November 2, 2018 / 9:33 PM / a year ago

CORRECTED-As election ‘dark money’ debate rages, Ark. justice loses bid to enjoin attack ads

(Reuters) - Corrects the fourth paragraph to reflect that the judicial election integrity group is independent of the state bar association.

There is no precedent in federal law for blocking speech that may be defamatory but hasn’t yet been proven to be. Judge-ordered prior restraints on speech, as you know, are subject to the most exacting form of review under the First Amendment. Occasionally, federal judges have found a compelling public interest in barring defendants from making statements already determined to be defamatory. But preliminary injunctions prohibiting potentially defamatory speech are taboo.

On Thursday, U.S. District Judge Brian Miller of Little Rock, Arkansas, stayed in line with federal precedent. He denied a motion by Arkansas State Supreme Court Justice Courtney Goodson to enjoin the Republican State Leadership Committee’s Judicial Fairness Initiative from airing attack ads opposing the justice’s reelection to the state high court.

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“Goodson wants to enjoin what could be protected speech, and this would be improper,” Judge Miller wrote. “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.” The judge also found Justice Goodson was unlikely to win a defamation claim against the group because she would have a hard time showing it acted with malicious disregard for the truth.

Judge Miller’s refusal to enjoin RSLC’s attack ads seems to me to have been entirely correct – despite a contrary decision earlier this year by an Arkansas state court in a parallel suit by Justice Goodson. In the earlier case, which took place during the primary campaign for the Arkansas Supreme Court seat, the justice sued media companies to stop them from airing attack ads funded by the dark-money group Judicial Crisis Network. Pulaski County Circuit Court Judge Chris Piazza granted a preliminary injunction against the ads last May, based on the findings of Arkansas’s independent judicial election integrity group, which concluded the ads were misleading and sent a cease-and-desist letter to the Judicial Crisis Network. That injunction is on appeal.

This time around, rather than suing media companies, Justice Goodson sued the group that funded an attack commercial and glossy mailer, RSLC-JFI, which seems to have picked up the anti-Goodson mantle from the Judicial Crisis Network. Goodson’s lawyers at LaCerra Dickson Hoover & Rogers filed the case in state court in Pulaski County. RSLC-JFI’s counsel at Quattlebaum Grooms & Tull removed the suit to federal court under diversity jurisdiction.

That certainly turned out to be wise. Instead of litigating before Judge Piazza, who had already issued a preliminary injunction against starkly similar ads, the case wound up before a federal judge who was guided by precedent and refused “Goodson’s invitation to trod over the First Amendment,” as RSLC-JFI’s lawyers put it in their brief opposing the injunction.

Even Goodson lawyer Lauren Hoover told me Friday that her only quibble with Judge Miller’s decision to reject the preliminary injunction is that the judge didn’t discuss the compelling state interest in judicial elections untainted by contributions from outside groups. Justice Goodson’s brief argued that the Supreme Court’s 2015 decision in Williams-Yulee v. Florida Bar, which upheld fundraising restrictions on lawyers running for judicial office, shows the government can narrowly tailor impositions on free speech to serve the interest of “preserving public confidence in the integrity of the judiciary.” RSLC-JFI countered, persuasively, that the Williams-Yulee decision addressed restrictions on candidates, not on public commentary on those candidates.

But Justice Goodson’s litigation was never intended just to be about a preliminary injunction. But Hoover’s larger argument – and the argument of many people who oppose judicial elections – is that outside groups, sometimes called “dark money,” have irrevocably warped judicial elections.

That’s why the case is more important than a failed attempt by a state justice to sidestep the First Amendment.

The cure for misleading or even scurrilous political speech, as UCLA law professor Eugene Volokh told me when I previously reported on Justice Goodson’s Arkansas state court injunction litigation, is supposed to be more speech. Candidates who are unfairly attacked can run their own ads fighting back. RSLC-JFI said just that in its brief opposing Goodson’s motion for a preliminary injunction: “It is not in the interest of the public to silence criticism of Justice Goodson, who has the right and platform to respond to speech that she dislikes with her own speech.”

Justice Goodson contends, however, that the influx of special interest money has made it impossible for her to have an equal voice. Arkansas fundraising rules restrict when and from whom judicial candidates can raise money, Hoover said. Outside groups backing Goodson’s opponent don’t face those restrictions.

You’ve probably heard about the Judicial Crisis Network, a deeply conservative nonprofit advocacy group that spent millions of dollars on television ads promoting the confirmation of Republican-nominated Supreme Court justices. JCN does not disclose its donors, but reported last November that $23.5 million of JCN’s funding came from “another secretive nonprofit” called Wellspring, which, in turn, received nearly 90 percent of its revenue from a single wealthy donor.

The RSLC-JFI, an independent expenditure committee in the lingo of campaign finance, bills itself as the only nationwide political organization dedicated exclusively to state judicial elections. Since its founding in 2014, it has spent nearly $10 million to tilt those elections to Republican candidates, including “investments” (its word) in races in Illinois, Michigan, North Carolina, Ohio, West Virginia, Wisconsin, Pennsylvania and, as you already know, Arkansas.

The Judicial Crisis Network is a longtime donor to the Republican State Leadership Committee, the parent of RSLC-JFI. In RSLC’s latest quarterly tax filing, RSLC reported year-to-date contributions of $1.5 million from a group called the Judicial Confirmation Network, which is a former name for the Judicial Crisis Network. A spokesperson for RSLC-JFI, David James, said JCN is one of 160,000 donors to the parent group, RSLC, which does not accept funds earmarked for particular purposes.

Justice Goodson, according to her lawyer, doesn’t have millions of dollars to respond to JCN and the RSLC-JFI. So one of the aims of her injunction litigation, according to Hoover, was to highlight the role of those advocacy groups.

“What we’re developing here is a playbook,” said Goodson counsel Hoover. “Dark money doesn’t want to show up (but) as we say in Arkansas, ‘We ain’t playing that way.’”

RSLC-JFI spokesman James responded that Judge Miller, in rejecting Justice Goodson’s preliminary injunction motion, proved himself to be a better judge than she. “Courtney Goodson is trying to create a smokescreen to distract voters from her terrible record,” he said. “Her ‘wholly unprecedented’ and ‘improper’ attempt to silence free speech through the courts (proves) that she is unfit to serve on Arkansas’ Supreme Court.”

The views expressed in this article are not those of Reuters News.

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