Right before the Fourth of July concluded, at 11:58 p.m., Davidson County Chancellor I’Ashea Myles released her 60-page ruling about whether the Covenant School shooting documents could be released. (Shoutout to NewsChannel 5 for being the first news outlet I could find that actually had the text of the ruling. You can read the entire ruling here.)
Ultimately Judge Myles ruled that, because the shooter’s writings were copyrighted, and because the Metro Nashville Police Department says they're still being investigated, they could not be released.
This is a very complicated situation with the tragic killing of six people at its heart, and I have a lot of mixed feelings. I think it was pretty brilliant of the shooter’s parents to transfer copyright to the Covenant trust and equally brilliant of the trust’s lawyers to make this about copyright infringement.
I think the Tennessee Star — the conservative news outlet that has been publishing stories based on the killer’s writings and other documents from the investigation that they obtained from “a source close to the Covenant investigation” — made a grave misstep in their handling of these documents. They spent a ton of time releasing stories like “Covenant Killer Audrey Hale Drank Bud Light Prior to Social Media ‘Suicide Note’ Left for Friend, Journal Claims,” in which we learn that Hale’s journal contains “an entry that mentioned consuming alcohol less than two weeks before her devastating attack.” Y’all, one does not need to have ever had a Bud Light to know that someone drinking a couple days or weeks before anything doesn’t have anything to do with the thing they did. This is not news. It doesn’t tell us anything that has to do with anything. How are you going to stand in front of a judge and claim that this is the kind of thing the public needs to know?
Worse, they actually did find important stuff in the journal. This story, “Journal Lacks Evidence for Early Police Claim Audrey Hale Targeted Covenant over ‘Resentment’ for Time at School,” which came out two weeks after the Star’s “Ooh, scary, a trans person drank Bud Light at some point in the past” story, is a very important piece of journalism. We were told one thing initially by the MNPD chief — that there were rumors circulating about Hale resenting Covenant because of Hale's time at the school — and then Tom Pappert at the Tennessee Star used the access he has to Hale’s writings about the planning of and thoughts about the attack to debunk that rumor. This is a prime example supporting the argument that these writings should be available to the public — so we can know if what we’ve been told about the state of mind of the shooter matches what the shooter actually said about their own state of mind.
If the Tennessee Star had been putting out stories like these to begin with, I think it would have been a lot harder for the judge to decide no one got to see the writings.
All this being said, I think Judge Myles got this wrong. Worse, I think her own actions prove she knows the decision she’s making is kind of bullshit. On Page 38, Myles writes about whether federal copyright law holds more sway than applicable state law. So, like, if state law says records from a police investigation need to be open to the public, and federal law says the copyright holder can prevent everyone in all cases from making copies, which law do we follow? Judge Myles goes straight to the U.S. Constitution: The “Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” She then clarifies that “any law enacted by Congress [i.e., copyright law] may preempt an otherwise valid state law, rendering it without effect.”
Judge Myles, on Page 50, then says: “There are certain exclusive rights that federal law grants to copyright owners. Among those rights is the owners’ exclusive control over who gets to see her work and when.”
I don't think this is true. I couldn’t decide, for instance, that no one from the Tennessee Star can see my forthcoming book Dynamite Nashville unless they look at it on a Thursday during a full moon. It isn’t under my exclusive control who gets to see it and when. That’s just, like, not how eyeballs work. And it’s not how copyright law works. You get control over who gets to make copies of your work, and there are exclusions, such as fair use. You can’t control who sees it. And I think Judge Myles fundamentally agrees with me, because — even though she’s saying that only the copyright holder can grant permission for people to see and make copies of copyrighted materials, and even though she says this is a federal law that “judges in every state shall be bound by” — on Page 8 of her decision, she admits she made a copy of the documents.
On May 29, 2023, this Court visited the headquarters of MNPD to begin its in camera inspection of the materials at issue in this case. Upon entrance to the room where the evidence was presented, the volume of materials, as laid out for the Court’s review, required this Court to take a different approach in order to be able to review and analyze the materials at issue in this case. Initially the Court planned to remain at MNPD headquarters from day to day until the analysis was complete, however it was apparent that due to the volume of evidence at issue in this case, that this method would be untenable. Thus, Respondent Metro produced materials to this Court for its in camera review on several hard drives.
This is where I just stare at you wide-eyed until one of us finally laughs uncomfortably.
How are you going to argue that federal law preempts state law and that all judges are bound by it and also argue that federal law gives copyright holders exclusive control over who gets to make copies of the materials and when, and then start your ruling with a story about how you made a copy of the documents? Obviously you believe there are exceptions! You, as a judge, seem to believe you are an exception. Another exception is when the public needs the materials to know whether what they’re being told about the investigation is true.
And that’s where the media should come in, and Judge Myles should let them.
