On November 6, 2018, Arkansas Supreme Court Associate Justice Courtney Goodson was elected to remain in her position with the Arkansas Supreme Court.  Her victory undoubtedly softened the blow of being denied a preliminary injunction seeking to stop an attack advertising campaign levied against her by the Republican State Leadership Committee – Judicial Fairness Initiative, a Washington-based special interest group (the “Special Interest Group”), in support of her opponent, David Sterling.  Goodson complained that television advertisements and a campaign mailer created by the Special Interest Group defamed her.

Broadly speaking, the campaign advertisements at issue contained two types of allegedly defamatory statements.  First, the Special Interest Group asserted that Goodson accepted various gifts, including a $50,000 trip to Italy and large campaign contributions from plaintiffs’ law firms.  It was undisputed that Goodson accepted a trip to Italy from a personal friend and lawyer and complied with judicial ethics rules both by timely disclosing the gift and recusing herself from cases involving the lawyer who gave the gift.  The testimony from the preliminary injunction hearing confirmed that Goodson’s campaign accepted contributions from plaintiffs’ law firms, but that Goodson did not personally solicit campaign contributions or even know who contributed to her campaign.  Goodson argued that the statements regarding the gift and campaign contributions were false by implication or omission because she had recused herself from the cases as required.

Second, the Special Interest Group asserted that Goodson asked for an $18,000 per year pay raise.  Goodson alleged, however, that she did not personally request a raise; rather, the Chief Justice raised the issue on behalf of every member of the Arkansas Supreme Court.  Moreover, after initially refusing to answer questions on the topic at the hearing, Goodson eventually testified that she voted against the raise.  Notably, this was the first time Goodson had publicly disclosed her vote.

On November 1, 2018, the United States District Court for the Eastern District of Arkansas denied Goodson’s motion for a preliminary injunction on two separate grounds.

A Preliminary Injunction Would Violate the First Amendment

The court held that granting a preliminary injunction would be an impermissible prior restraint on speech because it would stop the Special Interest Group from publishing its campaign materials, which would be tantamount to restricting it from speaking.  The term “prior restraint” refers to an administrative or judicial orders prohibiting certain communications before they occur.  Alexander v. United States, 509 U.S. 544, 550 (1993) (quotations omitted).  Temporary restraining orders and injunctions “are classic examples of prior restraints.”  Id.

As the court correctly noted, restraining future speech is almost always prohibited by the First Amendment, such that any prior restraint bears a heavy presumption against its constitutional validity.  The court also observed that while some federal and state courts have found that a narrowly-tailored prior restraint is permissible following a full trial at which it is determined that the defendant defamed the plaintiff, it is “wholly unprecedented” for a federal court to enter a preliminary injunction in a defamation case.  Indeed, the U.S. Supreme Court, for its part, has never approved a prior restraint in a defamation case.

The court also reasoned that the context of the case militated against a preliminary injunction—imposing any prior restraint on election-related speech should be viewed with extreme caution.  Indeed, “debate on the qualifications of candidates [is] integral to the operation of the system of government established by our Constitution.”  Buckley v. Valeo, 424 U.S. 1, 14 (1976).  Accordingly, the court denied the preliminary injunction as a prior restraint on speech, particularly given that the speech at issue had not yet been determined to be defamatory.

Goodson Was Unlikely to Succeed on the Merits

The court also held that Goodson could now show a reasonable probability of succeeding on the merits of her defamation claim, as she must in order to obtain a preliminary injunction.  The court explained that, because she is a public official, Goodson must show that the Special Interest Group made the statements at issue with actual malice.

The court stated that Goodson likely could not prove actual malice concerning the statements about her trip to Italy and campaign contributions.

The court also concluded that Goodson was unlikely to show that the Special Interest Group acted with actual malice regarding the advertisements stating that Goodson requested a pay raise.  Although it did not confirm whether Goodson voted for the pay raise before running the advertisement, there was no indication that the Special Interest Group made the statement knowing it was false or that it was very likely false.  The court cautioned, however, that Goodson’s testimony at the hearing provided notice that she voted against the raise.

While a bitter pill for Goodson to swallow as a candidate facing political advertisements making allegedly false claims against her, the court reached the correct result.  A prior restraint on free speech may be upheld, if at all, only in extraordinary circumstances.  The U.S. Supreme Court has suggested that such extraordinary circumstances may be found for matters of national security or to control obscenity.  Near v. Minnesota, 283 U.S. 697, 716 (1931); see N.Y. Times v. United States, 403 U.S. 713, 718-720 (1971) (Black, J., concurring).  Furthermore, a prior restraint restricting political speech is particularly problematic given that political speech “is at the heart of our democratic process and ‘operates at the core of the First Amendment.’”  Ariz. Right to Life PAC v. Bayless, 320 F.3d 1002, 1008 (9th Cir. 2003) (quoting Boos v. Barry, 485 U.S. 312, 318 (1988)).

The First Amendment is of vital importance, particularly in the arena of political speech, as “[o]nly a free and unrestrained press can effectively expose deception in the government.”  N.Y. Times, 403 U.S. at 717 (Black, J., concurring).  In Goodson, the Eastern District of Arkansas, correctly recognizing this, avoided taking a step down the proverbial slippery slope.