Free Speech

Candidate for Wisconsin S. Ct. (Judge Jill Karofsky) Seeks Preliminary Injunction Against Allegedly Libelous Campaign Ads

Today, Judge Judge Timothy M. Witkowiak refused to issue the injunction, partly on prior restraint grounds. The election is scheduled for tomorrow.

|The Volokh Conspiracy |

I just watched the live-stream of the argument (which seems to have been done entirely through Zoom videoconference), and the judge

  1. ruled that the controversy about one ad (the Worley ad) is moot, because the ad is no longer running (perhaps, I think, because it does seem pretty clearly false);
  2. rejected the injunction against the other ad (the Thompson ad), on prior restraint grounds, and also suggested that the ad might not be false, depending on whether you interpret "went easy on a sexual predator that shot his girlfriend, allowing a deal that puts him back on the street" as meaning that the defendant has gone back on the street, or that he will go back on the street earlier than he otherwise would have.

I think the requested injunction would have indeed been unconstitutional. There's a hot controversy about whether permanent injunctions against repeating libels, entered after a finding on the merits that the speech is libelous, are constitutional. But even courts that allow such permanent injunctions agree: An injunction issued before such an adjudication on the merits is a clearly unconstitutional "prior restraint," and violates the First Amendment. Thus, for instance, the California Supreme Court in Balboa Island Village Inn, Inc. v. Lemen (2007) concluded:

An injunction, issued only following a determination at trial that the enjoined statements are defamatory, does not constitute a prohibited prior restraint of expression. "Once specific expressional acts are properly determined to be unprotected by the first amendment, there can be no objection to their subsequent suppression or prosecution."

And the focus on "following a determination at trial" was no accident; immediately after that, the court favorably cited a law review article for the proposition that,

In certain instances prior restraints are appropriately disfavored … because of the coincidental harm to fully protected expression that results from the preliminary restraint imposed prior to a decision on the merits of a final restraint. … Such interim restraints present a threat to first amendment rights … that expression will be abridged … prior to a full and fair hearing before an independent judicial forum to determine the scope of the speaker's constitutional right.

Likewise, the Kentucky Supreme Court held in Hill v. Petrotech Resources Corp. (2010) that "defamatory speech may be enjoined only after the trial court's final determination by a preponderance of the evidence that the speech at issue is, in fact, false, and only then upon the condition that the injunction be narrowly tailored to limit the prohibited speech to that which has been judicially determined to be false."

Here, there has been no trial, no "final determination" and no "decision on the merits"—just a request for a preliminary injunction based on a conclusion that the plaintiff showed a "likelihood of success on the merits." That is no basis for restricting speech, even for a few days, especially (but not only) criticism of a high government official during an election campaign. See also Baker v. Kuritzky (D. Mass. 2015) (cited by Judge Witkowiak in his statement rejecting Judge Karofsky's request).

And this fits the broader pattern of Supreme Court decisions in other areas. (The Court hasn't squarely dealt with injunctions against libel.) Permanent injunctions against distributing particular obscene materials are constitutional, once the material is found to be obscene. But preliminary injunctions, based on a mere "a preliminary finding of probable obscenity," are unconstitutional (see Vance v. Universal Amusement Co. (1981)). Likewise, I think, for libel.

Here's the plaintiff's description of the two ads (and you can also read there the plaintiff's broader argument):

On or around March 26, 2020, an advertisement created by WMC (the "WMC Ad" or "WMC Worley Ad") was posted on Youtube and began airing on local television stations across the State of Wisconsin and as part of Facebook advertisements. The advertisement claims against Judge Karofsky explicitly rely upon the case of the State of Wisconsin v. Donald A. Worley …. The WMC Ad asserted that Judge Karofsky was responsible for giving "no jail time to a monster who lured a five-year-old girl into a bedroom where he sexually assaulted her" and that the individual also confessed to assaulting the victim's sister….

[But] Judge Karofsky had no involvement in or responsibility for the plea and/or sentence received in March of 2000 in Worley. She made one and only one appearance in the case in July of 2001, 16 months after the plea was entered. The plea agreement was reached with the Defendant in March of 2000, and on March 30, 2000, Judge Bartell accepted the Defendant's plea of no contest and then sentenced the Defendant. All of [this] was completed by a different district attorney, with Judge Karofsky completely uninvolved. But because Judge Karofsky was the most recent assistant district attorney to appear in the case, the Wisconsin CCAP record lists Judge Karofsky as the attorney of record. [Judge Karofsky also argued that the ad continued to be distributed even once the defendants were aware it was false, and perhaps were even aware of the risk of falsehood when it was first distributed. -EV] …

On or around March 31, 2020, RSLC-JFI [the Republican State Leadership Committee-Judicial Fairness Initiative] created, published, and distributed another ad against Judge Karofsky (the "RSLC Thompson Ad" …)…. In a voiceover, the RSLC Thompson Ad states that "Karofsky is dangerously soft on crime" and that "as judge, even went easy on a sexual predator that shot his girlfriend, allowing a deal that puts him back on the street." While the voiceover plays, the advertisement shows images of Judge Karofsky, a dangerous-looking person, and a gun being shot. After claiming that Judge Karofsky accepted a deal that puts the offender on the street, the advertisement transitions to an image of a jail cell door being opened and a picture of Judge Karofsky. The clear implication is that the offender is currently on the street and in public because of Judge Karofsky.

Nothing could be further from the truth. The allegations in the advertisement rely upon the proceedings in State v. Thompson. Judge Karofsky sentenced the offender to an eight-year sentence that would not even start until after he completed the time he was serving for other criminal convictions. This information is readily accessible on the Wisconsin CCAP record for Thompson.

Not only did Judge Karofsky sentence him to incarceration, Wisconsin Department of Correction's offender movement records indicate that the offender has been in DOC custody since March 2017 through the present. The offender movement records are publicly available online at https://appsdoc.wi.gov/lop/detail.do. Because Judge Karofsky sentenced the offender and the offender remains incarcerated, the allegations in the RSLC Thompson Ad are defamatory….

See also my post on the similar 2018 Justice Courtney Goodson case in Arkansas.

UPDATE: I originally said the election is tomorrow, but reader Noscitur a sociis noted that the Governor ordered that it be postponed (though the Wisconsin Supreme Court has apparently overruled that order, and federal litigation is going on). I therefore changed the subheader to say, "The election is scheduled for tomorrow."

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  1. Sort of seems like the suit says everything you’d need to know about her candidacy.

  2. The election is tomorrow.

    Looks like the governor just postponed the election until June, although I believe there was already litigation underway as far as the legality of doing that (and of not doing it).

    https://evers.wi.gov/Documents/COVID19/EO074-SuspendingInPersonVotingAndSpecialSession2.pdf

    1. 1. About damn time. The state was endangering all the poll workers, and each in-person voter as well.
      2. Along with postponing the election, this signed document seems to extend the terms of people currently holding office. This makes sense, from a practical standpoint. But I assume any state that does this (natural disaster, etc) has a provision in its state constitution that permits this, yes? Are there any states where there is no such provision? What would happen there? Just temporary fill-ins by non-elected agency workers?

    2. Yes, there was already litigation underway on the legality of the postponement, and Evers lost.

      High courts block Evers on 2 fronts: Wisconsin justices overturn ban on Tuesday voting, U.S. Supreme Court restricts absentee ballots

  3. I wonder if any candidate has taken this idea to its logical conclusion and sued to overturn an election (or at least get a do-over) because his opponent used a slander to win. I can think of cases on both sides of the aisle where such a claim would have been good enough to justify a hearing, if courts could do that.

  4. The problem with the intentionally false ad in the Wisconsin Supreme Court campaign isn’t that Karofsky’s reputation may have been harmed, it’s that democratic discussion and debate have been corrupted. The only remedy Wisconsin law provides for such behavior is a fine of $1,000 and six months in jail for violating section 12.05 of the state’s statutes: “No person may knowingly make or publish, or cause to be made or published, a false representation pertaining to a candidate or referendum which is intended or tends to affect voting at an election.” Since 2000 at least two Wisconsinites have been successfully prosecuted for violating 12.05.

    1. What part of “shall make no law” does such a criminal statute not violate?

      I see such a statute as incredibly dangerous (and counterproductive) as truth is often damn hard to determine in political disputes, while an objective media (yes, right…) simply reporting on the mudslinging usually makes it backfire.

      How about this ad?
      https://www.youtube.com/watch?v=PmwhdDv8VrM

      It’s clearly false — those aren’t prisoners being released (and the prison clearly isn’t in Massachusetts, note mountains) but “revolving door” was an expression, not a literal fact.

      And as to “sunlight being the best disinfectant”, this ad was created in response to allegations that the infamous Willie Horton ad was racist. I like to think that no court would convict someone for that as a crime, as Willie Horton really was convicted of gristly crimes in both MA & MD, and MD did refuse extradition to MA, and the MD judge did say something to the effect of “because MA will just let him loose again.”

      So there are no factual errors there, yet 32 years later, it’s still infamous. Sunlight really is the best disinfectant.

      1. Criminal penalties for knowingly false speech about political matters would appear to satisfy the standard laid out in the majority opinion of Garrison v. Louisiana, 379 U.S. 64 (1964): “We held in New York Times that a public official might be allowed the civil remedy only if he establishes that the utterance was false and that it was made with knowledge of its falsity or in reckless disregard of whether it was false or true. The reasons which led us so to hold in New York Times apply with no less force merely because the remedy is criminal. The constitutional guarantees of freedom of expression compel application of the same standard to the criminal remedy.”

  5. Does anyone pay any attention to negative ads? You can see the cut and paste of statements taken out of context from one place and put in another. The worst one is the one with Trump playing ominous music, talking about the pandemic, and then showing Trump saying ” I take no responsibility”. It is obvious the last statement has nothing to do with what is going on right now. I ignore such foolishness, and think most other people do too.

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