The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
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.