The Volokh Conspiracy
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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.
