Defamation

No Preliminary Injunction Against Alleged Political Campaign Libel, Rules Federal Judge

Arkansas Supreme Court Justice Courtney Goodson was trying to block ads that criticized her and allegedly defamed her.

|The Volokh Conspiracy |

The background, from Judge Brian S. Miller's opinion yesterday in Goodson v. Republican State Leadership Committee–Judicial Fairness Initiative:

Plaintiff Courtney Goodson, an Associate Justice of the Arkansas Supreme Court, is seeking reelection. David Sterling is challenging her, and the election is on November 6, 2018. Defendant Republican State Leadership Committee–Judicial Fairness Initiative ("RSLC–JFI") is an independent expenditure committee that opposes Goodson and supports Sterling. Goodson complains that RSLC–JFI is disseminating defamatory campaign advertisements.

Specifically, Goodson takes issue with a television advertisement and a campaign mailer created by RSLC–JFI….

Broadly speaking, there are two types of allegedly defamatory statements in these campaign advertisements. The first is RSLC–JFI's assertion that Goodson accepted various gifts, including a $50,000 trip to Italy and large campaign contributions from plaintiffs' law firms. Based on the complaint and Goodson's testimony at the hearing, it is undisputed that she accepted a trip to Italy, which was a gift to Goodson and her husband from Goodson's personal friend and lawyer, W.H. Taylor. The record indicates that Goodson complied with the judicial ethics rules by timely disclosing the gift and by recusing from cases involving her husband and Taylor.

For these reasons, the Arkansas Judicial Discipline and Disability Commission, the commission tasked with investigating judicial misconduct, found that her acceptance of the trip was not improper. Additionally, the hearing testimony confirmed that Goodson's campaign accepted contributions from plaintiffs' law firms. Nevertheless, judicial candidates are not permitted to personally solicit campaign contributions or even to know who has contributed to their campaigns, and Goodson testified that she followed these rules.

Although neither the television advertisement nor the mailer points to a specific ruling from Goodson that was influenced by a gift, this type of statement questions her impartiality and suggests that she is sympathetic to plaintiffs' lawyers. Goodson argues that this type of statement is false by implication or omission because she has recused from all cases involving her husband, Taylor, and from any law firm that has contributed to her campaign.

The second type of allegedly defamatory statement is RSLC–JFI's assertion that Goodson asked for an $18,000 pay raise. In her complaint, Goodson alleges this statement is false because she did not personally request a raise—rather, Chief Justice Dan Kemp requested the raise on behalf of every member of the Arkansas Supreme Court after being authorized to do so by a vote of the Court. At the hearing, Goodson initially resisted answering whether she voted in favor of the pay raise. She testified that the Supreme Court's conferences are sacrosanct and that she did not want to violate the trust of the Court. Upon the request of defense counsel, Goodson was directed to answer, and she testified that she voted against the raise. This is the first time that she has publicly disclosed her vote.

The First Amendment analysis, which I think is quite right:

Federal and state courts are divided as to whether prior restraints [here, just referring to injunctions generally -EV] on defamatory statements violate the First Amendment. Some take the position that, following a full trial on the merits, a narrowly-tailored permanent injunction is constitutionally permissible. See, e.g., Lothschuetz v. Carpenter, 898 F.2d 1200, 1208–09 (6th Cir. 1990) (Wellford, J., for the court in part); Balboa Island Village Inn, Inc. v. Lemen, 156 P.3d 339, 349 (Cal. 2007). Others are skeptical that it can ever be constitutional to prohibit defamatory speech that has not yet occurred. See McCarthy v. Fuller, 810 F.3d 456, 464–66 (7th Cir. 2015) (Sykes, J., concurring); Kinney v. Barnes, 443 S.W.3d 87, 93–94 (Tex. 2014); see also Erwin Chemerinsky, Injunctions in Defamation Cases, 57 Syracuse L. Rev. 157 (2007).

It appears wholly unprecedented, however, for a federal court to enter a preliminary injunction in a defamation case. In those defamation cases upholding the constitutionality of restraints on future speech, the injunctions were entered after the claims were adjudicated on the merits, and the injunctions were limited to the speech that was actually found to be defamatory by the fact-finder. See, e.g., Lothschuetz, 898 F.2d at 1208–09 (Wellford, J., for the court in part); see also McCarthy, 810 F.3d at 462–63 (majority opinion), 464–65 (Sykes, J., concurring). Only then can a court be satisfied that the restrained speech remains unprotected by the First Amendment. See Hill v. Petrotech Res. Corp., 325 S.W.3d 302, 311 (Ky. 2010).

In the absence of such a finding or judgment, Goodson wants to enjoin what could be protected speech, and this would be improper. Without a judgment in Goodson's favor on the defamation claim, enjoining RSLC–JFI's speech would violate the First Amendment because it would impermissibly restrain RSLC–JFI's ability to engage in free speech. Therefore, her request for a preliminary injunction is denied. See ("[W]hile the rule may temporarily delay relief for those ultimately found to be innocent victims of slander and libel, it prevents the unwarranted suppression of speech of those who are ultimately shown to have committed no defamation, and thereby protects important constitutional values.").

The court also suggested that Goodson was unlikely to ultimately win her defamation case based on the past statements—though maybe she might win if the statements are repeated, now that she had said (assumingly she said it accurately and credibly) that she voted against her pay raise:

Goodson is unlikely to prove actual malice concerning RSLC–JFI's statements about her trip to Italy and the contributions she has received from law firms.

[1.] Gifts

As discussed above, this first type of allegedly defamatory statement is one that essentially suggests that Goodson accepted gifts from plaintiffs' lawyers in exchange for favorable rulings. These statements do not explicitly connect any particular gift with any specific ruling—they only do so by implication or omission. Moreover, it is clear that Goodson accepted a trip to Italy from a trial lawyer, that her campaign received contributions from plaintiffs' law firms, and that she has made rulings favorable to plaintiffs.

There was also some basis for RSLC–JFI to believe that these facts, and perhaps even the resulting implication, were true. Although nothing presented so far proves that Goodson has a bias in favor of particular litigants or lawyers, she has the burden of proving, by clear and convincing evidence, that RSLC–JFI acted with actual malice when it made these allegedly defamatory statements. This is a very heavy burden to shoulder, and because each fact is true in isolation, it seems unlikely that she will be able to do so at trial.

[2.] Pay Raise

Goodson is unlikely to show that RSLC–JFI acted with actual malice when it created advertisements stating that she requested an $18,000 pay raise. Chief Justice Kemp requested a pay raise for all members of the Supreme Court after being authorized to do so by a confidential vote. Although RSLC–JFI did not confirm whether Goodson voted for the raise before running the advertisements, nothing indicates it acted with actual malice when it assumed she supported the request. Indeed, nothing presented so far indicates RSLC–JFI made this statement knowing it to be false or that it was very likely false. Goodson's testimony, however, has now placed RSLC–JFI on notice that she voted against the raise.

And here are the factual details of the ads, as well as a nonprofit "watchdog" group's reaction to them:

The television advertisement states that "Courtney Goodson took a $50,000 trip to Italy on a donor's yacht. And hundreds of thousands in contributions from law firms [that] go before her Court. Huge gifts from donors. How can she be fair? Reject Scandal. Reject Courtney Goodson." The campaign mailer contains the following text:

"Most Arkansans don't get free $50,000 vacations to Italy paid for by trial attorneys, but Supreme Court Justice Courtney Goodson dAn ultra-wealthy Arkansas trial lawyer and campaign donor paid for Courtney Goodson and her husband to go on an extended luxury vacation to Italy, including a cruise on a yacht owned by one of her corporate campaign contributors.

"Then, Goodson turned to Arkansas taxpayers to support her lavish lifestyle by asking for an additional $18,000 pay raise. Courtney Goodson was already paid almost $150,000 a year when she received a $16,000 pay raise in 2015, making her one of the highest paid officials in Arkansas with a salary even bigger than the Governor's. In 2017, Goodson requested another pay raise of $18,000.

"If Courtney Goodson gets lavish trips, what do the trial lawyers get from Courtney Goodson? On the Supreme Court, Goodson consistently sides with the trial lawyers, issuing legal opinions that make them millions more in their lawsuits."

The mailer also has a large caption that reads, "The Scandalous Insiders," and it features two large photos of Goodson, including one of her holding what appears to be a glass of champagne against an Italian backdrop with a yacht in the background. The mailer further asserts that Goodson is "Living a Lavish Lifestyle That Is Bankrolled by Trial Attorneys" and that she "won't stand up for everyday Arkansans." It advises voters to "[s]top her [on] November 6, 2018," and includes quotations from the Washington Post and the Arkansas Democrat-Gazette newspapers….

Danyelle Walker, a member of the Arkansas Judicial Campaign Conduct and Education Committee's Rapid Response Team ("RRT"), also testified at the hearing. RRT acts as a watchdog over judicial elections and investigates charges of false or misleading judicial advertising. Walker testified that RRT received a complaint from Goodson's campaign alleging that RSLC–JFI was publishing defamatory statements about Goodson. RRT determined that the advertisements financed by RSLC–JFI were either false or misleading and requested that RSLC–JFI voluntarily withdraw them. RSLC–JFI responded in writing to RRT. In its response, RSLC–JFI wrote that RRT was a politically partisan organization, and that the advertisements are factually true.

NEXT: Funny Criminal Law Halloween Present

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  1. First — $50K for a trip to Italy?!? Someone has expensive tastes/

    Second — as a gift? Someone has a lot of money to waste, or a case that’s not quite as slam-dunk as desired.

  2. Ah, electing judges. something we do not get to participate up here in the Peoples Republic of Massatwoshits (and those two shits are Warren and Markey).

  3. Wondering why this went to a federal court…

    1. Because the plaintiffs and defendants are citizens of different states, thus triggering the federal court’s diversity jurisdiction. (See Article III of the Constitution, which says that “The judicial power shall extend … to controversies between … between citizens of different states.”) The lawsuit was originally filed in Arkansas court, but was then removed to federal court by the defendants.

      (The federal diversity jurisdiction statute also requires that the amount in controversy be at least $75,000, which can be complicated for injunctions. But, in the words of the notice of removal, “In actions seeking injunctive relief, ‘it is well established that the amount in controversy is measured by the value of the object of the litigation.” Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 333, 347 (1977). Justice Courtney Goodson is running for re-election to the Arkansas Supreme Court. RSLC-JFI has spent far in excess of $75,000 to publish political advertisements in the upcoming days before the election criticizing Justice Goodson’s fitness for office. Goodson seeks a preliminary injunction ordering RSLC-JFI to cease publication of these political advertisements. Accordingly, the monetary value of the object of this litigation-the political speech paid for by RSLC-JFI exceeds $75,000.”)

  4. On the one hand, a state Supreme Court Justice ought to be embarassed by having her suit dismissed on the ground that the relief she requested would violate the Constitution — shouldn’t she know that?

    On the other hand, the federal court opinion highlights that she recused herself in all cases in which contributions or gifts might have raised legitimate concerns, and reveals that she didn’t ask for a pay raise.

    As for judicial elections, after the Kavanaugh nomination imbroglio, elections don’t look all that bad.

  5. Although nothing presented so far proves that Goodson has a bias in favor of particular litigants or lawyers, she has the burden of proving, by clear and convincing evidence, that RSLC?JFI acted with actual malice . . .

    Given context created by the mailer?”Living a Lavish Lifestyle That Is Bankrolled by Trial Attorneys”?where in the opinion is there consideration of reckless disregard for the truth? More and more, it seems that time-honored bit of libel law is simply ignored, as it seems to have been ignored in this case. What justifies reading reckless disregard out of the law?

    Simply put, if Goodson does consistently recuse from donor’s cases, then the utterance, “If Courtney Goodson gets lavish trips, what do the trial lawyers get from Courtney Goodson? On the Supreme Court, Goodson consistently sides with the trial lawyers, issuing legal opinions that make them millions more in their lawsuits,” is recklessly untrue.

    Considering free speech interests broadly?outside arguments over precedent?what free speech interest should there be for deliberate defamations published for political advantage? What free speech interest is served by extending protection against prior restraint to include every personally defamatory lie any politician chooses to utter about an opponent during a political campaign? Will free speech really be better served if elections all descend to contests of mutually defamatory lies by all parties?

    1. You don’t seem to grasp the procedural posture of the case. There has been no finding that the statements were false, recklessly or otherwise. This decision is about whether a litigant can censor a person before defamation has been established.

      (Also, your comment is a bit puzzling. Reckless disregard of the truth is not a separate offense; it is an element of the offense. Reading it out of the law would make it easier to establish defamation, not harder.)

  6. This decision is about whether a litigant can censor a person before defamation has been established.

    Seems like publishing with zero proof?nor even any indication?that a judge takes what amount to bribes from litigants, whose cases get favored treatment as a result, ought be good enough to establish reckless disregard. The court acknowledged that the allegations were made, and that neither proof nor basis for suspicion had been shown, but seemed to think yet more was required. I’m having trouble following that, so maybe you can explain.

    Also, I am suggesting here that election cases may have to be different. In the usual defamation framework, time for response is presumed adequate, and availability of money damages as a remedy is also presumed. None of that applies to campaign defamations like the ones alleged here. The only meaningful remedy is to prevent the defamation’s intended effect on the election. That requires prior restraint. Money damages are out of the question, because after the election there will be no one to sue.

    Charges which amount to libel per se, published during an election, can’t be given an open-ended procedural free pass without too much damaging the political process. If there were some show of evidence to justify even reasonable suspicion that the charges were true, that would be a different matter. That’s not the case here.

    1. Seems like publishing with zero proof?nor even any indication?that a judge takes what amount to bribes from litigants, whose cases get favored treatment as a result, ought be good enough to establish reckless disregard.

      Indeed it might be… but so what? “Reckless disregard for the truth” isn’t a cause of action. Defamation is the cause of action. These statements might well be defamatory… if the allegations are false. Nobody has yet established that they are.

      Simply repeating the word “defamation” a bunch of times, as you do, is a textbook example of the fallacy of begging the question.

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