Amy Frogge et al. v. Shawn Joseph et al.

Three members of a school board filed this lawsuit after the school board passed a resolution approving a severance agreement with the director of schools that contained a non-disparagement clause preventing the individual school board members from expressing even truthful criticism of the director of schools.  The plaintiff board members named as defendants the school board and the director of schools.  They sought a declaratory judgment that the non-disparagement clause violated their free speech rights under the First and Fourteenth Amendments to the United States Constitution and Article I Section 19 of the Tennessee Constitution, was unconstitutionally overbroad, and was unenforceable as against the public policy of the State of Tennessee.  They also sought a permanent injunction preventing enforcement of the non-disparagement clause and an award of their attorney fees and costs pursuant to 42 U.S.C. § 1988(b).  The plaintiffs moved for summary judgment on numerous alternative grounds.  The defendants filed motions to dismiss for failure to state a claim, lack of standing, and lack of ripeness.  After a hearing, the trial court entered an order denying the defendants’ motions to dismiss and granting the plaintiffs’ motion for summary judgment.  The trial court found that the non-disparagement clause was unenforceable and unconstitutional on several grounds.  It permanently enjoined enforcement of the clause and awarded the plaintiffs their attorney fees.  The defendants appeal, arguing that the case should have been dismissed for lack of standing and ripeness.  We affirm and remand for further proceedings.