Rulings split in justice’s ad case
1 judge halts airings in LR; other says speech protected
Arkansas Supreme Court Justice Courtney Goodson won, and then lost, in her two-part legal battle Friday against attack ads that have hounded her re-election campaign.
One Pulaski County circuit judge, Chris Piazza, found Friday morning that Goodson was likely to prove the ads were defamatory. Hours later, another judge on the same circuit, Mackie Pierce — acting as a special judge for another circuit — said otherwise, and found the ads could be considered protected speech.
The opposite rulings in effect mean that voters in Northwest Arkansas will be able to see the ads aired on TV in the final days leading up to Tuesday’s election, while voters in Little Rock — the state’s largest media market — will not.
Both cases ended up in
the same courthouse Friday after a bizarre week of court filings between Goodson and many of the state’s broadcasters. The broadcasters had been airing the attack ads bought by an out-of-state group, the Judicial Crisis Network.
Goodson fought to stop the ads by taking a threepronged legal approach. She filed suits against stations in three counties: Pulaski, Washington and Sebastian.
Early on, she scored a victory when Washington County Circuit Judge Doug Martin ordered a temporary restraining order Monday to halt the ads from being aired in the area. However, Martin later recused after it was reported that his wife had financial ties to the law firm of Goodson’s husband, John Goodson. Soon after, every other judge on the Fayetteville-based circuit — where Goodson lives — also recused.
The Northwest Arkansas case was placed in Pierce’s Little Rock courtroom on special assignment by Chief Justice Dan Kemp. Pierce overturned Martin’s order Friday, allowing the attack ads to resume on several TV stations in the Fayetteville area.
A third hearing is scheduled for Monday in Fort Smith, for the Sebastian County lawsuit.
In addition to party primaries, the nonpartisan judicial general election is Tuesday. Goodson is running against Court of Appeals Judge Kenneth Hixson — another victim of negative ads — and Department of Human Services Chief Attorney David Sterling, who has denied involvement in the attacks.
Both circuit judges who ruled Friday spoke ill of the ads, which insinuate that Justice Goodson accepted expensive gifts on behalf
of litigants before her court while also seeking an $18,000 pay increase. Each referred to the ads as “dark money,” alluding to the fact that the Judicial Crisis Network, based in Washington, D.C., does not disclose its donors.
“There’s something obscene about what’s going on with the type of judicial advertising that’s going on right now,” Piazza said.
Expressing fear that irreparable harm was being done in an ongoing election, Piazza issued a restraining order to go into effect through Tuesday’s election.
In order to issue a restraining order, Piazza had to find that Goodson was likely to succeed on the merits of her defamation argument at a possible later trial. He also said that the temporary order would give her attorneys time to restructure their case once the election is over so that it includes the Judicial Crisis Network as a defendant.
At least one of the TV stations
named in the suit, KATV, had voluntarily stopped running the ads and did not appear in court Friday. Another broadcaster, Cox Media, was dismissed from the case after it similarly agreed to pull the ads from the air. The companies who protested the case included Comcast and Tenga Inc., which owns Little Rock’s KTHV, and Tribune Broadcasting, which owns Northwest Arkansas’ KFSM and KXNW.
Both Tribune and Tenga were represented by John Tull, a frequent attorney for the Arkansas Press Association who argued that any judicial order to pull the ads would amount to an unconstitutional prior restraint on political speech.
“Free speech is the hallmark of democracy,” Tull said
during the second hearing before Pierce. “The answer to that is not censorship, it is more speech.”
But Goodson’s attorney, Lauren Hoover, argued that Arkansas’ nonpartisan judicial elections are different from partisan races fraught with similar attack ads because judges have more restrictions placed on them for raising the amount of money needed to respond with ads of their own.
Goodson has said the ads are lies and not protected by free speech. Defending her record, Goodson has noted that she always recused from cases involving people who gave her gifts, and that pay raises are not requested by individual judges, but by the court as a whole. But the TV stations never investigated for themselves the claims made in the ads, Hoover said, and Goodson will have no later remedy in court if the attacks cause her to lose the election.
“No amount of money is going to put [Goodson] back on the Arkansas Supreme Court,” Hoover said.
In Pierce’s court, Tull’s arguments won the day.
“I don’t like it, I don’t like the ad, I think it’s misleading,” Pierce said from the bench, before adding, “I don’t see that the law allows me any other option than denying a request for a temporary restraining order.”
Others have also weighed in. Earlier in the week, the American Civil Liberties Union of Arkansas released a statement calling for legal changes that would require groups such as the Judicial Crisis Network to disclose who is funding its message, while at the same time the ACLU Arkansas defended the group’s right to spread its message.
In the legal community, lawyers have again begun questioning whether judges should be elected.
In a statement, the Judicial Crisis Network called Piazza’s order a “blatant attack on free speech,” but it did not comment on Pierce’s decision in its favor.
Ultimately, Piazza said, the case has the potential to reach the U.S. Supreme Court because it dealt with “sacred” issues involving free speech.
After the first ruling to block the ads, Goodson greeted her attorneys with a wide smile, and told reporters she felt she had “the wind behind her back.”
But after the second ruling and a loss in Pierce’s court, Goodson was more subdued, though she acknowledged feeling “vindication” after Pierce personally denounced the ads.
“No one is ever going to ever be able to compete with dark money. Their resources are endless,” Goodson said. “These are mega-millionaires, billionaires possibly.”
While remaining unsure of the likelihood of appeal, Tull agreed with Piazza that the case presented arguments that could go to the U.S. Supreme Court.
“I represent media defendants, I represent newspapers, I represent television stations and I’m always concerned with putting a limitation on free speech,” Tull said.
None of the decisions Friday affected the ads that the Judicial Crisis Network is running against Hixson, Goodson’s opponent. Hixson has vigorously denounced both ads, but said he would decline to take legal action.
The Judicial Crisis Network also has put out mailers in the election and those are unaffected by Friday’s rulings.