Free Speech

Arkansas Prior Restraint Saga—One Court Says Yes, One Says No

I'll grant Justice Courtney Goodson's request to block ads that allegedly libel her during her reelection campaign, says one trial judge. Unconstitutional prior restraint, says another.

|The Volokh Conspiracy |

Monday, Judge Doug Martin issued a temporary restraining order—an unconstitutional prior restraint, I argued—ordering TV stations not to run the ads critical of Justice Goodson. Wednesday, he recused himself, because his wife had a business relationship with Justice Goodson's husband. Judge Mackie Pierce was appointed to hear the case instead.

Today, Judge Chris Piazza issued a similar temporary restraining order, barring the ads from running in a different part of the state. But also today, Judge Pierce granted a TV station's request to dissolve Judge Martin's order. So Judge Piazza's order is in effect in one part of the state, but Judge Martin's order has been vacated in the other. I don't know if TV stations are going to the Arkansas Court of Appeals or the Arkansas Supreme Court to get the new order vacated. I'll post the judges' orders when I get them.

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  1. Forget it, Eugene…it’s Arkansas

    1. Wait, what? Arkansas has TV now?

      1. Actually, it’s a bunch of “Punch and Judy” traveling puppet shows. But the locals call it “Television” because it makes them feel better about themselves.

  2. One judge says yes, one says no
    One says stop, the other says go, go go
    One says enjoin, and one says hell no
    Hell ho, hell no
    I don’t know why one judge said yes and one said no

  3. I have a question about remedies.
    Suppose that the TRO is found to be an unconstitutional prior restraint, but is not reversed before the election next week.
    What would be the appropriate remedy?
    If Justice Goodson loses, this isn’t a big deal.
    But if she wins, the remedy becomes important.
    Could the election be invalidated?
    Or is there a lesser remedy that would suffice?

    1. If there is a poison, there is a remedy.

      probably too loud for work

  4. So why is prior restraint such a bogeyman.
    We hope that policing can sometimes get ahead of an actual crime. What if the vegas shooter had left his to do list in view of the maid at the hotel: pick up laundry, haircut, phone broker, shoot into concert, dinner at 9. No conspiracy, no illegal weapons, no laws yet broken. Yet though there is a constitutional right in play, there would be no cries over prior restraint should he have been arrested, and maybe even locked away indefinitely for psychiatric evaluation.

    1. Because very often with speech being restrained there is no effective remedy available, the effects on this election discussed a few comments above is a great example. Or with laws that criminally burden speech you have people who choose not to speak because they aren’t sure what they have to say falls under the law and don’t want to be bothered having to prove that it does not.

    2. We allow prior restraint in some contexts – for example, a domestic violence TRO. But generally we don’t allow it in the context of speech. The speech can be restrained – AFTER the court officially finds it to be defamatory. Not “prior” to that.

      In the case you mention, that would probably give the police probable cause for a search warrant, and would certainly give the hotel cause to kick him out. You can’t arrest someone who hasn’t yet committed a crime; you might be able to say he’s obviously a danger to himself or others and go the psychiatric route.

  5. A more interesting question, is what is the penalty if a TV station ignored Piazza’s Order? An order to show cause why the station should not be found in contempt? And who would adjudicate? Piazza? Or would he be recused as it is his order?

    ISTR (long ago in a galaxy far away), reading something like “It is impossible to be in contempt of a court that is itself contemptible”. Seems like it might apply.

    Putting on my sneaky and devious hat, what if the TV station *reported* having received the TRO, and the circumstances that Goodson’s husband works with Martin’s wife and played the ad *as part of the reporting*? It would not be ‘playing the advertisement’ as a paid service, it would be reporting the news!

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