Mimesis Law
3 June 2020

The Tennessee Waltz: Avoiding Constitutional Entanglements

January 2, 2017 (Fault Lines) — The Tennessee Supreme Court recently vacated the conviction of a defendant who was accused of stalking her baby daddy. Nicole Flowers was charged with violating TCA 39-17-15, which forbids (among other things):

[A] willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested, and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested. (Emphasis added.)

Flowers wanted the complainant to provide transportation for their teenage daughter to and from band practice. He refused. Demonstrating conflict resolution skills worthy of Kim and Kanye’s marriage counselor, Flowers did his best to “persuade” him:

When the victim arrived at work, he observed a sign on the fence and cut it down. The sign read, “Jason Dale is a deadbeat.” Two signs had been placed at the victim’s workplace; one sign was attached to the fence, and another sign bearing the same message was affixed to the main gate. A third sign had been placed at his residence. That sign read, “Jason Dale is a deadbeat dad, and he works for the Department of Education.”

But wait, there’s more!

When the victim left work that afternoon, he exited through the gate, looked to his right, and saw a vehicle occupied by the defendant and her sister, Priscilla Dawson, parked outside of an abandoned house. When he pulled out, the defendant and Ms. Dawson followed him. Believing that they intended to continue following him, he drove to the sheriff’s department. After speaking with a magistrate inside the sheriff’s department, the victim followed the necessary procedure to obtain a warrant against the defendant.

Flowers opted for a bench trial, and argued that the prosecution had not proved that Dale had actually been “terrorized, frightened, intimidated, threatened, harassed or molested.” And even if so, her conduct was protected by the First Amendment. The Tennessee Court of Appeals upheld the conviction, and Tennessee Supreme Court picked it up.

One of the keystones of our system of checks and balances is the power of judicial review. This is pretty remarkable, when you think about it, as the power to declare a law unconstitutional isn’t mentioned anywhere in the Constitution. The principle was first established in Marbury v. Madison, when Chief Justice John Marshall declared that, “It is emphatically the province of the Judicial Department to say what the law is.” Since then, the power of judicial review has been the biggest gun in the judicial arsenal.

That said, it’s a gun that courts try to leave in the holster whenever possible. The doctrine of “constitutional avoidance,” also known as the “last resort rule,” holds that a court will avoid deciding a case on constitutional grounds unless there’s no other way to decide it. The doctrine was elucidated in Justice Brandeis’s concurrence in Ashwader v. Tennessee Valley Authority, the so-called “Ashwander Rules.” The reasoning behind the doctrine is fairly clear: it’s a pretty big deal for the courts to overturn the decision of the people’s elected representatives. If it’s necessary, so be it, but if the checks and balances system is going to remain viable, it’s important that the courts avoid creating a constitutional question if it can be avoided. Brandeis quoted the so-called “Sinking Fund cases” of 1878, where Chief Justice Morrison Waite wrote:

It is our duty, when required in the regular course of judicial proceedings, to declare an act of Congress void if not within the legislative power of the United States; but this declaration should never be made except in a clear case. Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule.

That’s exactly what the Tennessee Supreme Court did. Before addressing whether or not Flowers’s conduct was protected by the First Amendment, the court looked at whether or not the state had met the elements of the charge. The state did not meet the subjective prong of the offense:

While the trial court surmised that placing disparaging signs at one‟s place of employment could lead to feelings of harassment and could cause emotional distress, we conclude that the evidence falls short of establishing that the victim subjectively felt significant mental suffering or emotional distress.

We also emphasize that for the same reason, the State‟s proof of the last element of stalking falls short. The victim offered no testimony that he subjectively and actually felt “terrorized, frightened, intimidated, threatened, harassed, or molested,” as required by the statute.

The Court thus neatly sidestepped the First Amendment issue, holding that:

Having concluded that the evidence presented by the State is insufficient as a matter of law to sustain the defendant’s conviction for stalking, we need not address whether the messages conveyed by the signs equaled constitutionally protected free speech.

In a time in which all too many people are incapable of distinguishing between the law and their policy preferences, the Tennessee Supreme Court threaded the needle as narrowly as it could. This is a good thing.

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  • CLS
    2 January 2017 at 3:59 pm - Reply

    Interesting case. Thanks for writing about it.
    I am not the TN Supreme’s biggest fan, but it seems like they got it right here.