The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I just watched the live-stream of the argument (which seems to have been done entirely through Zoom videoconference), and the judge
- 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);
- 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."