The Volokh Conspiracy
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In this judicial election case, … Jennifer M. Medley … appeal[s] the September 30, 2020 judgment of the district court granting a preliminary injunction in favor of … [Judge] Christopher J. Bruno …, which enjoins Medley from airing or publishing a certain campaign advertisement.
Medley and Judge Bruno are both candidates in the November 3, 2020 election for Judge, Division F, in the Civil District Court for the Parish of Orleans. Judge Bruno is the incumbent, who currently presides over Division F.
On September 21, 2020, Judge Bruno learned through a media outlet that Medley intended to air a television commercial … that evening during Monday Night Football. The commercial stated, in pertinent part, that Judge Bruno "is called judge by some and a deadbeat dad by others" and that "for 13 years [he] refused to pay a single dime in child support for his son" or provide his former wife with discovery regarding his income…. The district court granted [a temporary restraining order] … and scheduled a preliminary injunction hearing on September 30, 2020.
At the preliminary injunction hearing, the district court heard testimony from Medley, Judge Bruno, and Judge Bruno's expert witness, attorney Steven J. Lane. The commercial and portions of the record from Judge Bruno's divorce were introduced into evidence.
On September 30, 2020, the district court found that the commercial contains falsities as Judge Bruno did not refuse to pay child support or to provide discovery in his divorce proceedings. The district court rendered judgment, granting the preliminary injunction and ordering that Medley and those acting on her behalf …
are restrained, enjoined, and prohibited from distributing printed material, airing television or radio commercials, publishing, or causing to be published advertisements, or to post on social media sites statements, ads, comments, statuses, which falsely state that CHRISTOPHER J. BRUNO is a deadbeat dad or that he failed or refused to pay child support, or that he refused to provide discovery to his former spouse regarding his income, or any statement of suggestion that would lead a person of average intelligence to conclude that any of the statements were true and any such advertisement or posting shall be immediately taken down or removed….
On appeal, Medley abandoned her original defense as to the truthfulness of her statements against Judge Bruno. She does not now dispute that the commercial contains falsities, particularly as to her allegations that Judge Bruno refused to pay child support. Medley argues nowhere on appeal that these statements in her commercial are true. She now alleges in her appeal that "with respect to the issue of child support, he [Judge Bruno] used every available tactic to delay the support of his child."
Furthermore, Medley seems to allege that she can now disseminate the commercial containing falsities because she did not knowingly make a false statement against Judge Bruno nor recklessly make a false statement. Medley's only substantive argument on appeal is that she claims that the district court did not address the nature of her knowledge of the falsities in the commercial as being knowing, reckless, and/or negligent….
The United States Supreme Court has recognized a lack of First Amendment protection for "calculated falsehoods" in political speech, that is, "knowing" or "reckless" false statements …. Thus, an injunction [against such speech] clearly does not violate a person's First Amendment freedom of speech if the judicial-election speech is knowingly or recklessly false….
At the preliminary injunction hearing, portions of the record of Judge Bruno's divorce proceedings were introduced into evidence, …. These … documents clearly set forth, [among other things], that there was never a judgment for child support during the 13 years that Medley claims Judge Bruno refused to pay child support.
The 2008 Memo [which had been filed by Judge Bruno's ex-wife] contained the following statements:
- "Despite 13 years of litigation, no judgment fixing child support has ever been rendered."
- "At all times during the thirteen years, [Judge Bruno] has paid no child support."
- "Previous to the 2007-2008 school year, [Judge Bruno] paid 50% of the tuition and for the child's health insurance."
- "He only paid one half of the tuition …"
Judge Bruno's opposition to the 2008 Memo states that both he and the former Mrs. Bruno are millionaires and that, per their extrajudicial agreement, neither parent paid child support to the other and both parents shared common expenses for the child, such as tuition.
In the 2009 Consent Judgment, the parties agreed that Judge Bruno was to pay to his former wife a lump sum of child support, representing both an arrearage retroactive to May 21, 2007 and future child support through the child's graduation from high school. The 2009 Consent Judgment also set forth discovery proceedings between the parties.
The district court also heard the following testimony at the preliminary injunction hearing. Medley testified that she has held a license to practice law for 18 years. She understands that she is responsible for what her campaign does, and that as a judicial candidate, she is subject to the judicial canons. Medley testified that she has handled "a couple" of family law cases in her practice and she understands what "arrearage" means.
Medley testified that she reviewed the court record of Judge Bruno's divorce, and she based the statements in her commercial on that court record. According to Medley, the commercial was created in September 2020. Fire on the Bayou, LLC, a film company, wrote the commercial's text based on Medley's dictation of her ideas for the commercial. Medley's campaign paid for the commercial. Medley viewed the commercial once it was finished. She approved all statements made in the commercial.
Medley testified that without an order to pay child support, a litigant cannot refuse to pay child support; rather, child support must be ordered. In her testimony, Medley acknowledged that she could identify no order, other than the 2009 Consent Judgment, which ordered Judge Bruno to pay any child support. She could not testify to any court order finding that Judge Bruno refused to pay child support for 13 years.
Medley also testified that the definition of a "deadbeat dad" is a "male or female generally who does not support their child, does not pay child support." … Medley testified that she relied on the 2008 Memo by the former Mrs. Bruno, which contained an argument that Judge Bruno had paid no child support. The 2008 Memo also stated, however, that Judge Bruno paid for the child's health insurance and half of his child's tuition. On cross-examination, Medley admitted that she had no reason to believe that the former Mrs. Bruno's statements concerning these tuition and health insurance payments were false. Medley further acknowledged in her testimony that payments for a child's tuition and health care expenses are child support….
Judge Bruno also testified at the hearing. According to Judge Bruno's testimony, there was no judgment requiring him to pay child support between 1995 and 2007. Judge Bruno testified that the statement that he refused to pay child support for 13 years is a lie; it is also a lie that he tried to tie his former wife's hands with respect to being paid child support. Pursuant to the 2009 Consent Judgment, Judge Bruno paid a lump sum to the former Mrs. Bruno, which was retroactive to May 21, 2007, the date on which the former Mrs. Bruno filed a rule to increase child support. The 2009 Consent Judgment resolved the former Mrs. Bruno's rule to increase child support as well as discovery motions by both parties.
Judge Bruno tendered and the district court accepted attorney Steven J. Lane ("Lane") as an expert in family law. Lane testified that, based on his review of the partial divorce record, the campaign commercial is "false." Lane testified that the statement that Judge Bruno had not paid a dime in child support for 13 years cannot be correct. According to Lane's testimony, child support is comprised of cash payments and other expenses, which include payments for education, medical insurance, or other extrajudicial in-kind payments. Lane pointed out that the 2008 Memo states that Judge Bruno paid half tuition and all health insurance. Lane opined in his testimony that an attorney reading the 2008 Memo would have to conclude that the statement that Judge Bruno refused to pay child support for 13 years is false.
In Lane's opinion, the statement that Judge Bruno tied the hands of his former wife with respect to discovery was also incorrect. Lane testified that nothing in the pleadings he reviewed supported the statement that Judge Bruno refused to provide discovery regarding his income. Rather, Lane testified that the pleadings showed that both parties were very wealthy such that the financial documents at issue in their discovery dispute were not relevant to a child support calculation. The relevant issue was the child's expenses, and Judge Bruno would be justified in objecting to producing documents concerning his personal financial position. Based on Lane's review of the pleadings, the rule to increase child support contemplated that support was being paid pursuant to extrajudicial agreement and the former Mrs. Bruno was seeking an increase. Lane remarked that nothing in the 2009 Consent Judgment stated that no child support was paid for 13 years. In Lane's reading, the 2009 Consent Judgment's language regarding arrearages contemplated only the date the rule was filed until the date of judgment, and that the parties had reached an agreement to pay retroactively from the date the rule was filed.
The district court reviewed the campaign commercial, along with portions of the divorce record, as well as the testimony of all witnesses. In particular, the district court heard Medley admit in her testimony that she knew that tuition and health insurance are child support payments, that she could identify no judgment ordering 13 years of past due child support payments, and that she had no evidence or reason to doubt the former Mrs. Bruno's statements that Judge Bruno made tuition and health insurance payments on the child's behalf.
Based on our review of the entire record, we conclude that the district court correctly found and the evidence before the district court supported a finding of actual malice. We find nothing in the record that leads us to conclude that the district court failed to consider malice or manifestly erred in determining that Medley knew her commercial was false or at the very least acted with reckless disregard for whether her statements in the commercial were false….
Judge Lobrano would have gone so far as to award Bruno damages for a frivolous appeal, because "Medley's appellate arguments are frivolous in that Medley abandoned her defenses originally advanced and adopted unfounded defenses and baseless relief requests on appeal":
I can discern no other purpose in bringing this appeal than to further harass Judge Bruno with litigation to continue the promotion of a false campaign ad and the perpetration of the falsities in the media. Allowing judicial candidates carte blanche to defame opposing candidates is against public policy and an abuse to the First Amendment freedom of speech. Medley should be held responsible for such abuses that involve the improper use of the appellate process. Her actions are uniquely harmful when one considers the effects of social media, which allows publishers to disseminate false stories to mass audiences instantaneously, throughout this appeal process. Such Article 2164 damages will deter similar reckless conduct in the future, promote the integrity of judicial elections and the appellate process, and discourage the politicization of the judiciary resulting in increased judicial election expenses and eventually compromising judicial integrity and impartiality leading to a decreased public accountability of the courts.
The other two judges disagreed as to the appeal damages:
"[O]ur jurisprudence … reflects that 'appeals are always favored and, unless the appeal is unquestionably frivolous, damages will not be granted' due in part to the possible chilling effect on the appellate process." … Accordingly, "[e]ven when an appeal lacks serious legal merit, frivolous appeal damages will not be awarded unless the appeal was taken solely for the purpose of delay or the appellant's counsel is not serious in the position he advances." … [T]he record does not support a finding that Medley's counsel is not serious in the position Medley advances. Although we have determined that Medley's positions in this appeal are ultimately incorrect, in applying the foregoing principles, I cannot say that Medley's appeal is frivolous….