Tennesseans For Sensible Election Laws v. Herbert H. Slatery, III

10/07/2021

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

August 4, 2021 Session

TENNESSEANS FOR SENSIBLE ELECTION LAWS v. HERBERT H.

SLATERY, III ET AL.

Appeal from the Chancery Court for Davidson County

No. 20-0312-III Ellen Hobbs Lyle, Chancellor

___________________________________

No. M2020-01292-COA-R3-CV

___________________________________

This is an action for declaratory judgment and injunctive relief that challenges the

constitutionality of Tenn. Code Ann. § 2-19-142, which criminalizes the publication of

false statements opposing a political candidate. The complaint was filed by a political

campaign committee that engages in direct advocacy for and against political candidates.

The defendants, the Tennessee Attorney General and the District Attorney General for the

20th Judicial District of Tennessee, contended the action should be dismissed, inter alia,

for lack of subject matter jurisdiction because the campaign committee lacked standing to

challenge the constitutionality of the statute. The trial court found that the committee had

standing because it faced a credible threat of prosecution and, acting upon the campaign

committee’s motion for summary judgment, the trial court held that Tenn. Code Ann. § 2-

19-142 contravenes the First Amendment to the United States Constitution and article I,

section 19 of the Tennessee Constitution. The court also awarded the campaign committee

its attorney’s fees pursuant to 42 U.S.C. § 1988(c) as the prevailing party. We have

determined the campaign committee failed to establish that it had standing to challenge the

constitutionality of Tenn. Code Ann. § 2-19-142; therefore, we hold that the trial court

lacked subject-matter jurisdiction to rule on the matter. For these reasons, we vacate the

judgment of the trial court, including the award of attorney’s fees to the campaign

committee, and remand with instructions to dismiss.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated

and Remanded

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.

BENNETT and W. NEAL MCBRAYER, JJ., joined.

Alexander S. Rieger and Kelley Louvenia Groover, Nashville, Tennessee, for the

appellants, Herbert H. Slatery, III, in his official capacity as Tennessee Attorney General,

and Glenn Richard Funk, in his official capacity as District Attorney General for the 20th

Judicial District of Tennessee.

Daniel Alexander Horwitz and Gautam Singh Hans, Nashville, Tennessee, for the appellee,

Tennesseans for Sensible Election Laws.

OPINION

FACTS AND PROCEDURAL BACKGROUND

Tennesseans for Sensible Election Laws (“Plaintiff”) commenced this action in

March 2020 by filing a complaint in the Davidson County Chancery Court against Herbert

H. Slatery III, in his official capacity as Tennessee Attorney General, and Glenn R. Funk,

in his official capacity as District Attorney General for the 20th Judicial District of

Tennessee (collectively, “Defendants”). In the complaint, Plaintiff described itself as “a

multicandidate political campaign committee” whose “mission is to ensure that

Tennessee’s election laws protect the rights of all Tennesseans to participate in democracy

and support candidates of their choosing without unreasonable governmental interference.”

To further this mission, Plaintiff wanted to publish and distribute “literally false campaign

literature in opposition to candidates campaigning for state office—including satirical,

parodical, and hyperbolic campaign literature—despite knowing that certain charges and

allegations contained in its campaign literature [were] false.”1

Thus, Plaintiff sought a declaratory judgment on the constitutionality of Tenn. Code

Ann. § 2-19-142, which provides:

It is a Class C misdemeanor for any person to publish or distribute or cause

to be published or distributed any campaign literature in opposition to any

candidate in any election if such person knows that any such statement,

charge, allegation, or other matter contained therein with respect to such

candidate is false.2

Defendants responded to the complaint by filing a motion to dismiss for lack of

subject matter jurisdiction. Defendants initially asserted that the chancery court lacked

jurisdiction because Tenn. Code Ann. § 2-19-142 is a criminal statute, and Tennessee’s

Declaratory Judgment Act applies only if the court “originally could have entertained a suit

of the same subject matter.” See Memphis Bonding Co., Inc. v. Crim. Ct. of Tennessee 30th

Dist., 490 S.W.3d 458, 466 (Tenn. Ct. App. 2015) (quoting Zirkle v. City of Kingston, 396

S.W.2d 356, 363 (Tenn. 1965)). Defendants also asserted that the chancery court lacked

1

As an example, Plaintiff’s included a postcard that it wanted to publish in opposition to the

reelection of Tennessee State Representative Bruce Griffey. On one side, the postcard states in bold letters

that “Bruce Griffey is literally Hitler.” On the other side, Plaintiff compared Rep. Griffey’s proposed

legislation to “the kind of thing you would see in Nazi Germany.”

2

Ironically, the statute does not criminalize a favorable but knowingly false statement a candidate

makes about himself/herself.

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jurisdiction to enjoin enforcement of the criminal statute unless the statute invaded a

property right or the Tennessee Supreme Court had adjudged the law unconstitutional.

After a hearing, the trial court summarily dismissed the claim for injunctive relief3 but

denied the motion to dismiss Plaintiff’s claim for a declaratory judgment.

Defendants then answered the complaint, maintaining their assertion that the court

lacked subject matter jurisdiction for various reasons, including the fact that Plaintiff

lacked standing. Thereafter, Plaintiff moved for summary judgment on its declaratory

judgment claim.

In response, Defendants filed the Declaration of Roger D. Moore, Deputy District

Attorney General for the 20th Judicial District, who stated that General Funk has never

prosecuted or threatened to prosecute Tenn. Code Ann. § 2-19-142, and that General Funk

had “no present intent . . . to prosecute [Plaintiff], or any other person or organization,

under Tenn. Code Ann. § 2-19-142 for engaging in political satire.” Thus, Defendants

argued that summary judgment was inappropriate because, inter alia, Plaintiff had “not

established a credible threat or history of prosecution and therefore ha[d] failed to meet the

requirements for standing.”

After a hearing on Plaintiff’s Motion for Summary Judgment, the trial court found

Plaintiff had standing to challenge the statute, reasoning that the statute presented “a

credible threat to the Plaintiff’s exercise of the speech in issue” because the undisputed

facts showed “a history of past enforcement . . . against others.” The court also agreed that

Tenn. Code Ann. § 2-19-142 contravenes the First Amendment to the United States

Constitution and article I, section 19 of the Tennessee Constitution. The court then granted

Plaintiff an award of attorneys’ fees and costs under 42 U.S.C. § 1988(c).

This appeal followed.

ISSUES

Defendants raise four issues on appeal, and Plaintiff raises three.4 We, however,

have determined that the dispositive issue is whether Plaintiff has standing to challenge the

3

The trial court dismissed the claim for injunctive relief without prejudice, stating that Plaintiff

could refile its claim if the statute was declared unconstitutional.

4

Defendants’ issues were stated as follows:

1. Whether the chancery court erred in ruling that it had jurisdiction to rule on the

constitutionality of a criminal statute, Tenn. Code Ann. § 2-19-142.

2. Whether the chancery court erred in ruling that Plaintiff had standing to challenge

the constitutionality of Tenn. Code Ann. § 2-19-142.

3. In the alternative, whether the chancery court erred in declaring that Tenn. Code

Ann. § 2-19-142 is unconstitutional.

4. Whether the chancery court erred in awarding attorney’s fees to Plaintiff.

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constitutionality of Tenn. Code Ann. § 2-19-142, which criminalizes the publication of

false statements opposing a political candidate.

STANDARD OF REVIEW

Whether a party has standing is a question of law. See In re Est. of Brock, 536

S.W.3d 409, 413 (Tenn. 2017). We review questions of law de novo with no presumption

of correctness. Id.

ANALYSIS

“Constitutional standing . . . is one of the ‘irreducible . . . minimum’ requirements

that a party must meet in order to present a justiciable controversy.” City of Memphis v.

Hargett, 414 S.W.3d 88, 98 (Tenn. 2013). Nonjusticiable claims are subject to dismissal.

See West v. Schofield, 468 S.W.3d 482, 494–95 (Tenn. 2015) (concluding that claims

should have been dismissed because they were nonjusticiable).

Three elements are necessary to establish constitutional standing:

1) a distinct and palpable injury; that is, an injury that is not conjectural,

hypothetical, or predicated upon an interest that a litigant shares in common

with the general public; 2) a causal connection between the alleged injury

and the challenged conduct; and 3) the injury must be capable of being

redressed by a favorable decision of the court.

Fisher v. Hargett, 604 S.W.3d 381, 396 (Tenn. 2020). In pre-enforcement challenges to

the constitutionality of a statute—such as this case—a plaintiff may satisfy the injury

element by (1) alleging “an intention to engage in a course of conduct arguably affected

with a constitutional interest, but proscribed by [the] statute” and (2) showing the existence

of “a credible threat of prosecution thereunder.” Babbitt v. United Farm Workers Nat.

Plaintiff’s issues were stated as follows:

1. Whether Plaintiff had standing to maintain this action based on § 2-19-142’s injury to

third parties.

2. Whether the trial court had subject matter jurisdiction to adjudicate this action under

the Tennessee Constitution.

3. Whether Plaintiff should recover its attorney’s fees regarding this appeal.

Additionally, Plaintiff has filed three motions to consider post-judgment facts under Tenn. R. App.

P. 14(b).

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Union, 442 U.S. 289, 298 (1979).5 Furthermore, the Sixth Circuit has considered the

following factors to determine whether a “credible threat of prosecution” exists:

(1) “a history of past enforcement against the plaintiffs or others”; (2)

“enforcement warning letters sent to the plaintiffs regarding their specific

conduct”; (3) “an attribute of the challenged statute that makes enforcement

easier or more likely, such as a provision allowing any member of the public

to initiate an enforcement action”; and (4) the “defendant’s refusal to

disavow enforcement of the challenged statute against a particular plaintiff.”

Online Merchants Guild v. Cameron, 995 F.3d 540, 550 (6th Cir. 2021) (quoting McKay

v. Federspiel, 823 F.3d 862, 869 (6th Cir. 2016)).

On appeal, Defendants contend the action should have been dismissed because

Plaintiff lacks standing to challenge the constitutionality of Tenn. Code Ann. § 2-19-142.

Specifically, Defendants contend Plaintiff does not have standing because it failed to show

“a distinct and palpable injury.” Defendants also contend the trial court erred in holding

that Plaintiff faced “a credible threat of prosecution” and that Tenn. Code Ann. § 2-19-142

had been “enforced” against others.6

Plaintiff counters, arguing that the trial court correctly found that it had standing

under the pre-enforcement challenge standard. Plaintiff also contends the issue of standing

is res judicata because Defendants failed “to contest the trial court’s ruling regarding the

Plaintiff’s statutory standing.” We will address the res judicata contention first.

I. RES JUDICATA AS TO STATUTORY STANDING

Contrary to Plaintiff’s insistence, the trial court did not hold that Plaintiff had

“statutory standing.” In its analysis, the court incorporated by reference a portion of

Plaintiff’s summary judgment reply brief to facilitate its analysis. That portion included

part of Plaintiff’s argument on “statutory standing.” Nevertheless, Plaintiff insists that the

trial court “adopt[ed] and incorporate[ed]” Plaintiff’s arguments on statutory standing. We

disagree.

5

“Tennessee courts use justiciability doctrines that ‘mirror the justiciability doctrines employed

by the United States Supreme Court and the federal courts . . . .’” West, 468 S.W.3d at 490 (quoting Norma

Faye Pyles Lynch Fam. Purpose LLC v. Putnam Cnty., 301 S.W.3d 196, 203 (Tenn. 2009)).

6

The trial court found no evidence of “enforcement warning letters sent to the plaintiffs regarding

their specific conduct” or “an attribute of the challenged statute that makes enforcement easier or more

likely, such as a provision allowing any member of the public to initiate an enforcement action.” See Online

Merchants Guild, 995 F.3d at 550 (quoting McKay, 823 F.3d at 869). Plaintiff has not appealed these

findings.

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The context of the court’s ruling clarifies that it was merely adopting and

incorporating Plaintiff’s recitation of the facts relevant to the “credible threat of

prosecution”—not Plaintiff’s statutory-standing argument:

[T]he Court finds that . . . there are undisputed material facts proven in the

record which the Court concludes establish a history of past enforcement, not

against the Plaintiff, but others.

In so finding, the Court adopts and incorporates herein by reference the July

15, 2020 Plaintiff’s Reply to Defendants’ Response to Plaintiff’s Motion for

Summary Judgment at 5–20, 24–29 . . . The incidents the Plaintiff

characterizes as “enforcement” in its papers just cited, the Court

concludes, do constitute a credible threat to the Plaintiffs exercise of the

speech in issue. . . .

(Emphasis added). Significantly, however, the trial court did not hold that Plaintiff had

“statutory standing.”

Because the trial court did not hold that Plaintiff had statutory standing, Defendants’

failure to address this issue on appeal is not dispositive.7

II. STANDING BASED ON A HISTORY OF ENFORCEMENT

As stated above, the injury requirement for standing may be satisfied by a showing

of a history of enforcement against others. See Online Merchants Guild, 995 F.3d at 550.

The trial court found that Tenn. Code Ann. § 2-19-142 had been enforced based on these

examples:

1. In 2014, the Shelby County Circuit Court issued a temporary restraining

order in a civil case based on allegations that included but were not

limited to an alleged violation of Tenn. Code Ann. § 2-19-142. See Cohen

for Cong. Comm. v. Williams et al., No. 003348-14 (Shelby Cnty. Cir. Ct.

2014).

2. In 2010, a plaintiff asserted claims for libel based on Tenn. Code Ann. §

2-19-142. See Murray v. Hollins, et al. (Murray I), No. 10C63063

7

It is important to note that statutory standing does not replace constitutional standing.

“Constitutional standing is a fundamental requirement of a justiciable controversy.” Fisher, 604 S.W.3d at

396. “Statutory standing” is a type of “non-constitutional” or “prudential” standing, Town of Collierville v.

Town of Collierville Bd. of Zoning Appeals, No. W2013-02752-COA-R3-CV, 2015 WL 1606712, at *4

(Tenn. Ct. App. Apr. 7, 2015) (citing Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118,

127 (2014)), and concerns “[t]he question of whether a particular plaintiff has a cause of action under a

statute,” id. (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 92, 97 (1998)). “[S]tatutory standing

has . . . been associated with the distinct and palpable injury element of constitutional standing.” Id. (citing

State v. Harrison, 270 S.W.3d 21, 28 (Tenn. 2008)).

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(Davidson Cnty. Cir. Ct. 2010); Murray v. Vibbert (Murray II), No.

10C3711 (Davidson Cnty. Cir. Ct. 2010).

3. In 2002, Shelby County District Attorney General William L. Gibbons

sent a letter to an employee of the Shelby County Criminal Court Clerk’s

Office that advised the employee to cease publishing and distributing

certain campaign materials because their content appeared to violate

Tenn. Code Ann. § 2-19-142. See Jackson v. Shelby Cnty. Civ. Serv. Merit

Bd., No. W2006-01778-COA-R3-CV, 2007 WL 60518, at *1 (Tenn. Ct.

App. Jan. 10, 2007). The employee was later terminated for engaging in

“misconduct” by violating Tenn. Code Ann. § 2-19-142. Id. at *3.

4. In 2009, the Tennessee Attorney General opined that “a prosecution

against a newspaper or other news medium under Tenn. Code Ann. § 2-

19-142 would not raise any constitutional objections.” Tenn. Op. Att’y

Gen. No. 09-112 (June 10, 2009).

5. In 2017 and 2019, legislation was introduced, but not passed, to amend

Tenn. Code Ann. § 2-19-142 to raise the criminal penalty for violating

the statute.

The trial court determined these facts “establish a history of past enforcement, not against

the Plaintiff, but others”; thus, the court found that Plaintiff satisfied “its burden to

demonstrate . . . a credible threat to the Plaintiff’s exercise of the speech in issue.” We

respectfully disagree.

The cases relied upon as evidence of “past enforcement” are civil cases, and Plaintiff

does not argue that the criminal statute provides a private right of action. Moreover,

Tennessee courts “have refused to imply a private right of action in . . . statutes enforced

through governmental remedies.” Brown v. Tennessee Title Loans, Inc., 328 S.W.3d 850,

860 (Tenn. 2010). Significantly, the enforcement mechanism outlined in § 2-19-142 is

limited to criminal sanctions. The civil cases identified above fail to establish a history of

past enforcement of the criminal sanctions set forth in § 2-19-142.

At most, the cases cited by Plaintiff represent wrongful attempts to use Tenn. Code

Ann. § 2-19-142 to establish civil liability—but the threat of “false prosecution” is not “a

credible threat of prosecution” for the purposes of establishing standing. See Plunderbund

Media, L.L.C v. DeWine, 753 F. App’x 362, 371 (6th Cir. 2018) (rejecting the plaintiffs’

argument that they faced a credible fear of prosecution simply because the challenged

statute created a “risk of false prosecution”); Glenn v. Holder, 690 F.3d 417, 422 (6th Cir.

2012) (finding plaintiffs’ “fear [of] wrongful prosecution and conviction” was “inadequate

to generate a case or controversy the federal courts can hear.”).

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We also find the Attorney General’s 2009 opinion is immaterial to whether Plaintiff

faces a credible threat of prosecution. The Attorney General must provide “written legal

opinions on all matters submitted by them in the discharge of their official duties.” Tenn.

Code Ann. § 8-6-109(b)(9). Thus, in response to questions from two state legislators about

applying § 2-19-142 to news media organizations, the Attorney General opined in June

2009 that Tenn. Code Ann. § 2-19-142 complies with the “actual malice” standard for

defamation set in New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Tenn. Op. Att’y

Gen. No. 09-112 (June 10, 2009). Accordingly, the Attorney General’s 2009 opinion is not

evidence of a history of past enforcement.

Furthermore, we conclude that the proposed amendments to § 2-19-142 in 2017 and

2019 are not evidence of a history of past enforcement and do not otherwise establish a

credible threat of prosecution. That a state legislator unsuccessfully proposed an increase

to the criminal penalty for violating § 2-19-142 does not make it more or less likely that

Plaintiff would be prosecuted under the law.

For completeness, we acknowledge that Plaintiff filed two motions to consider post-

judgment facts pursuant to Tenn. R. App. P. 14(a) that pertain to the threat of enforcement,

each of which we took under advisement.8 One cites two tweets from Governor Bill Lee in

which he states that district attorneys should “not pick and choose what laws to follow

based on politics or personal feelings.”9 In this motion, Plaintiff asserts the tweets

undermine the declaration of Deputy District Attorney Moore, who stated that General

Funk had “no present intent . . . to prosecute [Plaintiff], or any other person or organization,

under Tenn. Code Ann. § 2-19-142 for engaging in political satire.” Because our decision

does not rest on Deputy District Attorney General Moore’s declaration, we find it

unnecessary to consider the effect of Governor Lee’s tweets.

8

In an appeal, we “may consider those facts established by the evidence in the trial court and set

forth in the record and any additional facts that may be judicially noticed or are considered pursuant to Rule

14.” Tenn. R. App. P. 13(c). Tennessee Rule of Appellate Procedure 14(a) states:

Power to Consider Post-Judgment Facts. The Supreme Court, Court of Appeals, and Court of

Criminal Appeals on its motion or on motion of a party may consider facts concerning the action

that occurred after judgment. Consideration of such facts lies in the discretion of the appellate court.

While neither controlling nor fully measuring the court’s discretion, consideration generally will

extend only to those facts, capable of ready demonstration, affecting the positions of the parties or

the subject matter of the action such as mootness, bankruptcy, divorce, death, other judgments or

proceedings, relief from the judgment requested or granted in the trial court, and other similar

matters. Nothing in this rule shall be construed as a substitute for or limitation on relief from the

judgment available under the Tennessee Rules of Civil Procedure or the Post-Conviction Procedure

Act.

9

The tweet was purportedly issued in response to a statement by District Attorney General Glenn

Funk stating that he would not enforce an abortion law.

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The other motion to consider post-judgment facts relevant to the threat of

enforcement cites the Wilson County Election Commission’s 2022 Candidate Handbook.

The Handbook, which was attached to the motion, provides information for prospective

candidates concerning the election process, voter registration requirements, and campaign

finance laws. Under a section titled “Prohibited Practices,” the Handbook reprints several

statutes, including Tenn. Code Ann. § 2-19-142.10 The Handbook, which simply identifies

§ 2-19-142 as one of many laws enacted in Tennessee that governs election-related

conduct, fails to constitute a credible threat of prosecution.

Having considered the proffered post-judgment facts identified in the two Rule

14(a) motions, we find the facts to be inconsequential.11

In summary, to establish standing the plaintiff must show “an injury that is not

conjectural, hypothetical, or predicated upon an interest that [the] litigant shares in

common with the general public.” Fisher, 604 S.W.3d at 396. The plaintiff may satisfy the

injury requirement by alleging “an intention to engage in a course of conduct arguably

affected with a constitutional interest, but proscribed by [the] statute” and showing the

existence of “a credible threat of prosecution thereunder.” Babbitt, 442 U.S. at 298. A

credible threat of prosecution may be established by showing a history of enforcement

against others. Online Merchants Guild, 995 F.3d at 550. “The mere possibility of

prosecution, however—no matter how strong the plaintiff’s intent to engage in forbidden

conduct may be—does not amount to a ‘credible threat’ of prosecution. Instead, the threat

of prosecution ‘must be certainly impending to constitute injury in fact.’” Crawford v.

10

Title 2, Chapter 19 of the Tennessee Code is also titled “Prohibited Practices” and addresses

topics such as “Interference with Marked Ballots,” see Tenn. Code Ann. § 2-19-111, and “Violence and

Intimidation,” see id. § 115.

11

Plaintiff filed a third motion to consider post-judgment facts which concerned whether the trial

court had subject matter jurisdiction to rule on the constitutionality of Tenn. Code Ann. § 2-19-142. In this

motion Plaintiff contended:

The []Attorney General’s February 3, 2021, concession in Davidson County Chancery

Court Case No. 20-967-III that the [Plaintiff’s] claims in this case “fall within the Colonial

Pipeline exception” because this case presents a “declaratory judgment action[]

challenging the constitutionality of statutes against state officers,” see Exhibit #1, p. 4, is a

fact capable of ready demonstration. See Tenn. R. App. P. 14(a). It also affects the positions

of the parties and the subject matter of this action. As the []Attorney General’s principal

brief in this case reflects, the []Attorney General is arguing in this appeal that the trial court

“lacked jurisdiction to issue a declaration regarding [Tenn. Code Ann. § 2-19-142’s]

constitutionality.”

Because we have determined that Plaintiff lacks standing to challenge the constitutionality

of Tenn. Code Ann. § 2-19-142, the motion is rendered moot.

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United States Dep’t of Treasury, 868 F.3d 438, 454 (6th Cir. 2017) (quoting Clapper v.

Amnesty Int’l USA, 568 U.S. 398, 409 (2013)). Here, Plaintiff failed to produce evidence

that it faced a credible threat of prosecution under Tenn. Code Ann. § 2-19-142.

III. STANDING UNDER FACIAL OVERBREADTH CLAIM

In the alternative, Plaintiff asserts that the trial court should have found standing

under the more “relaxed” standard for facial overbreadth claims. Our ability to assess the

issue is hampered by Plaintiff’s failure to develop its argument on appeal. The reasoning

in Plaintiff’s brief is conclusory and relies mainly on long parenthetical quotes from federal

caselaw. As a result, Plaintiff’s brief lacks the necessary explanation of how the cited legal

principles apply to the facts in this case. See Sneed v. Bd. of Prof’l. Responsibility of

Supreme Ct., 301 S.W.3d 603, 615 (Tenn. 2010) (“It is not the role of the courts, trial or

appellate, to research or construct a litigant’s case or arguments for him or her, and where

a party fails to develop an argument in support of his or her contention or merely constructs

a skeletal argument, the issue is waived.”).

In any event, after reviewing the jurisprudence on facial overbreadth challenges, we

are unconvinced that Plaintiff’s case can be saved by the “relaxed” standing requirements

applicable to such challenges. The overbreadth doctrine has been described as “an

exception to normal standing principles” because it “permits a litigant ‘to challenge the

[facial] constitutionality of a statute which is not unconstitutional as applied but which may

be unconstitutional in some cases.’” City of Knoxville v. Entm’t. Res., LLC, 166 S.W.3d

650, 662 (Tenn. 2005) (Drowota, C.J., concurring) (quoting 16 Am. Jur. 2d Constitutional

Law § 140). Thus, it permits courts to “strik[e] down a statute on its face at the request of

one whose own conduct may be punished despite the First Amendment.” State v. Pickett,

211 S.W.3d 696, 702 (Tenn. 2007) (quoting New York v. Ferber, 458 U.S. 747, 769

(1982)).

As the Sixth Circuit has explained, “when a statute is alleged to be overly broad in

violation of the First Amendment, the standing rules are relaxed to allow plaintiffs ‘to

challenge a statute not because their own rights of free expression are violated, but because

of a judicial prediction or assumption that the statute’s very existence may cause others not

before the court to refrain from constitutionally protected speech or expression.’” Holder,

690 F.3d at 421 (quoting Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 348 (6th

Cir. 2007)). That said, “[u]nder no circumstances . . . does the overbreadth doctrine relieve

a plaintiff of its burden to show constitutional standing.” Advantage Media, L.L.C. v. City

of Eden Prairie, 456 F.3d 793, 799 (8th Cir. 2006). There must still be a showing “that the

plaintiff himself has suffered some threatened or actual injury resulting from the putatively

illegal action,” CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1270 (11th

Cir. 2006) (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)), and we have already

determined that Plaintiff did not satisfy its burden to establish “some threatened or actual

injury,” see id. Thus, the “relaxed” rules for facial overbreadth challenges do not apply.

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IV. ATTORNEY FEES

After granting Plaintiff’s motion for summary judgment and finding that it was the

prevailing party, the trial court awarded Plaintiff its attorney’s fees and costs under 42

U.S.C. § 1988(b). Because we have reversed the trial court’s decision on the merits,

Plaintiff is no longer a prevailing party. Thus, we vacate the award of attorney fees. For

the same reason, we decline to award Plaintiff attorneys’ fees on appeal.

IN CONCLUSION

Because Plaintiff failed to establish that it had standing to bring the claims at issue,

it has failed to present a justiciable controversy. Therefore, we vacate the judgment of the

trial court, including the award of attorney’s fees to Plaintiff, and remand with instructions

to dismiss. Costs of appeal are assessed against Tennesseans For Sensible Election Laws.

________________________________

FRANK G. CLEMENT JR., P.J., M.S.

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