutions has never been removed by any decision of this Court, I should think the validity of a federal enactment such as this would be extremely doubtful, to say the least.

5 Riesman, ‘Group Libel,’ 42 Col.L.Rev. 727, 748. See also 87 Cong.Rec. 5830—5841.

The effect of the First Amendment on congressional power to make seditious utterance criminal did receive consideration in the aftermath of the First World War. In such a case, Mr. Justice Holmes formulated for the Court as ‘the question in every case’ the ‘clear and present danger’ test. Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470. He and Mr. Justice Brandeis adhered to it as **748 a ‘rule of reason,’ dissenting when they thought the rest of the Court apostate. Abrams v. United States, 250 U.S. 616, 627, 628,40S.Ct.17,21,63L.Ed.1173;Schaeferv.UnitedStates, 251 U.S. 466, 482, 40 S.Ct. 259, 264, 64 L.Ed. 360

Only after research and deliberation in these cases had sharpened their perception did these Justices face the freespeech issue as to state power which Mr. Justice Holmes first adverted to, but left undecided, in Patterson v. State of Colorado ex rel. Attorney General, 205 U.S. 454, 27 S.Ct. 556, 51 L.Ed. 879. In 1922 they joined the Court's first decision on the subject, which declared that ‘* * * neither the Fourteenth Amendment nor any other provision of *291 the Constitution of the United States imposes upon the states any restrictions about ‘freedom of speech’ * * *.' Prudential Insurance Co. of America v. Cheek, 259 U.S. 530, 543, 42 S.Ct. 516, 522, 66 L.Ed. 1044

However, these two Justices, who made the only original contribution to legal thought on the difficult problems bound up in these Amendments, soon reversed and took

the view that the Fourteenth Amendment did impose some restrictions upon the States. But it was not premised upon the First Amendment nor upon any theory that it was incorporated in the Fourteenth. What they wrote, with care and circumspection, I accept as the wise and historically correct view of the Fourteenth Amendment. It was: ‘The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word ‘liberty’ as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States.' (Emphasis supplied.) Gitlow v. People of State of New York, 268 U.S. 652, 672, 45 S.Ct. 625, 632, 69 L.Ed. 1138.

That reasoning was echoed so recently as 1937, when the Court explicitly rejected the theory of incorporation and, through Mr. Justice Cardozo, announced a view, unanimous except for Mr. Justice Butler, that the Fourteenth did not deflect against the States the literal language of amendments designed to circumscribe federal power but qualified state power only by such general restraints as are essential to ‘the conceptoforderedliberty’.Palkov.StateofConnecticut,302 U.S. 319, 324—325, 58 S.Ct. 149, 152, 82 L.Ed. 288.

It is clear that these do not proscribe state criminal libel Acts. Justices Holmes and Brandeis in 1931 joined Chief Justice Hughes, who spoke for the Court, in striking down a state Act because it authorized restraint by injunction *292 previous to publication. He said: ‘For whatever wrong the appellant has committed or may commit, by his publications, the state appropriately affords both public and private redress by its libel laws.’ This was amplified: ‘But it is recognized that punishmentfortheabuseofthelibertyaccordedtothepressis essential to the protection of the public, and that the commonlawrulesthatsubjectthelibelertoresponsibilityforthepublic offense, as well as for the private injury, are not abolished by the protection extended in our Constitutions. * * * The law of criminal libel rests upon that secure foundation.’ Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 715, 51 S.Ct. 625, 631, 75 L.Ed. 1357

So recently as 1942, a unanimous Court, speaking of state power, said that punishment of libelous words ‘which by their very utterance inflict injury or tend to incite an immediate breach of the peace’ has never been thought to raise any constitutional problem. Chaplinsky v. State of New

Hampshire, 315 U.S. 568, 571—572, 62 S.Ct. 766, 769, 86

L.Ed. 1031

More than forty State Constitutions, while extending broad protections to speech and press, reserve a responsibility for their abuse and implicitly or explicitly recognize **749 validity of criminal libel laws. 6 We are justified *293 in assuming that the men who sponsored the Fourteenth Amendment in Congress, and those who ratified it in the State Legislatures, knew of such provisions then in many of their State Constitutions. Certainly they were not consciously canceling them or calling them into question, or we would havesomeevidenceofit.Congresses,duringtheperiodwhile this Amendment was being considered or was but freshly adopted, approved Constitutions of ‘Reconstructed’ States that expressly mentioned state libel laws,7 and also approved similar Constitutions for States erected out of the federal domain.8

6 The following is a list of such state constitutional provisions, coupled with the year of the adoption of the Constitution in which they are contained: Alabama, 1901, Art. I, ss 4, 12; Arizona, 1912, Art. II,s6;Arkansas,1874,Art.II,s6;California,1879, Art. I, s 9; Colorado, 1876, Art. II, s 10; Delaware, 1897, Art. I, s 5; Florida, 1887, Declaration of Rights, s 13, F.S.A.; Georgia, 1945, Art. I, s 1, par. 15; Idaho, 1890, Art. I, s 9; Illinois, 1870, Art. II, s 4; Indiana, 1851, Art. I, s 9; Iowa, 1857, Art. I, s 7, I.C.A.; Kansas, 1859, Bill of Rights, s 11; Kentucky, 1891, ss 8, 9; Louisiana, 1921, Art. I, s 3; Maine, 1876, Art. I, s 4; Maryland, 1867, Declaration of Rights, Art. 40; Michigan, 1908, Art. II, s 4; Minnesota, 1857, Art. I, s 3, M.S.A.; Mississippi, 1890, Art. III, s 13; Missouri, 1945, Art. I, s 8, V.A.M.S.; Montana, 1889, Art. III, s 10; Nebraska, 1875, Art. I, s 5; Nevada, 1864, Art. I, s 9; New Jersey, 1947, Art. I, par. 6, N.J.S.A.; New Mexico, 1912, Art. II, s 17; New York, 1938, Art. I, s 8; North Carolina, 1876, Art. I, s 20; North Dakota, 1889, Art. I, s 9; Ohio, 1851, Art. I, s 11; Oklahoma, 1907, Art. II, s 22; Oregon, 1859, Art. I, s 8; Pennsylvania, 1874, Art. I, s 7, P.S.; Rhode Island, 1843, Art. I, s 20; South Dakota, 1889, Art. VI, s 5; Tennessee, 1870, Art. I, s 19; Texas, 1876, Art.I,s8,Vernon'sAnn.St.;Utah,1895,Art.I,s15; Virginia, 1902, Art. I, s 12; Washington, 1889, Art. I, s 5; West Virginia, 1872, Art. III, s 7; Wisconsin, 1848, Art. I, s 3; Wyoming, 1889, Art. I, s 20.

7 Congress required that Reconstructed States approve State Constitutions consistent with the Federal Constitution, and also that each State ratify the Fourteenth Amendment. Examples of state constitutional provisions expressly referring to libel, but which Constitutions were nevertheless approved by Congress, follow: Arkansas:Const.1868,Art.I,s2providesthattruth coupled with good motives shall be a complete defense to a criminal libel prosecution; Arkansas readmitted by 15 Stat. 72 (1868); Florida: Const. 1868, Art. I, s 10, provides that truth coupled with good motives shall be a complete defense to a criminallibelprosecution;Floridareadmittedby15 Stat. 73 (1868); Mississippi: Const.1868, Art. I, s 4 enacts Fox's Libel Act in substance; Mississippi readmitted by 16 Stat. 67 (1870); South Carolina: Const.1868, Art. I, s 8 enacts Fox's Libel Act in substance,andprovidesthattruthandgoodmotives shall be a complete defense to a criminal libel prosecution; South Carolina readmitted by 15 Stat. 73 (1868); Texas: Const.1868, Art. I, s 6 enacts Fox's Libel Act in substance; Texas readmitted by 16 Stat. 80 (1870).

8 In the case of States erected out of the public domain, one of two procedures was generally followed. Either Congress would itself enact a statute admitting a particular State, stating therein that the Constitution of the State in question was consistent with the Federal Constitution; or else the Congressional Act would provide that the State would be admitted upon its adoption of a Constitution consistent with the Federal Constitution. In the latter case the actual admission occurred by proclamation of the President. Colorado: Art. II, s 10 enacts Fox's Libel Act in substance, and provides that truth and good motives shall constitute a complete defense in a libel prosecution; admitted by 18 Stat. 474 (1875), 19 Stat. 665 (1876); Montana: Art. III, s 10 enacts Fox's Libel Act in substance; admitted by 25 Stat. 676 (1889), 26 Stat. 1551 (1889); New Mexico: Art. II, s 17 provides that truth and good motives shall constitute a complete defense to a criminal libel prosecution; admitted by 36 Stat. 557 (1910), 37 Stat. 39 (1911); Utah: Art. I, s 15 like Colorado provisions; admitted by 28 Stat. 107 (1894), 29 Stat. 876 (1896); Wyoming: Art. I, s 20 like

Colorado provisions; admitted by 26 Stat. 222 (1890).

*294 Certainly this tolerance of state libel laws by the very authors and partisans of the Fourteenth Amendment shows either that they were not intending to incorporate the **750 First Amendment or that they believed it would not prevent federal libel laws. Adoption of the incorporation theory today would lead to the dilemma of either confining the States as closely as the Congress or giving the Federal Government the latitude appropriate to state governments. The treatment of libel powers corroborates the conclusions against the incorporationist theory reached by the most comprehensive and objective studies of the origin and adoption of the Fourteenth Amendment.9

9 See Fairman and Morrison, Does the Fourteenth Amendment Incorporate the Bill of Rights? 2 Stan.L.Rev. 5—173.

The inappropriateness of a single standard for restricting State and Nation is indicated by the disparity between their functionsanddutiesinrelationtothosefreedoms.Criminality of defamation is predicated upon power either to protect the private right to enjoy integrity of reputation or the public right to tranquility. Neither of these are objects of federal cognizance except when necessary to the accomplishment of some delegated power, such as *295 protection of interstate commerce. When the Federal Government puts liberty of press in one scale, it has a very limited duty to personal reputation or local tranquillity to weigh against it in the other. But state action affecting speech or press can and should be weighed against and reconciled with these conflicting social interests.

For these reasons I should not, unless clearly required, confirm to the Federal Government such latitude as I think a State reasonably may require for orderly government of its manifold concerns. The converse of the proposition is that I would not limit the power of the State with the severity appropriately prescribed for federal power.

As the principle by which to judge the constitutionality of this statute, I accept the dissent in Gitlow and the decision in Palko. II.

What restraints upon state power to punish criminal libel are implied by the ‘concept of ordered liberty’? Experience by

Anglo-Saxon peoples with defamation and laws to punish it extends over centuries and the statute and case books exhibit its teachings. If one can claim to announce the judgment of legal history on any subject, it is that criminal libel laws are consistent with the concept of ordered liberty only when applied with safeguards evolved to prevent their invasion of freedom of expression.

Oppressive application of the English libel laws was partially checked when Fox's Libel Act of 1792 allowed the jury to determine whether an accused publication was libelous in character and more completely when Lord Campbell's Libel Act of 1843 allowed truth to be proved as a defense.

American experience teaches similar lessons. The leading state case is People v. Croswell, 3 Johns.Cas. 337. *296 Since, as the opinion of this Court now points out, the Jeffersonian's objection to federal sedition prosecutions was largely fear of federal usurpation of state powers over the subject, it was consistent for them to prosecute libels under state law. Croswell, publisher of the aptly named Wasp, was indicted for libeling Thomas Jefferson by representing him as unworthy of the confidence, respect, and attachment of the people. The trial judge pronounced his statements libelous as a matter of law and allowed the jury to decide no question except whether the accused had published them. The defendant was convicted and on his appeal, argued by Alexander Hamilton, the appellate court divided equally. Justice Kent, however, filed a characteristically learned and vigorous opinion that the trial court must submit the libelous character of the article and libelous intent of its printer to decisionbythejury,whichwasentitledtodeterminebothlaw and fact. The public response was such that an early session of the Legislature substantially enacted Kent's contentions. Inasmuch as no judgment had been entered upon the earlier equal division, the court at **751 its August 1805 term, ‘in consequenceofthisdeclaratorystatute,'unanimouslyawarded a new trial.10

10

3 Johns.Cas. 337, 413.

The New York Constitution at that time contained no free speech provision but the case led to a provision included in the Constitution of 1821 which both followed Fox's Libel Act and anticipated Lord Campbell's Act and has remained in the several Constitutions of that State since: ‘Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty to speech, or of the press. In all prosecutions

or indictments *297 for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.'11

11 Const.1821, Art. VII, s 8; Const.1846, Art. I, s 8; Const.1894, Art. I, s 8; Const.1938, Art. I, s 8.

It would not be an exaggeration to say that, basically, this provision of the New York Constitution states the common sense of American criminal libel law. Twenty-four States of the Union whose Constitutions were framed later substantially adopted it.12 Twelve State provide that press and speech shall be free but there shall be responsibility for the abuse.13 Five others provide substantially the same but add that truth may be given in evidence in a libel prosecution.14 Only five States, whose Constitutions were framed earlier, were content with the generality about the free press similar to that of Massachusetts. 15 But all of these States, apart from constitutional *298 provision, have by decisional law recognized the validity of criminal libel prosecutions.16

12 Arkansas,California,Colorado,Delaware,Florida, Iowa, Kansas, Maine, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, Tennessee, Texas, Utah, Wisconsin, and Wyoming. For citations to article and section, see n. 6, supra.

13

Arizona, Georgia, Idaho, Kentucky, Louisiana, Maryland, Michigan, Minnesota, North Carolina, Oregon, Virginia, and Washington. The Georgia provision, Const.1945, Art. I, s 1, par. 15, representative of the rest, reads: ‘* * * any person may speak, write and publish his sentiments, on all subjects, being responsible for the abuse of that liberty.’ For citations to article and section, see n. 6, supra.

14

Alabama, Illinois, Indiana, Rhode Island, and West Virginia. For citations to article and section, see n. 6, supra.

15 Connecticut, Const.1818, Art. I, s 6; New Hampshire, Const.1784, Part I, Art. 22; South

Carolina, Const.1895, Art. I, s 4; Vermont, Const.1793, c. I, Art. 13. The Massachusetts provision, Const.1780, Part I, Art. XVI reads as follows: ‘The liberty of the press is essential to the securityoffreedominastateitoughtnot,therefore, to be restrained in this commonwealth.’

16 State v. Gardner, 112 Conn. 121, 151 A. 349; Commonwealth v. Szliakys, 254 Mass. 424, 150 N.E.190;Noyesv.Thorpe,73N.H.481,62A.787, 12L.R.A.,N.S.,636;Statev.Gurry,163S.C.1,161 S.E. 191; State v. Colby, 98 Vt. 96, 126 A. 510. Decisional law of other States is collected in Note, 1 Bflo.L.Rev. 258.

Because of these safeguards, state libel laws have presented no threat to a free press comparable to that from federal sources and have not proved inconsistent with fundamental liberties. Attacks on the press by States which were frustrated by this Court in Near v. State of Minnesota ex rel. Olson, supra, and Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660, were not by libel laws. For near a century and a half this Court's decisions left state criminal libel prosecutions entirely free of federal constitutional limitations. It is a matter of notoriety that the press often has provoked hostility, that editors have been mobbed and horsewhipped, **752 but criminal libel prosecutions have not been frequent and, as safeguarded by state law, they have been so innocuous that chronicles of American journalism give them only passing mention.17

17 Lee, ‘A History of American Journalism’ (Garden City, 1923).

This Court, by construction of the Fourteenth Amendment, has imposed but one addition to the safeguards voluntarily taken upon the States by themselves. It is that where expression, oral or printed, is punished, although it has not actually caused injuries or disorders but is thought to have a tendency to do so, the likelihood of such consequence must not be remote or speculative. That is the ‘clear and presentdanger’testwhichMr.JusticeHolmesandMr.Justice Brandeis, eventually with support of the Court, thought implied in both the First 18 and Fourteenth Amendments,19 although the former was *299 not bodily bound up in the latter. Any superficial inconsistency between applying the same standard but permitting a wider range of action to the States is resolved upon reference to the latter part of the statement of the formula: clear and present danger of those

substantive evils which the legislature has a right to prevent. The evils at which Congress may aim, and in so doing come into conflict with free speech, will be relatively few since it is a government of limited powers. Because the States may reach more evils, they will have wider range to punish speech which presents clear and present danger of bringing about those evils.

18 Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470.

19 Gitlow v. People of State of New York, 268 U.S. 652, 672, 45 S.Ct. 625, 632, 69 L.Ed. 1138

In few subjects so much as libel does local law, in spite of varying historical influences, afford a consensus of American legal opinion as to what is reasonable and essential to the concept of ordered government. The boundaries are roughly outlined, to be sure, and cannot be stated or applied with mathematical precision, but those widely accepted state constitutional provisions on which is superimposed the ‘clear and present danger’ test for ‘tendency’ cases seem to be our best guide.

I agree with the Court that a State has power to bring classes ‘of any race, color, creed, or religion’ within the protection of its libel laws, if indeed traditional forms do not already accomplish it.20 But I am equally clear that in doing so it is essential to our concept of ordered liberty that the State also protect the accused by those safeguards the necessity for which is verified by legal history.

20

It appears that group libel was not unknown to common law. See Scott, Publishing False News, 30 Can.B.Rev. 37, 42—43.

III.

The Illinois statute, as applied in this case, seems to me to have dispensed with accepted safeguards for the accused. Trialofthiscaseominouslyparallelsthetrialof *300 People v. Croswell, supra, in that the Illinois court here instructed the jury,insubstance,thatifitfoundthatdefendantpublishedthis leaflet he must be found guilty of criminal libel.

Rulings of the trial court precluded the effort to justify statementsoffactbyprovingtheirtruth.Themajorityopinion concedes the unvarying recognition by the States that truth plus good motives is a defense in a prosecution for criminal libel. But here the trial court repeatedly refused defendant's

offerofproofastothetruthofthematterpublished.Wherean offer to prove the dominant element of a defense is rejected as immaterial, we can hardly refuse to consider defendant's constitutional question because he did not go through the useless ceremony of offering proof of a subsidiary element of the defense. If the court would not let him try to prove he spoke truth, how could he show that the spoke truth for good ends? Furthermore, the record indicates that defendant was asked to state what he had meant **753 by the use of certain phrases, and the reason for forming the White Circle League —statements which apparently bore on the issue of motive and ends. But the trial court sustained a sweeping objection ‘to this whole line of examination.’ The Supreme Court of Illinois noted the offer of proof of truth and its exclusion, and apparently went on to rule as a matter of law that the statementwasnotpublishedforjustifiableends.Atallevents, it is clear that the defense was ruled out as matter of law and defendant was never allowed to present it for decision by either court or jury upon the facts, a practice which I think is contrary to the overwhelming verdict of Anglo-Saxon history and practice. I do not intimate that this defendant stood even a remote chance of justifying what impresses me, as it did the trial court, as reckless and vicious libel. But the point is that his evidence, proffered for that purpose, was excluded instead of being *301 received and evaluated. Society has an interest in preserving truth as a justification, however obnoxious the effort may be. A publication which diffuses its attack over unnamed and impersonal multitudes is likely to be harder to justify than one which concentrates its attack on named individuals, but the burden may properly be cast on an accused and punishment follow failure to carry it.

The same may be said of the right to comment upon matters of public interest insofar as the statement includes matters of opinion, a point, however, which the defense may have inadequately raised. When any naturally cohesive or artificially organized group possesses a racial or sectarian solidarity which is or may be exploited to influence public affairs, that group becomes a legitimate subject for public comment. Of course, one can only deplore the habitual intemperance and bitter disparagement which characterizes most such comment. While I support the right of a State to place decent bounds upon it, I am not ready to hold that group purposes, characteristics and histories are to be immunized from comment or may be discussed only at the risk of prosecution free of all usual safeguards.

Another defense almost universally recognized, which it seems the jury were not allowed to consider here, is that of privilege. Petition for redress of grievances is specifically

privileged by many State Constitutions. I do not think we should hold this whole document to be constitutionally privileged just because, in part, it stimulates a petition for redressofgrievances.Acourtorjurycouldhavefoundthatits primarypurposewasnottopetitionbuttoappealformembers and contributions to the White Circle League. If some part of it were privileged, that, so it has been held, does not extend constitutional protection to unprivileged matter. Cf. Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262. But the question of privilege seems *302 not to have been specifically passed on by the court and certainly was not submitted for the jury's consideration.

In this case, neither the court nor jury found or were required to find any injury to any person, or group, or to the public peace, nor to find any probability, let alone any clear and present danger, of injury to any of these. Even though no individuals were named or described as targets of this pamphlet, if it resulted in a riot or caused injury to any individual Negro, such as being refused living quarters in a particular section, house or apartment, or being refused employment, certainly there would be no constitutional obstacle to imposing civil or criminal liability for actual results. But in this case no actual violence and no specific injury was charged or proved.

Theleafletwassimplyheldpunishableascriminallibelperse irrespectiveofitsactualorprobableconsequences.Nocharge of conspiracy complicates this case. The words themselves do not advocate the commission of any crime. The conviction rests on judicial attribution of a likelihood of evil results. The trialcourt,however,refusedtochargethejurythatitmustfind some ‘clear and present danger,’ and the **754 Supreme Court of Illinois sustained conviction because, in its opinion, the words used had a tendency to cause a breach of the peace.

ReferringtotheclearandpresentdangerdoctrineinDennisv. United States, 341 U.S. 494, 568, 71 S.Ct. 857, 897, 95 L.Ed. 1137, I said:

‘I would save it, unmodified, for application as a ‘rule of reason’ in the kind of case for which it was devised. When the issue is criminality of a hotheaded speech on a street corner, or circulation of a few incendiary pamphlets, or parading by some zealots behind a red flag, or refusal of a handful of school children to salute our flag, it is not beyond the capacity of the

judicial process to gather, comprehend, and weigh the necessary materials for decision whether it is a clear and present danger of *303 substantive evil or a harmless letting off of steam. It is not a prophecy, for the danger in such cases has matured by the time of trial or it was never present. The test applies and has meaning where a conviction is sought to be based on a speech or writing which does not directly or explicitly advocate a crime but to which such tendency is sought to be attributed by construction or by implication from external circumstances. The formula in such cases favors freedoms that are vital to our society, and, even if sometimes appliedtoogenerously,theconsequences cannot be grave. * * *‘

Not the least of the virtues of this formula in such tendency cases is that it compels the prosecution to make up its mind what particular evil it sought or is seeking to prevent. It must relateitsinterferencewithspeechorpresstosomeidentifiable evil to be prevented. Words on their own account are not to be punished in such cases but are reachable only as the root of punishable evils.

Punishment of printed words, based on their tendency either to cause breach of the peace or injury to persons or groups, in my opinion, is justifiable only if the prosecution survives the ‘clear and present danger’ test. It is the most just and workable standard yet evolved for determining criminality of words whose injurious or inciting tendencies are not demonstrated by the event but are ascribed to them on the basis or probabilities.

Its application is important in this case because it takes account of the particular form, time, place, and manner of communication in question. ‘The moving picture screen, the radio, the newspaper, the handbill, the sound truck and the street corner orator have differing natures, values, abuses and dangers. Each, in my view, is a law unto itself * * *.’ Kovacs v. Cooper, 336 U.S. 77, 97, 69 S.Ct. 448, 459, 93 L.Ed. 513. It would consider whether a leaflet is so emotionally exciting to immediate action as the spoken word, especially *304 the incendiary street or public speech. Terminiello v. City of Chicago, 337 U.S. 1, 13, 69 S.Ct. 894, 899, 93 L.Ed.

1131; Kunz v. People of State of New York, 340 U.S. 290, 295, 71 S.Ct. 312, 315, 95 L.Ed. 267. It will inquire whether this publication was obviously so foul and extreme as to defeat its own ends, whether its appeals for money—which has a cooling effect on many persons—would not negative its inflammatory effect, whether it would not impress the passer-by as the work of an irresponsible who needed mental examination.

One of the merits of the clear and present danger test is that the triers of fact would take into account the realities of race relations and any smouldering fires to be fanned into holocausts. Such consideration might well warrant a conviction here when it would not in another and different environment.

Grouplibelstatutesrepresentacommendabledesiretoreduce sinister abuses of our freedoms of expression—abuses which I have had occasion to learn can tear apart a society, brutalize its dominant elements, and persecute, even to extermination, **755 its minorities. While laws or prosecutions might not alleviate racial or sectarian hatreds and may even invest scoundrels with a specious martyrdom, I should be loath to foreclose the States from a considerable latitude of experimentation in this field. Such efforts, if properly applied, do not justify frenetic forebodings of crushed liberty. But these acts present most difficult policy and technical problems, as thoughtful writers who have canvassed the problem more comprehensively than is appropriate in a judicial opinion have well pointed out.21

21 Tannenhaus, Group Libel, 35 Cornell L.Q. 261; Riesman, Democracy and Defamation: Control of Group Libel, 42 Col.L.Rev. 727; see also Note, 1 Bflo.L.Rev. 258.

No group interest in any particular prosecution should forget that the shoe may be on the other foot in some prosecution tomorrow. In these, as in other matters, our *305 guiding spirit should be that each freedom is balanced with a responsibility, and every power of the State must be checked with safeguards. Such is the spirit of our American law of criminallibel,whichconcedesthepowertotheState,butonly as a power restrained by recognition of individual rights. I cannot escape the conclusion that as the Act has been applied in this case it lost sight of that rights.

343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919

2014 WL 1901115

Only the Westlaw citation is currently available.

SEE COURT OF APPEALS RULES 11 AND 12

Court of Appeals of Tennessee.

In re CONSERVATORSHIP OF Jack Wayne TURNER.

No. M2013–01665–COA–R3–CV. |

March 19, 2014 Session. |

May 9, 2014.

Synopsis

Background: Mother sought modification of previous order naming father as conservator of parties' mentally-disabled adult son and requiring that mother's visitation with son be supervised. The Circuit Court, Davidson County, David Randall Kennedy, J., granted mother four additional hours of visitation per month but ordered that the visitation continue to be supervised, enjoined mother from making future public allegations that her older adult son had committed sexual abuse against her younger son and from communicating with younger son about such alleged abuse, and allowed father to tape record future telephone conversations between mother and son. Mother appealed.

[5] evidence preponderated in favor of holding that mother's visitation would be supervised and that father would be allowed to tape record certain conversations between mother and son.

Affirmed and remanded.

Procedural Posture(s): On Appeal.

West Headnotes (6)

[1] Mental Health Decisions reviewable

Because of sensitive nature of case and in an abundance of caution, Court of Appeals would exercise its discretion to address whether injunction permanently enjoining mother from making future public allegations that her older adult son had sexually abused her mentally-disabled, younger adult son, and from communicating with younger son about such alleged abuse, was an unconstitutional prior restraint on speech, although mother did not appear to have raised that issue in trial court, in which she brought proceeding to modify prior order naming father as conservator over younger son. U.S.C.A. Const.Amend. 1; West”s T.C.A. Const. Art. 1, § 19; West's T.C.A. § 34–3–108; Rules App.Proc., Rules 2, 36(a).

Holdings: The Court of Appeals, J. Steven Stafford, J., held that:

[1] defamatory speech may be enjoined after a determination thatthespeechis,infact,false,andupontheconditionthatthe injunction be narrowly tailored to limit the prohibited speech to that which has been determined to be false;

[2] injunction at issue was not an unconstitutional prior restraint on mother's speech;

[3] preponderance of the evidence standard applies to proceedings to modify conservatorship orders;

[4] evidence did not preponderate against trial court's holding that mother was entitled to only eight hours of visitation with son per month; and

[2] Constitutional Law Injunctions

Injunction

Libel and slander

Defamatory speech may be enjoined after a determination that the speech is, in fact, false, and upon the condition that the injunction be narrowly tailored to limit the prohibited speech to that which has been determined to be false. U.S.C.A. Const.Amend. 1; West”s T.C.A. Const. Art. 1, § 19

6 Cases that cite this headnote

[3] Constitutional Law Injunctions

Injunction

Libel and slander

Injunction that prohibited mother from making future public allegations that her older adult

son had committed sexual abuse against her younger, mentally-disabled adult son, and from communicating with younger son about such alleged abuse, was not an unconstitutional prior restraint on mother's speech in proceeding in which mother sought to modify previous order naming father as conservator over younger son; mother had made myriad defamatory allegations of abuse that were investigated and found to be false, and injunction was narrowly drawn to include only allegations against older son. U.S.C.A. Const.Amend. 1; West”s T.C.A. Const. Art. 1, § 19; West's T.C.A. § 34–3–108

[4] Mental Health Setting aside or vacating Preponderance of the evidence standard applies toproceedingstomodifyconservatorshiporders. West's T.C.A. § 34–3–108

[5] Mental Health Setting aside or vacating Evidence did not preponderate against trial court'sholding,inmother'sproceedingtomodify prior order naming father conservator over parties' mentally-disabled adult son, that mother was entitled to only eight hours of visitation with son per month; while record indicated that mother and son loved each other, trial court also took into account, in analyzing son's best interests, mother's negative actions in continuing to insist falsely that son was being sexually abused by his older brother and mother's social media activities indicating a lack of respect for trial court's orders. West's T.C.A. § 34–3–108.

activities showing lack of respect for trial court orders,andconservatorshipcasehadbegunwhen mother absconded with son to Tennessee while exercisingunsupervisedvisitation.West'sT.C.A. § 34–3–108

Appeal from the Circuit Court for Davidson County, No. 12P305; David Randall Kennedy, Judge.

Attorneys and Law Firms

Ashonti T. Davis, Nashville, Tennessee, and Susanna M. Moldoveanu, Memphis, for the appellant, Marceia Turner–Bonin.

Stanley A. Kweller and Margaret Lane Johnson, Nashville, Tennessee, for the appellee, Bruce Wayne Turner.

J. STEVEN STAFFORD, J., delivered the opinion of the Court, in which DAVID R. FARMER, J., and HOLLY M. KIRBY, J., joined.

OPINION

J. STEVEN STAFFORD, J.

[6] Mental Health Setting aside or vacating Evidence preponderated in favor of trial court's holding, in mother's proceeding to modify order namingfatherconservatoroverparties'mentallydisabled adult son, that mother's visitation with son would be supervised and that father would be allowed to tape record certain conversations between mother and son; mother had continued to levy unfounded accusations that son's older brother had sexually abused him, mother had engaged in social media

*1 This is a conservatorship modification case. Appellant/ Mother sought modification of the trial court's previous order, naming Appellee/Father as the conservator over the parties' mentally-disabled, adult son, and mandating that Mother's visitation with the Ward be supervised. Because Mother had made numerous, unfounded allegations of sexual abuse against the Ward by his older brother, the trial court enjoined Mother from making any future allegations of sexual abuse against the Ward by his older brother, and further enjoined her from discussing, with the Ward, any purported sexual abuse by his older brother. Although the trial court modified its previous order to grant Mother four additional hours of visitation per month, it ordered that her visitation would continue to be supervised. The court further modified the conservatorship by holding that Father, at his discretion, would be allowed to tape record any telephone conversations between the Ward and Mother. On appeal, Mother contends that the injunction constitutes an unconstitutional prior restraint on her free speech. We adopt the “modern rule,” holding that defamatory speech may be enjoined after a determination that the speech is,

in fact, false, and upon the condition that the injunction be narrowly tailored to limit the prohibited speech to that which has been determined to be false. We conclude that the injunction in this case satisfies both of these criteria such that it does not constitute a prior restraint on Mother's free speech. Mother also appeals the trial court's order concerning the amount of visitation, the fact that the visitation is to be supervised,andrecordingofhertelephoneconversationswith the Ward. We conclude that the trial court did not abuse its discretion in allowing Mother eight hours of visitation per month. Furthermore, because of Mother's behavior during the pendency of this litigation, we further conclude that the imposition of supervised visitation and the recording of her telephone conversation serve two functions. First, these requirements preserve the Ward's best interest by providing safeguards against future negative impacts from Mother's actions. Second, because Mother has shown a propensity to disregard the orders of the court, the requirements ensure that thecourt'sorderswillbefollowed.Becausetheevidencedoes not preponderate against the trial court's findings, and there is no abuse of the trial court's discretion, we affirm and remand.

Appellant Marceia Catherine Turner–Bonin (“Mother”) and Appellee Bruce Wayne Turner (“Father”) are the parents of Jack Wayne Turner (“Son,” or “Ward”). Jack Wayne Turner was born in May 1988; the parties are also the parents of an older child, Joseph Turner (“Joseph” or “Older Son”). Son was born with Downs Syndrome, and has had special needs throughout his life. Although the procedural history of this case is protracted, beginning with the February 24, 2012 filing of an emergency petition for conservatorship of Jack Wayne Turner by Father, the issues before us in this appeal are relatively narrow in that they arise from the trial court's decision on two motions filed by Mother. As discussed, infra, the first motion, filed on December 14, 2012, was titled “Motion for Restoration of Visitation/Parenting Time and Other Relief;” the second motion, filed on January 15, 2013, was titled “Motion for Immediate and/or Emergency Relief.” Before addressing these motions and the court's ruling on them, we begin with a brief history of the case.

*2 The trial court appointed Robert W. Briley to act as Son's guardian ad litem in this case. We take the relevant background history from Mr. Briley's second answer and report to the trial court, filed on August 17, 2012. These predicate facts appear to be uncontested in the record. Mother and Father were divorced in 1994, while living in Texas. Mother was granted primary custody of the parties' two children. Sometime in 1998, the children came to live with

Father because of some type of disturbance in the Mother's life centered around domestic violence and alcohol abuse. An order was allegedly entered in the parties' divorce case, which order granted temporary custody of the children to Father;thisorderisnotinourrecord.SonremainedinFather's care, even after he reached the age of majority in 2006. Although the dates are uncertain, it is undisputed that Father subsequently married Jill Turner, and moved to Nashville with the children. Mother followed them to Tennessee. Father later moved with the children to Westland, Michigan; Mother remained in Nashville, where she still resides.

Since the Father assumed custody of the children, Mother has had only limited visitation, which was granted at Father's discretion. In 2008, Mother began treatment for alcoholism, and has allegedly remained sober since August of 2008. In 2011, Mother was allegedly advised by legal counsel that, because Son had reached the age of majority and because there was no conservatorship in effect over him, she would not violate any court order if she chose to bring Son back to Nashville with her during her scheduled Christmas visitation that year. Therefore, in December of 2011, while on a prearranged day visit with Son, Mother refused to return Son to Father, and brought him to Nashville.

While Son was in Nashville with Mother, on January 12, 2012, she filed a petition for an order of protection in the Davidson County Circuit Court. Therein, Mother alleged that both she and Son were afraid of Father, that Father had drugged Son and had kept him locked in the basement, and that Father would not allow him contact with Mother. In response, on February 24, 2012, Father filed an emergency petition for conservatorship of Son in the Davidson County Circuit Court's Probate Division. Therein, Father averred that Mother's objective in keeping Son was to obtain his Social Security Disability benefits, and that the allegations in her petition for an order of protection were false. On the same day, February 24, 2012, the trial court dismissed Mother's petition for an order of protection. Thereafter, on March 29, 2012,Motherfiledaninterveningpetition,requestingthatshe be appointed Son's permanent conservator. An agreed order was entered on March 29, 2012. The agreed order provided that the parties would propose a qualified psychiatrist to evaluate Son. In the interim, the order provided that Son would remain in Mother's custody, and that Father would have scheduled visitation and daily telephone calls. Also on March 29, 2012, the trial court heard testimony from Son's relatives, as well as a Children's Counselor with the DomesticViolenceUnitoftheMetropolitan–NashvillePolice

Department.Thecourtsubsequentlyenteredanorder,onMay 8, 2012, regarding temporary conservatorship for health care purposes and access to HIPPA protected information. In this order, the court found, by clear and convincing evidence, that Son was “in immediate need of a temporary conservator for health care,” and that Mother would serve as Son's health care conservator on an interim basis, until such time as the guardian ad litem could prepare a full report based on current circumstances, and until such time as Son could be independently evaluated.

*3 The aforementioned evaluation was conducted by a psychiatrist, Dr. Casey Arney. The guardian ad litem's second answer and report of August 17 notes that: “[M]other has made several reports about the [F]ather to the police since she has been in possession of [Son], none of which have resulted in any action or further investigation.” The guardian ad litem indicated that he had spent considerable time with Son and members of the family. He noted that Son remained calm and appeared comfortable in the presence of both parents and, in sum, opined that there was “no evidence that [Son] is being or has been abused or neglected by either the [F]ather (and family) or [M]other.” As included in the guardian ad litem's report, Dr. Arney concluded that Son was “not capable of providing meaningful substantive responses to the questions presented in this action.” Based upon the totality of the evidence he reviewed, the guardian ad litem made the following recommendations:

There is no dispute that [Son] needs a conservator. Although disputed, there is no evidence that [Son] has ever been abused or neglected while in his father's custody or care.... Both the mother and father are capable of serving as [Son's] conservator and of providing him with the educational and other opportunities for him to move towards living as independent a life as is possible, and everyone agrees that this should be the stated goal.

The quality that materially separates the parties, however, is stability. The mother's unilateral decision to bring [Son] to Nashville and her lack of participation in [Son's] life over the years for whatever reason, fail to demonstrate the type of decision making required of a conservator under these circumstances. The father, on the other hand, has shown the ability to keep [Son] involved in educational and extracurricular programs consistently over a period of years.... This is not to say that the mother is not capable of providing for [Son] as she has demonstrated over the past few months.... When, however, all of these facts are digested during the course of the best interest analysis, the

father'strackrecordandhistorytipthescaleeversoslightly in his factor.

On August 21, 2012, the trial court conducted a hearing on the competing petitions for conservatorship. Following the hearing, a transcript of which is not included in our record, the trial court entered an order on August 31, 2012, naming Father the conservator of Son. However, the court noted that Son “clearly loves both of his natural parents and both of [Son's] parents love him.” Accordingly, Mother was granted visitation, including two weeks during Christmas holidays, several days over Thanksgiving and Easter, and two months over summer vacation.

On August 31, 2012, Mother filed an emergency motion to reconsider and to suspend visitation immediately based on evidence of immediate danger or irreparable harm, wherein she requested that the court:

*4 ... suspend visitation immediately and indefinitely pending the outcome of full investigations by Adult Protective Services and Davidson County Tennessee Metropolitan Police Department based on reports of sexual assault that occurred to [Son] while in [Father's] care and custody. There are reports and documentation of sexual assault from Friends Life that Adult Protective Services has from Jameson Elder, Megan Graf, and Waverly Christopher–Harris. [Son] acted out the sexual assault he suffered at the hands of his brother Joe, to Jameson Elder when asked to do so by Waverly Christopher–Harris.

The school records from Friends Life were given to Paul Kai Kai with Adult Protective Services and could not be released to [Mother] for legal reasons by the school.

These are reports from Mary Francis Hall, PhD. She evaluated Jack on 8–28–12 and the sexual assault was confirmed.

There are reports from David McMillian. His evaluation occurred on 8–30–12. David McMillian is willing to address the court immediately with his findings. Dr. McMillianfeels[Son]isinimminentdangerandthesexual assault was confirmed.

The trial court held a hearing on Mother's motion on September 18, 2012. On September 28, 2012, the trial court entered an order, indicating that it had heard from witnesses, including Mary Francis Hall, PhD, Paul Kai Kai, with Adult Protective Services, Detective Vicky Dills, with the

MetropolitanPoliceDepartment,LaniRemos,SocialWorker, Joe Turner, Jill Turner, and Father. The court's order also indicates that it conducted an interview with Son. Based upon this evidence, the court held that the allegations of sexual abuse alleged by Mother were “unsustainable. Finding that the preponderance of the evidence did not support Mother's allegations, the court dismissed her motion, thus affirming Father's role as conservator for Son.

On September 20, 2012, Father filed an emergency petition, seeking suspension of Mother's parenting time (other than supervised visitation). Therein, Father averred that, based upon certain email correspondence with Mother, he believed that Mother had joined an organization called the Republic of the United States of America, which organization does not recognize the authority of civil courts. Based upon Mother's alleged email statements, such as “I will allow no one to continue to put my son's safety, well fair [sic], and health in jeopardy,” Father believed that Mother would not adhere to the trial court's previous order, naming him conservator. Father's petition was heard on September 28, 2012.

At the September 28, 2012 hearing, the trial court first entertained Mother's attorney's petition to withdraw, which petition was granted. Thereafter, Mother proceeded pro se. At the hearing, the trial court considered Mother's email correspondence, which Father had alleged represented her intention to disregard the court's order. Based upon this evidence that court stated, from the bench, that:

hours of visitation with him once per month pending further orders of the Court. That parenting time is going to be supervised by an adult approved by your ex-husband....

The trial court entered an order to this effect on October 29, 2012. Mother did not appeal this order.

On December 14, 2012, after obtaining a new attorney, Mother filed a motion for restoration of visitation/parenting time, seeking to modify the October 29, 2012 order to reinstate her previous, unsupervised visitation with Son. While this motion was pending, on January 14, 2013, Mother filed an additional motion for immediate and/or emergency relief, wherein she asserted that there had been a substantial and material change of circumstances since the entry of the trial court's last order. Specifically, Mother asserted that, “[s]ince the court's last hearing, [Son] has reported that he has been physically and sexually abused by his biological brother.” In support of her motion, Mother provided the court with a CD and transcript of alleged telephone conversations between herself and Son. Although, as discussed above, the trial court found the previous allegations of sexual abuse, which allegedly occurred on or about August 20, 2012, to be “unsustainable,” Mother again cited the previous allegations of abuse as an additional ground for her January 15, 2013 motion. Father filed responses in opposition to both of Mother's motions.

*5 It is your communication with other people that suggests to them that you are a troubled person who is unwilling to accept [what the court] imposed [and] required [by] order [on] those matters that I have set forth. And untilyouconvincemeyou'reabletodo that, I'm not going to loosen it up.

Based upon the foregoing, the court held:

I'm going to suspend your parenting time or visitation time with [ Son] pending further orders of the Court with the exception that I'm going to allow you to have no more than four

Both of Mother's motions were heard on March 26 and May 28, 2013. In the interim between hearing dates, on May 7, 2013, Father filed a motion to remove Mother as a backup or secondary conservator. Following the hearing, the trial court entered an order on June 24, 2013. The order provides, in relevant part, as follows:

The central issue in this case in regards to all issues currently outstanding by and between the parties is what is inthemanifestbestinterestoftheWard[].TheCourtfinds that Marceia Turner–Bonin continues to file allegations or make allegations regarding criminal misconduct about her eldest son that are baseless, meritless and not based on any fact whatsoever and that she has not presented one single bit of evidence that would suggest to any reasonably informed adult person that would sustain cruel, vicious, marauding allegations of destruction that she has heaped upon her own oldest son, Joseph Turner.

.... The Court further finds that, notwithstanding her argumentthatsheissimplytryingtodowhatshebelievesto be best for her son, Jack Turner (the Ward herein)[, Mother has made] the most disingenuous representation that this Court has had presented to it by a mother of a child.

*6 The Court finds that [Mother] has not told the truth and that she conveniently leaves out the truth on a regular basis. The Court finds that her actions stated in social media and claims she has made are slanderous, libelous, and defamatory and without a factual basis and all made to win the favor of people to make her out to be victimized. The Court further finds that these attempts[,] including all the baseless and meritless defamatory claims against her oldest son[,] are intended to take the conservatorship away from the father. Based upon these findings, the Court is of the opinion and does find that it is not in the manifest best interest of Jack Turner (the Ward) to be in an unsupervised relationship with someone who is so vested in a lie, vested in a falsehood, and vested in perpetrating a fraud on the public about her oldest son.

The Court specifically finds that in the parade of witnesses offered by [Mother], there has been no substantiation or evidence whatsoever that the Ward has been harmed, abused or neglected in any way by his brother, Joseph Turner. The Court finds that [Mother] should be required to cease and desist from engaging in baseless, meritless and fraudulent claims of illegality or illegal conduct on the part of someone who committed no wrongful acts and for whomtherehasbeennoevidenceofthecommissionofany wrongful acts.

Based upon the foregoing findings, the court went on to hold that:

someone has carnal knowledge of him specifically his [brother].

Although the court enjoined Mother from pursuing any allegations of sexual abuse, the court did find that:

The Court does find, however, that it is important for [Son] to see his mother on a specific, regular basis but it is going to be in a setting which is in [Son's] best interest. The Court finds that [Mother] should be allowed to have a total of eight (8) hours per month of supervised time with the Ward ... the dates and times to be agreed upon by the parties.

In addition, Mother was granted telephone communication with Son; however, the court stated that:

[I]t is appropriate, given [Mother's] behavior and multiple false allegations regarding the behavior of her oldest son with her youngest son, that [Father] has specific power to tape record every telephone conversation between the Ward and [Mother].

Basedupontheforegoing,thecourtreaffirmedFatherasSon's conservator. In addition, the trial court named Joseph Turner as the stand-by conservator for Son, stating:

[Mother is] restrain[ed] and enjoin[ed] ... from claiming that her oldest son ... is guilty of any criminal conduct.... Additionally, [Mother] shall be restrained and enjoined from questioning, interrogating, communicating with and engaging in dialog with Jack Turner [ ] regarding her insinuation that he has somehow been physically probed or

[W]hile [Mother's] conduct is reprehensible and shows an extraordinary lack of good judgment, the behavior and conduct of Joseph Turner ... has shown unquestionable integrity, and a calm demeanor in the face of terrible allegations.

*7 The June 24, 2013 order also specifically incorporates, by reference, the trial court statements from the bench during the May 28, 2013 hearing.

Mother appeals. She raises two issues for review, which we take from her brief:

1. Whether an injunction permanently enjoining a mother from communicating with her child about alleged sexual abuse constitutes an unconstitutional prior restraint.

2. Whether the trial court abused its discretion in the entry of an order (1) permitting only eight hours of visitation per month, based solely on a finding of dishonesty, and (2) ordering that all phone calls between a mother and child may be recorded, without limitation.

53918, 54573, 2011 WL 6257862 (Nev. Dec.12, 2011) (“We conclude that [plaintiff] waived her arguments regarding the ban being unconstitutionally broad and a prior restraint on speech because she failed to raise these issues in district court.”). Although there is authority to support a finding that Mother has waived her prior restraint issue, the record is not developed such that we are able to determine what notice Mother had, or what opportunity she had to raise this issue. Because of the sensitive nature of this case, and in an abundance of caution, we exercise our discretion under Rule 2 of the Tennessee Rules of Appellate Procedure to address this issue substantively. Tenn. R.App. P. 2 (“For good cause, including the interest of expediting decision upon any matter, the ... Court of Appeals ... may suspend the requirements or provisions of any of these rules in a particular case on motion of a party or on its motion and may order proceedings in accordance with its discretion.”).

Prior Restraint

[1] Mother contends that the trial court's injunction constitutes an unconstitutional prior restraint on her free speech. We first note that Mother does not appear to have raised the issue of prior restraint in the trial court. It is well settled that issues not raised at the trial level are considered waived on appeal. Waters v. Farr, 291 S.W.3d 873, 918 (Tenn.2009) (stating that issues not raised in the trial court are waived on appeal); Tenn. R.App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be granted to a party responsible for an error who failed to take whatever action was reasonably available to prevent or nullify the harmful effect of an error.”). Our research has revealed cases from other jurisdictions where the issue of prior restraint was deemedwaivedforfailuretoraiseitinthetrialcourt. See,e.g., U.S. v. Stover, 650 F.3d 1099 (8th Cir.2011) (“Tax attorney waived argument on appeal that district court's injunction against his promotion of fraudulent tax avoidance schemes was an unconstitutional prior restraint of otherwise protected speech, where attorney failed to raise the issue at trial, even though government sought extremely broad relief, including much of the relief granted in the district court's permanent injunction.”); Zielke v. Wagner, 291 Ill.App.3d 1037, 226 Ill.Dec. 99, 684 N.E.2d 1095 (Ill.Ct.App.1997) (“Insurance brokers waived their claim on appeal that protective order prohibitingreferencetosettlementofplaintiff'sclaimsagainst third-party defendants violated their First Amendment rights where brokers did not make any prior restraint argument before trial court, thereby depriving trial court of any opportunity to employ its discretion.”); Patraw v. Groth, Nos.

*8 An impermissible “prior restraint” exists when the exercise of First Amendment rights depends upon prior approval of public officials. Deja Vu of Nashville, Inc. v. Metro. Gov't of Nashville and Davidson Cnty., 274 F.3d 377, 400 (6th Cir.2001), cert. denied 535 U.S. 1073, 122 S.Ct. 1952, 152 L.Ed.2d 855 (2002). A system creating prior restraints bears a heavy presumption against its constitutional validity. Id . (citing Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965)). In the context of protected speech, “ ‘prior restraint’ is a label used in constitutional law to describe administrative or judicial orders that forbid a communication when issued in advance of the time that the communication is to occur: Governmental action constitutes a prior restraint when it is directed to suppressing speech because of its content before the speech is communicated.”

2 J. Thomas McCarthy, Rights of Publicity and Privacy § 11:24 Injunctions–Prior Restraint Rule (2d ed.). Accordingly, the First Amendment of the United States Constitution, and Article I, Section 19 of the Tennessee Constitution, provide broad protections to prevent the abridgment of a person's right to freedom of speech. These protections require the application of strict scrutiny review when a court is presented with the question of whether a person's fundamental rights, suchasfreedomofspeech,havebeeninfringed. See generally San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 16, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Strict scrutiny requires that the restraint on speech be “narrowly tailored to serve a compelling governmental interest.” Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009).

In the instant case, and as set out in full context below, the trial court made a specific finding that Mother's allegations of sexual abuse were “baseless, meritless, defamatory claims,” and further found that the claims are “very cruel, vicious, visceral, acidic, butchering, marauding allegations.” The court also specifically found that Mother has not “presented one scintilla, not even a grain, not even an atom, not even a neutronofevidencethatwould...sustainthe[allegations].”In Sullivan v. Baptist Mem. Hosp., 995 S.W.2d 569 (Tenn.1999), our Supreme Court explained:

To establish a prima facie case of defamation in Tennessee, the plaintiff must establish that: 1) a party published a statement; 2) with knowledge that the statement is false and defaming to the other; or 3) with reckless disregard for the truth of the statement or with negligence in failing to ascertain the truth of the statement. See Restatement (Second) of Torts § 580 B (1977); Press, Inc. v. Verran, 569 S.W.2d 435, 442 (Tenn.1978). “Publication” is a term of art meaning the communication of defamatory matter to a third person. Quality Auto Parts Co. v. Bluff City Buick Co., 876 S.W.2d 818, 821 (Tenn.1994)

Id. at 571–72. To be actionable, the allegedly defamatory statement must “constitute a serious threat to the plaintiff's reputation.” Stones River Motors, Inc. v. Mid–South Publ'g Co., 651 S.W.2d 713, 719 (Tenn.Ct.App.1983). We note at the outset that “Tennessee has adopted the standards of 580(a) and 580(b) of the Restatement (2d) of Torts, 1977, which establishes the distinction between defamation as to a public official or public figure and defamation as to a private person.” Press, Inc. v. Verran, 569 S.W.2d 435, 442 (Tenn.1978).Accordingly,iftheplaintiffinadefamationcase is a public official or public figure, they must also prove that the defamatory statements were made with “ ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 279–80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). The public figure must demonstrate actual malice by clear and convincing evidence. Id. at 285–

86, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. Because this case does not involve public figures, the actual malice standard is not required. As to a private person, he or she may be held liable for defamation if he or she knows that the statement is false and that it defames the person, or if he or she acts in reckless disregard of these matters, or acts negligently in failing to ascertain them. Verran, 569 S.W.2d at 442. Moreover, a private person is not subject to the heightened clear and convincing standard required of a public person, and thus may satisfy the prima facie case for defamation by a preponderance of the evidence. See, e.g., Murray v. Lineberry, 69 S.W.3d 560 (Tenn.Ct.App.2001). Becausethiscaseconcernsfindingsofdefamatorystatements made by a private individual against a private individual, our analysis does not extend to questions of injunctions against defamatory statements made against public figures.

*9 From the trial court's findings, we have determined that, based upon its conclusion that the allegations were both false, and made for a fraudulent and harmful purpose, the trial court was proceeding under a finding that the enjoined statements were defamatory, and that its purpose in enjoining these statements was to protect both Joseph and the Ward from further harm caused by the perpetuation of the defaming statements. These findings are supported by a preponderance of the evidence, and neither party disputes them on appeal. Based upon the trial court's prior holding that the allegations were “unsustainable,” and based upon the myriad investigations by various authorities, there is no dispute that the statements of sexual abuse were, in fact, false. At the least, Mother made the allegations with reckless disregard of their truth. The statements were made to third parties. The statements, given their nature, posed a serious threat of harm to Joseph's reputation. Consequently, there is sufficient, undisputed evidence in the record to support a findingthattheenjoinedstatementswere,infact,defamatory. As such, we find guidance in the case law concerning whether injunctions against defamatory statements constitute a prior restraint against free speech. We note that there are no Tennessee cases directly on point. However, we find guidance in the decisions made by our sister states. See, e.g., Shelby Cnty. Health Care Corp. v. Baumgartner, No. W2008–01771–COA–R3–CV,2011WL303249,at*12n.14 (Tenn.Ct.App. Jan.26, 2011) (“Cases from other jurisdictions can be persuasive authority....”).

We begin with the traditional rule that “equity does not enjoin a libel or slander and that the only remedy for defamation is an action for damages.” See, e.g., Lothschuetz

v. Carpenter, 898 F.2d 1200, 1206 (6th Cir.1990) (quoting Cmty. for Creative NonViolence v. Pierce, 814 F.2d 663, 672 (D.C.Cir.1987)); yritsis v. Vieron, 53 Tenn.App. 336, 382 S.W.2d 553 (Tenn.Ct.App.1964) (relying on the traditional rule that there is no equity jurisdiction in defamation cases). Injunctions to enjoin a libel are traditionally disfavored under both common-law and First Amendment prior restraint doctrines. See, e.g., Alberti v. Cruise, 383 F.2d 268 (4th Cir.1967); Parkerv.ColumbiaBroadcastingSystem,Inc., 320 F.2d 937 (2d Cir.1963); Crosby v. Bradstreet Co., 312 F.2d 483 (2d Cir.1963); ukatush Min. Corp. (N.P.L.) v. Securities and Exchange Commission, 309 F.2d 647 (D.C.Cir.1962); Robert E. Hicks Corp. v. National Salesmen's Training Ass'n, 19 F.2d 963 (7th Cir.1927); Konigsberg v. Time, Inc., 288 F.Supp. 989 (S.D.N.Y.1968); American Broadcasting Companies, Inc. v. Smith Cabinet Mfg. Co., Inc., 160Ind.App. 367, 312 N.E.2d 85 (Ind.1974); Greenberg v. De Salvo, 254 La. 1019, 229 So.2d 83 (La.1969); rebiozen Research Foundation v. Beacon Press, Inc., 334 Mass. 86, 134 N.E.2d 1 (Mass.1956); Willing v. Mazzocone, 482 Pa. 377, 393 A.2d 1155 (Pa.1978); Pirmantgen v. Feminelli, 745 S.W.2d 576 (Tex.Ct.App.1988); Community for Creative Non–Violence v. Pierce, 814 F.2d 663, 672 (D.C.Cir.1987) (“The usual rule is that equity does not enjoin a libel or slander and that the only remedy for defamation is an action for damages.”). This disfavoredstatushasitsrootsintraditionalmaximsgoverning the law of equity. See generally, Dan Dobbs, Handbook on the Law of Remedies § 7:2, at 524 (1973); Robert Leflar, Legal Remedies for Defamation, 6 Ark. L.Rev. 423 (1952); Roscoe Pound, Equitable Relief Against Defamation and Injuries to Personality, 29 Harv. L.Rev. 640, 651 (1916); Crosby v. Bradstreet Co., 312 F.2d 483, 485, (2d Cir.1963) (holding that injunction directed to “any” statements violated the First Amendment). In more contemporary times, these maxims of equity have been reinforced by the First Amendment's heavy presumption against prior restraints. See, e.g., Corpus Christi Caller–Times v. Mancias, 794 S.W.2d852(Tex.Ct.App.1990)(prohibitingnewspapersfrom publishing misleading or deceptive headlines that were not substantiated by the contents of the article was an impermissible prior restraint); Dworkin v. Hustler Magazine, Inc., 634 F.Supp. 727 (D.Wyo.1986); Bright v. Los Angeles Unified Sch. Dist., 18 Cal.3d 450, 134 Cal.Rptr. 639, 556 P.2d 1090 (Cal.1976) (prohibiting the publication of an allegedly libelous article in a school newspaper was an unconstitutional prior restraint on children's right to free speech); Matchett v. Chicago Bar Ass'n, 125 Ill.App.3d 1004, 81 Ill.Dec. 571, 467 N.E.2d 271 (Ill.1984) (prohibiting the evaluation of

a prospective judge using the term “unqualified” was an unconstitutional prior restraint).

*10 There have, however, been a number of inroads made on the broad rule against injunctions to enjoin defamatory statements. Our own Sixth Circuit has authorized a limited injunction prohibiting an individual “from continuing and reiterating the same libelous and defamatory” statements in accordance with a more modern rule. As discussed in more detail, infra, the Lothschuetz Court specifically “limit[ed] the application of such injunction to the statements which have been found in ... proceedings to be false and libelous.” Lothschuetz v. Carpenter, 898 F.2d 1200, 1206 (Guy, J., majority opinion except as to injunctive relief), 1209 (Wellford, J., majority opinion as to injunctive relief, concurring in part and dissenting in part); Lassiter v. Lassiter, 456 F.Supp.2d 876, 884 (E.D.Ky.2006) (concluding that Kentucky courts would permit injunctive relief against defamation where, inter alia, the injunction is “clearly and narrowly drawn” and that there has been an adjudication of falsity or illegality, established “by at least clear and convincing evidence,” prior to the issuance of the injunction) (footnote omitted), abrogated by Hill v. Petrotech Res. Corp., 325 S.W.3d 302, 309 (Ky.2010) (“[D]efamatory speech may be enjoined only after the trial court's final determination by a preponderance of the evidence that the speech at issue is, in fact, false, and only then upon the condition that the injunction be narrowly tailored to limit the prohibited speech tothatwhichhasbeenjudiciallydeterminedtobefalse.”)(see further discussion below).

One of the watershed cases in the area of injunctions in defamation cases is Balboa Island Village Inn, Inc. v. Lemen, 156 P.3d 339, 40 Cal.4th 1141, 57 Cal.Rptr.3d 320, (2007), as modified, (Apr. 26, 2007). In Balboa, the Supreme Court of California held that, after a defamation trial in which a defendantwasfoundtohaverepeatedlydefamedtheplaintiff, California law and the First Amendment permitted the issuance of an injunction to prohibit the future repetition of certain defamatory statements about the defendant. Id. at 341. The Balboa case arose from a defamation action brought by theBalboaIslandVillageInn(“VillageInn”),arestaurantand bar located on Balboa Island in Newport Beach, California, againstAnneLemen,theownerofanestablishmentcalledthe “Island Cottage,” which was located across an alley from the Village Inn. Lemen was a vocal critic of the Village Inn, who frequently complained to authorities about the Village Inn, alleging excessive noise and citing the behavior of inebriated customers leaving the bar. Id. Lemen videotaped matters

relating to the Village Inn approximately fifty times, either from her own property or from her Volkswagen bus parked across from the Village Inn. Id. As recounted by the court, there was evidence that Lemen's actions were often more intrusive. Id Customers often asked Lemen not to videotape them. Id. She sometimes followed customers to their cars. Id. She took flash photographs through the windows of the Village Inn. She called customers “drunks” and “whores.” Id. She told customers entering the Village Inn, “I don't know why you would be going in there. The food is shitty.” Id. She approached potential customers outside the Village Inn more than one hundred times, causing many to turn away. Id In one instance she allegedly stopped her Volkswagen bus in frontoftheVillageInnandsoundedherhornforfiveseconds. Id. Lemen also had numerous unpleasant encounters with Inn employees, telling them such things as that they “worked for Satan” or would “have Satan's children.” Id. Lemen also made claims that were more pointedly false, and defamatory. She made claims that there was child pornography and prostitution going on in the Village Inn, and that the Village Inn was selling drugs and was selling alcohol to minors. Id. She said that sex videos were being filmed inside the Village Inn, that it was involved with the Mafia, that it encouraged lesbian activity, and that the Village Inn stayed open until 6:00 a.m. Id. There was evidence that sales at the Village Inn dropped as much as twenty percent from such activity. Id.

*11 The Village Inn sued Lemen for defamation, nuisance, and interference with business, and sought injunctive relief. Following a trial, the trial court issued a permanent injunction against Lemen. The injunction barred Lemen from engaging in many of the activities complained of, including the making of a number of specific defamatory statements. Balboa, 57 Cal.Rptr.3d 320, 156 P.3d at 342 The California Supreme Court held that the injunction was overly broad, but that, with narrowing, it was permissible both as a matter of California state law and as a matter of First Amendment prior restraint doctrine, holding that “an injunction issued following a trial that determined that the defendant defamed the plaintiff that does no more than prohibit the defendant from repeating the defamation, is not a prior restraint and does not offend the First Amendment.” Id. at 343.

The Balboa decision is also important because the court traced the history of prior restraint law from Blackstone throughthepassageoftheFirstAmendmenttomoderntimes. The Balboa Court heavily emphasized that the history and policy underlying the prohibition against prior restraint was aimed principally at preventing speech from being published,

not at remedies to redress wrongs for speech after it had been published. In turn, prior restraint law evolved to bar injunctions against the publication of speech on the ground that the speech, if published, would be defamatory. The court thus observed that the “prohibition against prior restraints of the press led to the rule that the publication of a writing could not be prevented on the grounds that it allegedly would be libelous.” Id. at 344. In 1839, the court observed, the New York Court of Chancery refused to prevent the publication of a pamphlet that allegedly would have defamed the plaintiff, holding that the publication of a libel could not be enjoined “without infringing upon the liberty of the press, and attempting to exercise a power of preventative justice which ... cannot safely be entrusted to any tribunal consistently with the principles of a free government.” Id. (citing Brandreth v. Lance, 8 Paige Ch. 24, 26, 4 N.Y. Ch. Ann. 330, 1839 WL 3231 (N.Y.Ch.1839)). Importantly, the central theory of the California Supreme Court in Balboa was that there is a fundamental equitable and constitutional dividethatdistinguishespreventingapersonfromspeakingor publishing something that, allegedly, would constitute a libel ifspokenorpublished,andissuing“aposttrialinjunctionafter a statement that already has been uttered has been found to constitute defamation.” Id. at 344–45 (“Prohibiting a person from making a statement or publishing a writing before that statement is spoken or the writing is published is far different from prohibiting a defendant from repeating a statement or republishing a writing that has been determined at trial to be defamatory and, thus, unlawful. This distinction is hardly novel.”).

*12 Furthermore,the Balboa Courtmarshaledanimpressive list of examples of judicial decisions, from an array of state and federal courts, in which injunctions against defamatory speech had been upheld following a trial and an adjudication ofliability.BeginningwithEnglishprecedent,thecourtnoted that, in Saxby v. Easterbrook and Hannaford, 1877 WL 17383, (1877–78), L.R. 3 C.P .D. 339 (U.K.C.P.1878), Lord Coleridge, writing for the English Court of Common Pleas, stated: “I can well understand a court of Equity declining to interfere to restrain the publication of that which has not been found by a jury to be libelous. Here, however, the jury have found the matter complained of to be libelous” Balboa, 57 Cal.Rptr.3d 320, 156 P.3d at 345(quoting Saxby ). A similar conclusion was reached in a nineteenth century American case from Missouri, with the court concluding that “[a]fter verdict in favor of the plaintiffs, they can have an injunction to restrain any further publication of that which the jury has found to be an actionable libel or slander.” Id. (citing Flint v.

Hutchinson Smoke–Burner Co., 110 Mo. 492, 19 S.W. 804, 806 (1892)). The Balboa Court also noted the great American legal scholar Roscoe Pound's Harvard Law Review article, which was published in 1916, stating that English courts would allow “an injunction in case the libel was repeated or publication was continued after a jury had found the matter libelous .” Id. (citing Roscoe Pound, Equitable Relief Against Defamation and Injuries to Personality, 29 Harv. L.Rev. 640, 665 (1916)).

After canvassing many United States Supreme Court decisions involving prior restraints outside the context of defamation, the California Supreme Court drew the conclusion that the United States Supreme Court had frequently held that an “injunctive order prohibiting the repetition of expression that had been judicially determined to be unlawful did not constitute a prohibited prior restraint of speech.” Balboa, 57 Cal.Rptr.3d 320, 156 P.3d at 347 (citing Kramer v. Thompson, 947 F.2d 666, 675 (3d Cir.1991) (“The United States Supreme Court has held repeatedly that an injunction against speech generally will not be considered anunconstitutionalpriorrestraintifitisissuedafterajuryhas determinedthatthespeechisnotconstitutionallyprotected.”); DVD Copy Control Ass'n, Inc. v. Bunner, 31 Cal.4th 864, 891–892, 4 Cal.Rptr.3d 69, 75 P.3d 1 (2003), as modified, (Oct. 15, 2003) (“a preliminary injunction poses a danger that permanent injunctive relief does not; that potentially protected speech will be enjoined prior to an adjudication on the merits of the speaker's or publisher's First Amendment claims”) (Moreno, J., concurring)). In addition to Kramer and Bunner, the Balboa Court noted that the Ohio Supreme Court has upheld a complaint that sought injunctive relief to prohibit the defendant from repeating statements after those statements were proven at trial to be defamatory. Id. at 347–48 (citing O'Brien v. University Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753, 755 (Ohio 1975)). Likewise, in Retail Credit Company v. Russell, 234 Ga. 765, 218S.E.2d54(Ga.1975),theGeorgiaSupremeCourtrejected aclaimthataninjunctionconstitutesanunconstitutionalprior restraint on expression, stating:

*13 The jury verdict necessarily found the statements of Retail Credit to have been false and defamatory, and the evidence authorized a conclusion that the libel had been repetitive.... Thus, prior to the issuance of the injunction “an adequate determination [was made] that it is unprotected by the First Amendment;” the “order is based on a continuing course of repetitive conduct;” and “the order is clear and sweeps no more broadly than necessary.” ... The protections recognized in Pittsburgh

Press have been accorded Retail Credit and this injunction is not subject to the complaints made of it.

Retail Credit Company, 234 Ga. 765, 218 S.E.2d 54, 62–63 (quoting Pittsburgh Press Co. v. Pittsburgh Com'n on Human Relations, 413 U.S. 376, 390, 93 S.Ct. 2553, 2561, 37 L.Ed.2d 669 (1973)). The Georgia court added: “The present order does not endanger arguably protected speech. Becausetheorderisbasedonacontinuingcourseofrepetitive conduct, this is not a case in which the court is asked to speculate as to the effect of publication.” Id. at 62; accord Advanced Training Systems, Inc. v. Caswell Equipment Co., Inc., 352 N.W.2d 1 (Minn.1984) (“[C]ourts have ... upheld the suppression of libel, so long as the suppression is limited to the precise statements found libelous after a full and fair adversary proceeding.... We therefore hold that the injunction below, limited as it is to material found either libelous or disparaging after a full jury trial, is not unconstitutional and may stand.”) (citations omitted); Sid Dillon Chevrolet–Oldsmobile–Pontiac, Inc. v. Sullivan, 251 Neb. 722, 559 N.W.2d 740, 747 (Neb.1997) (recognizing that the “general rule” that “equity will not enjoin a libel or slander” does not necessarily apply to an injunction prohibiting speech that is issued following a trial at which the statements have been found to be unlawful); Nolan v. Campbell, 13 Neb.App. 212, 690 N.W.2d 638, 652 (Neb.2004) (“Here, the restraint via the injunction is permissible because the speech had been adjudicated to be libelous and therefore not to be protected under the First Amendment. Therefore, the trial court did not err in issuing an injunction.”).

The California Supreme Court in Balboa also pointed to two contemporary decisions by federal courts of appeal to further buttress its argument. In Auburn Police Union v. Carpenter, 8 F.3d 886 (1 st Cir.1993), the United States Court of Appeals for the First Circuit upheld an injunction under a Maine law that prohibited solicitations for the benefit of a law enforcement officer, agency, or association, holding that the law has never been that all injunctions are impermissible, and that “[a]n injunction that is narrowly tailored, based upon a continuing course of repetitive speech, and granted only after a final adjudication on the merits that the speech is unprotected does not constitute an unlawful prior restraint.” Id. at 903. The Balboa Court also cited the Sixth Circuit's opinion in Lothschuetz v. Carpenter, 896 F.2d 1200 (6th Cir.1990)

*14 The plaintiffs in Lothschuetz brought a libel claim against the defendants and obtained a default judgment on the liability issue. Id. at 1203. The trial court awarded

nominal damages, but rejected the plaintiffs' request for an injunction, reasoning that it would be an “unwarranted prior restraint on freedom of speech.” Id. at 1206. On appeal to the Sixth Circuit, the plaintiffs, relying on First Amendment grounds, argued that the district court should have granted injunctive relief. Id. The appellate court agreed and reversed and remanded the case to the district court to enter an injunction prohibiting the defendants from “continuing and reiterating the same libelous and defamatory charges.” Id. at 1208–09 (Wellford, J., for the court,concurringinpart,dissentinginpart).TheSixthCircuit reasonedthat“aninjunction[was]necessarytopreventfuture injury to [the plaintiffs'] personal reputation and business relations” given the defendants' “frequent and continuing defamatory statements.” Id. However, the appellate court limited the injunction to “statements ... found in this and prior proceedings to be false and libelous.” Id. Accordingly, the Sixth Circuit reversed and remanded to the district court to enter a “narrow and limited injunction” prohibiting the defendants“fromcontinuingandreiteratingthesamelibelous and defamatory charges.” Id.

Although the Lothschuetz case was brought as a libel action, it is important to note that the libel was found by default. The majority of cases in which the court's have held that injunctions against defamatory statements were not prior restraints have been decided after an adjudicatory hearing where the court has determined, by a preponderance of the evidence, that the enjoined speech is, in fact, defamatory. As noted above, that is not the case in the instant appeal. This matter was not brought as a defamation action, and there was no hearing specifically regarding that issue. Nonetheless, in the course of the conservatorship proceedings, the trial court specifically determined that the enjoined statements were, in fact, defamatory, and we conclude that the preponderance of the evidence supports this finding. The Lothschuetz Court determined that, “[a] default judgment in a libel case ‘is only conclusive as to liability and does not constitute an admission as to damages.’ “ Lothschuetz, 898 F.2d at 1205 (quoting Meehan v. Snow, 494 F.Supp. 690, 698 (S.D.N.Y.1980), rev'd on other grounds, 652 F.2d 274 (2d Cir.1981)). As discussed in Lawrence A. Pivnick, Tennessee Circuit Court Practice, § 27.2 (2012):

Judgment by default (previously called judgment pro confesso ) [, which is governed by Tennessee Rule of Civil Procedure 55.01,] is an expediting procedure which acts as a deterrent to defending parties resorting to delay as an element of their litigation strategy. Generally, a default judgment is sought by a party seeking “affirmative relief”

when his adversary fails to properly and timely respond to an initial pleading....

*15 Generally, the entry of a default judgment has the effect of an answer admitting the well-pleaded material allegationsoffactcontainedintheadversary'spleadingand fair inferences therefrom....

Id. (footnotes omitted). Although a judgment by default is considered a final order disposing of a case on its merits, see, e .g., Patterson v. Rockwell Int'l, 665 S.W.2d 96, 101 (Tenn.1984), this is only because a default judgment is generally considered an admission of all the properly pleaded material allegations of fact in the complaint (except the amount of unliquidated damages). Id. However, a default judgment is not a disposition of the case in the traditional sense of adducing facts at a hearing, weighing those facts, and adjudicating the case on the evidence. In this regard, it has often been said that “dismissals based on procedural grounds like failure to prosecute and default judgments run counter to the judicial system's general objective of disposing of cases on the merits.” Henry v. Goins, 104 S.W.3d 475, 481 (Tenn.2003) (citing Childress v. Bennett, 816 S.W.2d 314, 316 (Tenn.1991) (“[I]t is the general rule that courts are reluctant to give effect to rules of procedure ... which prevent alitigantfromhavingaclaimadjudicateduponitsmerits[.]”); Tenn. Dept. of Human Servs. v. Barbee, 689 S.W.2d 863, 866 (Tenn.1985) (noting that the “interests of justice are best served by a trial on the merits”)). Because the speech in Lothschuetz was libelous only by virtue of default, and not as a result of the trial court's adjudication on the evidence adduced at a hearing, we conclude that Lothschuetz provides authority that, in some cases, a full, adjudicatory hearing is not required in order for a court to determine that the enjoined speech is, in fact, defamatory. However, there must be a finding that the speech is false, and that finding must be supported by a preponderance of the evidence in the record (again,ouranalysisdoesnotextendtodefamationconcerning public persons). That is the case here. Although the question of whether the speech was defamatory was not specifically litigated, the trial court nonetheless found that it was. From our review of the record, the preponderance of the evidence supports this finding, see discussion supra. Based upon the cases and authority discussed herein, the gravamen of these cases appears to be enjoining the further dissemination and repetition of false and harmful statements. As noted by the Balboa Court, “following a trial at which it is determined that the defendant defamed the plaintiff, the court may issue an injunction prohibiting the defendant from repeating the statements determined to be defamatory.” Balboa, 57

Cal.Rptr.3d 320, 156 P.3d at 360 (citing Aguilar v. Avis Rent A Car System, Inc., 980 P.2d 846, 21 Cal.4th 121, 140, 87 Cal.Rptr.2d 132 (1999) (“[O]nce a court has found that a specific pattern of speech is unlawful, an injunctive order prohibiting the repetition, perpetuation, or continuation of that practice is not a prohibited ‘prior restraint’ of speech.”)). Importantly, in reaching this ruling, the Balboa Court also dismissed the aphorism that “equity will not enjoin a libel,” holdingthattheasserted“rule”thatcivildamagesaretheonly remedy for defamation was not an accurate description of the history of common-law and not sound as a matter of policy. Id. at 362. Rather, the court reasoned that what mattered was that courts maintain the distinction between “requests for preventive relief prior to trial and post-trial remedies to prevent repetition of statements judicially determined to be defamatory.” Id. at 350. To accept the argument that the sole remedy for defamation is an action for damages, the court reasoned, “would mean that a defendant harmed by a continuing pattern of defamation would be required to bring a successionoflawsuitsifanawardofdamageswasinsufficient todeterthedefendantfromcontinuingthetortuousbehavior.” Id. at 351.

*16 The California Supreme Court did hold that the injunction as initially crafted by the trial court was overly broad. It applied not just to Lemen, but also to her agents and othersactingonherbehalf,typicalboilerplateforinjunctions, despiteanyevidencethatshehadanysuchcohortsinvolvedin the defamatory activity. The court thus limited the injunction to Lemen alone. The court also narrowed the reach of the injunction by holding that it could not be crafted to preventLemenfrompresentinghergrievancestogovernment officials. In addition, the court held that the restriction on all contact with the employees of the Village Inn was too broad, because it included no time, place or manner limitations to constrain it. As to the possibility that changes in circumstances might render permissible a statement that was defamatory, because a statement once false may become true later in time, the court held that upon notice and motion the trial court could always dissolve or modify the injunction. Id. at 353. The same is true here. As set out above, the injunction in this case does not limit Mother's ability to return to the court to seek a modification or dissolution of the injunction if she later suspects that the circumstances have changed such that Joseph is somehow abusing Son. The injunction merely enjoins Mother from making these allegations publicly, and from discussing such allegations with the Son directly.

Five Justices on the California Supreme Court joined the majority opinion in Balboa. Two Justices dissenting from the court's core holding were Justice Kennard and Justice Werdegar. Justice Kennard wrote a concurring and dissenting opinion, arguing that the sole remedy for defamation should be money damages, and that the injunction was an unconstitutional prior restraint. Balboa, 980 P.2d at 355 (Kennard, J., concurring and dissenting). The flaw of the majority opinion, Justice Kennard argued, was its “failure to appreciate that whether a statement is defamatory cannot be determined by viewing the statement in isolation from the context in which it is made, the facts to which it refers, and the precise wording used.” Id. at 356 (Kennard, J., concurring anddissenting).JusticeKennardthusarguedthata“statement previously adjudged to be defamatory, and thus not protected by the First Amendment, may, when spoken in the future at a particular time and in a particular context, not be defamatory for a number of reasons, and thus be entitled to constitutional protection.” Id.

Similarly, Justice Werdegar argued that “[u]nlike in Aguilar, where we were called on to balance countervailing constitutional concerns with the demands of the First Amendment free speech guarantee, the present case involves a garden-variety defamation under state law.” Balboa, 980 P.2d at 360 (Werdegar, J., concurring and dissenting). Finding the interests favoring the injunction insufficient to outweigh the powerful line of cases articulating the heavy presumption against prior restraints, Justice Werdegar, like Justice Kennard, would have found the injunction a violation of the First Amendment. Id.

*17 We have spent a substantial portion of our analysis on Balboa not only because it is informative regarding the history of this area of the law, but also because it has provided authority for other court's to adopt a more modern rule concerning injunctions against defamatory speech. For example, in Hill v. Petrotech Resources Corp., 325 S.W.3d 302 (Ky.2010), the respondents sued Hill for defamation, and filed a motion for a temporary injunction to prohibit Hill from making further defamatory statements about them. The trial court enjoined Hill from contacting any of the respondents' customers for the purpose of defaming the respondents and from publishing or making any defamatory publiccommentsabouttherespondents'businesspractices.In determining whether the temporary injunction violated Hill's First Amendment rights, the Kentucky Supreme Court stated that, because the injunction prohibited Hill from making future statements about the respondents, the injunction was a

prior restraint and, therefore, it presumed that the injunction was invalid. Id. at 306. Citing Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), and several federal circuit cases, the court noted the general rule that equity will not enjoin a libel. Id. It also noted that, despite an emerging trend toward permitting injunctions upon an adjudication that the alleged defamatory speech was false, there “remain staunch advocates of the traditional rule that a prior restraint on speech is unacceptable under any circumstances. As noted by the Hill Court, this position, along with supporting authorities, is defended by prominent constitutional law professor Erwin Chemerinsky in his law review article, Injunctions in Defamation Cases, 57 Syracuse L.Rev. 157 (2007).” Id. The Kentucky Supreme Court explained Professor Chemerinsky's position:

Defenders of the traditional rule argue that we should not disturb the maxim that equity will not enjoin defamation, andthatinjunctionsshouldneverbeallowedasaremedyin defamation cases. Professor Chemerinsky argues that even after a judicial determination that the speech at issue is false, “[t]he injunction means that a person can only speak by going before the judge and getting permission. That is the very essence of a prior restraint.” [Chemerinsky, 57 Syracuse L.Rev.] at 163. He advocates that “[i]f history matters in interpreting the First Amendment, it could not be clearer: injunctions were not allowed as a remedy in defamation actions.” Id. at 168. In his view, it is always the case that “damages, not injunctions, are the appropriate remedyinadefamationaction,” id. at169,“eveninthecase of the “judgment proof defendant[.]” Id. at 170. Under the traditional rule, it is of no concern that the defendant may not be able to pay the damage award because “[c]ourts ... do not find that damages remedies are inadequate simply because the plaintiff cannot afford to pay them.” Id.

*18 Id. at 306–307. However, according to the Kentucky Supreme Court, the traditional view is flawed because its rationale“isseverelyundercutbythecountervailingviewthat defamatory speech is unguarded by the Constitution.” Id. at 307. It explained:

Application of the rules relating to unprotected speech would compel the conclusion that the First Amendment is not even implicated in the case of false, defamatory speech, and therefore the Constitution poses no bar to any injunction restraining such speech.

“From 1791 to the present,” the First Amendment has “permitted restrictions upon the content of speech in a

few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” R.A. V. v. St. Paul, 505 U.S. 377, 382–383, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). These “historic and traditional categories long familiar to the bar,” Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 127, 112 S.Ct.501,116L.Ed.2d476(1991)(Kennedy,J.,concurring in judgment), include obscenity, Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); defamation, Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919 (1952); fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976); incitement, Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam ); and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834 (1949). These are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571–572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); U.S. v. Stevens, 559 U.S. 460, 130 S.Ct. 1577, 1584, 176 L.Ed.2d 435 (2010).

Defamation's place on the list of unprotected speech is secure. As straightforwardly stated in Beauharnais almost sixty years ago, “[l]ibelous utterances [are not] within the area of constitutionally protected speech.” Beauharnais, 343 U.S. at 267, 72 S.Ct. 725, 96 L.Ed. 919

Hill, 325 S.W.3d at 307. Nonetheless, the Kentucky Supreme Court agreed that “[w]hat is or is not defamatory expression cannot often be summarily ascertained. A rush to enjoin distasteful, annoying, unpopular, or even damaging speech would often result in the suppression of truthful, legitimate discourse.” Id. Thus, the Kentucky Supreme Court found “it appropriate to consider a more modern and moderate analysis that recognizes the need to minimize the damage of unprotected, defamatory speech in a way that preserves the important constitutional values of free speech and due process.” Id.

The Kentucky Supreme Court stated that the recognition that defamatory speech is not protected by the First Amendment has led to the development of “a modern, superseding rule” that,onceatrialcourtorajuryhasmadeafinaldetermination that speech is defamatory, the speech determined to be false may be enjoined. Id . at 308. It noted that the rule has been stated in 42 Am Jur 2d, Injunctions, § 97, as the following:

*19 [T]he prohibition [against enjoining defamation] is not absolute, as there are exceptional cases in which a prior restraint is acceptable. For instance, an injunction would issue to prohibit a defendant from reiterating statements which had been found in current and prior proceedings to be false and libelous to prevent future injury to the libel plaintiff's personal reputation and business relations. An injunction restraining the publication of matter defaming a plaintiff personally [is] proper where there [is] no adequate remedy at law because of the recurrent nature of the defendant's invasions of the plaintiffs [sic] rights, the need for a multiplicity of actions to assert the plaintiffs [sic] rights, the imminent threat of continued emotional and physical trauma, and the difficulty of evaluating the injuries in monetary terms.

Hill, 325 S.W.3d at 307. The Kentucky Supreme Court adoptedthemodernrule,holdingthatdefamatoryspeechmay be enjoined only after a final determination that the speech at issue is false and, upon the condition that the injunction be narrowly tailored to limit the prohibited speech to that which has been determined to be false. Id. It set aside the injunction that the trial court had granted the respondents because there had not yet been an adjudication that the alleged defamatory statements were, in fact, false. Id.

Numerous other courts, both federal and state, have held that a trial court may enjoin a defendant from making defamatory statements after there has been a determination that the speech is, in fact, false. See, e.g., Lothschuetz, 898 F.2d at 1208–1209; Balboa, 57 Cal.Rptr.3d 320, 156 P.3d at 348–49; Caswell Equip. Co., Inc., 352 N.W.2d at 11; Sid Dillon Chevrolet–Oldsmobile–Pontiac, 559N.W.2dat733; O'Brien, 327 N.E.2d at 755; Kramer, 947 F.2d at 676–677. Several of these cases rely upon the United States Supreme Court's decision in Pittsburgh Press Co. v. Pittsburgh Comm. on Human Relations, 413 U.S. 376, 390, 93 S.Ct. 2553, 37

L.Ed.2d 669 (1973). In Pittsburgh Press, the Supreme Court, after noting that it has never held that all injunctions on expression are impermissible, stated that “[t]he special vice of a prior restraint is that communication will be suppressed, eitherdirectlyorbyinducingexcessivecautioninthespeaker, before an adequate determination that it is unprotected by the First Amendment.” In his article, Professor Chemerinsky discusses similar problems associated with an injunction limited to statements that have been determined to be false:

An injunction that is limited to preventing repetition of the specific statements already found to be defamatory is useless because a defendant can avoid its restrictions by making the same point using different words without violating the court's order.

Moreover, even if the injunction is limited to particular statements already found false, defamatory, and uttered with the requisite mental state, a prospective prohibition on the same statements cannot guarantee satisfaction of the elements of defamation at every point in the future. A statement that was once false may become true later in time. Likewise, even if a defendant in a defamation action once acted with the requisite degree of culpability, he or she may have a different mental state later. Defamatory statements about public figures are outside the scope of the First Amendment only when the plaintiff can “prove both that the statement was false and that the statement was made with the requisite level of culpability.” Permitting permanent injunctive relief in a defamation case absolves the defamation plaintiff of his or her burden to demonstrate falsity and culpability each time a purportedly defamatory statement is made. Thus, unlike injunctions on particular obscene motion pictures, enjoining defamatory speech will inherently reach too far and be overbroad because “[i]t is alwaysdifficulttoknowinadvancewhatanindividualwill say,andthelinebetweenlegitimateandillegitimatespeech is often so finely drawn that the risks of freewheeling censorship are formidable.”

*20 Chemerinsky, Injunctions in Defamation Cases, 57 Syracuse L.Rev. at 171–172 (internal citations omitted).

[2] Despite these concerns, based upon the foregoing discussion and supporting authority, we adopt the “modern rule” and hold that defamatory speech may be enjoined after a determination that the speech is, in fact, false. We are persuaded by the argument that, because defamatory speech is not protected by the First Amendment, such an injunction does not violate the amendment's guarantee of free

speech. Furthermore, based upon the leeway allowed under the Lothschuetz case, and as discussed in detail above, we conclude that the finding that the enjoined speech is false does not, necessarily, have to be made after a full evidentiary hearing specifically in a defamation lawsuit. However, the trial court issuing the injunction must, nonetheless, make a finding that the enjoined speech is defamatory, which finding must be supported by a preponderance of the evidence. Once the speech is found to be false, the question becomes whether the injunction is sufficiently narrow to survive strict scrutiny.

Turning to our record, the question is whether the trial court's injunction against Mother's questioning the Ward, or raising any further accusations of sexual abuse of the Ward, is sufficiently narrow to survive strict scrutiny. In the first instance, Mother's argument on this issue is based upon a misapprehension, and an overly broad reading of the trial court's order. In her brief, Mother states that the injunction “forbids [her] from asking or even ‘communicating with and engaging in a dialog with’ her [S]on about sexual abuse forevermore in the future.” (quoting the trial court's June 24, 2013 order). Implicitly, she contends that the court's order prohibits her from engaging in any dialogue with Son or any otherpersonregardinganytypeofabuse,ormistreatmentthat may be perpetrated upon Son by anyone. We read the court's order more narrowly. A trial court speaks through its orders.

Palmer v. Palmer, 562 S.W.2d 833, 837 (Tenn.Ct.App.1997) Here, as set out above, the court ruled that Mother would be restrained and enjoined “from claiming that her oldest son...isguiltyofanycriminalconduct....”(Emphasisadded). Additionally, the court restrained and enjoined Mother “from questioning,interrogating,communicatingwithandengaging in dialog with [Son] regarding her insinuation that he has somehow been physically probed or someone has carnal knowledgeofhimspecificallyhis[brother].”Asnotedabove, the trial court's June 24, 2013 order also incorporates, by reference, its comments from the bench during the May 28, 2013 hearing. In relevant part, the court stated:

has never occurred because that's what we've got here.

*21 (Emphasis added).

Based upon the statements from the trial court and the plain language employed in its order, we conclude that the injunction is narrow, and applies only to forbid Mother from making further claims against her oldest child, Joseph, concerning sexual abuse against Son. She is further enjoined from questioning Son about such sexual abuse at the hands of his brother. As discussed above, we do not read the injunction to go so far as to prevent Mother from seeking dissolution or modification of the injunction in the future through proper motion in the trial court. Furthermore, the injunction does not enjoin Mother from speaking with Son, or from speaking out if she thinks that he is somehow in danger, or in an abusive relationship. But, it does prevent her from making these allegations publically against the oldest son, Joseph.

At the May 28, 2013 hearing, the trial court specifically stated:

There has never been a single moment throughout this entire trial when [Mother] has ever presented one scintilla, not even a grain, not even an atom, not even a neutron of evidence that would suggest to any reasonabl[y] informed adult person whether they were a judge, a lawyer or an objective layperson that would sustain the very cruel, vicious, visceral, acidic, butchering, marauding allegations of [sexual abuse against Son] that she has heapedupon[heroldestchild,Joseph].

[I]s it in [Son's] manifest best interest to be in an unsupervised relationship with someone who is so vested in a lie, so vested in a falsehood, so vested in perpetuating a fraud upon the public about her oldest child and is so— so enamored with the concept that I can keep him protected by accusing my other child of wrongdoing, that

After a thorough review of the record, we agree with the trial court. The record indicates that, during the time this case was pending before the trial court, Mother contacted authorities close to twenty times to allege that her oldest son, Joseph, had perpetrated sexual abuse on Son. These allegations were made to authorities both in Nashville, and in Michigan. Despite the myriad allegations, after investigation, none were ever substantiated. Officer Brandon Paris, a

Michigan Police Officer, was deposed and his deposition was admitted at trial. Therein, he testified that “the nature of the call was unfounded.” In addition, Corporal Isaac Wood, with the Metropolitan Nashville Police Department, testified concerning Mother's allegations of abuse that were made in Nashville. His report, admitted as Trial Exhibit 5, does not support Mother's allegations. Officer Wood gave no testimony to suggest that Son was being abused or that the Nashville Police Department had need to investigate the allegations further.

Sylvia Pendleton, a case worker with the Michigan Adult Protective Services, testified that Mother had made approximately eighteen complaints against her oldest son. Ms. Pendleton testified that, after numerous home visits, none of the complaints were “founded, proven, or sustained.” In fact, Ms. Pendleton stated that, because there was no indication whatsoever of abuse against Son, Mother's claims were eventually denied by her department. In addition, the guardian ad litem conductedseveralinterviewswiththeWard and the family, and determined that there was no evidence of any abuse against Son.

*22 Finally, both Joseph Turner and Father testified that Joseph, who lives in his own home with his girlfriend, had not been alone with Son on any of the occasions that Mother alleged he had sexually abused his brother. In its ruling from the bench on May 28, 2013, the trial court specifically found “that there's clear and convincing evidence that [Joseph] has never been alone with his brother from the date of his testimony, which he testified to, until the present. Such that no allegations could have reasonably-no such conduct could have been engaged in.”

Despite the fact that all of Mother's allegations of sexual abuse against her oldest son have gone unfounded, Mother has continued to perpetuate these accusations. As stated by the trial court in its May 28, 2013 ruling from the bench:

And I think it's the most disingenuous representation that I have ever had presented to me by a mother of a child ... [t]o think that you can constantly and continuously over the span of at least nine times in the last nine months, and apparently many more before ... claim that your oldest son has raped your youngest child....

claims against her oldest son in a ploy to take the conservatorship away from [F]ather? That concerns me a great deal.

But is it in [Son's] manifest best interest to be in an unsupervised relationship with someone who is so vested in a lie, so vested in a falsehood, so vested in perpetuating a fraud upon the public about her oldest child and is so— enamored with the concept that I can keep [Son] protected by accusing my other child of a wrongdoing that has never occurred because that's what we've got here.

We agree with the trial court that the problem is not only Mother's continued insistence that abuse occurred without evidence to support that allegation, but also that Mother's baseless accusations center around her oldest son. In clinging to her unfounded accusation that Joseph is abusing his brother, Mother has affected the relationship between the two brothers, who had been very close. Indeed, the evidence shows that Older Son has made a concerted effort to avoid interaction with Son, in order to stymy Mother's continuing accusations. In addition, Father testified that Mother's continual questioning of Son regarding her allegations greatly upset Son:

[Mother] gets [Son] upset. And he will ... scream no, no, no and sometimes he will just hang up the phone when he's talking to her and he will get really upset.

Are we going to be back here again six months from now after she's filed six more baseless, meritless, defamatory

[3] This case is highly unique in that Mother has continued to levy meritless attacks against Older Son despite the fact that the court has previously found all her allegations to be “unsustainable,” and despite the fact that every allegation has been determined to be unfounded even after numerous investigations by various authorities. From the record, it appears that Mother's resolve to perpetuate these allegations against Older Son, even to the detriment of the Ward, is so fervent that the trial court was forced to take the drastic step of enjoining her from raising another allegation of sexual abuse of the Ward by Older Son. Given the particular circumstances of this case, we cannot conclude that the trial court's injunction was too broad to survive strict scrutiny. Had the trial court enjoined Mother, as she argues, from

ever speaking out about any abuse against the Ward by any person, we could possibly conclude that such ruling would be an unconstitutional prior restraint. However, because, as discussed above, the injunction is narrowly drawn to include only allegations against Older Son, and because of the shear number of unfounded allegations Mother has made against him,weconcludethatthetrialcourthadnolessdrasticoption but to hold that she be enjoined from making any future allegations of sexual abuse against the Ward by his brother.

Modification of Conservatorship Order

*23 By order of October 29, 2012, the court granted Mother “no more than four hours of visitation with [Son] once per month,” and further held that this visitation would be “supervised by an adult approved by [Father].” The instant appeal arises from Mother's attempt to modify the conservatorship by two motions. First, Mother's December 14, 2012 motion for restoration of visitation/parenting time, seeking to reinstate unsupervised visits with Son, and her January 14, 2013 motion for emergency relief, wherein she asserted that Father should be removed as Son's conservator based upon her allegations that Son was being sexually abused by Joseph while in Father's custody.

Because Mother seeks to modify an existing order governing the conservatorship of Son, the issues are governed by Tennessee Code Annotated Section 34–4–108, which states, in relevant part:

(a) A conservator appointed under this chapter may be discharged or have its duties modified if the court determines that the respondent is no longer a person with a disability, or that it is in the best interests of the person with a disability that the conservatorship be terminated, or that the conservator has failed to perform its duties and obligations in accordance with the law, or that the conservator has failed to act in the best interest of the person with a disability so as to warrant modification or termination. The person with a disability or any interested person on the behalf of the person with a disability may petition the court at any time for a termination or modification order under this section.

(d) Upon conclusion of the hearing, the court shall enter an order setting forth the court's findings of fact and may do any of the following:

(1) Dismiss the petition;

(2)Removetheconservatoranddissolvetheoriginalorder;

(3) Remove the conservator and appoint a successor;

(4) Modify the original order; or

(5) Grant any other relief the court considers appropriate and in the best interest of the person with a disability.

According to the foregoing statute, in its order on modification of an existing conservatorship order, the trial court must do two things. First, the statute clearly indicates that the best interest of the ward is the paramount inquiry in any decision to modify an existing conservatorship order. Accordingly, the court's order must indicate that the deciding court has considered the ward's best interest. 1 Second, Tennessee Code Annotated Section34–4–108(d) mandates that the court's order “shall ... [set] forth the court's findings of fact.” In its June 24, 2013 order, the trial court states at the beginning of its ruling that “[t]he central issue in this case in regards to all issues currently outstanding by and between the parties is what is in the manifest best interest of the Ward.” This statement is clearly in compliance with Tennessee Code Annotated Section 34–4–108(a). Moreover, as set out in context above, the trial court made detailed findings of fact in this case. Consequently, we conclude that the court's order is in compliance with the threshold requirements of Tennessee Code Annotated Section 34–4–108. Accordingly, the question presented is whether the court's findings are supported by the evidence.

(c) The court, upon receipt of the petition filed under this section, shall conduct a hearing....

1 The best interest inquiry is most often seen in cases involving child custody issues. In those cases, the Legislature has given the court specific statutory factors to consider in making its best interest analysis. See, e.g., Tenn.Code Ann. § 36–6–106(a) (listing best interest factors applicable to initial custody determinations), Tenn.Code Ann. § 36–6–404(b) (listing best interest factors applicable to fashioning a residential schedule); Tenn.Code Ann. § 36–1–113(I) (outlining best interestfactorsapplicabletoterminationofparental rights cases). As discussed, infra, the Legislature

has not included specific best interest factors in the conservatorship statutes.

*24 [4] The majority of conservatorship cases in Tennessee address questions concerning the appointment or the termination of the conservatorship. Our research has revealed no cases that discuss the appropriate standard of review applicable to cases, such as the one at bar, dealing with modification of conservatorship orders. However, we find guidance in the case of In re Maxwell, No. M2002–01654–COA–R3–CV, 2003 WL 22209378 (Tenn.Ct.App. Sept.25, 2003), where this Court held that the applicable standard of review for termination of a conservatorship is a preponderance of the evidence:

Tenn.Code Ann. § 34–3–108(a), which deals with the discharge of a conservator, is silent as to the standard of proof required for such proceedings. We must presume this silence is purposeful and, consequently, the preponderance of the evidence standard generally applicable to civil cases also applies to termination of conservatorship proceedings. The difference in the applicable burdens can be explained by the nature of a conservatorship. A heightened standard is appropriate for the creation of a conservatorship because such a decision necessarily means a limitation on the ward's freedom of choice and a retraction of some basic rights from the ward. Such is not the case when the question under review is the termination of the conservatorship. The Legislature declined to declare the clear and convincing standard applicable to proceedings for the discharge of a conservator, and we also decline to do so. We note that a number of states employdifferentstandardsforcreating and terminating a conservatorship and that the preponderance of the evidence standard is commonly used to decide

whether a conservatorship should be terminated.

Id. at *2 n. 1. Although we find no cases directly addressing the standard required for modification of conservatorship orders, we conclude that the reasoning outlined in In re Maxwell is equally applicable to cases involving not only termination of a conservatorship, but also to cases involving modification of an existing conservatorship order, where the Legislature is also silent as to the applicable standard. As in cases of termination of a conservatorship, decisions concerning modification of a conservator's duties, or the parameters of the conservatorship, do not require the heightened clear and convincing standard that the initial appointment of a conservator requires because the ward, in a modificationaction,isalreadyunderthecourt'scontrol.Once appointed, “[t]he authority, rights and responsibilities of a conservator are not independent of the court.” AmSouth Bank v. Cunningham, 253 S.W.3d 636, 642 (Tenn.Ct.App.2006). “[Conservators] are appointed to act in the best interest[ ] of the disabled adult person for whom they are partially or fully responsible in the discretion of the court.” Id. The conservator must “act as the court's agent” and the court retains authority to discharge or modify the order of conservatorship “if the court determines that the conservator has failed to perform its duties and obligations, or if the court determines the conservator has failed to act in the ward's best interest so as to warrant modification.” Id. at 642–43 (quoting In re Conservatorship of Clayton, 914S.W.2d84,90 (Tenn.Ct.App.1995)). Indeed, “[t]he court itself is ultimately responsible for the disabled persons who come under its care and protection.” Clayton, 914 S.W.2d at 90 (citations omitted).

*25 In conservatorship cases, the Legislature has not outlined specific factors for the trial court to consider in making its best interest analysis, see n. 1. Accordingly, in conservatorship cases, the determination of the ward's best interest must necessarily turn upon the specific facts presented in that particular case. In reviewing the trial court's determination of whether modification of an existing conservatorship order is in the best interest of the ward, this Court will review the factual issues de novo upon the record with a presumption of correctness. Tenn. R.App. P. 13(d) 2 Unless the evidence preponderates against the trial court's findings, we must affirm, absent error of law. Id. In order for the evidence to preponderate against the trial court's findings, it must support another finding of fact with greater

convincing effect. Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn.Ct.App.2000) 3 Furthermore, when the resolution of an issue in a case depends upon the truthfulness of witnesses, the trial judge who has had the opportunity to observe the witnesses and their manner and demeanor while testifying is in a far better position than this Court to decide those issues. See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn.1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn.Ct.App.1997). The weight, faith, and credit to be given to any witness' testimony lies in the first instance with the trier of fact, and the credibility accorded will be given great weight by the appellate court. See id.; see also Walton v. Young, 950 S.W.2d 956, 959 (Tenn.1997). Here the trial court specifically found “that [Mother] has not told the truth and that she conveniently leaves out the truth on a regular basis.” Accordingly, we will give great weight to this finding in our review of the appellate record.

2 There is some authority in Tennessee to indicate that modification of conservatorship decisions should be viewed under an abuse of discretion standard. For example, in the AmSouth v. Cunningham case, this Court noted, in dicta: “Nevertheless,theremovalofaguardianisamatter of discretion, which is not to be disturbed except upon a clear case of abuse of such discretion. Monteverde [v. Christie], 23 Tenn.App. 514, 134 S.W.2d[905,]910[Tenn.Ct.App.1939].Weseeno reason to treat the modification of the authority, power, and duties of a conservator in a different fashion .” AmSouth v. Cunningham, 253 S.W.3d 636, 646 (Tenn.Ct.App.2006) (emphasis added). This Court has indicated that issues of conservatorship are often mixed questions, which require application of more than one standard of review. As noted in In re Conservatorship of Cross, No. W2008–02122–COA–R3–CV, 2009 WL 3230911 (Tenn.Ct.App., Oct.8, 2009):

“[A] petition for the appointment of a conservator requires the lower court to make legal, factual, and discretionary determinations[,]” each of which requires a different standard of review. Crumley v. Perdue, No. 01–A–01–9704–CH00168, 1997

WL 691532, at *2 (Tenn.Ct.App.Nov.7, 1997)

On appeal, a trial court's factual findings are presumed to be correct, and we will not overturn those factual findings unless the evidence preponderates against them. Tenn. R.App. P.

13(d) (2008); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn.2001). For the evidence to preponderate against a trial court's finding of fact, it must support another finding of fact withgreaterconvincingeffect. Watsonv.Watson, 196S.W.3d695,701(Tenn.Ct.App.2005)(citing Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn.Ct.App.2000); The Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn.Ct.App.1999)). We review a trial court's conclusions of law under a de novo standard upon the record with no presumption of correctness. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993) (citing Estate of Adkins v. White Consol. Indus ., Inc., 788S.W.2d 815, 817 (Tenn.Ct.App.1989)).

We review discretionary determinations under an abuse of discretion standard. Crumley, 1997 WL 691532, at *2

Conservatorship of Cross, 2009 WL 3230911, at *2

Thus, the question of modification of a conservatorship order appears to be to be a mixed question, requiring both inquiry into a court's compliance with the statute, which would be viewed under an abuse of discretion standard, and inquiry into whether the evidence in the record preponderates against the court's ultimate determination.

3 From our research, it appears that the majority view is application of the preponderance standard in cases of modification of conservatorship orders. For example, in Texas a trial court may modify a conservatorship order if the modification would be in the ward's best interest and “the circumstances of the [ward], a conservator, or other party affected by the order have materially and substantially changed” since the time of the last order. Tex. Fam.Code§156.101(a)(1)(A).AlthoughTexaslaw differs from Tennessee Code Annotated Section 34–3–108 in that it requires a showing of a change in circumstance, “[t]he party seeking modification [of a Texas conservatorship order] has the burden to establish these elements by a preponderance of theevidence.” Zeifman v. Michels, 212S.W.3d582, 587–88 (Tex.Ct.App.2006); accord In re A.P.M., No. 05–10–00679–CV, 2012 WL 2088007 (Tex. Ct.App. June 11, 2012) (“A trial court may modify conservatorship of a [ward] if the petitioner proves

by a preponderance of the evidence that the modification is in the [ward]'s best interest and the circumstancesofthe[ward],aconservator,orother partyaffectedbytheexistingconservatorshiporder havemateriallyandsubstantiallychangedsincethe rendition of the existing order.”); Conservatorship of Kevin M., 49 Cal.App.4th 79, 56 Cal.Rptr.2d 765 (Cal.Ct.App. Sept.11, 1996) (“During the conservatorship, the conservatee may petition to modify the terms of or end the conservatorship.... At such a hearing, the conservatee bears the burden ofproducingevidenceandproving[hisorhercase] by a preponderance of the evidence.”)(internal citation omitted).

As discussed in detail above, the trial court has held that Mother had failed to prove that any sexual abuse had been perpetrated on Son. Despite the fact that none of Mother's many allegations were substantiated, her steadfast commitment to her unfounded belief that her oldest son is somehow abusing the Ward, aside from being disturbing for the reasons discussed above, has resulted in a deterioration of the relationship between the brothers. Although the evidence indicates that the brothers had been very close, Joseph testifiedthathehadchosentolimithiscontactwithhisbrother because of Mother's continual allegations that he was abusing him. Joseph testified that he made the difficult choice to not have unsupervised contact with his brother simply because he feared that one-on-one contact with Son would result in further allegations from Mother. Father testified that, before Mother began making these allegations, the brothers:

Son has a good relationship with Mother, and that Son clearly loves Mother:

I believe that [Mother] needs to see her son ... [b]ecause [Son] loves his mother. * * *

... I'm just enough of an optimist ... [that I am not] ready to throw her out. Ready to shut her down. I'm going to give her one more chance.

Clearly, the trial court placed Son's best interest at the forefront of its inquiry in reaching its conclusion that the conservatorship order should be modified to give Mother an additional four hours per month of supervised visitation (for a total of eight hours). In this appeal, however, Mother argues that the trial court erred in granting her only eight hours of visitation with the Ward per month. Mother further contends that the court erred in requiring that her visitation to besupervised,andfurthererredinrequiringthathertelephone correspondence be recorded by Father.

... had a great relationship, standard brothers, you know, they would go and do things. Joe might get off work early. He would take [Son][to] Putt–Putt, take him to a movie, take him bowling, just go to hang out, maybe go eat pizza, do whatever.

*26 From the record, Mother's tactic has resulted in a situation that is not in the Ward's best interest, i.e., an inability for Son to have a close relationship with his older brother. Nonetheless, despite its condemnation of her tactics in continuing to assert that Joseph had sexually abused his brother, at the May 28, 2013 hearing, the court explained that

[5] As set out above, the trial court modified the previous conservatorship order to allow Mother an additional four hours of visitation with the Ward, for a total of eight hours per month. This modification was based upon the trial court's finding that: “I believe that [Mother] needs to see her son ... [b]ecause[Son]loveshismother.”Clearly,ingrantingMother additional visitation, the trial court had Son's best interest in mind.TherecorddoesindicatethatMotherlovesSonandthat helovesher.Severalwitnesses,includingFather,testifiedthat Son is always glad to see Mother, and she is always glad to see him. The problem here is that Mother's love is clouded by her continued insistence that he is being abused by Joseph, and her poor judgment in engaging in social media activities as discussed in detail below. These factors weigh in favor of a limitation on the amount of time she spends with the Ward. However, in fashioning Mother's visitation schedule, andlimitingittoeighthourspermonth,itisclearthatthetrial court weighed Mother's negative actions against the Ward's best interest in maintaining a relationship with his Mother, whom the Ward clearly loves. Based upon the entire record, we conclude that the evidence does not preponderate against the trial court's holding that Mother is entitled to eight hours of visitation per month.

[6] Concerning the trial court's holding that visitation should be supervised and that Father may record telephone conversations between Mother and Son, we first note that

Mother again appears to misapprehend and broaden the trial court's ruling concerning the recording of telephone conversations. As set out in its order, supra, the trial court held “that [Father] has specific power to tape record every telephoneconversationbetweentheWardand[Mother].”The court,however,didnotgosofarastomandatethatFathertape every conversation. Rather, the court gave Father the right to tape conversations if Father thinks that those conversations are upsetting Son, or if he thinks Mother is engaging Son on the topic of sexual abuse by Joseph, which she is strictly enjoined from discussing.

*27 The record indicates that during the pendency of this case,Motherhasmadeaseriesofdecisionsthattendtoshowa lack of good judgment. First, as discussed in detail above, she has continued to levy unfounded allegations of sexual abuse relating to the Ward. Her actions have resulted in disruption to the Ward's life, and the diminishment of his once close relationship with his older brother.

In addition, during her testimony, Mother admitted that she had set up a Facebook page titled “Mr. Man Jack Turner.” ThispagewassetupafterFatherwasnamedconservatorover Son,andwassetupwithoutFather'spermission.Thepagehas a Paypal link and encourages visitors to make donations to “help [Son] to get home.” Mother admitted that she has raised approximately $3,500 through her efforts. Mother posted portions of the original conservatorship order on Facebook, and stated:

lack of judgment on her part. Moreover, the statements that shemadeconcerningtheorder,allegingthatitallowedtheuse of psychotropic drugs, and allowed Son to be admitted to a mental hospital are completely unsupported by any evidence in the record. From the record, we agree with the trial court's characterization of Mother's internet activities:

[H]er conduct was deplorable. Her claim in boasting in social media as admitted [by] her and in her conductotherwisewere—wereatbestslanderous,libelous, defamatory,withoutfactualbasisandwereaploytowinthe favor of people to say, look at me, I have been victimized and my little boy has been victimized because this judge didn't hear the evidence.

Believe me, I heard the evidence. I heard all the evidence.

Mother's social media activities, as well as her earlier email correspondence referencing the Republic of the United States ofAmericaorganizationindicatesarealconcernthatshelacks respectforthetrialcourt'sorders.AlthoughMotherexplained the email by testifying that it was written by another person, and that she was not, in fact, a member of the Republic of the United States of America, she did admit that she had read the email before it was sent, and that it was sent in her name. Accordingly, from the totality of the circumstances, we conclude that there is sufficient evidence in the record to suggest a very real possibility of non-compliance with court orders on the part of Mother.

This is the court order that allows the use of psychotropic drugs that [Son] never took in Nashville home with his mom, but are now administered by his father. This is the court order that says [Son] is now a ward and can be admitted into a mental hospital, group home, nursing home. What about what [Son] wants? He is 24 years old and wants to come home.

This posting to Facebook received several comments from “friends” of the page, including one comment stating: “I want to beat the [profanity omitted] out of Judge Kennedy and your ex-husband.” In the first instance, the fact that Mother posted portions of the order on Facebook, and invited the public to ridicule the order of the court shows a significant

*28 Finally, we cannot lose sight of the fact that this case began because Mother, while exercising unsupervised visitation with Son, absconded with him to Nashville. The evidence in the record does not indicate that Mother has changed to such a degree that she would never try such a tactic again. As discussed in detail above, the shear number of allegations Mother has made against her oldest son, despite the fact that not one allegation has been substantiated, indicatesthatsheisunwillingtolettheseideationsgowithout some mandate from the court. In short, Mother's perpetuation oftheaccusationsagainstheroldestson,herforaysintosocial media, and her general attitude at trial indicate that she has not changed. As stated by the trial court:

[S]he uses [these tactics, including allegations of sexual abuse and use of social media] as a weapon, as a bludgeoning instrument to get her way. It's a tragedy.

And I can tell from the look on her face, she doesn't see it, she doesn't appreciate it, she doesn't recognize it. And I doubt that she ever will.

From the totality of the circumstances, it appears that the initial observations of the guardian ad litem have not substantially changed: “The quality that materially separates the parties, however, is stability. The mother's unilateral decision to bring [Son] to Nashville and her lack of participationin[Son's]lifeovertheyearsforwhateverreason, fail to demonstrate the type of decision making required of a conservator under these circumstances.” As demonstrated by the preponderance of the evidence, Mother's decision making still does not convince us that Mother's decisions will be made with the Ward's best interest as her primary objective. Therefore, we conclude that the trial court's order, requiring Mother's visits to be supervised, and allowing Father to tape record any telephone conversations, is justified based upon Mother's behavior, and that the evidence preponderates in favor of the trial court's finding that these restrictions are in the Ward's best interest.

In addition, courts have wide discretion, and an obligation, to enforce their orders. As discussed in 30 Am.Jur.2d Executions, Etc. § 3 (2d ed.):

Every court that has the jurisdiction to render a particular judgment has the inherent power to enforce it. A court has not only the right, but a duty to make its decrees effective, and prevent evasions thereof. The court should see to it that its judgment is enforced when the court is asked to do so by the issuance of the necessary orders and appropriate processes to

make the judgment effective. The court's inherent power to enforce its decrees may at times justify the court to go beyond the parties' requests. The court also has the power and authority to exercise equitable control over its enforcement.

Id. (footnotes omitted).

Based upon Mother's behavior, including the evidence discussed above indicating that she might be prone to noncompliance with the court's orders, and from all of the relevant evidence in the record, we conclude that the trial court preserved the Ward's best interests by granting Mother eight hours of supervised visitation, and by allowing Father to tape record any telephone conversations between Mother and Son, which he deems to be harmful or in violation of the court's orders. In making these rulings, the trial court not only ensured that Son would not be at risk of removal from the State of Michigan by his Mother, or subject to further allegations of sexual abuse by his brother, but the court also ensured that its orders would be followed. All of which is in the Son's best interest.

*29 For the foregoing reasons, we affirm the order of the trial court. The case is remanded for further proceedings as may be necessary and are consistent with this Opinion. Costs of the appeal are assessed against the Appellant, Marceia Turner–Bonin. Because Mother is proceeding in forma pauperis in this appeal, execution may issue for costs if necessary.

All Citations

570 S.W.3d 205 Supreme Court of Tennessee, AT NASHVILLE.

Glenn R. FUNK v. SCRIPPS MEDIA, INC., et al.

No. M2017-00256-SC-R11-CV

October 4, 2018 Session

FILED 03/13/2019

Synopsis

Background: District attorney brought defamation action against an investigative reporter and a television station alleging that defendants claimed in news reports that district attorney solicited a $2,000,000 bribe and blackmailed an arrestee into dismissing his federal court lawsuit. The Circuit Court, Davidson County, William B. Acree, Senior Judge, 2017 WL 5157529, denied defendants' motion for protective order and granted district attorney's motion to compel discovery. Defendants appealed. The Court of Appeals, Andy D. Bennett, J., 2017 WL 5952914, reversed. District attorney appealed.

West Headnotes (16)

[1] Appeal and Error Interlocutory rulings and appeals

Unlike an appeal as of right, in which both the appellant and the appellee have broad latitude withregardtotheissuesthatmayberaised,when dealing with an interlocutory appeal, appellate court can and will deal only with those matters clearly embraced within the question certified to it. Tenn. R. App. P. 3

[2] Appeal and Error Discovery

Trial court decisions on pretrial discovery disputes are reviewed using an abuse of discretion standard.

2 Cases that cite this headnote

[3] Courts Abuse of discretion in general

Holdings: The Supreme Court, Cornelia A. Clark, J., held that:

[1] showing of actual malice could not defeat fair report privilege;

[2] as a matter of first impression, assertion of fair report privilege defense triggered exception to news media shield law; and

[3] as a matter of first impression, exception to news media shield law was limited to disclosure of source of allegedly defamatory information.

Affirmed and remanded.

Procedural Posture(s): On Appeal; Motion to Compel Discovery.

A court abuses its discretion when it causes an injustice to the party challenging the decision by (1) applying an incorrect legal standard, (2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly erroneous assessment of the evidence.

2 Cases that cite this headnote

[4] Appeal and Error Abuse of discretion

Whether a court applied an incorrect legal standard, and thus abused its discretion, is a question of law that is reviewed de novo.

3 Cases that cite this headnote

[5] Libel and Slander Criticism and comment on public matters and publication of news

Actual malice standard for defamation claims broughtbypublicofficialstakesintoaccountthat public officials are, as it were, public property and, as such, should be less protected from criticism and commentary than a private person.

1 Cases that cite this headnote

[6] Libel and Slander Criticism and comment on public matters and publication of news

Actual malice standard for defamation claims brought by public officials encourages the press not to self-censor when discussing matters of particular importance to the public.

privileged if the report is accurate and complete or a fair abridgement of the occurrence reported wouldbeadopted.Restatement(Second)ofTorts § 611.

4 Cases that cite this headnote

[7] Libel and Slander Criticism and comment on public matters and publication of news

Actual malice standard for defamation claims brought by public officials provides a fair equivalent to the privilege protecting public officials from liability for the statements they make during the performance of their duties.

3 Cases that cite this headnote

[8] Libel and Slander Judicial proceedings

Showing of actual malice could not defeat fair report privilege, for purposes of defamation action brought by district attorney against investigative reporter and television station, alleging that defendants claimed in news reports that district attorney solicited a $2,000,000 bribe and blackmailed arrestee into dismissing his federal court lawsuit; privilege protected reports of judicial proceedings even if report included defamatory statements, even when those reporting on proceedings knew statements were false, and, if knowledge of statement's falsity defeated privilege, it would have undermined purposes of privilege and lessened public's opportunities to be apprised of what took place in proceedings without having been present.

7 Cases that cite this headnote

[10]

Libel and Slander Reports

The fair report privilege is a defense to defamation claim based upon the source of allegedly defamatory information, and as such, the assertion of the fair report privilege defense triggers the exception to Tennessee's news media shield law for instances in which information sought cannot reasonably be obtained by alternative means. Tenn. Code Ann. § 24-1-208(b)

4 Cases that cite this headnote

[11] Pretrial Procedure Right to Discovery and Grounds for Allowance or Refusal

When considering the appropriateness of discoveryrequests,courtsareguidedbythetimehonored rule that the public has a right to every man's evidence.

[12] Statutes Intent

Court's overarching purpose in construing statutes is to ascertain and effectuate legislative intent, without expanding a statute beyond its intended scope.

[13] Statutes Giving effect to entire statute and its parts;  harmony and superfluousness

In interpreting a statute, court presumes that every word in a statute has meaning and purpose and that each word's meaning should be given full effect as long as doing so does not frustrate the General Assembly's obvious intention.

[9]

Libel and Slander Reports

Restatement (Second) of Torts section providing thatpublicationofdefamatorymatterconcerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is

[14] Statutes Natural, obvious, or accepted meaning

Words used in a statute are to be given their natural and ordinary meaning, and if the language of a statute is clear and unambiguous, court applies its plain meaning in its normal and accepted use.

1 Cases that cite this headnote

[15] Statutes In general;  factors considered Statutes Statutory scheme in general Statutes Plain, literal, or clear meaning;  ambiguity

If the language of a statute is ambiguous, court looks to the overall statutory scheme, the legislative history, and other sources to aid its interpretation.

[16] Privileged Communications and Confidentiality Journalists

Exception to Tennessee's news media shield law for instances in which information sought could not reasonably be obtained by alternative means,whichallowedcourttocompeldisclosure of source of a media defendant's information and was triggered by assertion of fair report privilege in defamation action brought by public figure, was limited to disclosure of source of the allegedly defamatory information, and did not authorize court to compel media defendants to disclose information the source provided. Tenn. Code Ann. §§ 24-1-208(a), 24-1-208(b)

Paul R. McAdoo, Nashville, Tennessee, for the amici curiae, TheAssociatedPress,CableNewsNetwork,Inc.,Courthouse NewsService,CoxMediaGroupNortheastd/b/aWHBQ-TV, Gannett Co., Inc., GateHouse Media, LLC, Gray Television, Inc., Meredith Corporation, Nexstar Media Group, Inc., Raycom Media, Inc., Reporters Committee for Freedom of the Press, Sinclair Broadcast Group, Inc., TEGNA, Inc., and Tribune Media Company.

Cornelia A. Clark, J., delivered the opinion of the court, in whichJeffreyS.Bivins,C.J.,andSharonG.Lee,HollyKirby, and Roger A. Page, JJ., joined.

*207 OPINION

Cornelia A. Clark, J.

We granted review of this interlocutory appeal arising from a defamation action to address whether the Court of Appeals correctly determined that (1) a showing of malice cannot defeat the fair report privilege and (2) an assertion of the fair report privilege exempts the defendants from part of the protections of Tennessee Code Annotated section 24-1-208, Tennessee's news media shield law. With respect to the first issue, we conclude that neither actual nor express malice defeats the privilege; the only limitations on the fair report privilege are that a report of an official action or proceeding must be fair and accurate. With respect to the second issue, we conclude that the fair report privilege is a defense based upon a source of information that renders the source of the statements the plaintiff alleges to be defamatory unprotected by Tennessee's shield law. Accordingly, we affirm the judgment of the Court of Appeals on the separate grounds stated in this opinion and remand this case to the trial court.

*206 Appeal by Permission from the Court of Appeals, Middle Section, Circuit Court for Davidson County, No. 16C-333, William B. Acree, Senior Judge

Attorneys and Law Firms

James D. Kay, Jr., John B. Enkema, and Michael A. Johnson, Nashville, Tennessee, for the appellant, Glenn Richard Funk.

Ronald G. Harris, Jon D. Ross, and William J. Harbison II, Nashville, Tennessee, for the appellees, Scripps Media, Inc., and Phil Williams.

I. Factual and Procedural Background

Not unlike a Fabergé egg, this appeal presents a case within a case within this case. In 2014, the Office of the District Attorney General for the 20th Judicial District brought criminal charges against Nashville developer David Chase. On June 5, 2015, while the criminal charges were pending, Mr. Chase filed a complaint in federal court in which he alleged that members of Nashville law enforcement had violated his civil rights. District Attorney General Glenn Funk,theplaintiffinthisappeal,ultimatelydecidedtodismiss

the criminal charges against Mr. Chase but conditioned the dismissal of the charges on Mr. Chase first dismissing his federal lawsuit. Mr. Chase complied with this condition. The criminal charges against him were then dismissed on July 1, 2015. However, on August 12, 2015, Mr. Chase filed a complaint in state court in which he alleged, among other claims,thatmembersofNashvillelawenforcementconspired to subject him to malicious prosecution.

In his state court lawsuit, Mr. Chase did not bring any claims against Glenn Funk. However, on October 22, 2015, the defendants in Mr. Chase's state court lawsuit did file a sealed motion to compel Glenn Funk to testify about the deal he made with Mr. Chase before dismissing the criminal charges. The motion also discussed a $2,000,000 payment that public relations consultant Bill Fletcher requested *208 of Mr. Chase's father on behalf of an undisclosed source.

OnFebruary3,2016,NewsChannel5,asubsidiaryofScripps Media, Inc., broadcast a report about Mr. Chase's state court lawsuit that referred to the plaintiff's deal with Mr. Chase and the request from an undisclosed source for a $2,000,000 payment. On February 4, 2016, the plaintiff filed a complaint against Scripps Media, Inc. and NewsChannel 5's chief investigative reporter, Phil Williams, (collectively “defendants”),allegingthat,intheFebruary3newsreport,the defendants claimed the plaintiff solicited a $2,000,000 bribe and blackmailed Mr. Chase into dismissing his federal court lawsuit. The plaintiff accused the defendants of publishing libelousstatementsabouthim,structuringstatementstocreate a defamatory implication, portraying him in a false light, and conspiring to commit these acts. That same evening, NewsChannel 5 broadcast a second news report about Mr. Chase's state court lawsuit. This second report expanded on theinformationdiscussedinthefirstnewsreportandincluded portions of an interview with Mr. Chase. Three weeks later, on February 26, 2016, the plaintiff amended his complaint to include allegations of libel, defamation by implication, and portrayal in a false light about both the first and second news reports.

On March 14, 2016, the defendants filed a motion for summary judgment.1 The defendants claimed that the first newsreportfellentirelyunderthefairreportprivilegebecause the report was about pleadings and depositions filed in a judicial proceeding. The defendants argued that the allegedly defamatory sections of the second news report were either true or protected by United States Supreme Court precedent concerning the use of the word “blackmail.” They further

proposed that the plaintiff “would also not be able to prove any of the other elements of his libel and false light-invasion of privacy claims as to [the news reports], including a false and defamatory statement concerning Plaintiff, actual malice or damages to reputation, but those elements are not the basis of this Motion.”

1 The motion was styled as a motion to dismiss for failure to state a claim. However, there was an affidavit attached to the motion. Therefore, the parties agreed that it should be treated as a motion for summary judgment. See Tenn. R. Civ. P. 12.02; Runions v. Jackson-Madison Cnty. Gen. Hosp. Dist., 549 S.W.3d 77, 81 n.5 (Tenn. 2018).

In addition to the motion for summary judgment, the defendantsalsofiledamotionforaprotectiveorderonMarch 24, 2016, which they amended on April 8, 2016. In their motion,theyaskedthetrialcourttostaydiscoveryuntilafterit had decided the motion for summary judgment. They argued that the plaintiff did not need to receive the discovery he requested in order to respond to their motion for summary judgment.

The plaintiff did not respond to the defendants' motion for summary judgment, but he did object to the motion for a protective order, arguing that the discovery was necessary because it would allow him to show that the defendants maliciously published the two news reports, which would defeat the fair report privilege. After hearing arguments, the trialcourtdeniedthedefendants'motionforaprotectiveorder. Upon receiving the plaintiff's next set of interrogatories and requestsforproduction,thedefendantsrespondedtoanumber of the discovery requests, but Scripps Media, Inc. objected to Interrogatories Nos. 4–5, 7–8, 10–14, 17–20, and 24 and Requests for Production Nos. 6, 8–16, 20, 22–25, and 33, and Mr. Williams objected to Interrogatories Nos. 4–5, 7–8, 10–14, 17–20, and 27 and Requests for Production *209 Nos. 4, 6, 7–14, 16, 17, 18, 19, and 31. Both objected on the grounds that the information is protected by Tennessee CodeAnnotatedsection24-1-208(a),Tennessee'snewsmedia shield law.

On July 14, 2016, the plaintiff filed a motion to compel the defendants to respond to all of the discovery requests to which the defendants objected on the basis of the shield law. The plaintiff argued that the defendants are not protected by the shield law because, by relying upon the fair report privilege, they are asserting a defense based upon the source of their information, thereby triggering a statutory exception

to the shield law's protections. The defendants responded that they are not asserting a defense based upon a source of information. The trial court postponed ruling on this motion tocompeluntiltheattorneywhorepresentedthedefendantsin Mr.Chase'sstatecourtcasewasdeposedduetothepossibility that the information uncovered during this deposition would render the motion moot.

On January 3, 2017, the plaintiff filed a supplemental motion tocompelinwhichhearguedthattheattorney'stestimonyhad not rendered his motion moot and reasserted that he needed the discovery to show the defendants' malice because malice would defeat the fair report privilege and because, regardless of the privilege, his status as a public official required him to show evidence of malice. The plaintiff also argued that the discovery he sought was relevant to determining whether the documents were “public at the time of broadcast.” Because the two news reports described depositions and pleadings that the parties in Mr. Chase's state court lawsuit had agreed were supposed to be filed under seal, the plaintiff claimed that it was unclear whether the fair report privilege even applies to this case.

There are some inconsistencies in the plaintiff's motion to compel regarding the type of information he believed would be sufficient to show malice and defeat the fair report privilege. The plaintiff stated that the requested discovery would aid him in showing that the defendants knew the two news reports were based upon false information. But to support this argument, he cited multiple cases indicating that a defamatory publication made with a desire to cause harm cannot be protected by the fair report privilege. As a result, it is unclear whether the plaintiff sought to discover that the defendants knew the news stories contained false allegations or that the defendants harbored a desire to harm him.Thedefendantsrespondedthatthedesireddiscoverywas not relevant because malice does not defeat the fair report privilege.

On January 13, 2017, the trial court heard argument on the plaintiff's motion to compel discovery and held that, because a showing of malice can defeat the fair report privilege, the plaintiff should be allowed to discover information relating to malice. It also held that, because the fair report privilege was a defense based upon a source of information, the exception to the shield law applied. However, rather than holding that the shield law no longer protected the defendants, the trial courtfoundthattheexceptiononlyprovidedtheplaintiffwith the ability to compel responses to Interrogatories Nos. 7 and

8, which asked that the defendants describe all investigation they conducted regarding the two news reports, and to the corresponding Requests for Production.2 The court ordered the defendants to answer these interrogatories and disclose all of the *210 sources and documents that the defendants considered when investigating the two news reports. On February 13, 2017, the trial court incorporated its findings of fact and conclusions of law in a written order granting the plaintiff's motion to compel.

2 For Scripps Media, Inc., these were Requests for Production Nos. 13–14, and for Mr. Williams these were Requests for Production Nos. 11–12.

The defendants then applied for permission to bring an interlocutory appeal regarding the trial court's interpretation of the fair report privilege and also filed an appeal as of right from the trial court's interpretation of the shield law pursuant to Tennessee Code Annotated section 24-1-208(c)(3). The plaintiff argued against the direct appeal and emphasized that the statutory provision for an appeal as of right did not apply inthedefendants'circumstances.OnMarch13,2017,thetrial courtfoundthatthedefendantswereentitledtoanappealasof right under the shield law and that, regardless, the defendants were entitled to an interlocutory appeal on both issues. Thus, the trial court granted the defendants' interlocutory appeal “upon the issue of whether malice is an element of the fair report privilege and upon the issue of whether the shield law requires disclosure of the Defendants['] source.”3

3 The trial court noted in its order granting the defendant's application for interlocutory appeal that there are numerous errors in the transcript of the hearing on the motion to compel discovery. Therefore, we primarily rely on the summarization of the trial court's findings and conclusions containedinitsordergrantinginterlocutoryappeal. The Court of Appeals also granted the defendants' interlocutory appeal, consolidated the appeal with the defendants' direct appeal, and ultimately reversed the trial court's order granting the plaintiff's motion to compel. The Court of Appeals held (1) that the fair report privilege cannot be defeated by a showing of malice and (2) that, while an assertion of the fair report privilege triggers the statutory exceptiontotheshieldlaw,thedefendantsareonlyrequiredto disclose the sources they identify as the basis for the reports. We granted the plaintiff's application for permission to appeal in this Court.

II. Scope and Standard of Review

[1] [2] [3] [4] “Unlike an appeal as of right under Tennessee Rule of Appellate Procedure 3, in which both the appellant and the appellee have broad latitude with regard to the issues that may be raised, ‘[w]hen dealing with an interlocutory appeal, the Court can and will deal only with those matters clearly embraced within the question certified to it.’ ” Young v. City of LaFollette, 479 S.W.3d 785, 789 (Tenn. 2015) (quoting Tennessee Dep't of Mental Health & Mental Retardation v. Hughes, 531 S.W.2d 299, 300 (Tenn. 1975) ).4 This appeal arises from a trial court's ruling on a pretrial discovery dispute. Trial court decisions on pretrial discovery disputes are reviewed using an abuse of discretion standard. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). “A court abuses its discretion when it causes an injustice to the party challenging the decision by (1) applying an incorrect legal standard, (2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly erroneous assessment of the evidence.” Id. Whether a court applied an incorrect legal standard is a question of law that is reviewed de novo. Id. at 525. The issues in this appeal concern *211 legal standards, specifically, what role, if any, maliceplaysinthefairreportprivilege,whetherthefairreport privilege is a defense based upon a source of information that triggers the exception to Tennessee's news media shield law, and if it is, the extent of the discovery to which the plaintiff is entitled. These issues are questions of law that are reviewed under a de novo standard with no presumption of correctness. See Wallace v. Metro. Gov't of Nashville, 546 S.W.3d 47, 52 (Tenn. 2018)

4 We recognize that the defendants raised the shield law issue in a direct appeal as well as in his interlocutory appeal. In the trial court and the Court of Appeals, plaintiff argued that the shield law did not provide for a direct appeal in these circumstances. However, neither party has raised this issue in this appeal. Therefore, we will not addressitandwilltreatbothissuesasinterlocutory.

This appeal demonstrates the tension that exists between two competing social commodities: reputation and information. Protecting the first commodity are defamation lawsuits, which enable aggrieved individuals to seek redress from false statements of fact that impugn their reputations. In the 1966 case Rosenblatt v. Baer, 383 U.S. 75, 92, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966) (Stewart, J., concurring), former United States Supreme Court Justice Potter Stewart emphasized the importance of protecting individuals from reputational harm, noting that: “The right of a man to the protectionofhisownreputationfromunjustifiedinvasionand wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty.” The danger posed by defamation lawsuits is that, if unrestrained, these lawsuits may obstruct access to the second commodity, information. For this reason, courts have developed a variety of privileges that provide defenses to defamation claims even whentheaccusedactuallydefamedtheaccuser.Seegenerally Restatement (Second) of Torts §§ 583–612 (1977). One of these privileges is at issue in this appeal, the fair report privilege.

1. The History of the Fair Report Privilege

Common law has long provided that a person who repeats the defamatory statements made by another is also liable for defamation. See VI Matthew Bacon with Henry G. William and Bird Wilson, A New Abridgment of the Law 238–39 (Philadelphia, Philip H. Nicklin 1813) (“[T]hese words, Thou art a sheep[ ]stealing rogue, and farmer Parker told me so, were holden to be actionable; although it was not averred, that farmer Parker did not tell the defendant so....”); see also Dameron v. Washington Magazine, Inc., 779 F.2d 736, 739 (D.C. Cir. 1985) (discussing “the common law rule that one who repeats or republishes a defamation uttered by another ‘adopts’ it as his own”).

III. Analysis

A. Malice and the Fair Report Privilege

The fair report privilege originated in Curry v. Walter, 126 Eng. Rep. 1046 (C.P. 1769), when an English judge observed that a newspaper should not be held liable for republishing allegedly defamatory statements made during a judicial proceeding because such a proceeding “is open to all the world.” Kathryn Dix Sowle, Defamation and the First Amendment: The Case for a Constitutional Privilege of Fair Report, 54 N.Y.U. L. Rev. 469, 478 & n.40 (1979) (quoting Curry, 126 Eng. Rep. at 1046). American courts later adopted the fair report privilege and expanded it to

protect the publication of reports about a variety of official actions or proceedings. See David Elder, Defamation: A Lawyer's Guide § 3:1 (July 2018 update). American courts alsoidentifiedanotherjustificationforthefairreportprivilege beyond the original justification—that newspapers should be allowed to report on publicly accessible information. Id. The second justification is that the privilege facilitates the *212 worthwhile goal of public supervision of official actions or proceedings. Id.; see also Cox Broad. Corp. v. Cohn, 420 U.S. 469, 492, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975) (“With respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice.”).

Traditionally, courts held that the privilege applied to fair and accurate reports of official actions or proceedings, even if the report included false and defamatory statements made during the official proceeding, so long as the reports were “not made solely for the purpose of causing harm to the person defamed.” Restatement (First) of Torts § 611 (1938) (collectingcases).Inthecontextofdefamationlaw,thisdesire to harm another has been referred to by a number of terms that courts have used interchangeably. These terms include malice, express malice, common law malice, and malice in fact. See, e.g., Novecon Ltd. v. Bulgarian-Am. Enter. Fund, 190 F.3d 556, 567 (D.C. Cir. 1999). Such a wide variety of terms can lead to confusion, particularly when combined with the separate concept of ‘actual malice,’ which we will discuss in the next section. See Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 667 n.7, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989) (“The phrase ‘actual malice’ is unfortunately confusing in that it has nothing to do with bad motive or ill will.”); Crump v. P & C Food Markets, Inc., 154 Vt. 284, 576 A.2d 441, 447 n.1 (1990) (“We note that much confusion has arisen over the terminology applied to the malice requirement in its various contexts: courts have used the term ‘actual malice’ in reference to both types of malice.”); Ullrich v. New York Press Co., 23 Misc. 168, 171–72, 50 N.Y.S. 788, 791 (Sup. Ct. 1898) (“The jumble in some modern text-books on slander and libel concerning malice, actual malice, malice in law, malice in fact, implied malice and express malice (all derived from judicial utterances, it is true), is a striking testimony of the limitations of the human mind.”). For purposes of clarity, we will refer to the desire to harm another in the context of a defamation action as express malice.

2. Express Malice and Actual Malice Distinguished and Reconsidered

[5] [6] [7] Express malice differs from the concept of actual malice, which gained constitutional standing in two 1964 United States Supreme Court decisions. In New York Times Co. v. Sullivan, 376 U.S. 254, 279–80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the United States Supreme Court held that public officials cannot recover damages for defamatory falsehoods relating to their official conduct unless they show that the statements were made with “actual malice.” Sullivan defined actual malice as acting “with knowledge that [a statement] was false or with reckless disregard of whether it was false or not.” Id. at 280, 84 S.Ct. 710. Sullivan provided several justifications for this heightened showing requirement. First, the actual malice standard takes into account that “public [officials] are, as it were, public property”and,assuch,shouldbelessprotectedfromcriticism and commentary than a private person. Id. at 268, 84 S.Ct. 710 (quoting Beauharnais v. Illinois, 343 U.S. 250, 263 n.18, 72 S.Ct. 725, 96 L.Ed. 919 (1952) ); see also Press, Inc. v. Verran, 569 S.W.2d 435, 438–41 (Tenn. 1978) (providing a detailed history of United States Supreme Court opinions on this topic). Second, the actual malice standard encourages the press not to self-censor when discussing matters of particular importance to the public. Sullivan, 376 U.S. at 277–81, 84 S.Ct. 710. Third, the actual malice standard provides a “fair equivalent” *213 to the privilege protecting public officials from liability for the statements they make during the performance of their duties. Id. at 282, 84 S.Ct. 710. In Garrison v. State of Louisiana, 379 U.S. 64, 73, 85 S.Ct. 209,13L.Ed.2d125(1964),theUnitedStatesSupremeCourt explained why it chose to condition defamation liability on a showing of actual malice rather than express malice:

Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth.

These United States Supreme Court decisions prompted a number of states to consider whether a showing of actual malice, as defined in New York Times, defeats the fair report privilege. In the state court decisions we have reviewed, the vast majority of states have concluded that it does not defeat the privilege. See Butler v. Hearst-Argyle Television, Inc., 345 Ark. 462, 49 S.W.3d 116, 120 (2001) (finding it significant that “the privilege exists ‘even though the publisher himself does not believe the defamatory words he reports to be true and even when he knows them to be false’ ” (quoting Restatement (Second) of Torts § 611 cmt. a) ); Ltc. Lawton v. Georgia Television Co., No. CIV. A. E-12269, 1994 WL 538892, at *8 (Ga. Super. May 5, 1994), aff'd sub nom. Lawton v. Georgia Television Co., 216 Ga.App. 768, 456 S.E.2d 274 (1995); Solaia Tech., LLC v. Specialty Pub. Co., 221 Ill.2d 558, 304 Ill.Dec. 369, 852 N.E.2d 825, 843–44 (2006); Howell v. Enter. Publ'g Co., LLC, 455 Mass. 641, 920 N.E.2d 1, 13 n.8 (2010); Adelson v. Harris, 402 P.3d 665, 667–68 (Nev. 2017); Thomas v. Tel. Publ'g Co., 155 N.H. 314, 929 A.2d 993, 1007–08 (2007), as modified on denial of reconsideration (Aug. 29, 2007); Salzano v. N. Jersey Media Grp. Inc., 201 N.J. 500, 993 A.2d 778, 796–98 (2010); FreedomComm'ns,Inc.v.Sotelo,No.11-05-00336-CV,2006 WL 1644602, at *3–4 (Tex. App. June 15, 2006); Russell v. Thomson Newspapers, Inc., 842 P.2d 896, 904 (Utah 1992);

see also DeMary v. Latrobe Printing & Pub. Co., 762 A.2d 758, 764 (Pa. Super. 2000) (“Thus, in a defamation action by a plaintiff public figure against a defendant newspaper, the fair report privilege is not implicated until the plaintiff has met his or her constitutionally mandated burden in showing that the newspaper acted with actual malice.”). But see Am. Chem. Soc. v. Leadscope, Inc., 133 Ohio St.3d 366, 978 N.E.2d 832, 859 (2012) (finding that actual malice defeats the privilege). Furthermore, the Restatement (Second) of Torts states in several sections that actual malice does not defeat the fair report privilege because actual malice protects differentintereststhantheinterestsprotectedbythefairreport privilege. See Restatement (Second) of Torts §§ 599 cmt. c, 600 cmt. c, 611 cmts. a–b. Instead, under the Restatement (Second) of Torts section 611, the fair report privilege may be defeatedbyashowingthatthereportwasunfairorinaccurate.

Courtshavealsoreconsideredtherolethatthemotivetoharm another—express malice—plays in the fair report privilege. After New York Times and Garrison, several other United States Supreme Court decisions emphasized the importance of public access to information about governmental proceedings. See, e.g., Landmark Commc'ns, Inc. v. Virginia, 435 U.S. 829, 838–40, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978)

(finding that the First Amendment protection of the “free discussion of governmental affairs” prevented Virginia from criminalizing the disclosure of confidential proceedings held by a judicial review commission (quoting *214 Mills v. State of Ala., 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966) ) ); Cox, 420 U.S. at 496, 95 S.Ct. 1029 (“At the very least, the First and Fourteenth Amendments will not allow exposing the press to liability for truthfully publishing information released to the public in official court records.”). As a result of this line of United States Supreme Court opinions, a number of states have eschewed the traditional approach to the fair report privilege for a modern approach that looks only at whether a report of an official action or proceeding is fair and accurate, eliminating express malice from consideration. See Read v. News-Journal Co., 474 A.2d 119,120–21(Del.1984);Solaia,304Ill.Dec.369,852N.E.2d at 842–44; Moreno v. Crookston Times Printing Co., 610 N.W.2d321,332–33(Minn.2000);Salzano,993A.2dat795–98 & 796 n.9 But see Wilson v. Birmingham Post Co., 482 So.2d 1209, 1213 (Ala. 1986); Doneghy v. WKYT 27 News First, No. 2014-CA-001850-MR, 2016 WL 7030420, at *2–3 (Ky. Ct. App. Dec. 2, 2016); Thomas, 929 A.2d at 1008; Russell, 842 P.2d at 905

Courts that have adopted the modern approach do so for a variety of reasons. Some conclude that the express malice limitation is an unproductive limitation on the privilege. See Read, 474 A.2d at 120–21 (finding “the motive of a publisher irrelevant” to the “rationale for the breadth of the privilege”). Others are content to adopt it because it is the approach of the Restatement (Second) of Torts. See, e.g., Butler, 49 S.W.3d at 120; Solaia, 304 Ill.Dec. 369, 852 N.E.2d at 843–44; see also Restatement (Second) of Torts § 611 reporter's note (“This Section has been changed from the first Restatement ... by the deletion of Clause (b), which made it a condition of the privilege that the publication not be ‘made solely for the purpose of causing harm.’ ”). Of the courts that adhere to the traditional approach, several do so because they are bound by statute. See Wilson, 482 So.2d at 1213; Doneghy, 2016 WL 7030420, at *2; Russell, 842 P.2d at 904–05. Others do so becauseitishowtheyhavealwaysanalyzedtheprivilege.See DeMary, 762 A.2d at 763–65

3. Tennessee's Limitations on the Fair Report Privilege

The plaintiff argues that we should follow the traditional approachtothefairreportprivilegeandconcludethatexpress malice defeats the privilege. During oral argument, he also

suggested that, should this court decide to deviate from the traditional approach, actual malice is a workable alternate limitation to express malice. The defendants argue we should conclude that neither actual nor express malice defeats the privilege.

[8] We will consider first whether actual malice can defeat the fair report privilege. Tennessee adopted the fair report privilege in Saunders v. Baxter, 53 Tenn. 369 (1871) Saunders restricted the scope of the privilege to “bona fide report[s]oftheproceedingsinacourtofjustice,intheabsence of express malice.” Id. at 381. At various points throughout the opinion, the Saunders Court defined malice as the lack of “good motives or ... justifiable ends,” “personal ill-will,” and “hatred.” Id. at 384, 386–87. Although Saunders and other early Tennessee opinions on the fair report privilege also used the term “actual malice,” these opinions treated the term as synonymous with express malice. Id. at 386; Am. Pub. Co. v. Gamble, 115 Tenn. 663, 90 S.W. 1005, 1009–10 (1906); Langford v. Vanderbilt Univ., 199 Tenn. 389, 287 S.W.2d 32, 37 (1956). The manner in which Tennessee courts have used the term “actual malice” caused some confusion for the parties. Indeed, the plaintiff's counsel admitted at oral argument, “In the trial court, I don't think either party recognized, *215 including the judge, the complexity of the term actual malice. And there really were no discussions of, well, what exactly does that mean.”

After New York Times provided the term “actual malice” with a new and specific meaning, some courts applying Tennessee law have found that this type of actual malice can defeat the fair report privilege, although their opinions lack any clear explanation as to why. The Court of Appeals has provided contradictory guidance about whether actual malice can defeat the fair report privilege. Compare Grant v. Commercial Appeal, No. W2015-00208-COA-R3-CV, 2015 WL 5772524, at *5–8 (Tenn. Ct. App. Sept. 18, 2015) (noting that for the fair report privilege to apply “the report must not bemadewithactualmalice”),withHonigv.NashvilleBanner Pub.Co.,10MediaL.Rep.2139,1984Tenn.App.Lexis3034 (July 31, 1984) (noting that the privilege applies even if the reportconcernsajudicialproceedingthatis“anobviousfarce and misuse of the judicial process”). The opinion in Grant providednorationaleforitsconclusionthata“reportmustnot be made with actual malice” but simply cited a federal district court decision, Milligan v. U.S., 644 F.Supp.2d 1020, 1033 (M.D. Tenn. 2009), aff'd 670 F.3d 686 (6th Cir. 2012), and a Court of Appeals opinion, Lewis v. NewsChannel 5 Network,

L.P., 238 S.W.3d 270, 284–85 (Tenn. Ct. App. 2007). Grant, 2015 WL 5772524, at *6

The Grant opinion's reliance on Lewis was inapt. Lewis did not treat actual malice as a limitation on the fair report privilege. 238 S.W.3d at 284–88. Instead, Lewis concluded that the fair report privilege could not apply because the allegedly defamatory statements were not made in the course of “official actions or proceedings.” Id. (finding that information obtained from “anonymous informants, a private conversation with [a police officer], and recordings of official radio transmissions and telephone calls that had not been released to the public” did not qualify as “information obtained as a result of an official action or proceeding”). Lewis only considered actual malice as a component of the prima facie defamation claim. Id.

Milligan does support the proposition for which Grant cited it —that actual malice defeats the fair report privilege. Indeed, federal courts have uniformly held that under Tennessee law actual malice defeats this privilege. See Milligan v. United States, 670 F.3d 686, 696–98 (6th Cir. 2012); Molthan v. Meredith Corp., No. 3:17-CV-00380, 2018 WL 691338, at *11 (M.D. Tenn. Feb. 2, 2018), report and recommendation adopted, No. 3:17-CV-00380, 2018 WL 2387235 (M.D. Tenn. May 25, 2018); Hill v. Old Navy, LLC, 20 F.Supp.3d 643, 648 (W.D. Tenn. 2014); Archibald v. Metro. Gov't of Nashville & Davidson Cnty., No. 3:11-0728, 2012 WL 3000137, at *4 (M.D. Tenn. July 23, 2012), report and recommendation adopted, No. 3-11-0728, 2012 WL 3283480 (M.D. Tenn. Aug. 10, 2012); ADT Servs. AG v. Brady, No. 2:10-02197, 2011 WL 13092411, at *3 (W.D. Tenn. Jan. 4, 2011); Stem v. Gannett Satellite Info. Network, Inc., 866 F.Supp. 355, 360 (W.D. Tenn. 1994). However, these federal court decisions result either from misreading Lewis in the same manner that Grant misread it, see Milligan, 670 F.3d at 696, or from failing to understand that early Tennessee opinions employed the term “actual malice” as a reference to express malice, see Stem, 866 F.Supp. at 360 (citing Langford, 287 S.W.2d at 36–37; Am. Pub. Co., 90 S.W. at 1010). Thus, we are unpersuaded by the Court of Appeals and federal court decisions that have treated New York Times actual malice as a limitation on the fair report privilege.

*216 As mentioned previously, the New York Times actual malice standard protects a number of interests that differ from those protected by the fair report privilege. See Time, Inc. v. Firestone, 424 U.S. 448, 455, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976) (“[W]e likewise reject petitioner's claim

for automatic extension of the New York Times privilege to all reports of judicial proceedings.”); see also Restatement (Second) of Torts §§ 599 cmt. c, 600 cmt. c, 611 cmts. a–b. The actual malice standard provides a carefully crafted restriction on defamation claims brought by public officials thattakesintoaccountapublicofficial'sinterestinpreventing the spread of defamatory statements and the argument that such officials merit reduced protections because they have assumed positions that expose them to public scrutiny. But the fair report privilege has long protected reports of judicial proceedingsevenifthereportincludesdefamatorystatements made in judicial proceedings and even when those reporting on the judicial proceedings knew the statements were false.

See, e.g., Restatement (First) of Torts § 611 cmt. a (“This privilege differs from the usual conditional privilege in that it affords protection even though the defamatory statement reported is known to be false.”); Restatement (Second) of Torts § 611 cmt. a (same). This is because, when a statement is made in a judicial proceeding, the statement is worthy of public notice, not only as a result of the contents of the statement, but also because of the context in which the statement was made. If we were to now hold that a reporter's knowledge of a statement's falsity could defeat the fair report privilege, it would undermine the purposes of the privilege. It would lessen the public's opportunities to be “apprised of what takes place in the proceedings without having been present,”Smithv.Reed,944S.W.2d623,625(Tenn.Ct.App. 1996); Salzano, 993 A.2d at 797–98, and to “assess the value of our government in action,” Solaia, 304 Ill.Dec. 369, 852 N.E.2d at 848. For these reasons, we hold that a showing of actual malice cannot defeat the fair report privilege.

[9] We consider next the plaintiff's argument that we should adhere to the traditional approach to the fair report privilege and continue to apply the express malice limitation. As acknowledged,allofourpriordecisionsfollowthisapproach. However, in light of the modern approach, we choose to reconsider the usefulness of the express malice limitation. The Court of Appeals has addressed this matter but, like its treatment of actual malice, has reached inconsistent conclusions. Compare Burke v. Sparta Newspapers, Inc., No. M2016-01065-COA-R3CV, 2018 WL 3530839, at *3 (Tenn. Ct.App.July23,2018)(“Fortheprivilegetoapply,thereport must be ‘a fair and accurate summation of the proceeding.’ ” (quoting Smith, 944 S.W.2d at 625) ), and Eisenstein v. WTVF-TV,NewsChannel5Network,LLC,389S.W.3d313, 323 n.8 (Tenn. Ct. App. 2012) (“It appears that at one time thefairreportprivilegerequiredanabsenceofmalice.”),with Honig, 1984 Tenn. App. Lexis 3034 (“Where the publication

is determined to be a fair and accurate statement of the contents of the public record, it is presumed to have been made without malice; and the burden of showing malice is upon the plaintiff.”).

The plaintiff argues that without the express malice limitation reporters with vendettas may solicit or goad others into making defamatory statements in official proceedings and then repeat the defamatory statements to the public without punishment. This argument resembles the reason that New Hampshire has provided for not adopting the modern approach:“Allowingplaintiffstotrytoestablishcommonlaw malice, where appropriate, will guard *217 against abuse of the privilege and ensure that the privilege continues to be used as a shield, not a sword.” Thomas, 929 A.2d at 1008. We agree that the scenarios the plaintiff describes would be cause for concern. But, in such unusual circumstances, it is unlikely that the fair report privilege would apply. As explained in the Restatement (Second) of Torts section 611 comment c,

A person cannot confer this privilege upon himself by making the original defamatory publication himself and then reporting to other people what he had stated. This is true whether the original publication was privileged or not. Nor may he confer the privilege upon a third person, even a member of the communications media, by making the original statement under a collusivearrangementwiththatperson for the purpose of conferring the privilege upon him.

This provision prevents journalists from using the privilege as a sword rather than a shield.

The plaintiff further argues that the express malice limitation is necessary to deter reporters from injuring others with fair and accurate reports of official actions or proceedings “in this age of ‘fake news’ and increasing politically motivated newsstories.”Yet,inapplication,anexpressmalicelimitation on the privilege would do little to prevent the publication of defamatory statements made in an official proceeding. Consider the following hypothetical. Two reporters fairly and accurately report on a judicial proceeding and include defamatory statements made during the proceeding in their

reports. One of the reporters happens to dislike the person about whom the defamatory statements were made and privately hopes that the republication of the defamatory statements will cause that person harm. Under the traditional approach to the fair report privilege, one of the reporters would be able to rely on the fair report privilege to defend against a defamation action but the other reporter would not. This result would neither advance the purposes of the fair report privilege nor protect the individuals about whom defamatory statements were made.5

5 The amicus curiae brief raised the argument that the express malice limitation is unconstitutional because the speech protected by the fair report privilege is also protected by the First Amendment. This constitutional issue was not raised in the application for interlocutory appeal. Therefore, we will not address it.

Having weighed the arguments for and against the traditional and modern approach, we are persuaded that the modern approach better serves the purposes of the fair report privilege. Therefore, in keeping with our earlier decisions concerning defamation law, we adopt the approach of the Restatement (Second) of Torts section 611. See Jones v. State, 426 S.W.3d 50, 56 (Tenn. 2013) (adopting Restatement (Second) of Torts section 591 as governing the executive and administrative officers' privilege); Simpson Strong-Tie Co. v. Stewart, Estes & Donnell, 232 S.W.3d 18, 22–24 (Tenn. 2007) (adopting Restatement (Second) of Torts section 586 as governing the attorneys' privilege). We hold that neither express malice nor actual malice can defeat the fair report privilege. The privilege can only be defeated by showing that a report about an official action or proceeding was unfair or inaccurate.

At this stage in the litigation, it is unclear whether the two news reports qualify as reports of an official action or proceeding for the purposes of the fair report privilege. According to the plaintiff, the defendants' news reports about the depositions and other pieces of discovery in Mr. Chase's state court lawsuit do not fall under the protections of the fair report privilege *218 because, at the time the reports were broadcast in February of 2016, the parties in Mr. Chase's state court lawsuit had signed a protective order agreeing that this informationwouldbefiledunderseal.Theplaintiff'sassertion is muddied by the fact that, when the reports were broadcast, the court had not yet ruled on this protective order. At oral argument, the defendants asserted that the first report and part

of the second do fall under the fair report privilege because the information contained in the relevant sections of the news reports had already been disclosed in the motion to compel the examination of Glenn Funk that was filed in Mr. Chase's state court lawsuit on October 22, 2015. However, the motion to compel states that the “Motion and its Exhibits are filed undersealpendingtheCourt'srulingonNon-Parties'assorted motions asserting confidentiality over certain materials and testimony cited herein.” Thus, on remand, in addition to determining whether the reports were fair and accurate, the trialcourtwillstillhavetodeterminewhetherthenewsreports concerned information that was obtained from an official action or proceeding.

B. The Exception to the Shield Law

[10] [11] When considering the appropriateness of discovery requests, courts are guided by the “time-honored rule that the public has a right to every man's evidence.” Austin v. Memphis Pub. Co., 655 S.W.2d 146, 150 (Tenn. 1983). As with so many other legal rules, this rule is not universally applicable. In 1973, the Tennessee General Assembly enacted Tennessee Code Annotated section 24-1-208, Tennessee's news media shield law, to protect “person[s] engaged in gathering information for publication or broadcast” from being compelled to disclose “before the general assembly or any Tennessee court, grand jury, agency, department, or commission any information or the source of any information procured for publication or broadcast.” 6 However, in two statutorily specified circumstances, a party may still obtain such information or the source of such information. One of those circumstances occurs when the party has demonstrated “by clear and convincing evidence that”:

(A) There is probable cause to believe that the person from whom the information is sought has information which is clearly relevant to a specific probable violation of law;

(B) The person has demonstrated that the information soughtcannotreasonablybeobtainedbyalternativemeans; and

(C) The person has demonstrated a compelling and overriding public interest of the people of the state of Tennessee in the information.

Tenn. Code Ann. § 24-1-208(c)(2) (2017). The other of those circumstances occurs when a “defendant in a civil action

for defamation asserts a defense based upon the source of [the allegedly defamatory] information.” Tenn. Code Ann. § 24-1-208(b); see also Tenn. Op. Att'y Gen. No. 16-23 (June 21, 2016) (noting that the showing requirement of section 208(c) does *219 not apply to section 208(b) ). The questions presented to us concerning the shield law involve the latter of the two circumstances. Plaintiff asks whether the fair report privilege is a defense based upon the source of the allegedly defamatory information such that its assertion triggers the exception to the shield law provided in Tennessee Code Annotated section 24-1-208(b) and, if so, what does the exception entitle the plaintiff to discover. These are both issues of first impression.

6 In Austin, we described the General Assembly's enactment of the shield law as a reaction to the United States Supreme Court's holding in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), that “requiring a newsman to testify before a grand jury did not abridge the freedomofspeechandpressguaranteedbytheFirst Amendment nor did the newsman's confidentiality agreement, to conceal the sources, the material and thecriminalacts,invokeaconstitutionalprivilege.”

655 S.W.2d at 149. Indeed, the statute contains “almost identical language” to the language used by Justice Stewart in his dissenting opinion in Branzburg. Id. at 149–50.

According to the trial court's order granting permission for an interlocutory appeal, the plaintiff primarily seeks to discover evidence of malice in order to defeat the fair report privilege. As a result of our holding that neither actual nor express malice can defeat the fair report privilege, this discovery is not relevant to the plaintiff's defamation claims regarding any part of the first or second news report that is protected by the fair report privilege. However, the plaintiff asserts that, even if actual malice does not defeat the fair report privilege, he is still entitled to the requested discovery because, as a public official, at some point in this case, he must prove actual malice to prevail on his claims. The defendants argue that the defamation and false light claims for which actual malice is relevant are not at issue at this stage of the litigation. We are constrained to disagree with the defendants. Because the trial court has not yet ruled on the defendants' motion for summary judgment, this issue remains unresolved. In the absence of any ruling by the trial court, we find that, due to the plaintiff's status as a public official, actual malice remains relevant to this case, and the plaintiff's request for discovery of information regarding actual malice is an issue ripe for

resolution in this appeal. Therefore, we will consider the substanceofthequestionspresentedconcerningtheexception to the shield law.

[12] [13] [14] [15] When answering these questions, we are bound by familiar principles of statutory interpretation. Our“overarchingpurposeinconstruingstatutesistoascertain and effectuate legislative intent, without expanding a statute beyonditsintendedscope.”Rayv.MadisonCnty.,Tennessee, 536 S.W.3d 824, 831 (Tenn. 2017). To achieve this purpose, we begin with the plain language of the statute. Lee Med., Inc., 312 S.W.3d at 526. “We presume that every word in a statute has meaning and purpose and that each word's meaning should be given full effect as long as doing so does not frustrate the General Assembly's obvious intention.” Harris v. Haynes, 445 S.W.3d 143, 146 (Tenn. 2014). “The words used in a statute are to be given their natural and ordinary meaning....” Wallace, 546 S.W.3d at 52. If the language of the statute is clear and unambiguous, we “apply its plain meaning in its normal and accepted use.” State v. Frazier, 558 S.W.3d 145, 152 (Tenn. 2018) (quoting State v. Hannah, 259 S.W.3d 716, 721 (Tenn. 2008) ). If the language of the statute is ambiguous, we look to “the overall statutory scheme, the legislative history, and other sources” to aid our interpretation. Sneed v. City of Red Bank, Tennessee, 459 S.W.3d 17, 23 (Tenn. 2014).

The defendants argue that the fair report privilege does not trigger the shield law exception because the shield law exception applies only when a defendant asserts a defense based upon a source that is confidential. The amicus curiae argue that the exception only applies when the source is a person. However, if the General Assembly had desired to limit the meaning of “source of information” to people or confidential sources, it certainly could have done so by including further restrictions in the statute. See Tenn. Code Ann. § 24-1-208(a)–(b). Indeed, a number of states *220 have opted to include definitions for “source” as part of their shield laws. See Colo. Rev. Stat. Ann. § 13-90-119 (West, Westlaw through end of the 2nd Reg. Sess. of the 71st Gen. Ass.); Del. Code Ann. tit. 10, § 4320 (West, Westlaw through 81 Laws 2018); 735 Ill. Comp. Stat. Ann. 5/8-902 (West, Westlaw through 2018 Reg. Sess.); N.J. R. Evid. N.J.R.E. 508; N.M. R. Evid. Rule 11-514; Utah R. Evid. 509; see also Minn. Stat. Ann. § 595.023 (West, through the end of the 2018 Reg. Sess.) (protecting from disclosure “the person or means from or through which information was obtained”).

TheGeneralAssemblyhasnotchosenthatoption.SeeAustin, 655 S.W.2d at 149

Accordingly, in the absence of any statutory definition, we look to the normal and accepted use of the word “source.” In prior opinions, we have found Black's Law Dictionary to be a particularly useful aid to ascertaining the plain meaning of statutory text. See In re Estate of Tanner, 295 S.W.3d 610, 626 (Tenn. 2009) (“We have specifically identified Black's Law Dictionary as a reliable source.”); State v. Edmondson, 231 S.W.3d 925, 928 (Tenn. 2007) (“When the Legislature does not provide a specific definition for a statutory term, this Court may look to other sources, including Black's Law Dictionary, for guidance.”); see also Garrison v. Bickford, 377 S.W.3d 659, 669 (Tenn. 2012) (defining “bodily injury”); Allmand v. Pavletic, 292 S.W.3d 618, 625 (Tenn. 2009) (defining “public utility”). Black's Law Dictionary (10th ed. 2014) defines “source” as “[t]he originator or primary agent of an act, circumstance, or result.” It further provides that “originator” means “someone who conceives of something and starts it,” and “agent” means “something that produces an effect.” Id. (emphasis added). These definitions indicate that “source” encompasses documents and events as well as people. Applying this definition to the shield law, we find that the statute uses “source” in a broad manner that includes official actions or proceedings. Cf. Bank of Nova Scotia v. United States, 487 U.S. 250, 264, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988) (Marshall, J., dissenting) (referring to governmental disclosures as a “source of information”); Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984) (referring to certain judicial proceedings as a “source of information”). By asserting the fair report privilege, the defendants are claiming that the allegedlydefamatoryinformationtheypublishedisprivileged because the source of that information is an official action or proceeding. Therefore, under the circumstances of this case, we hold that the fair report privilege is a defense based upon the source of the allegedly defamatory information, and as such, the assertion of this defense triggers the exception to the shield law in Tennessee Code Annotated section 24-1-208(b) 7

7 This holding aligns with how other state courts have interpreted “source” in the context of news media shield laws. Many states have news media shield laws that do not define “source.” See Ala. Code § 12-21-142 (West, Westlaw through Act 2018-579); Alaska Stat. Ann. § 09.25.300 (West, Westlaw through 2018 2nd Reg. Sess. of 30th Legis.); Ariz. Rev. Stat. Ann. § 12-2237 (West, Westlaw through 1st Special and 2nd Reg. Sess.

of 53rd Legislature (2018) ); Ark. Code Ann. § 16-85-510 (West, Westlaw through 2018 Fiscal Sess. and 2nd Extra. Sess. of 91st Ark. Gen. Ass.); D.C. Code Ann. § 16-4702 (West, Westlaw through Dec. 13, 2018); Fla. Stat. Ann. § 90.5015 (West, Westlaw through 2018 2nd Reg. Sess. of 25th Legis.); Ind. Code Ann. § 34-46-4-2 (West, Westlaw through 2018 2nd Reg. Sess. and 1st Special Sess. of 120th Gen. Ass.); Kan. Stat. Ann. § 60-481 (West, Westlaw through laws effective on or before July 1, 2018); Ky. Rev. Stat. Ann. § 421.100 (West, Westlaw through end of 2018 reg. sess.); La. Stat. Ann. § 45:1452 (West, Westlaw through 2018 3rd Extra. Sess.); Md. Code Ann., Cts. & Jud. Proc. § 9-112 (West, Westlaw through 2018 Reg. Sess. of Gen. Ass.); Mont. Code Ann. § 26-1-902 (West, through chapters effective Feb. 12, 2019 sess.); Neb. Rev. Stat. Ann. § 20-144 (West, through 2nd Reg. Sess. of 105th Legislature (2018) ); Nev. Rev. Stat. Ann. § 49.275 (West, Westlaw through 79th Reg. Sess. (2017) ); N.Y. Civ. Rights Law § 79-h (McKinney, Westlaw through L. 2018); N.D. Cent. Code Ann. § 31-01-06.2 (West, Westlaw through 2017 Reg. Sess. of 65th Legis. Ass.); Ohio Rev. Code Ann. § 2739.12 (West, Westlaw through File 172 of 132nd Gen. Ass. (2017–2018) ); Okla. Stat. Ann. tit. 12, § 2506 (West, Westlaw through 2nd Reg. Sess. of 56th Legislature (2018); Or. Rev. Stat. Ann. § 44.520 (West, Westlaw through 2018 Reg. Sess. and 2018 Spec. Sess. of 79th Legis. Ass.) ); 42 Pa. Cons. Stat. Ann. § 5942 (West, Westlaw through 2018 Reg. Sess.); 9 R.I. Gen. Laws Ann. § 9-19.1-2 (West, Westlaw through Ch. 353 of Jan 2018Sess.).Onlyahandfulofcourtsinthesestates have discussed how to interpret the word “source.” These courts have employed several interpretive approaches that include consulting dictionaries, see Svoboda v. Clear Channel Commc'ns, Inc., 156 Ohio App.3d 307, 805 N.E.2d 559, 567 (citing Merriam–Webster's Collegiate Dictionary 1123 (10th ed. 1996) ), cause dismissed, 103 Ohio St.3d 1518, 817 N.E.2d 104 (2004); In re Taylor, 412 Pa. 32, 193 A.2d 181, 184–85 (1963) (citing Webster's New International Dictionary 245 (2nd ed.), 2177 (3d ed.); 10 Oxford English Dictionary 275–76), overruled in part on other grounds by Hatchard v. Westinghouse Broad. Co., 516 Pa. 184, 532 A.2d 346 (1987), consulting law

review notes, see Lightman v. State, 15 Md.App. 713, 294 A.2d 149, 153, 157 (Md. Ct. Spec. App.) (citing Recent Case, Evidence — Privileged Communications — Journalist Need Not Reveal Information Disclosed by Confidential Informant. — In the Matter of Taylor (Pa. 1963)., 77 Harv. L.Rev.556(1964);CaseComment,Newpapermen Not Required to Divulge Confidential Information to Investigating Grand Jury, 112 U. Pa. L. Rev. 438, 439 (1964) ), consulting journalismspecific glossaries, see In re Indiana Newspapers Inc., 963 N.E.2d 534, 547 (Ind. Ct. App. 2012) (citing The Wall Street Journal, Terms in Journalism (1997), http://info.wsj.com/college/ glossary/journalism.pdf), and relying entirely on the court's innate understanding of the word, see Branzburg v. Pound, 461 S.W.2d 345, 347 (Ky. 1970),aff'dsubnom.Branzburgv.Hayes,408U.S. 665,92S.Ct.2646,33L.Ed.2d626(1972).Despite thevarietyofapproaches,thesestateshavereached a consensus that “source” is an expansive term. See Indiana Newspapers Inc., 963 N.E.2d at 547 (“Source in the journalistic world is a term of art meaning a person, record, document, or event that gives information to a reporter in order to help write or decide to write a story.”); Branzburg, 461 S.W.2d at 347 (“Information as used in the statute refers to the things or the matters which a reporter learns and source refers to the method by which or to the person from whom he learns them.”); Svoboda, 805 N.E.2d at 567 (“Thus, a ‘source’ is ‘a point of origin’ or one who initiates or supplies ‘information.’ ”); Taylor, 193 A.2d at 185 (“ ‘Source’ means not only the identity of the person, but likewise includes documents, inanimate objects and all source[s] of information.”). The Supreme Court of Pennsylvania subsequently refined its holding in Taylor See Com. v. Bowden, 576 Pa. 151, 838 A.2d 740, 749 (2003) (“We read that case as standing only for the proposition that documents are to be considered sources where their production, even with all names redacted, could breach the confidentiality of a human source.” (citing Taylor, 193 A.2d at 186) ).

*221 [16] The final issue for us to resolve is the scope of the exception. The plaintiff claims that the exception allows him to discover the source of any information, regardless of whether the information was procured for publication or broadcast, and that this discovery includes “documents or

data” in the defendants' possession. We do not interpret the exception so broadly.

The exception provides that, when a source-based defense is asserted, the shield law does not apply “with respect to thesourceof[such]allegedlydefamatoryinformation.”Tenn. Code Ann. § 24-1-208(b). This language from section 208(b) limitsthescopeoftheexceptioninthefollowingways:(1)the exception applies only to defamation cases; (2) the exception applies only if the defendant asserts a defense based on the source of information; *222 (3) the exception only allows the compelled disclosure of sources and not information; and (4) the exception specifies that the source that must be disclosed is only the source of the allegedly defamatory information—it does not apply to all of the sources of all of the information that a media defendant may have researched when preparing a news report. Thus, contrary to the plaintiff's assertions, the scope of the exception is far narrower than the scope of the shield law's protection. Compare Tenn. Code Ann. § 24-1-208(a), with Tenn. Code Ann. § 24-1-208(b)

Our interpretation does not mean that, if the source of information is a document, a defendant must provide the plaintiff with the document in addition to identifying the document. We agree with the defendants that this interpretation would obliterate the statute's clear distinction between “information” and “source of information.” Tenn. Code Ann. § 24-1-208(a). A source is the means by which a reporter obtains information. For example, a source may be a person the reporter interviewed or a document the reporter read. But information is what the reporter learned from the interview or the document. Thus, the exception to the shield law allows a court to compel disclosure of the source of a media defendant's information—how media defendants know something; it does not authorize a court to compel media defendants to disclose the information the source provided. Tenn. Code Ann. § 24-1-208(b). A plaintiff may only obtain compelled disclosure of the “information” the media defendant acquired from the source by making the previously discussed three-part showing set out in another section of the shield law, Tennessee Code Annotated section 208(c)(2)(A)–(C). This portion of the statute provides that a plaintiff must demonstrate that the information is “clearly relevant,” that the information is not reasonably available from sources other than the media defendant, and that the peopleofTennesseehavea“compellingandoverridingpublic interest” in learning the information. Id.; see also Henderson v. People, 879 P.2d 383, 393 (Colo. 1994) (finding that a reportercouldnotberequiredtotestifyaboutinformationthat

couldbeobtainedfromothersourcessuchasFederalAviation Administration records); State v. Smith, No. 00-1553 F, 2001 WL 1750827, at *1 (Fla. Cir. Ct. Mar. 15, 2001) (finding that a newspaper did not have to disclose a letter that was the basis for one of its articles because a different letter that was already filed with the court provided information similar to the information contained in the letter that was in the newspaper's possession); WBAL-TV Div., Hearst Corp. v. State, 300 Md. 233, 477 A.2d 776, 782 (1984) (finding that a news station had to disclose certain video tapes because the information contained in the video tapes was not available from any other source).8

8 Any Court of Appeals' opinions that conflict with this holding are overruled. See, e.g., Jones v. Hays, No. W2005-00991-COA-R3-CV, 2006 WL 6108678, at *1 (Tenn. Ct. App. July 11, 2006) (“[N]o privilege exists for the non-disclosure of information or sources in a civil action involving defamation....”); Fed. Ins. Co. v. Arthur Andersen &Co.,No.89-380-II,1990WL73924,at*2(Tenn. Ct. App. June 6, 1990) (“[T]he newsgatherer's shield statute does not apply in actions for defamation against the newsperson....” (citation omitted) ).

Of course, assertion of the fair report privilege will necessarily entail disclosure of the media defendant's source of information. This is because a media defendant asserting the privilege must show that the allegedly defamatory information is a fair and accurate report of official actions or

proceedings, and therefore, the media defendant *223 must disclose the source of the allegedly defamatory information. See Bufalino v. Associated Press, 692 F.2d 266, 272 (2d Cir. 1982) (“Without knowledge of the identities of the persons to whom [the news gatherer] spoke, it is impossible to say whether their statements constituted official action within the scope of the [fair report] privilege.”). The defendants have disclosed in detail the circumstances of the judicial proceeding where the allegedly defamatory statements originated. On remand, the trial court will have to determine whether these disclosures amount to a sufficient description of the source of information in accordance with our interpretation of Tennessee Code Annotated section 24-1-208(b). The trial court may not under the auspices of the shield law order the media defendants to disclose the information obtained from these sources unless the plaintiff satisfies the three-part test of Tennessee Code Annotated section 24-1-208(c)(2)(A)–(C).

IV. Conclusion

For the reasons stated herein, we affirm the judgment of the Court of Appeals that the trial court erred by granting the plaintiff'smotiontocompel.Weremandthismattertothetrial court. Costs of this appeal are taxed to Glenn R. Funk for which execution may issue if necessary.

2017 WL 1178260

2017 WL 1178260

Only the Westlaw citation is currently available.

SEE COURT OF APPEALS RULES 11 AND 12

Court of Appeals of Tennessee, AT NASHVILLE.

Sinan GIDER v. Lydia HUBBELL

No. M2016–00032–COA–R3–JV

January 19, 2017 Session

FILED 03/29/2017

Appeal from the Juvenile Court for Davidson County, No. 20085426, PT191027, PT202082, Sheila Calloway, Judge

Attorneys and Law Firms

Lydia Ann Hubbell, Antioch, Tennessee, pro se appellant.

Sarah L. Reist, Nashville, Tennessee, for the appellee, Sinan Gider.

W. Neal McBrayer, J., delivered the opinion of the court, in whichFrankG.Clement,Jr.,P.J.,M.S.,andAndyD.Bennett, J., joined.

broad or vague. Accordingly, we modify the injunction the juvenilecourtplacedonMother'scommunications.Weaffirm the judgment in all other respects.

I. FACTUAL AND PROCEDURAL BACKGROUND

*1 The short-term relationship of Lydia Hubbell (“Mother”) and Sinan Gider (“Father”) produced a child, Dilara. Shortly after Dilara's birth, in October 2008, the parties entered into a parenting agreement in which Mother was designated as primary residential parent and Father had parenting time 180 days out of the year. However, the parents did not follow the parenting plan and, instead, operated under an informal arrangementwherebyeachspentsubstantiallyequaltimewith the child.

A. PETITIONS TO MODIFY THE CUSTODY ARRANGEMENT

OPINION

W. Neal McBrayer, J.

This case involves the modification of an agreed parenting plan under which the child's mother was the primary residential parent. After the father obtained an injunction to prevent Mother from homeschooling the child, the mother sought to obtain sole decision-making authority. The father then filed a petition seeking to be named primary residential parent and sole decision maker. The juvenile court granted both of the father's requests and denied the mother's request. The court also placed several limitations on the mother's visitation and enjoined her use of social media and from making disparaging remarks about the father to the child or in the child's presence. We conclude that certain of the restrictions placed on Mother's communications were overly

On May 20, 2014, in the Juvenile Court for Davidson County, Tennessee, Father filed a pleading entitled, “Petition to Establish Parenting Plan and Deny Mother's Request to Homeschool the Child.” In his petition, Father alleged that there had been a material change in circumstances due to Mother's unstable mental health, problems with her physical health, and the condition of Mother's home. He also alleged that homeschooling, as proposed by Mother, was not in the child's best interest. Father requested that he be named primary residential parent with Mother having parenting time two days a week or every other weekend. The same day, Father also filed a motion to enjoin Mother from homeschooling Dilara. Mother filed an answer/counterpetition on June 6, 2014, in which she sought sole decisionmaking authority for the child.

On July 15, 2014, a magistrate judge entered an order enjoining Mother from homeschooling the child based on concerns over Mother's lack of organizational skills and health. The order granted Father permission to apply to private school for the child, and if the parties could not agree upon where to send Dilara to school, they were to return to court for a hearing on the matter. After conducting a hearing, the magistrate entered an order on July 21, 2014, stating that Dilara would attend a public elementary school for which Mother was zoned.

Subsequently, Father filed a notice of nonsuit. The magistrate dismissed Father's petition without prejudice but kept its orders enjoining the Mother from homeschooling and ordering the child to attend public school in place. For her part, Mother filed a motion requesting to proceed as plaintiff on her request for sole decision-making authority and to homeschool the child, which was granted.

On January 5, 2015, the magistrate judge entered an order ruling upon Mother's counter-petition. The magistrate kept the previous order enjoining Mother from homeschooling in place and ordered parents to continue with joint decisionmaking. The parents were also ordered to attend a coparenting class. Thereafter, Mother filed a motion for rehearing with the juvenile court judge.

On February 24, 2015, Father filed a new petition to modify and/or establish a permanent parenting plan. Father again proposed that he be named primary residential parent, but this time, he proposed that Mother exercise parenting time from Saturday at 3:00 p.m. until Sunday at 3:00 p.m. and on Wednesdays after school from 3:00–6:00 p.m. This proposal represented a significant change from their prior informal parenting arrangement. Father also requested that he be granted sole educational decision-making authority for the child.

*2 Mother'srequesttorehearandFather'spetitiontomodify and/or establish a permanent parenting plan were combined and set for trial before a juvenile court judge. Pending trial, the court ordered that Father would exercise parenting time during the week and Mother would exercise parenting time every weekend from after school on Friday to 6:00 p.m. Sunday.

At trial, several witnesses testified, including Mother, Father, Mother's brother, two friends of Mother's, the child's kindergarten teacher, the school principal, and the CASA volunteer1 assigned to the case. At the outset, Mother 2 stipulated:

My house is a mess. I've been on disability for twelve or thirteen years. I currently have physical health issues .... I have had [ ] very serious mental health issues with depression .... I'm stable now ... [but] I will agree, I have a history of mental health issues: anxiety, depression, that sort of thing.

1 CASAvolunteersare“speciallytrainedcommunity volunteers who are available to be appointed by the courts to advocate on behalf of abused and neglected children in judicial proceedings.” In re Audrey S.,182S.W.3d838,854n.9(Tenn.Ct.App. 2005). The juvenile court may appoint a CASA volunteer to “conduct such investigation and make suchreportsandrecommendationspertainingtothe welfare of a child as the court may order or direct.” Tenn. Code Ann. § 37–1–149(b)(2) (2014).

2 Mother represented herself throughout the trial with the exception of the final day, when she did have counsel.

B. PROOF AT TRIAL

The court held the trial over five days in April, May, and August.Priortothetrial,underacourtorder,CourtAppointed Special Advocates (“CASA”), the child's Guardian ad Litem (the “GAL”), and the Tennessee Department of Children's Services (“DCS”) evaluated Mother's home. The home was found to be “inappropriate for raising a child.” Also, during the same time period, Mother was charged with stalking Father, and the Circuit Court of Davidson County, Tennessee entered an order of protection, which prohibited Mother from having contact with Father or the child for one year.

Mother went on to explain her desire to obtain sole decision-making authority, specifically concerning the child's education. She testified that the joint decision-making arrangement was no longer workable because of Father's unwillingness to communicate with Mother. She claimed that Father was “controlling and threatening” and that she often felt bullied by Father. Mother admitted, however, that Father is not a violent person. Mother stated that, while she valued Father's opinions and wanted his input, she did not want Father dictating Mother's home life and what she could do with the child during her parenting time.

According to Mother, she was the parent better equipped to make decisions in Dilara's best interest. She claimed more experience in meeting the needs of young children and to have spent more time actively engaged with Dilara. Mother

described Father as not “engage[d] with Dilara to the same degree” and as not acknowledging that Dilara had “special educational needs.”

Throughout her testimony, Mother indicated that she sought sole decision-making authority primarily because she still wished to homeschool Dilara. Mother called Kimberly Schletzer, a school psychologist, to testify concerning a psychological assessment she had performed on Dilara.

According to Ms. Schletzer, Dilara was intellectually gifted andacademicallyadvanced.Mothertestifiedthat,becauseshe was academically advanced, Dilara's needs were not being met in public school. Specifically, Mother believed that the child was bored at school and developed behavior problems as a result.

*3 Mother felt that her past experience in early childhood education and particular understanding of her child's needs made homeschooling the best option for Dilara. Additionally, Mother testified that, before Dilara started kindergarten, Mother personally taught the child how to read and write at home.3 According to Mother, a flexible homeschooling schedule would give Dilara more time to explore her talents and develop skills.

3 Mother referred to teaching the child to read and writeas“homeschooling,”thoughthechildwasnot yet of school age.

When questioned by Father's counsel, Mother conceded that she had shared details with the child about the custody case. She further admitted to discussing other topics of a sensitive nature with the child. When asked if she believed these topics wereappropriatetodiscusswithachild,Mothersaid,“Ido.... I don't think there's anything wrong with saying that.” She testified that she did not believe there is any age too young to talk to a child about most things.

Concerning the condition of her home, Mother conceded that “my strength isn't spending time on my house.” She admitted that her home was messy and described the living environment as “minimally adequate.” However, Mother testified that the living environment was still functional, and shefeltthattherewerenothreatstothechild'shealthorsafety.

As to her health, Mother emphasized that her health problems had never prevented her from adequately meeting Dilara's needs, and according to Mother, she was “mentally stronger” than she had ever been. She testified that, although her health

problems kept her from obtaining employment outside the home, she was still able to personally care for Dilara and get her where she needed to go.

Still, Mother testified to chronic health issues. In 2012, she suffered from a “severe chronic fatigue episode” for eight months. She conceded that most days she was in pain and that the stresses of litigation had led to more health problems. According to Mother, she struggled with her health, on average, two to three days per week, and on her worst days, she could only get out of bed for 10 or 15 minutes at a time. At times she had to cancel plans at the last minute due to her health. She also admitted that, despite the close distance between her home and Dilara's school, the child was occasionally dropped off late.

Regarding the visitation schedule, Mother felt it should remain the same as under the previous informal arrangement, whereby the parents enjoyed substantially equal parenting time.

Mother called her brother, Tod4 Missick, to testify concerning the child's relationship with Mother. Mr. Missick testified that Mother's health issues did not prevent her from meetingthechild'sneedsandthathehadpersonallywitnessed Mother's involvement in teaching Dilara to read and write. He also explained that Dilara seemed to enjoy spending time at Mother's home and that her needs were well met in both parents' homes. Though he agreed that Mother's house was messy, he had no concern for Dilara's safety.

4 In the statements of evidence approved by the juvenile court, the first name of Mother's brother is spelled “Tod” by Mother and spelled “Todd” by Father.

Mother also called Karen Shearer and Kathy McGee, two friends of Mother, to testify. Both women had known Mother for several years and testified that Mother frequently attended churchwithDilara.Ms.ShearerandMs.McGeeeachtestified to teaching Dilara in Bible class and found her to be well behaved. Additionally, Ms. Shearer stated that Dilara got along well with other children. Ms. McGee explained that she had witnessed Mother's positive relationship with the child, and according to Ms. McGee, Dilara was healthy and well-caredfordespiteMother'shealthconditions.Ms.McGee acknowledged the cluttered condition of Mother's home but testified that she did not feel the home was unhealthy or unsafe. She further explained that she was familiar with the

homeschoolingprogramthatMothersoughttouseandopined that “it would be good for Dilara to be homeschooled by Mother.”

*4 Next, Father testified to his belief that Mother's health had affected her ability to care for the child. He stated that he often had to pick Dilara up from Mother's home to take her to school, even during Mother's parenting time. He claimed that Mother had, on occasion, threatened to harm herself and had also experienced anxiety attacks during her parenting time, forcing Father to have the child picked up early.

Father wished to be named the primary residential parent and sole decision maker because he could provide the child with “more normalcy,” which he believed was in the child's best interest. He emphasized that Mother continued to share inappropriate information and behave irresponsibly in the child's presence. Father stated that his work schedule was flexible, which would allow him to spend sufficient time with Dilara. Father further asserted that the parties' joint decision making arrangement no longer worked, mainly because he and Mother could not agree on the homeschooling issue. He believed that the condition of Mother's home, her mental condition, and her organizational skills compromised Mother's ability to educate the child. He also disagreed with Mother on disciplinary matters.

Father called both the child's kindergarten teacher and school principal to testify concerning Dilara's behavior at school and their interactions with Mother. Jennifer Boyette, Dilara's teacher, testified that Dilara struggled to behave properly in groups with other students and would often show aggression by screaming. Ms. Boyette also stated that Mother had, in the past, spoken to her in a degrading manner and bombarded her with frequent emails.

Andrea Woodard, the school principal, testified that Dilara had become aware of the tension between her parents. Ms. Woodard explained that at school Dilara discussed the fact that Mother had shared details of the custody battle and othersensitivetopicswithDilara.AccordingtoMs.Woodard, Dilara exhibited a “high level of anger” and had “physically lashed out against her peers. As a result, Ms. Woodard had several conversations with Mother concerning inappropriate topics to discuss with children.

Ms. Woodard opined that homeschooling was not suitable for Dilara because she needed to be around children her own age for social and emotional development, as she tended to

strugglewithsuchinteractions.Ms.Woodardalsofeltthatthe structure of public school benefited Dilara. She testified that herschoolofferedprogramsforgiftedchildrenandthatDilara was, at that time, permitted to attend first grade for reading.

Finally, Tricia Reynolds, the CASA volunteer assigned to the case, testified concerning Mother's home visit and Mother'sbehavior.Ms.ReynoldsdidnotbelievethatMother's house was an appropriate environment to raise a child. She explained that the home had three bedrooms but only the living room was actually used. The other rooms were “stuffed” with Mother's belongings, and trash was scattered throughout the home. Additionally, at least one bedroom and thebasementwerecompletelyinaccessible.AccordingtoMs. Reynolds, the living room contained one bed in which both Mother and the child slept and occasionally did school work. She testified that she recommended homemaker services to Mother and offered to help Mother get her home in order, but Mother refused assistance.

Still, Ms. Reynolds's greatest concern was Mother's inability to control what she said to Dilara. She explained that Mother discussed matters with Dilara that were inappropriate and that could have a negative psychological impact on the child. Ms. Reynolds also testified that Mother's behavior provoked concern that she was not taking her medication and that it was not in the child's best interest to remain in Mother's home.

C. JUVENILE COURT'S RULING

*5 On October 15, 2015, the juvenile court entered an order granting Father's petition. After noting that the parties had stipulated that there had been a material change of circumstance, the court addressed the applicable statutory, best interest factors. Based on its analysis of the child's best interest,thecourtdeterminedthatFathershouldbedesignated primary residential parent and have sole decision-making authority.

The juvenile court ordered several restrictions on Mother's visitation, including: (1) subjecting Mother's parenting time to the terms of the order of protection; (2) requiring, initially, therapeutic visitation with a “certified moderator”; and (3) conditioning unsupervised visits on Mother completing two months of therapeutic visits and a determination by the agency conducting the therapeutic visits that Mother was ready for unsupervised visits. Once unsupervised visits commenced, the order provided that the visits could not

be overnight until the condition of Mother's home was significantly improved. The court also ordered the CASA volunteer and the GAL to remain on the case through January 2016 and to assist Mother “in getting to where she needs to be.”

Finally,thecourtenjoinedMotherfromreferencingFatheron social media or making disparaging remarks about Father to the child or to others if in the child's presence. Mother was further enjoined from discussing the custody proceedings and other “adult-only issues,” with the child.

Thereafter, Mother filed a motion entitled, “Motion for Reconsideration and Clarification.” The juvenile court grantedthemotionandclarifiedthatitspriororderwasafinal order and as such was appealable. The court also admonished Mother regarding social media postings regarding either Dilara or Father.

The juvenile court granted Father's request to modify the parenting agreement to name him the primary residential parent and also named Father the sole decision maker. Each of these issues falls under the umbrella of custody modification.5 See Colley v. Colley, No. M2014–02495–COA–R3–CV, 2016 WL 3633376, at *10 (Tenn. Ct. App. June28,2016), perm. app. denied,(Nov.17,2016)(analyzing aparent'srequestforsoledecision-makingauthorityunderthe material change analysis).

II. ANALYSIS

Mother, acting pro se on appeal, argues that the juvenile court erred in modifying the parties' parenting agreement by naming Father the primary residential parent and by granting Father sole decision-making authority. Mother also argues that the juvenile court improperly restricted her visitation and improperly placed restrictions on her communications. We consider each of these issues in turn.

5 Mother erroneously frames her argument, in part, by focusing on the injunction preventing her from homeschooling the child, which was contained in a 2014 order not before this Court. In the October 2015 order—the order that Mother has appealed—the juvenile court modified the parenting agreement to make Father the sole decision maker. Because the parties' only dispute withregardstodecisionmakinginvolvesthechild's education, we interpret Mother's argument as an additional objection to the court's modification of the custody arrangement.

*6 Tennessee Code Annotated § 36–6–101 addresses custody determinations and modifications. Regarding requests for a change of custody, the statute provides as follows:

A. STANDARD OF REVIEW

As we have often noted, “[c]ustody and visitation determinations often hinge on subtle factors.” Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996). Consequently,we“arereluctanttosecond-guessatrialcourt's decisions” on such matters. Id. We review the trial court's factual findings de novo on the record, with a presumption of correctness, unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d); Armbrister v. Armbrister, 414 S.W.3d 685, 692–93 (Tenn. 2013). We review the trial court's conclusions of law de novo with no presumption of correctness. Tenn. R. App. P. 13(d)

B. MODIFICATION OF PARENTING AGREEMENT

If the issue before the court is a modificationofthecourt'spriordecree pertaining to custody, the petitioner must prove by a preponderance of the evidence a material change in circumstance. A material change of circumstance does not require a showing of a substantial risk of harm to the child. A material change of circumstance may include, but is not limited to, failures to adhere to the parenting plan or an order of custody and visitation or circumstances that make the parenting plan no longer in the best interest of the child.

Tenn. Code Ann. § 36–6–101(a)(2)(B) (Supp. 2016). Thus, the threshold issue in considering a petition to modify the parties' parenting arrangement is whether a material change

in circumstance has occurred. Caldwell v. Hill, 250 S.W.3d 865, 869 (Tenn. Ct. App. 2007)

Only if a material change in circumstance has occurred do we consider whether a modification is in the child's best interest. Armbrister, 414 S.W.3d at 705. “The determinations of whether a material change of circumstances has occurred and where the best interests of the child lie are factual questions.” In re T.C.D., 261 S.W.3d 734, 742 (Tenn. Ct. App. 2007). Decisions on questions related to custody and visitationshouldbedirectedtowardspromotingthechildren's bestinterestsbyplacingtheminanenvironmentthatwillbest serve their physical and emotional needs. Shofner v. Shofner, 181 S.W.3d 703, 716 (Tenn. Ct. App. 2004); Gaskill, 936 S.W.2d at 630.

The parent requesting a change in the primary residential parent has the burden of proving the threshold issue of a material change in circumstance by a preponderance of the evidence. Tenn. Code Ann. § 36–6–101(a)(2)(B). But, in the case before us, both parties stipulated that a material changehadoccurred,andMotherdoesnotcontestthejuvenile court'sfindingofamaterialchangeincircumstances.Instead, Mother argues that the court erred in determining the child's best interest.

In determining a child's best interest, courts must consider a non-exclusive list of factors found at Tennessee Code Annotated § 36–6–106(a) 6 Tenn. Code Ann. §§ 36–6–404(b), –405(a) (2014). The best interest analysis is a “particularly fact-intensive process.” McEvoy v. Brewer, No. M2001–02054–COA–R3–CV, 2003 WL 22794521, at *5 (Tenn. Ct. App. Nov. 25, 2003). Under the analysis, the trial court must determine which parent is “comparatively more fit than the other to be the custodial parent.” Id.

6 The court shall consider all relevant factors applicable to the case, including:

(1) The strength, nature, and stability of the child's relationship with each parent, including whether one (1) parent has performed the majority of parenting responsibilities relating to the daily needs of the child;

(2) Each parent's or caregiver's past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and

both of the child's parents, consistent with the best interest of the child. In determining the willingness of each of the parents and caregiverstofacilitateandencourageacloseand continuing parent-child relationship between the child and both of the child's parents, the court shall consider the likelihood of each parent and caregiver to honor and facilitate court ordered parenting arrangements and rights, and the court shallfurtherconsideranyhistoryofeitherparent oranycaregiverdenyingparentingtimetoeither parent in violation of a court order;

(3) Refusal to attend a court ordered parent education seminar may be considered by the court as a lack of good faith effort in these proceedings;

(4) The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;

(5) The degree to which a parent has been the primary caregiver, defined as the parent who has taken the greater responsibility for performing parental responsibilities;

(6) The love, affection, and emotional ties existing between each parent and the child;

(7) The emotional needs and developmental level of the child;

(8) The moral, physical, mental and emotional fitness of each parent as it relates to their ability to parent the child. ... ;

(9) The child's interaction and interrelationships with siblings, other relatives and step-relatives, and mentors, as well as the child's involvement withthechild'sphysicalsurroundings,school,or other significant activities;

(10) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment;

(11) Evidence of physical or emotional abuse to the child, to the other parent or to any other person. The court shall, where appropriate, refer any issues of abuse to juvenile court for further proceedings;

(12) The character and behavior of any other person who resides in or frequents the home of a parent and such person's interactions with the child;

(13) The reasonable preference of the child if twelve (12) years of age or older. ... ;

(14) Each parent's employment schedule, and the court may make accommodations consistent with those schedules; and

(15) Any other factors deemed relevant by the court.

Tenn. Code Ann. § 36–6–106(a) (2014).

*7 Here, the juvenile court found several of the statutory factors favored Father over Mother:

36–6–106(a)(2): Each parent's past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents to facilitate and encourage a close and continuing parentchild relationship between the child and both of the child's parents ....

The Court finds that this factor favors Father. Throughout the pendency of this case, it has been clear that the Mother has continuously failed to follow through on court orders. Additionally, Mother was charged with stalking and an orderofprotectionwasgrantedagainsther.Further,Mother stated in her testimony on several different occasions that if she had researched and had decided upon something, then Father had to agree with her. There was not room for Mother to agree with Father because, according to the Mother, Father didn't do the same amount of research .... According to Mother, this meant that Father was wrong .... Motherisnotaswillingandabletofacilitateandencourage a close relationship with the child and the Father.

The Court finds that this factor favors the Father as well. The Court believes that Mother does have some mental healthissuesthatneedtobeactivelytreated.Therehasbeen some testimony as to whether or not Mother believes that she has mental health issues or whether she follows the recommendations of providers. The Court believes that the Mother needs to follow these instructions more closely.

36–6–106(a)(10): The importance of continuity in the child's life and length of time the child has lived in a stable, satisfactory environment.

The Court finds that this factor [ ] slightly [favors] Father due to the issues and concerns [with] the Mother's house based on the accounts of both [DCS] and CASA. The Mother's current living arrangement is not satisfactory for a child.

36–6–106(a)(15):Anyotherfactorsdeemedrelevantbythe court.

Based on the recommendations of CASA, and based on the arguments by the Guardian Ad Litem, the Court believes that Father has shown that he is in a better position to be more stable and to more adequately care for the child at this time.

36–6–106(a)(4): The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care.

The court finds that this factor favors the Father. The court does not want to make a ruling based on the Mother's disability. However[,] the Mother did testify that when she is sick, ... it is difficult when the child is with her. The child has to stay in the bed with Mother and do her homeschooling [ ] in bed. Mother has also had a lot of car issues. Also, Father has a stable job and has shown that he can provide for the child on a more stable basis.

....

36–6–106(a)(8): The moral, physical, mental and emotional fitness of each parent as it relates to their ability to parent the child.

Despite these findings, the juvenile court noted that the child had a strong relationship with both parents and that there was “no question that both parties absolutely love and adore the child ... and want the best for her.” The court did not find any of the best interest factors weighed in favor of Mother.

*8 Unsurprisingly, Mother takes the position that the court erroneously weighed the above factors in Father's favor. According to Mother, Factor 2 should not favor Father because she never kept Father from seeing Dilara, and in fact, shesoughttokeepinplacetheagreementallowingtheparties to enjoy essentially equal parenting time. Factor 2 concerns

[e]ach parent's ... past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents ... to facilitate and

encourage a close and continuing parent-child relationship between the child and both of the child's parents, consistent with the best interest of the child. ... [T]he court shall consider the likelihood of each parent ... to honor and facilitate court ordered parenting arrangements and rights, and the court shall further consider any history of either parent ... denying parenting time to either parent in violation of a court order[.]

Tenn. Code Ann. § 36–6–106(a)(2).

We disagree with Mother's assessment. The juvenile court properly considered Mother's unwillingness to cooperate with Father in making educational decisions and her history of disregarding orders of the court. The evidence also demonstrates that Mother continued to share inappropriate information with the child concerning the parents' relationship and the details of the custody dispute. We, therefore, agree with the juvenile court's finding that Factor 2 favored Father over Mother.

Mother also argues that the court should not have credited Father under Factor 8, which concerns the moral, physical, mental, and emotional fitness of each parent as it relates to their ability to parent the child. Id. § 36–6–106(a)(8). Though she admitted to having physical and mental health issues, Mother contends that her health has never affected her ability to parent Dilara. In fact, Mother suggests that her disability has the positive effect of allowing her to spend more time at home with the child.

Thejuvenilecourtfoundotherwise,andtheevidencedoesnot preponderate against such a finding. By her own admission, Mother's chronic fatigue episodes often left her unable to get out of bed in the mornings. Mother's mental instability was evidenced by the condition of her home 7 and her refusal to acknowledge the inappropriate nature of her discussions with the child. The record also demonstrates that Mother madeahabitofsendingFatherinappropriateandoccasionally threatening emails.8 Further, the CASA volunteer testified that Mother's behavior “provoked concern that she may not be taking her medications.”

7 Mother argues that the trial court erroneously faulted her for the “undesirable” condition of her home. While agreeing that the state of her home is not ideal, Mother asserts that it is “minimally adequate.” We note the opinions stated by Mother's witnesses that the condition of the home was not unsafe or unhealthy, but just because a home is not detrimental to a child's health does not necessarily mean it is adequate for raising a child. The photographs of Mother's home in the record together with the testimony of the CASA volunteer and Father amply support the juvenile court's finding that Mother's home was not suitable for raising a child.

8 For example, in February 2015, Mother sent Father an email stating as follows:

For the past few days, since you have been holding Dilara hostage, I have been kind of fantasizing about sitting on your chest and punching you in the face over and over and over again ... [but] I will not lay a hand on you. This is much better than wanting you dead like I did 2 ½ years ago. If I have any true violent urges, I will go on medication before I act on them.

*9 Nonetheless, Mother contends that the court failed to consider that she has equally provided for Dilara's needs in the past, her status as the child's primary caregiver, and the child's relationships with Mother's family and church friends. While recognizing that Dilara has a strong bond with Mother and has primarily resided with Mother, the evidence does not preponderate against the juvenile court's finding that Father has demonstrated a greater willingness to support the child's relationship with both parents. The factors Mother describes, while important, do not outweigh the considerations discussed above, particularly the unsuitability of Mother's home and her apparent inability or unwillingness to control the content of her conversations with the child.

Thus, from our review of the record, the evidence does not preponderate against the court's factual findings, and we discern no error in the weighing of the statutory factors. And as the parents were unable to exercise joint decision making, it was also in the child's best interest to grant Father sole decision-making authority. See Tenn. Code Ann. § 36–6–407(b)(2) (2014) (“The court shall order sole decisionmaking to one (1) parent when it finds that ... [b]oth parents are opposed to mutual decision making.”); Duke v. Duke,

2017 WL 1178260

No.M2013–00624–COA–R3–CV,2014WL4966902,at*24 (Tenn. Ct. App. Oct. 3, 2014)

harm to the child and that the limitations ordered by the court are the least restrictive visitation plan available and practical.

C. RESTRICTIONS ON MOTHER'S VISITATION

Next, Mother challenges the juvenile court's decision to limit her visitation with the child. As outlined above, the court placed several restrictions on Mother's visitation, graduallytransitioningfromsupervisedtounsupervisedvisits and allowing increased parenting time only after Mother improved the condition of her home. Mother argues that the court did not make sufficient factual findings to justify these restrictions.

This Court has previously discussed the process a trial court must follow before it limits, suspends, or terminates a noncustodial parent's visitation:

First, the trial court must make a specific finding, based on definite evidence, that visitation would cause harm to the child. Eldridge [v. Eldridge ], 42 S.W.3d [82,] 85 [ (Tenn. 2001) ]. After making this finding, the trial court must then determine the least restrictive visitation plan as available andpractical. Bueno [v. Todd ],[No.W2005–02164–COA–R3–CV,] 2006 WL 2106006 at *6 [ (Tenn. Ct. App. July 31, 2006) ]. In determining the least restrictive visitation plan, the trial court must make specific findings, based on definite evidence, that any less restrictive visitation would be harmful to the child. Id. The burden of proof on both the issue of harm and the least restrictive visitation plan, is on the party seeking to restrict visitation. Id. In making these determinations, the trial court must bear in mind that “it is the public policy of the state of Tennessee that courts shall grant parenting time with the non-custodial parent unless visitation will harm the child.” Kershaw v. Kershaw, No. M2009–00151–COA–R3–CV[, 2009 WL 4039262, at *3] (Tenn. Ct. App. November 20, 2009) (emphasis added).

Rudd v. Rudd, No. W2009–00251–COA–R3–CV, 2009 WL 4642582, at *7 (Tenn. Ct. App. Dec. 9, 2009)

In his brief, Father concedes that the juvenile court's order did not meet the standard of specificity summarized in Rudd v. Rudd. Still, Father contends that the court's factual findings combined with the statements of the evidence in the record clearly support the decision to limit Mother's visitation. We agree.Therecordandthejuvenilecourt'sfindingssupportthe conclusion that Mother's unrestricted visitation would cause

*10 After the evaluation performed on Mother's home by DCS, CASA, and the GAL, the house was found to be “inappropriate for raising a child.” Additionally, the CASA volunteer testified that Mother's discussion of inappropriate topicswithDilaracouldhaveanegativepsychologicalimpact onthechild.Infact,thechild'steacherandprincipalattributed the child's behavior problems at school to Mother's actions.

Moreover, the limitations placed on Mother's visitation were the least restrictive option for several reasons. First, ordering supervised visitation was necessary because the order of protection entered against Mother, which was still in place at the time the juvenile court's order was entered, prevented her from having contact with the child. Supervised visitation was also appropriate, at least for a time, due to Mother's apparent mental instability and her practice of discussing the custody dispute and other sensitive topics with the child. Finally, placing limitations on the amount of time the child spentinMother'shomewasalsonecessaryuntilMothercould demonstrate that she improved the home's condition. We further note that these limitations on Mother's visitation were not permanent. After two months of therapeutic, supervised visits, Mother would be permitted to exercise unsupervised visitation, which could become overnight visits when she improved the condition of her home.

D. RESTRICTIONS ON MOTHER'S COMMUNICATIONS

Mother next argues that the juvenile court improperly restricted her communications with her daughter and her online communications. The court's order restricted Mother's useofsocialmediaandenjoinedherfrommakingdisparaging remarks about Father to the child or in the child's presence or discussing the custody proceedings with the child. 9 Mother appears to argue that the injunction violates both the United States Constitution and the Tennessee Constitution as an impermissible prior restraint on speech.

9 We also briefly address Mother's argument that Father's counsel should be sanctioned for requesting such an injunction. As Father points out, Mother failed to state any legal ground by

whichitwouldbeappropriateforthisCourttoissue sanctions. Accordingly, we decline to do so.

This Court succinctly explained prior restraints in In re Conservatorship of Turner as follows:

Animpermissible“priorrestraint”existswhentheexercise of First Amendment rights depends upon prior approval of public officials. Deja Vu of Nashville, Inc. v. Metro. Gov't of Nashville and Davidson Cnty., 274 F.3d 377, 400 (6th Cir. 2001), cert. denied[,] 535 U.S. 1073, 122 S. Ct. 1952, 152 L.Ed. 2d 855 (2002). A system creating prior restraints bears a heavy presumption against its constitutional validity. Id. (citing Freedman v. Maryland, 380 U.S. 51, 85 S. Ct. 734, 13 L.Ed. 2d 649 (1965)). In the context of protected speech, “ ‘prior restraint’ is a label used in constitutional law to describe administrative or judicial orders that forbid a communication when issued in advance of the time that the communication is to occur: Governmental action constitutes a prior restraint when it is directedtosuppressingspeechbecauseofitscontentbefore the speech is communicated.”

2 J. Thomas McCarthy, Rights of Publicity and Privacy § 11:24 Injunctions–Prior Restraint Rule (2d ed.). Accordingly, the First Amendment of the United States Constitution, and Article I, Section 19 of the Tennessee Constitution, provide broad protections to prevent the abridgment of a person's right to freedom of speech. These protections require the application of strict scrutiny review when a court is presented with the question of whether a person's fundamental rights, such as freedom of speech, have been infringed. See generally San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 16, 93 S. Ct. 1278, 36 L.Ed. 2d 16 (1973). Strict scrutiny requires that the restraint on speech be “narrowly tailored to serve a compelling governmental interest.” Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469, 129 S. Ct. 1125, 172 L.Ed. 2d 853 (2009)

*11 In re Conservatorship of Turner, No. M2013–01665–COA–R3–CV, 2014 WL 1901115, at *8 (Tenn. Ct. App. May 9, 2014).

Here, the juvenile court's order is clearly a prior restraint. Specifically, the case involves prior restraint on a parent's speech in the context of a child custody dispute. Though we have uncovered no Tennessee cases directly on point, we are guided by the decisions of our sister states. In cases such as this one, the danger of physical or emotional harm to the child must be balanced against the parent's First Amendment rights. Baskin v. Hale, 787 S.E.2d 785, 791 (Ga. Ct. App.

2016), cert. denied, (Jan. 17, 2017); see also In re T.T., 779 N.W.2d 602, 620 (Neb. Ct. App. 2009). In doing so, courts must consider whether the activity restrained poses a “clear and present danger or a serious and imminent threat to a protected competing interest.” In re R.J.M.B., 133 So. 3d 335, 343 (Miss. 2013) (quoting United States v. Brown, 218 F.3d 415, 425 (5th Cir. 2000)) (internal quotations omitted).

In this case, the juvenile court restricted certain types of communications about Father and prohibited Mother from discussing certain topics with or in the presence of the child. Specifically, the order restricted Mother from referencing Father“atallonsocialmedia”ormakingdisparagingremarks about Father on social media. The order also provided as follows:

Mother is enjoined from having any conversations with the child about the court proceedings or about topics which are adult-only issues ....

... Mother is enjoined from making any disparaging remarks about Father to the child or in the presence of the child ....

As discussed above, Mother's conversations with the child were unquestionably harmful, as were Mother's social media posts. By her own admission, Mother often posted the details of the parties' custody dispute on social media for the purpose of communicating with Father. She testified:

[Fatherwill]talkaboutmebuthewon't talk to me. And he said he doesn't want to read my emails. He's told [his attorney] not to read my emails. I put stuff on Facebook and make it public just so he'll see it because I know ... they'll read my Facebook posts. So they can know how I'm feeling.

Mother also posted disparaging remarks about Father online, occasionally referring to him as “Dilara's father” and “my Turkish enemy.” For example, while the custody proceedings were still ongoing, Mother posted several negative and unsubstantiated claims about Father's character, such as her post in December 2014, which stated:

Getting kind of excited about court on Monday. It will be very interesting to see how [Father] reacts to my questions when he can't get away or threaten to call the police and have me arrested because I want to talk to him about Dilara. I hope the Court puts an end to this madness.

In imposing the injunction at issue, the juvenile court's focus was clearly on protecting the interests of the child. Here, the evidence does not preponderate against the juvenile court's findingsthatthecertainofMother'scommunicationswerenot in the child's best interest or harmful to the child.

*12 Under these facts, it is entirely proper for the juvenile court to restrict Mother from making disparaging and clearly defamatory remarks about Father online or to the child or in the presence of the child. See In re T.R., 556 N.E.2d 439, 454 (Ohio 1990) (“[A] juvenile court, which is not presumptively open, has the power to control extrajudicial comments by the litigants, provided the restrictions are consistent with [constitutionalstandards].”); In re Conservatorship of Turner, 2014 WL 1901115, at *20 (holding that defamatory speech may be enjoined if narrowly tailored to limit the prohibited speech to that which has been determined to be false). Such remarks are “not worthy of constitutional protection.” See Gertz v. Robert Welch, Inc.,418U.S.323,340(1974).Andwe conclude that the restrictions placed on Mother in this regard do not unduly burden constitutionally protected speech. See In re Brianna B., 785 A.2d 1189, 1195 (Conn. App. Ct. 2001) (concluding a confidentiality order did not violate adoptive mother's right to free speech where the trial court “did not absolutely bar any discussion of the proceedings, permitting the petitioner to discuss the proceedings with a child advocate or her legislative representative.”) In light of their adverse effect on Dilara, the record also supports restricting Mother's communication to the child about the

court proceedings and other topics specifically identified in the order. The demonstrated harm outweighs Mother's free speech rights.

Nonetheless, we conclude certain of the restrictions placed on Mother's communications were overbroad or vague. The prohibitionagainstanymentionofFatherbyMotheronsocial media would prohibit even the most benign reference to Father. And the prohibition against Mother discussing “adultonlyissues”withherchildleavesareasonablebasisfordoubt as to what topics, beyond those specifically mentioned in the order, Mother may not discuss. Consequently, we modify the juvenile court's injunction to remove the prohibitions against 1) any reference by Mother to “Father at all on social media” or 2) discussions of “adult-only issues” beyond those topics specifically referenced in the injunction. Our ruling, however,doesnotprecludethejuvenilecourtfromexpanding its injunction in the future to cover additional topics provided the restraints on Mother are supported by adequate factual findings and are narrowly tailored to limit the prohibited speech.

III. CONCLUSION

In light of the foregoing, we conclude that the juvenile court did not err in naming Father the primary residential parent and sole decision maker. Although the juvenile court's order lacked specificity, in the unique circumstances of this case and based on our review of the record, the limits placed on Mother's visitation were appropriate. We also conclude that the prohibitions against any reference by Mother to Father on socialmediaanddiscussing“adult-onlyissues”withthechild were overly broad or vague. However, the restrictions placed on Mother's communications were appropriate in all other respects. We, therefore, affirm the decision of the juvenile court as modified. All

2003 WL 21266937

Only the Westlaw citation is currently available.

SEE COURT OF APPEALS RULES 11 AND 12 Court of Appeals of Tennessee.

William H. JOHNSON d/b/ a Southern Secrets Bookstore, et al., v. CITY OF CLARKSVILLE.

No. M2001-002273-COA-R3-CV. |

March 17, 2003 Session. |

June 3, 2003.

Direct Appeal from the Circuit Court for Montgomery County, No. 50100300; Michael R. Jones, Judge.

Attorneys and Law Firms

John E. Herbison, Nashville, Tennessee, for the appellant, William H. Johnson d/b/a Southern Secrets Bookstore.

David Haines, Clarksville, Tennessee, for the appellee, City of Clarksville.

DAVID R. FARMER, J., delivered the opinion of the court, in which W. FRANK CRAWFORD, P.J., W.S., and HOLLY K. LILLARD, J., joined.

(“the City”) in the Montgomery County Circuit Court seeking a declaratory judgment and injunctive relief. In their complaint as amended in July 2001, plaintiffs challenged the constitutionality of Ordinance No. 24-1999-00, styled an “Ordinance Amending the Official Code Relative to Licensing of Adult-Oriented Businesses,” as enacted by the City in September 2000 (“the ordinance”). Plaintiffs contend that the ordinance is a restriction of their First Amendment right of free expression that is not sufficiently narrowly tailored to withstand strict scrutiny under United States v. O'Brien, 391 U.S. 367 (1968)

They aver the ordinance:

1. is a prior restraint on free expression which fails to comport with constitutionally required procedural safeguards;

2. vests unlimited discretion with the licensing board with respect to the granting and renewal of licenses;

3. fails to ensure a timely decision making/notification process;

4. fails to ensure timely, meaningful administrative or judicial review;

5. is unconstitutionally vague and/or overbroad;

6. contains disclosure requirements which infringe upon the constitutionally protected right to privacy;

7. imposes excessive fees.

OPINION

DAVID R. FARMER, J.

*1 Plaintiffs filed an action for declaratory judgment and injunctive relief alleging that a City of Clarksville ordinance was unconstitutionally vague and/or overbroad. The trial court consolidated Plaintiffs' motion for temporary injunction with a hearing on the merits, struck out small portions of the ordinance,anddismissedthecomplaint sua sponte. Weaffirm in part, vacate the order dismissing the action, and remand for further proceedings.

Plaintiffs in this case are owners and employees of adult entertainment establishments in Clarksville. In June 2001, they filed a complaint against the City of Clarksville

In their prayer for relief, plaintiffs sought a temporary injunction prohibiting the City from taking any action to enforce the ordinance pending a final hearing on the merits; a declaratory judgment declaring the ordinance unconstitutional, either facially or as applied to the plaintiffs; a permanent injunction against enforcement of the ordinance; reasonable attorney's fees pursuant to 42 U.S.C. § 1988

On August 1, 2001, the City filed a memorandum of law in opposition to Plaintiffs' request for temporary injunction. A hearing was held on August 2 and 13, 2001. On August 14, 2001, the trial court issued a memorandum making findings of fact and conclusions of law. In its memorandum, the trial court determined that with the exception of certain specific provisions, the challenged ordinance does not violate either the Tennessee or United States Constitutions. The trial court struck section 5-1211(I) and the phrase “as may be required

by the board, but not less than” of section 5-1209(a) from the ordinance and concluded:

informality of form or title of the notice of appeal.

After having struck small portions of the ordinance, the Court finds that the ordinance meets all standards of the Constitution of the State of Tennessee and the Constitution of the United States. Therefore, the original Complaint and Amended Complaint for Declaratory Judgment and Injunctive Relief as to [the] Municipal Ordinance are dismissed.

*2 A notice of appeal was filed on September 13, 2001, naming as appellant “William H. Johnson d/b/a Southern Secrets et al.” This Court determined that the trial court's memorandum did not constitute a final, appealable judgment pursuanttoTenn.R.App.P.3.OnJanuary16,2002,thisCourt ordered Appellants to obtain a final order and cause the order to be transmitted to this Court within forty-five (45) days or else show cause why the appeal should not be dismissed. The trial court entered its final order dismissing the complaint on February 5, 2002.

In Mairose, wenotedthatin1993,theUnitedStatesCongress amended Rule 3(c) of the Federal Rules of Appellate ProcedurefollowingtheUnitedStatesSupremeCourt'sruling in Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988) Mairose, 86 S.W.3d at 510. We noted that in Torres, the Court held that the use of the phrase “et al” was insufficient to provide notice of appeal in accordance with the Fed. R.App. P.3(c)asitthenexisted. Id. at509(citing Torres, 487U.S.312 at 314). In Town of Carthage, Tennessee v. Smith County, this Court adopted the United States Supreme Court's reasoning in Torres, observing that Tenn. R.App. P. 3(f) was identical, in pertinent part, to the pre-1993 amendment Fed. R.App. P. 3(c). Id. (citing Town of Carthage, Tennessee v. Smith County, No. 01-A-01-9308-CH00391, 1995 WL 92266 at *3 (Tenn.Ct.App. Mar. 8, 1995)).

Jurisdiction of this Court

As a preliminary matter, we note that the notice of appeal filed in this Court named as appellants “William H. Johnson d/b/a Southern Secrets et al.” This Court previously has held that the listing of one or several named parties followed by the phrase “et al” is insufficient on the notice of appeal to satisfy the Tennessee Rules of Appellate Procedure. See Mairose v. Federal Express Corp., 86 S.W.3d 502 (Tenn.Ct.App.2002)(perm.app.denied). Rule 3(f) of the Tennessee Rules of Appellate Procedure provides:

Although Congress amended the federal rules, effectively overruling the holding of the Supreme Court in Torres, Tenn. R.App. P. 3(f) has not been amended similarly. Mairose, 86 S.W.3d at 510. Tennessee accordingly adheres to the reasoning of Torres: all appellants must be listed by name on the notice of appeal. This Court does not have jurisdiction over a person presumptively included in the phrase “et al” but not specifically named as an appellant on the notice of appeal. Id.; see also, Spectra Plastics, Inc. v. Nashoba Bank, 15 S.W.3d 832, 840 (Tenn.Ct.App.1999)(perm.app.denied); McGaugh v. Galbreath, 996 S .W.2d 186, 189 (Tenn.Ct.App.1998)(perm.app.denied). In the present case, therefore, our jurisdiction is limited to the appeal of William H. Johnson d/b/a Southern Secrets (Mr. Johnson).

Issues on Appeal

*3 The issues before this Court on appeal, as we perceive them, are:

The notice of appeal shall specify the party or parties taking the appeal, shall designate the judgment from which relief is sought, and shall name the court to which the appeal is taken. An appeal shall not be dismissed for

1. Whether the trial court erred by awarding final judgment to the City following a hearing on plaintiffs' motion for temporary injunction, where no answer or motion to dismisshadbeenfiledbytheCityandPlaintiffswerenot given notice that the hearing would be on the merits of the case.

2.WhetherthetrialcourterredindenyingPlaintiffs'motion for temporary injunction.

3. Whether the ordinance as amended by the trial court is constitutional. Standard of Review

Our standard of review of a trial court sitting without a jury is de novo upon the record. See Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn.1995). There is a presumption of correctness as to the trial court's findings of fact, unless the preponderance of evidence is otherwise. Tenn. R.App. P. 13(d). We review the trial court's conclusions on matters of law de novo, with no presumption of correctness. Tenn. R.App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000).

Consolidation of Hearing with Trial on the Merits

The trial court held a hearing on Plaintiffs' motion for temporary injunction on August 2 and 13, 2001. On August 14, 2001, the trial court issued a memorandum making findings of fact and conclusions of law. The trial court struck small sections of the ordinance and determined that the ordinance as amended was not unconstitutional. It further dismissed the complaint for declaratory judgment and injunctive relieve. On appeal, Mr. Johnson contends it was error for the trial court to consolidate the August hearing on Plaintiffs' motion for temporary injunction with a hearing on the merits without notice to the parties. The Tennessee Rules of Civil Procedure provide:

on the merits becomes part of the record on the trial and need not be repeated upon the trial. This subdivision [65.04(7) ] shall be so construed and applied as to save to the partiesanyrightstheymayhavetotrial by a jury.

Tenn. R. Civ. P. 65.04(7)

Consolidation of Hearing with Trial on

Merits. Before or after the commencement of the hearing of an application for a preliminary injunction, the Court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible upon the trial

It is undisputed that the trial court in this case did not order a Rule 65.04(7) consolidation, nor did it provide notice to the parties of its intent to consolidate the hearings. (See appellee's brief at 7) Further, the parties were not advised that the court had in fact consolidated the hearings until the courtissueditsmemorandumdismissingtheactiononAugust 14, 2001. Although Rule 65.04(7) clearly establishes that it is within the authority of the court to order an application for temporary injunction consolidated with a hearing on the merits, it may not exercise such authority without notice to the parties. See Oak Ridge FM, Inc., v. Wicks Broadcasters, Ltd., No. 03A01-9409-CH-00318, 1995 WL 40303 at * 3 (Tenn.Ct.App. Feb. 1, 1995). Notice of the issues to be tried is fundamental to the judicial process, and parties are entitled to such notice in advance of the trial date. See id.; Sunburst Bank v. Patterson, 971 S.W.2d 1, 6 (Tenn.Ct.App.1998). The United States Supreme Court has addressed the identical language of Fed.R.Civ.P. 65(a)(2), opining: “[b]efore such an order [of consolidation] may issue, however, the courts have commonly required that ‘the parties should normally receive clear and unambiguous notice ... either before the hearing commences or at a time which will still afford the parties a fullopportunitytopresenttheirrespectivecases.’“ University of Texas v. Camenisch, 451 U.S. 390, 395 (1981)(quoting Pughsley v. 3750 Lake Shore Drive Cooperative Bldg., 463 F.2d 1055, 1057 (C.A.7 1972)). We agree with Mr. Johnson that it was error for the trial court to dismiss the case without a Rule 65.04(7) order of consolidation or notice to the parties allowing them sufficient time to prepare for a hearing on the merits. We accordingly vacate the trial court's order dismissing the case and remand for further proceedings.

Denial of Motion for Preliminary Injunction

*4 The Tennessee Rules of Civil Procedure provide:

A temporary injunction may be granted during the pendency of an action if it is clearly shown by verified complaint, affidavit or other evidence that the movant's rights are being or will be violated by an adverse party and the movant will suffer immediate and irreparable injury, loss or damage pending a final judgment in the action, or that the acts or omissions of the adverse party will tend to render such final judgment ineffectual.

Tenn. R. Civ. P. 65.04(2). Generally, in determining whether to award a preliminary injunction, the trial court must consider:

1) the threat of irreparable harm to the movant absent the injunction;

2) the balance between the benefit to the movant and the harm inflicted on the non-moving party;

3) the likelihood that the movant will succeed on the merits of the case; and

4) the public interest. ROBERT BANKS, JR. & JUNE ENTMAN, TENNESSEE CIVIL PROCEDURE, § 4-3(j) (1999). Upon review of the record, including the complaint and testimony of the manager of Mr. Johnson's establishment,SouthernSecrets,wefindthatMr.Johnsonhas not established that he will suffer irreparable harm absent a preliminaryinjunction.Weaccordinglyaffirmthetrialcourt's dismissal of the motion for injunctive relief.

Conclusion

We affirm the judgment of the trial court dismissing the motion for preliminary injunction. It was error for the trial court to consolidate the hearing on plaintiffs' motion for preliminary injunction with a hearing on the merits absent a Tenn. R. Civ. P. 65 .04(7) order or notice to the parties giving them time to prepare the issues or, alternately, agreement by the parties during the course of proceedings. We therefore vacatethetrialcourt'sorderdismissingthisactionandremand for further proceedings.

In light of the foregoing, the question of whether the ordinance is constitutional is pretermitted as requiring an advisory opinion by this Court. Counsel for Mr. Johnson contends that, upon remand, this action should be assigned to a different trial judge. We find this contention to be without merit. Further, we caution Mr. Johnson's counsel to carefully consider his choice of words when characterizing the actions of a court.

Costs of this appeal are taxed one-half to the appellee, City of Clarksville,andone-halftotheappellant,WilliamH.Johnson d/b/a Southern Secrets Bookstore, and his surety, for which execution may issue if necessary.

2015 WL 1881240

KeyCite Yellow Flag - Negative Treatment

Distinguished by Saidak v. Schmidt, E.D.Tenn., November 20, 2020

2015 WL 1881240

Only the Westlaw citation is currently available.

SEE COURT OF APPEALS RULES 11 AND 12

Court of Appeals of Tennessee, AT NASHVILLE.

James C. LODEN, M.D., P.C., d/b/a Loden Vision Centers, and James C. Loden, M.D., Individually v.

Gerald Michael SCHMIDT

No. M2014–01284–COA–R3–CV

April 07, 2015 Session

Filed April 24, 2015

Appeal from the Circuit Court for Davidson County, No. 10C1034; Thomas W. Brothers, Judge1

1

Other than the final judgment, all orders at issue in this case were entered by Judge Amanda McClendon.

Attorneys and Law Firms

Gerald Michael Schmidt, Franklin, Tennessee, Pro se.

James Bryan Lewis, Nashville, Tennessee, for the appellee, James C. Loden, M.D., P.C., d/b/a Loden Vision Centers, and James C. Loden, M.D., Individually.

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the Court, in which ARNOLD B. GOLDIN, J., and KENNY ARMSTRONG, J., joined.

entered an order striking the patient's answer and entering a default judgment against the patient. The trial court later awarded the doctor nominal damages and a permanent injunction. Affirmed.

Background

Plaintiff/Appellee Dr. James C. Loden (“Dr. Loden”) performed LASIK eye surgery 2 on Gerald Schmidt (“Mr. Schmidt”) on May 18, 2007 at Dr. Loden's clinic, Loden Vision Center. Mr. Schmidt contends this caused corneal neuropathy and vitreous floaters in his eyes. Mr. Schmidt filedtwomalpracticeactionsagainstDr.Loden,butbothwere eventually dismissed.3

2 “LASIK” is defined as “[e]ye surgery in which the surface of the cornea is reshaped by a laser, performed to correct certain refractive disorders.” The American Heritage College Dictionary 782 (4th ed.2002).

3 Mr. Schmidt voluntarily dismissed his first lawsuit. Mr. Schmidt's second lawsuit was dismissed with prejudice for failure to comply with the requirements of the Tennessee Medical Malpractice Act (now titled the Tennessee Healthcare Liability Act).

In 2008 and 2009, Mr. Schmidt allegedly began posting on Dr. Loden's Facebook page and other internet sites “warning others about his negative experiences” with his LASIK procedure performed by Dr. Loden. In these posts, Mr. Schmidt allegedly claimed that Dr. Loden acted improperly with regard to Mr. Schmidt and other patients. Eventually, on March 19, 2010, Dr. Loden, individually and d/b/a Loden Vision Center, filed a complaint against Mr. Schmidt for malicious prosecution. Dr. Loden granted Mr. Schmidt an extension in which to file an answer, allowing until approximatelyMay15,2010.CounselforMr.Schmidtfileda noticeofappearanceonApril29,2010;however,Mr.Schmidt failed to file an answer by May 15, 2010.

OPINION

J. STEVEN STAFFORD, P.J.

*1 Doctorfiledthislawsuitagainstaformerpatient,alleging malicious prosecution, tortious interference, defamation, and intentional infliction of emotional distress. After the patient refused to respond to discovery, the trial court eventually

On July 28, 2010, Dr. Loden filed an amended complaint, asserting additional claims for tortious interference, defamation, and intentional infliction of emotional distress. The amended complaint alleged that Mr. Schmidt engaged in apatternofdefamatory,harassing,andsometimesthreatening behavior against Dr. Loden and the staff at Loden Vision

Center, which negatively affected Dr. Loden's business and made Dr. Loden and his staff fearful of their safety. On the sameday,Dr.Lodenfiledarequestforatemporaryinjunction preventing Mr. Schmidt from making defamatory comments about Dr. Loden. Mr. Schmidt responded in opposition to the motion for temporary injunction on August 3, 2010. The trial court nevertheless granted the temporary injunction on August 9, 2010.

On January 12, 2011, Mr. Schmidt's counsel was permitted to withdraw from the case.4 On February 25, 2011, Mr. Schmidt, acting pro se, filed an answer to the amended complaint,denyingthematerialallegationscontainedtherein. In addition, Mr. Schmidt asserted that his statements were true, were not communicated with malice, and were protected by the First Amendment of the United States Constitution. The case languished for several years; the parties were orderedtoattendseveralstatusconferences,andthetrialcourt entered numerous case management orders. Mr. Schmidt also filed a motion to dismiss Dr. Loden's complaint, which was deniedbythetrialcourtoverayearafterthemotionwasfiled.

4 After the withdrawal of his counsel, Mr. Schmidt proceeded pro se in the trial court. He is also selfrepresented on appeal.

*2 Discovery disputes are at the center of this appeal. First, on November 20, 2013, Dr. Loden filed a motion to compel Mr. Schmidt to answer a question propounded to Mr. Schmidt during his deposition but which Mr. Schmidt refused to answer. 5 The trial court granted Dr. Loden's motion to compel on December 20, 2013 and awarded Dr. Loden $200.00 in discretionary costs as a sanction. Soon thereafter, on January 8, 2014, Dr. Loden filed a second motion for sanctions against Mr. Schmidt for failure to answer interrogatories or respond to requests for production of documents. Mr. Schmidt subsequently filed a motion to be permitted additional time to respond to discovery. On February 14, 2014, however, the trial court entered an order finding that Mr. Schmidt was timely and properly notified of his inadequate discovery responses on November 20, 2013, and that he willfully failed to correct his discovery responses since that date. Accordingly, the trial court awarded Dr. Loden $1,600.00 in attorney's fees as a sanction. The trial court further ordered that Mr. Schmidt should answer all outstanding discovery requests within thirty days of the entry of its order.

5 The question concerned Mr. Schmidt's allegation that Dr. Loden falsified the medical records of two patients.Whenaskedtodisclosethenamesofthose persons, Mr. Schmidt answered that he was not going to name names.?

Thirty days passed with no response from Mr. Schmidt. Accordingly, on April 7, 2014, Dr. Loden filed a third motion forsanctionsagainstMr.Schmidt,indicatingthatMr.Schmidt had neither responded to discovery as ordered nor paid the two prior awards of sanctions within the time frame set by the trial court. The motion requested that the trial court strike Mr.Schmidt'sanswerasadiscoverysanctionpursuanttoRule 37.02 of the Tennessee Rules of Civil Procedure, or, in the alternative, set a show cause hearing as to why Mr. Schmidt should not be held in contempt. Dr. Loden also requested attorney's fees associated with the filing of his motion.

The trial court held a hearing on Dr. Loden's motion for sanctions on April 25, 2014. The trial court entered a written order granting Dr. Loden's motion on May 21, 2014. In the order, the trial court found:

1. [Mr.] Schmidt, failed to file a response to [Dr. Loden's] Motion as required by Davidson County Local Rules of Practice 26.04.6 The [c]ourt finds [Mr. Schmidt] has been advised by this [c]ourt previously concerning this Local Rule, and [Mr. Schmidt] has continued to ignore Local Rule 26.04 concerning timely responses to motions.

2. The [c]ourt finds the [Mr. Schmidt] has consistently ignored the Tennessee Rules of Civil Procedure as they relate to discovery, and this [c]ourt has previously sanctioned [Mr. Schmidt] on December 20, 2013 and February 14, 2014 as a result of noncompliance with discovery.

3. The [c]ourt finds the [Mr. Schmidt] has purposely ignored this [c]ourt's order of February 14, 2014 to answer Plaintiffs' discovery request and has been in direct violation of this [c]ourt's order for over two (2) months. The [c]ourt finds the Defendant was advised by Special Master Mary Ashley Nichols on April 7, 2014 to comply with the [c]ourt's order of February 14, 2014, and [Mr. Schmidt] purposely [sic] continued to ignore and violate this [c]ourt's order.

4. Based on [Mr. Schmidt's] consistent and willful pattern of ignoring this [c]ourt's orders as it relates to the

discovery process in this ease, as well as [Mr. Schmidt's] repeated and willful conduct of disregarding Local Rule 26.04, the [c]ourt finds the [Dr. Loden's] Motion shall be granted and the [Mr. Schmidt's] Answer struck from the record. [Dr. Loden] shall be granted a default judgment and a hearing for damages shall be held on June 3, 2014 at 9:00 a.m.

5.[Dr.Loden's]attorney...shallbeawardedOneThousand Two Hundred Dollars ($1,200.00) in attorney's fees as a sanctionagainst[Mr.]Schmidt,whichfeesaresupported by the Affidavit attached to this Order. The [c]ourt hereby finds that the $1,200.00 award of attorney's fees isajudgmentforwhichexecutionmayissueifnecessary after thirty (30) days of the entry of this Order.

*3 Thus, the trial court simultaneously struck Mr. Schmidt's answer and entered a default judgment against him for failure to file an answer to the amended complaint.

6 Davidson County Local Rule of Practice 26.04(d) states that if a motion is opposed:

[A] written response to the motion must be filed and personally served on all parties. The response shall state with particularity the grounds for opposition to the motion, supported by legal authority, if applicable. If no response is filed, the motion shall be granted with the exception of certain proceedings in Probate.

ThetrialcourtheldahearingondamagesonJune3,2014.On the same day, the trial court entered a written order awarding Dr. Loden $1.00 in nominal damages, and a permanent injunction barring Mr. Schmidt and his agents or assigns:

internet under his own name and can make any posting about any aspect of Lasik surgery as long as [Mr.] Schmidt doesnotmentioninanywayDr.James C. Loden or Loden Vision Centers.

Further, the trial court enjoined Mr. Schmidt and his agent or assigns from making any untrue or defamatory statements regarding Dr. Loden or Loden Vision Center, or making harassingorthreateningcommunicationstoDr.Loden,Loden Vision Center, or any employees or agent of Loden Vision Center. Mr. Schmidt filed a timely notice of appeal.

Analysis

Mr. Schmidt raises one issue for review, namely: Whether the Second Circuit Court of Davidson County erred by granting a default judgment against [Mr. Schmidt] and granting [Dr. Loden] a permanent injunction when [Dr. Loden's] unmeritorious charges of malicious prosecution, tortious interference, and defamation were never heard on the merits.? Before addressing the substantive arguments raised by Mr. Schmidt, we first must discuss the deficiencies in Mr. Schmidt's appellate brief.

We recognize that Mr. Schmidt is proceeding pro se in this appeal and, therefore, may not be fully familiar in the Rules of this Court. Accordingly, we keep in mind the following guidance in considering Mr. Schmidt's brief:

[F]rom contacting or attempting to contact any prospective, current, or past patient of [Dr.] Loden [ ] or Loden Vision Centers via Facebook or any other internet site or any other medium of communication including, but not limited to, the internet, U.S. mail, telephone, facsimile, in-person or any other means of communication for the purpose of interfering with said patients' business relationship with [Dr.] Loden [ ] or Loden Vision Centers. [Mr.] Schmidt shall be allowed to make postings on the

Parties who decide to represent themselves are entitled to fair and equal treatment by the courts. The courts should take into account that many pro se litigants have no legal training and little familiarity with the judicial system. However, the courts must also be mindful of the boundary between fairness to a pro se litigant and unfairness to the pro se litigant's adversary. Thus, the courts must not excuse pro se litigants from complying with the same substantive and procedural rules that represented parties are expected to observe.

Thecourtsgiveproselitigantswhoareuntrainedinthelaw a certain amount of leeway in drafting their pleadings and briefs.Accordingly,wemeasurethepaperspreparedbypro selitigantsusingstandardsthatarelessstringentthanthose applied to papers prepared by lawyers.

Eventhoughthecourtscannotcreateclaimsordefensesfor pro se litigants where none exist, they should give effect to the substance, rather than the form or terminology, of a pro se litigant's papers.

Hessmer v. Hessmer, 138 S.W.3d 901, 903–04 (Tenn.Ct.App.2003) (internal citations omitted); see also Young v. Barrow, 130 S.W.3d 59, 63 (Tenn.Ct.App.2003); Edmundson v. Pratt, 945 S.W.2d 754, 755 (Tenn.Ct.App.1996); Kaylor v. Bradley, 912 S.W.2d 728, 733 n.4 (Tenn.Ct.App.1995)

Rule 27 of the Tennessee Rules of Appellate Procedure contains the mandatory contents for an appellate brief. Relevant to this appeal, Rule 27 provides:

(a) Brief of the Appellant. The brief of the appellant shall contain under appropriate headings and in the order here indicated:

Mr. Schmidt's brief is deficient in two respects. First, the argument section of Mr. Schmidt's appellate brief totals sixtysix pages. Clearly, Rule 27(i) mandates that the arguments section of briefs filed with this Court not exceed fifty pages; accordingly, Mr. Schmidt failed to comply with this mandate.

(6) A statement of facts, setting forth the facts relevant to the issues presented for review with appropriate references to the record;

(7) An argument, which may be preceded by a summary of argument, setting forth:

(A) the contentions of the appellant with respect to the issues presented, and the reasons therefor, including the reasonswhythecontentionsrequireappellaterelief,with citations to the authorities and appropriate references totherecord(whichmaybequotedverbatim)reliedon; and

(B) for each issue, a concise statement of the applicable standard of review (which may appear in the discussion oftheissueorunderaseparateheadingplacedbeforethe discussion of the issues);....

Evenmoreimportantly,Mr.Schmidt'sappellatebriefcontains no references to the trial record, either in the statement of facts or argument sections of his brief. The obligation to provide appropriate references to the record is not a mere technicality,butinsteadpromotestheimportantconsideration of judicial economy. [T]his Court is under no duty to blindly search the record in order to find ... evidence to support [Mr. Schmidt's arguments].? Pearman v. Pearman, 781 S.W.2d 585, 588 (Tenn.Ct.App.1989) (citations omitted). Our courts have repeatedly held that the failure to make appropriate references to the record on appeal may result in a waiver of the argument on appeal. See, e.g., Forbess v. Forbess, 370 S.W.3d 347, 355 (Tenn.Ct.App.2011); Chiozza v. Chiozza, 315 S.W.3d 482, 489 (Tenn.Ct.App.2009); Lett v. Collis Foods, Inc., 60 S.W.3d 95, 105 (Tenn.Ct.App.2001); Bean v. Bean, 40 S.W.3d 52, 55 (Tenn.Ct.App.2000); Rampy v. ICI Acrylics, Inc., 898 S.W.2d 196, 210 (Tenn.Ct.App.1994).

Mr. Schmidt's complete failure to provide any references to the record as required by the Tennessee Rules of Appellate Procedure, especially given the trial court's finding that Mr. Schmidt willfully failed to comply with the Tennessee Rules of Civil Procedure, is troubling to this Court.

(i)PageLimitations.Exceptbyorderoftheappellatecourt orajudgethereof,argumentsinprincipalbriefsshallnot exceed 50 pages, and arguments in reply briefs shall not exceed 25 pages.

Tenn. R. Civ. P. 27 (some emphasis added).

*5 This Court may have been inclined to overlook these deficiencies given Mr. Schmidt's pro se status. However, another deficiency in Mr. Schmidt's appellate brief is fatal to his appeal. As previously discussed, while Mr. Schmidt raises as an issue the trial court's decision to grant a default judgmenttoDr.Loden,hecitesnoauthorityregardingdefault judgments or discovery sanctions in his appellate brief. Instead, Mr. Schmidt appears to argue that Dr. Loden was not entitled to a default judgment because he could not prevail inhisunderlyingmaliciousprosecution,tortiousinterference, defamation, and intentional infliction of emotional distress claims had a trial on the merits been conducted. Respectfully, whetherDr.Lodencouldhaveprevailedinatrialonthemerits is not at issue in this appeal. The only issue appropriately reviewable is whether the trial court appropriately struck Mr. Schmidt's answer as a discovery sanction, leading to the entry of a default judgment in Dr. Loden's favor.7

7 Although not designated as an issue, Mr. Schmidt also raises an argument regarding the

constitutionality of the injunction entered by the trial court. We discuss this argument briefly, infra

Mr. Schmidt's appellate argument appears to be based upon a misapprehension of what a default judgment means. Accordingly, a brief review of the law surrounding discovery sanctions and default judgments is appropriate. Discovery sanctions are governed by Rule 37.02 of the Tennessee Rules of Civil Procedure. Rule 37 provides that if a party “fails to obey an order to provide or permit discovery ... the court in which the action is pending may make such orders in regard to the failure as are just[.]” Rule 37.02 provides a “broad but not exclusive list of sanctions available to a trial court when a party fails to obey an order compelling discovery.” Dhillon v. Dhillon, No. M2009–00017–COA–R3–CV, 2010 WL 1254365, at *9 (Tenn.Ct.App. Mar. 31, 2010); Magness v. Couser, No. M2006–00872–COA–R3–CV, 2008 WL 204116, at *6 (Tenn.Ct.App. Jan. 24, 2008). Of the actions the court may take to punish a discovery violation, one of the most significant is the power to strike pleadings and enter default judgment. Specifically, the court is allowed to enter “[a]n order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;....” Tenn. R. Civ. P. 37.02(C). “Although this sanction is extreme, it is appropriate ‘where there has been a clear record of delay or contumacious conduct.’ ” Amanns v. Grissom, 333 S.W.3d 90, 99 (Tenn.Ct.App.2010) (quoting Potts v. Mayforth, 59 S.W.3d 167, 171 (Tenn.Ct.App.2001) (quoting Shahrdar v. Global Hous. Inc., 983 S.W.2d 230, 236 (Tenn.Ct.App.1998) (internal citations omitted))).

By its plain language, the provisions of Rule 37.02 primarily apply to sanctions for non-compliance with a court order. Alexander v. Jackson Radiology Assocs., P.A.,156S.W.3d11, 15(Tenn.Ct.App.2004)(citing Lyle v. Exxon,746S.W.2d694, 698–99 (Tenn.1988)). However, trial courts also possess the inherent authority to order sanctions as necessary to prevent abuse of the discovery process. Alexander, 156 S.W.3d at 15 (citing Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 133 (Tenn.2004)). The purpose of Rule 37.02 was explained by this Court: The discovery rules would be ineffectual if courts did not have the authority to impose sanctions for their abuse. Thus, the Tennessee Rules of Civil Procedure authorize

serious sanctions against persons who seek to evade or thwart full and candid discovery, including being found in contempt, having designated facts be taken as established, striking pleadings, dismissing an action or claim or granting a judgment by default, or assessing expenses and attorneys' fees. These sanctions serve a three-fold purpose: (1) to secure a party's compliance with the discovery rules, (2) to deter other litigants from violating the discovery rules, and (3) to punish parties who violate the discovery rules.

*6 Mansfield v. Mansfield, No. 01A019412CH0058, 1995 WL 643329, at *5 (Tenn.Ct.App. Nov. 3, 1995) (citations omitted).Thequestionofwhetheratrialcourthasimposedan appropriate discovery sanction is reviewed under the abuse of discretion standard. Griffith Services Drilling, LLC v. Arrow Gas & Oil, Inc., 448 S.W.3d 376, 379 (Tenn.Ct.App.2014) (citing Cincinnati Ins. Co. v. Mid–South Drillers Supply, Inc., No. M2007–00024–COA–R3–CV, 2008 WL 220287, at *3–4 (Tenn.Ct.App. Jan. 25, 2008)).

Here, the trial court specifically found that Mr. Schmidt willfully and repeatedly failed to respond to discovery requests, despite being well-informed of his duty to do so. Accordingly,thetrialcourtenteredadefaultjudgmentagainst Mr. Schmidt. Default judgments are governed by Rule 55.01 of the Tennessee Rules of Civil Procedure, which provides, in pertinent part: When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, judgment by default may be entered....? As recently explained by this Court:

Judgment by default (previously called judgment pro confesso) is an expediting procedure which acts as a deterrent to defending parties resorting to delay as an element of their litigation strategy. Generally, a default judgment is sought by a party seeking “affirmative relief” when his adversary fails to properly and timely respond to an initial pleading....

Generally, the entry of a default judgment has the effect of an answer admitting the well-pleaded material

In addition to creating admissions as to factual statements in prior unanswered pleadings, the default judgment has a second important purpose: “to record that time for pleadings has past; that one party has failed to plead; but that the case may proceed to trial without waiting for delinquent parties.”

H.G. Hill Realty Co., L.L.C. v. Re/Max Carriage House, Inc., 428 S.W.3d 23, 30 (Tenn.Ct.App.2013) (emphasis added) (quoting Lawrence A. Pivnick, Tennessee Circuit Court Practice, § 27.2 (2012) (footnotes omitted)). Thus, a default judgment is “a final order disposing of a case on its merits, like any other judgment.” H.G. Hill Realty, 428 S.W.3d at 30. The standard of review of the entry of a default judgment is likewise an abuse of discretion. See Tenn. Dep't of Human Servs. v. Barbee, 689 S.W.2d 863, 866 (Tenn.1985).

In his appellate brief, Mr. Schmidt argues nothing regarding the trial court's decision to impose the extreme sanction of a default judgment due to his failure to comply with discovery orders. In addition, Mr. Schmidt's brief contains no citation to authority regarding discovery sanctions, default judgments, or the standard of review applicable in this case. See Tenn. R.App. P. 27(a)(7(B) (requiring that the appellant include in her or her appellate brief “for each issue, a concise statement of the applicable standard of review”). Furthermore, Mr. Schmidt appears to misapprehend the practical effect of a default judgment. Here, he argues that Dr. Loden failed to “provide proof via discovery” to support his allegations of malicious prosecution, tortious interference, defamation, and intentional infliction of emotional distress. However, as previously discussed, the entry of a default judgment “has the effect of an answer admitting the well-pleaded material allegations of fact contained in the adversary's pleading and fair inferences therefrom.” H.G. Hill Realty, 428 S.W.3d at 30 (quoting Tennessee Circuit Court Practice, § 27.2). Dr. Loden's complaint contains well-pleaded allegations that Mr. Schmidt incessantly harassed Dr. Loden and his staff, engaged in an untrue “smear campaign” against Dr. Loden, defamed Dr. Loden to potential patients on the internet, threatened Dr. Loden, and engaged in other inappropriate behavior directed toward Dr. Loden and his staff. Regardless ofanyproof,thedefaultjudgmentresultedinthesefactsbeing admitted as if a trial on the merits had been conducted that substantiated these claims. H.G. Hill Realty, 428 S.W.3d at 30.Whileassertingameritoriousdefensemaybeoneelement in deciding whether a trial court should have set aside a

default judgment, see Reynolds v. Battles, 108 S.W.3d 249, 252 (Tenn.Ct.App.2003), Mr. Schmidt did not request this relief in the trial court, nor has he addressed any of the other elements required to obtain this relief in his appellate brief.8 Accordingly, Mr. Schmidt's contention that the allegations in the amended complaint are not supported by evidence is irrelevant to the question of whether the trial court properly enteredadefaultjudgmentagainstMr.Schmidtasadiscovery sanction.

8 The other elements used to determine whether a trial court should have set aside a default judgment involve whether the default was willful and the amount of prejudice that may result to the nondefaulting party if the default judgment is set aside. Reynolds, 108 S.W.3d at 252 (citing Tenn. Dep't of Human Serv. v. Barbee, 689 S.W.2d 863, 866 (Tenn.1985)).

*7 Inconclusion,Mr.Schmidtdoesnotargueinhisappellate brief that the trial court abused its discretion in finding that Mr. Schmidt's discovery violations warranted the extreme sanction of default judgment. In addition, nothing filed by Mr. Schmidt in the trial court nor in this Court may be fairly construed as a request to set aside the default judgment entered by the trial court. As previously discussed, this Court cannot construct a party's argument or assert new or additional claims for the party, even where that party is proceeding pro se. Hessmer, 138 at 903–04; see also Heilig v. Heilig, No. W2013–01232–COA–R3–CV, 2014 WL 820605, at *7 (Tenn.Ct.App.2014) (Kirby, J., dissenting in part) (“[A]ll litigants, including pro se litigants, must give us the information necessary to address the issue on appeal without searching the record and constructing an argument for the litigant.”). Furthermore, even though an issue may be raised in the issues section of a party's brief, the failure to argue the issue and cite appropriate legal authority in the argument section of the brief will result in a waiver of the issue on appeal. See Hodge v. Craig, 382 S.W.3d 325, 335 (Tenn.2012) (“An issue may be deemed waived, even when it has been specifically raised as an issue, when the brief fails to include an argument satisfying the requirements of Tenn. R.App. P. 27(a)(7).”); Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn.Ct.App.2001) (“Where a party makes no legal argument and cites no authority in support of a position, such issue is deemed to be waived and will not be considered on appeal.”). Consequently, we must conclude that the dispositive issue in this case, whether the trial court

allegationsoffactcontainedintheadversary'spleading and fair inferences therefrom....

appropriately entered a default judgment against Mr. Schmidt as a discovery sanction, has been waived.

Finally, we note that in addition to his argument regarding Dr. Loden's failure to prove the allegations contained in the amended complaint, Mr. Schmidt argues that the injunction enteredbythetrialcourtviolateshisrighttofreespeechunder the First Amendment of the United States Constitution. The constitutionality of the trial court's order was not specifically raised in Mr. Schmidt's statement of the issues section of his appellate brief. This Court has previously determined a party's failure to designate an argument as an issue in the statementofissuessectionoftheparty'sappellatebriefresults in a waiver on appeal. E.g., Forbess v. Forbess, 370 S.W.3d 347, 356 (Tenn.Ct.App.2011); see also Tenn. R.App. P. 13(b) (“Review generally will only extend to those issues presented for review.”). We note, however, that Mr. Schmidt did raise this issue in his answer to the amended complaint. Given Mr. Schmidt's pro se status, and in the interest of a full and fair adjudication of this appeal, we exercise our discretion under Rule 2 of the Tennessee Rules of Appellate Procedure to briefly address this argument. 9 Tenn. R.App. P. (“For goodcause,includingtheinterestofexpeditingdecisionupon any matter, the ... Court of Appeals ... may suspend the requirementsorprovisionsofanyoftheserulesinaparticular case on motion of a party or on its motion and may order proceedings in accordance with its discretion.”).

9 We note that Our decision to “soldier on” in spite of Mr. Schmidt's failure to properly raise this issue should not be construed as an indication that waiverdoesnottypicallyapplyinthissituation.We caution litigants that although we have reviewed the issue in this case, we may not be as forgiving in the future.

Inhisbrief,Mr.Schmidtarguesthatthetrialcou