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Arkansas Judge Issues Temporary Restraining Order Against Allegedly Libelous Political Ad

The ad criticizes Arkansas Supreme Court Justice Courtney Goodson; the TRO that she just got today is almost certainly an unconstitutional prior restraint.

[UPDATE: See this post for an interesting twist -- the judge who issued the TRO is apparently married to a woman who had substantial work for the Justice's husband's law firm.]

The Arkansas Democrat-Gazette's Arkansas Online (John Moritz) reports (for the actual TRO papers in a parallel case filed in another county, but that has not yet been acted on, see here; UPDATE: for the TRO itself, see here):

A judge in Washington County has issued a temporary restraining order to several television broadcasters, ordering them to stop airing ads against Supreme Court Justice Courtney Goodson that her lawyers claim are "false, misleading and defamatory." ...

The election will be held May 22 [and early voting is in progress -EV].

The ads in question are funded by the Judicial Crisis Network, a conservative Washington, D.C.-based group that keeps its donors secret. In 30-second spots, Goodson is accused of having accepted high-priced gifts and seeking a raise.

In court papers [filed today], her attorneys say that justices salaries are requested by the court as a whole and that Goodson cannot say whether she supported the idea of asking for a raise [because the Justices' vote on whether to request a pay raise was confidential -EV]. The lawsuit also says that Goodson recused herself from cases involving donors and gift-givers.

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, and especially a temporary restraining order issued without any meaningful hearing, 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 was no trial, no "final determination" and no "decision on the merits"—just a temporary restraining order presumably based (in relevant part) 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.

For a similar recent case from the neighboring state of Lousiana, also involving criticism of a judge during an election campaign, see Bartholomew-Woods v. Wilson. Thanks to Howard Bashman (How Appealing) for the pointer.

UPDATE: The TRO papers I link to in the first sentence of this post are from a parallel case filed in another county, which has not yet been acted on; I originally mislabeled them as coming from the same case in which the TRO was issue, which is mistaken (though my understanding is that the papers in both cases are indeed substantively very similar). My apologies for the error, and thanks to commenter RBBrittain for the correction.

FURTHER UPDATE: Reuters (Alison Frankel) writes about this, and includes this:

In an email response to my query about the constitutionality of the TRO, Goodson counsel Lauren Hoover said libelous speech is not protected under the First Amendment. "I understand the questions surrounding a prior restraint, but we are happy to have received the TRO and are prepared to meet our burden on the merits when we have those opportunities," she wrote.

Yes, speech that has been finally adjudicated as libelous is not protected under the First Amendment, which can lead to civil damages, in some states even criminal punishment, and increasingly permanent injunctions. But when a judge restricts speech via temporary restraining order, without hearing from the other side, because the judge merely thinks the speech is likely to be libelous, that is a quintessential unconstitutional prior restraint.

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  • Eidde||

    "I'm sorry, because of the court order I can't comment on the allegations about the Congressman and his livestock."

  • Eidde||

    "No matter how perversely fascinating it may be, I just can't say anything. Yup, my lips are sealed."

  • Jerry B.||

    So.

    "I didn't seek a raise, but I can't tell you whether I voted for a raise for all justices, which would include me, or not."

  • hugh59||

    Something similar happened in Ohio in 1998. One candidate for governor ran an ad quoting a newspaper article. The opposing candidate filed for a restraining order on a Friday of a 3 day weekend. The complaint alleged that the ad was false and misleading because the quote was incomplete and out of context.

    The judge (someone I knew and liked) was a member of the same party as the complaining candidate and he issued the restraining order Saturday morning with a hearing scheduled late Tuesday morning.

    I went to the Tuesday morning hearing...but by then the Ohio Supreme Court had already issued an order lifting the restraining order. Here is a news story about the case...though it does not mention the Ohio Supreme Court's role.

    http://enquirer.com/editions/1.....tad14.html

  • Skipper||

    The academy protects its own.

  • RBBrittain||

    She actually filed two cases: One in Pulaski County (Little Rock), the other in Washington County (Fayetteville). The papers you posted are the petition from the Pulaski County case; that county posts everything online (and the judge there won't hear the case till Friday). Washington County hasn't posted any documents online, and not even a docket entry for the TRO.

    Though I'm sympathetic to Justice Goodson's plight, this is not the constitutional way to deal with it.

  • spyglass||

    Pot meet kettle. The Arkansas Judicial Discipline and Disability Commission censured this judge in 2014 for making statements that were improperly prejudicial and harassing against his opponent while campaigning for judicial office. According to the AJDDC, the judge repeatedly spoke publicly about his disdain for his opponent and confronted other members of the community for their support of his opponent. The AJDDC found that the judge's comments and behavior "went beyond normal election rhetoric and gave the appearance of coercion whether intended or not."

  • loki13||

    I apologize if I'm skeptical about your deep knowledge on the subject; given that you both couldn't name the judge and also used the wrong gender, I have to be a little concerned.

  • Smails||

    I believe spyglass is referring to Judge Doug Martin, who issued the TRO, not Justice Goodson, who sought the TRO. See http://5newsonline.com/2014/11.....campaign/.

  • spyglass||

    Yes. I was referring to the issuing judge. Too bad that loki13's smart-a**ery was for naught.

  • TwelveInchPianist||

    It usually is.

  • Smooth Like a Rhapsody||

    Even Walter Sobchak knows that the Supreme Court has roundly rejected prior restraint.

  • arch1||

    "That is no basis for restricting speech, even for a few days, especially (but only) criticism of a high government official during an election campaign."

    "but only" -> "but not only"?

  • Eugene Volokh||

    Whoops, fixed, thanks!

  • arch1||

    "That is no basis for restricting speech, even for a few days, especially (but only) criticism of a high government official during an election campaign."

    "but only" -> "but not only"?

  • RBBrittain||

    And it gets worse; the Arkansas Democrat-Gazette is now reporting that Judge Martin's wife has done paid legal work for the law firm of Justice Goodson's husband. http://www.arkansasonline.com/.....gh-court-/

    Also, Justice Goodson has filed suit in a third county, Sebastian County (Fort Smith), though strangely against the same three parties subject to the Washington County TRO. Fort Smith & Fayetteville are the same media market; Little Rock is a separate market, though two of the parties are the same in all three suits. Nexstar Broadcasting owns TV stations in both markets; Cox Media owns cable systems in both markets.

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