cv-18-522 - media.arkansasonline.com · 31.07.2018 · this is an interlocutory appeal of a...
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CV-18-522
IN THE COURT OF APPEALS OF ARKANSAS
COMCAST OF ARKANSAS, INC.; and TEGNA, INC.; APPELLANTS v. COURTNEY GOODSON; and COURTNEY GOODSON CAMPAIGN APPELLEES
APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS
THE HONORABLE CHRIS PIAZZA
ABSTRACT, BRIEF, AND ADDENDUM OF APPELLANT TEGNA INC.
VOLUME I OF I
John E. Tull III (84150) Vincent O. Chadick (94075) Christoph Keller (2015145) QUATTLEBAUM, GROOMS & TULL PLLC 111 Center Street, Suite 1900 Little Rock, Arkansas 72201 Telephone: (501) 379-1700 Facsimile (501) 379-1701 [email protected] [email protected] [email protected] Attorneys for TEGNA Inc.
ELECTRONICALLY FILEDArkansas Court of Appeals
Stacey Pectol, Clerk of the Courts
2018-Jul-30 14:13:02CV-18-522366 Pages
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TABLE OF CONTENTS Page I. INFORMATIONAL STATEMENT .......................................................... vii II. JURISDICTIONAL STATEMENT ............................................................. ix III. POINTS ON APPEAL ................................................................................. xi IV. TABLE OF AUTHORITIES ...................................................................... xiii V. ABSTRACT ............................................................................................ Ab 1
A. Hearing Held May 18, 2018 .......................................................... Ab 1
1. Plaintiffs’ Case ......................................................................... Ab 1
Danyelle Walker
• Direct Examination of Danyelle Walker By Plaintiffs .............................................................. Ab 1 • Evidentiary Ruling .................................................... Ab 3 • Continued Direct Examination of Danyelle Walker By Plaintiffs .............................................................. Ab 4 • Cross Examination of Danyelle Walker
By TEGNA ............................................................... Ab 7
• Cross Examination of Danyelle Walker By Comcast ............................................................... Ab 9
• Re-Direct Examination of Danyelle Walker By Plaintiffs .............................................................. Ab 9 • Re-Cross Examination of Danyelle Walker
By TEGNA ............................................................. Ab 10
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• Re-Cross Examination of Danyelle Walker By Comcast ............................................................. Ab 10
Chad Kelley
• Direct Examination of Chad Kelley By Plaintiffs ............................................................. Ab 10 • Cross Examination of Chad Kelley
By TEGNA ............................................................. Ab 12
• Cross Examination of Chad Kelley By Comcast ............................................................. Ab 13
• Re-Direct Examination of Chad Kelley By Plaintiffs ............................................................. Ab 13 • Re-Cross Examination of Chad Kelley
By TEGNA ............................................................. Ab 14
2. Motion Hearing ...................................................................... Ab 14
3. Comcast’s Case ...................................................................... Ab 27
Chad Kelley
• Direct Examination of Chad Kelley ........................ Ab 27
4. Court’s Ruling ........................................................................ Ab 27
VI. STATEMENT OF THE CASE ............................................................. SoC 1 VII. ARGUMENT ......................................................................................... Arg 1
I. THE CIRCUIT COURT ERRED BECAUSE THE
PRELIMINARY INJUNCTION IS AN UNCONSTITUIONAL PRIOR RESTRAINT ........................... Arg 2 A. The Campaign Advertisement Is Protected Speech ............... Arg 5
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B. Preliminary Injunctions In Defamation Cases Are Prior Restraints .................................................................. Arg 7
C. The Prior Restraint Censoring Political Speech Is Unconstitutional .............................................................. Arg 13
II. THE CIRCUIT COURT ERRED IN FINDING APPELLEES
PROVED LIKELIHOOD OF SUCCESS ON THE MERITS AND IRREPARABLE HARM ................................................. Arg 17 A. Goodson Cannot Establish a Likelihood of Success on Merits ............................................................ Arg 18 B. Goodson Cannot Establish Irreparable Harm ................. Arg 27 C. The PI Was Entered In Error .......................................... Arg 29
VIII. CONCLUSION .................................................................................... Arg 30 IX. CERTIFICATE OF SERVICE ............................................................... CoS 1 X. ADDENDUM ......................................................................................... Add 1 A. Pleadings/Motions
1. Plaintiffs’ Emergency Motion For Ex Parte Temporary
Restraining Order; Request For Emergency Hearing, Or, In The Alternative, Preliminary Injunction And Incorporated Brief In Support Thereof (Record (“R.”) 4) .............................. Add 1
• Exhibit A –
Rapid Response Team’s Request For Voluntary Withdrawal Of Advertisement Sent To Judicial Crisis Network On May 9, 2018 (R. 16) ........................ Add 13
• Exhibit B –
Rapid Response Team’s Cease And Desist Letter Sent To Judicial Crisis Network On May 10, 2018 (R. 20) ............................................................................. Add 17
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Exhibit C – Plaintiffs’ Cease And Desist Letters Sent To Press On May 11, 2018 (R. 22) ................................................ Add 19
Exhibit D –
Recused Cases (R. 29) .................................................... Add 26
Exhibit E – Draft Minutes For May 16, 2017, Meeting Of Independent Citizen’s Commission (R. 30) ................... Add 27
2. Plaintiffs’ Motion To Dismiss Cox Media, LLC,
Without Prejudice (R. 67) ......................................................... Add 28
3. Order Of Dismissal As To Separate Defendant Cox Media, LLC (R. 78) ........................................................... Add 30
4. Preliminary Injunction (R. 79) .................................................. Add 31
5. Comcast of Arkansas, Inc.’s Notice Of Appeal
(R. 82) ........................................................................................ Add 34
6. TEGNA Inc.’s Notice Of Appeal And Designation Of The Record (R. 84) .................................................................... Add 36
B. Hearing Exhibits
1. Plaintiffs’ Exhibit No. 1 –
Judicial Discipline & Disability Commission Letter To Justice Goodson (R. 225) ..................................................... Add 38
2. Plaintiffs’ Exhibit No. 2 –
List Of Recusals (R. 228) .......................................................... Add 41
3. Plaintiffs’ Exhibit No. 3 – Record Of Recusals (R. 261) .................................................... Add 74
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4. Plaintiffs’ Exhibit No. 4 – Rapid Response Team’s Request For Voluntary Withdrawal Of Advertisement Sent To Judicial Crisis Network On May 9, 2018 (R. 450) ............................... Add 263
5. Plaintiffs’ Exhibit No. 5 –
Rapid Response Team’s Cease And Desist Letter Sent To Judicial Crisis Network On May 10, 2018 (R. 455) ................................................................................... Add 268
6. Plaintiffs’ Exhibit No. 6 –
Election Results (R. 458) ........................................................ Add 271
7. Plaintiffs’ Exhibit 7 – Plaintiffs’ Cease And Desist Letter Sent To Press On May 11, 2018 (R. 462) ...................................................... Add 275
8. Comcast’s Exhibit 6 –
Judicial Crisis Network’s Response To Cease And Desist Letter Dated May 14, 2018 (R. 489) .................... Add 279
C. Preparation of Record
1. Reporter’s Certificate of Costs (R. 492) ................................. Add 282
2. Clerk’s Certificate (R. 493) ..................................................... Add 283
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INFORMATIONAL STATEMENT
I. ANY RELATED OR PRIOR APPEAL? No.
II. BASIS OF SUPREME COURT JURISDICTION?
( ) Check here if no basis for Supreme Court Jurisdiction is being asserted, or check below all applicable grounds on which Supreme Court Jurisdiction is asserted.
(1) X Construction of Constitution of Arkansas (2) __ Death penalty, life imprisonment (3) Extraordinary writs (4) __ Elections and election procedures (5) __ Discipline of attorneys (6) __ Discipline and disability of judges (7) __ Previous appeal in Supreme Court (8) X Appeal to Supreme Court by law
III. NATURE OF APPEAL?
(1) __ Administration or regulatory action (2) __ Rule 37 (3) __ Rule on Clerk (4) X Interlocutory appeal (5) __ Usury (6) __ Products liability (7) __ Oil, gas, or mineral rights (8) Torts (9) __ Construction of deed or will (10) __ Contract (11) __ Criminal
IV. IS THE ONLY ISSUE ON APPEAL WHETHER THE EVIDENCE IS
SUFFICIENT TO SUPPORT THE JUDGMENT? No V. EXTRAORDINARY ISSUES? Yes
( X ) appeal presents issue of first impression, ( ) appeal involves issue upon which there is a perceived inconsistency in
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the decisions of the Court of Appeals or Supreme Court, ( X ) appeal involves federal constitutional interpretation, ( X ) appeal is of substantial public interest, ( ) appeal involves significant issue needing clarification or development
of the law, or overruling of precedent, ( ) appeal involves significant issue concerning construction of statute,
ordinance, rule, or regulation.
VI. CONFIDENTIAL INFORMATION.
(1) Does the appeal involve confidential information as defined by Sections III(A)(11) and VII(A) of Administrative Order 19?
Yes X No
(2) If the answer is “yes,” then does the brief comply with Rule 4-1(d)? Yes No
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JURISDICTIONAL STATEMENT
1. This is an interlocutory appeal of a preliminary injunction entered by
the Pulaski County Circuit Court. The appeal raises two distinct issues. The first is
whether a preliminary injunction prohibiting the publication of an allegedly
defamatory campaign advertisement violates the First Amendment to the United
States Constitution and Article 2, Section 6 of the Arkansas Constitution. The
second is whether the Circuit Court abused its discretion by finding that irreparable
harm would result in the absence of the preliminary injunction and that Justice
Courtney Goodson and her campaign demonstrated a likelihood of success on the
merits.
2. I express a belief, based on a reasoned and studied professional
judgment, that this appeal raises the following questions of legal significance for
jurisdictional purposes:
The question of whether a preliminary injunction silencing campaign speech
is an unconstitutional prior restraint is an issue of first impression in Arkansas.
Answering this question requires interpretation of the First Amendment to the
United States Constitution. Other state and federal courts have held that preliminary
injunctions prohibiting speech are unconstitutional. This question must be
conclusively resolved in Arkansas.
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This appeal is also on a matter of substantial public interest: the censorship
of speech at the core of the First Amendment. The outcome of this appeal impacts
the parties to this litigation, as Justice Goodson is currently in a run-off election
scheduled to occur on November 6, 2018. But the impact is not limited to Justice
Goodson’s present campaign. The Court’s decision will impact campaign speech in
every future election in Arkansas.
/s/ John E. Tull John E. Tull III (84150) Vincent O. Chadick (94075) Christoph Keller (2015145) QUATTLEBAUM, GROOMS & TULL PLLC Attorneys for TEGNA Inc.
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POINTS ON APPEAL
I. THE CIRCUIT COURT ERRED BECAUSE THE PRELIMINARY INJUNCTION IS AN UNCONSTITUIONAL PRIOR RESTRAINT
A. The Campaign Advertisement Is Protected Speech New York Times Co. v. Sullivan, 376 U.S. 254 (1964) United States v. Alvarez, 567 U.S. 709 (2012)
B. Preliminary Injunctions In Defamation Cases Are Prior Restraints Alexander v. United States, 509 U.S. 544 (1993) Tory v. Cochran, 544 U.S. 734 (2005)
C. The Prior Restraint Censoring Political Speech Is Unconstitutional
Near v. State of Minnesota ex rel. Olson, 283 U.S. 697 (1931)
Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976)
II. THE CIRCUIT COURT ERRED IN FINDING APPELLEES PROVED LIKELIHOOD OF SUCCESS ON THE MERITS AND IRREPARABLE HARM
A. Goodson Failed To Establish Likelihood of Success on Merits
Pritchard v. The Times Southwest Broadcasting, Inc., 277 Ark. 458, 642 S.W.2d 877 (1982) Butler v. Hearst-Argyle Television, Inc., 345 Ark. 462, 49 S.W.3d 116 (2001)
B. Goodson Failed To Establish Irreparable Harm
AJ & K Operating Co. v. Smith, 355 Ark. 510, 140 S.W.3d 475 (2004)
United Ins. Co. of Am. v. Murphy, 331 Ark. 364, 961 S.W.2d 752 (1998)
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C. The PI Was Entered In Error
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)
Ark. R. Civ. P. 65
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TABLE OF AUTHORITIES
Page Cases: AJ & K Operating Co. v. Smith, 355 Ark. 510, 140 S.W.3d 475 (2004) .................................................... Arg 28 Alexander v. United States, 509 U.S. 544 (1993) .................................. Arg 8, 9, 13 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ............................ Arg 18, 29 Arkansas Gazette Co. v. Lofton, 269 Ark. 109, 598 S.W.2d 745 (1980) .................................................... Arg 14 Arkansas Democrat-Gazette v. Zimmerman, 341 Ark. 771, 20 S.W.3d 301 (2000) ........................................................ Arg 9 Balboa Island Vill. Inn, Inc. v. Lemen, 40 Cal. 4th 1141, 156 P.3d 339 (2007) .................................................... Arg 13 Bantam Books, Inc. v. Sullivan, 372 U.S. 580 (1963) ................................... Arg 13 Baptist Health v. Murphy, 365 Ark. 115, 226 S.W.3d 800 (2006) ............ Arg 1, 17 Boellner v. Clinical Study Centers, LLC, 2011 Ark. 83, 378 S.W.3d 745 .......................................................... Arg 22, 27 Buckley v. Valeo, 424 U.S. 1 (1976) ................................................................ Arg 5 Butler v. Hearst-Argyle Television, Inc., 345 Ark. 462, 49 S.W.3d 116 (2001) ...................................................... Arg 21 Campbell v. Citizens for an Honest Gov’t, Inc., 255 F.3d 560 (8th Cir. 2001) .................................................................. Arg 20 Cantwell v. State of Connecticut, 310 U.S. 29 (1940) ..................................... Arg 3 Carroll v. President & Comm’rs of Princess Anne, 393 U.S. 175 (1968) ........................................................................... Arg 13, 16
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CBS, Inc. v. Davis, 510 U.S. 1315 (1994) ................................................. Arg 9, 10 City of Dover v. City of Russellville, 363 Ark. 458, 215 S.W.3d 623 (2005) .................................................... Arg 27 City of Jacksonville v. Smith, 2018 Ark. 87, 540 S.W.3d 661 (2018) ...................................................... Arg 1 Drummond Citizens Ins. Co. v. Sergeant, 266 Ark. 611, 588 S.W.2d 419 (1979) .................................................... Arg 17 El-Farra v. Sayyed, 365 Ark. 209, 226 S.W.3d 792 (2006) ............................ Arg 1 Ellis v. Price, 337 Ark. 542, 990 S.W.2d 543 (1999) .................................... Arg 22 Gertz v. Welch, Inc., 418 U.S. 323 (1974) ..................................................... Arg 19 Green v. George’s et al, 2011 Ark. 70, 378 S.W.3d 715 (2011) .................................................... Arg 25 Greenberg v. Horizon Arkansas Publications, Inc., 2017 Ark. App. 328, 522 S.W.3d 183 ....................................................... Arg 8 Harte–Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989) ............................................................................. Arg 1, 20 Helena Daily World v. Simes, 365 Ark. 305, 229 S.W.3d 1 (2006) .................................................... Arg 8, 13 Hill v. Petrotech Res. Corp., 325 S.W.3d 302 (Ky. 2010) ............................ Arg 13 Houston General Ins. Co. v. Arkansas Louisiana Gas Co., 267 Ark. 544, 592 S.W.2d 445 (1980) .................................................... Arg 26 Kinney v. Barnes, 443 S.W.3d 87 (Tex. 2014) .............................................. Arg 12 Lancaster v. Daily Banner-News Publ’g. Co., 274 Ark. 145, 622 S.W.2d 671 (1981) .................................................... Arg 20
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Little Rock Newspapers v. Fitzhugh, 330 Ark. 561, 954 S.W.2d 914 (1997) .................................................... Arg 19 Lothschuetz v. Carpenter, 898 F.2d 1200 (6th Cir. 1990) ....................... Arg 12, 13 Mahlandt v. Wild Canid Survival & Research Center, Inc., 588 F.2d 626 (8th Cir. 1978) ................................................................... Arg 26 McCarthy v. Fuller, 810 F.3d 456 (7th Cir. 2015) .................................. Arg 11, 12 Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971) ................................... Arg 3, 4, 5 Muntaqim v. Hobbs, 2017 Ark. 97, 514 S.W.3d 464 .................................... Arg 18 Nampa Charter Sch., Inc. v. DeLaPaz, 140 Idaho 23, 89 P.3d 863 (2004) ........................................................... Arg 12 Near v. State of Minnesota ex rel. Olson, 283 U.S. 697 (1931) .................................................................... Arg 14, 15, 17 Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) ............................. Arg 15, 16 New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ................................... passim New York Times Co. v. United States, 403 U.S. 713 (1971) ......................... Arg 15 Orrell v. City of Hot Springs, 311 Ark. 301, 844 S.W.2d 310 (1992) .................................................... Arg 13 Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376 (1973) ................................................................................... Arg 8 Pritchard v. The Times Southwest Broadcasting, Inc., 277 Ark. 458, 642 S.W.2d 877 (1982) ........................................ Arg 20, 21, 25 Rankin v. City of Fort Smith, 337 Ark. 599, 990 S.W.2d 535 (1999) .................................................... Arg 29 Retail Credit Co. v. Russell, 234 Ga. 765, 218 S.E.2d 54 (1975) ................. Arg 13
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Sindi v. El-Moslimany, No. 16-2347, 2018 WL 3373549, (1st Cir. July 11, 2018) ................ Arg 10, 11 Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979) .................................. Arg 14, 15 Snyder v. Phelps, 562 U.S. 443 (2011) ............................................................ Arg 7 Southall v. Little Rock Newspapers, Inc., 332 Ark. 123, 964 S.W.2d 187 (1998) .............................................. Arg 19, 22 Thomson Newspaper Pub., Inc. v. Coody, 320 Ark. 455, 461, 896 S.W.2d 897, 901 (1995) ...................................... Arg 1 Tory v. Cochran, 544 U.S. 734 (2005) ............................................................ Arg 9 United Ins. Co. of Am. v. Murphy, 331 Ark. 364, 961 S.W.2d 752 (1998) .................................................... Arg 28 United States v. Alvarez, 567 U.S. 709 (2012) ............................................ Arg 3, 7 United States v. Associated Press, 52 F. Supp. 362 (S.D.N.Y. 1943) ............. Arg 6 United States v. CBS, Inc., 497 F.2d 102 (5th Cir. 1974) .............................. Arg 14 Weiss v. McLemore, 371 Ark. 538, 268 S.W.3d 897 (2007) ........................... Arg 1 Whitney v. California, 274 U.S. 357 (1927) .................................................... Arg 3 Statutes and Rules: Ark. Const. Art. II § 6 ...................................................................................... Arg 5 Ark. R. Civ. P. 65 ..................................................................................... Arg 18, 29 Books and Treatises: Black’s Law Dictionary (7th ed.1999) ......................................................... Arg 8, 9
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Erwin Chemerinsky, Injunctions in Defamation Cases, 57 Syracuse L. Rev. 157, (2007) ............................................................. Arg 12 M. Nimmer, Nimmer on Freedom of Speech § 4.03, p. 4–14 (1984) .............. Arg 8 Dix W. Noel, Defamation of Public Officers and Candidates, 49 Col. L. Rev. 875 (1949) ........................................................................ Arg 5 William L. Prosser, Handbook of the Law of Torts (4th ed. 1971) ............... Arg 21
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ABSTRACT
Hearing Held May 18, 2018
[ABSTRACTOR’S NOTE: Hearing was held on May 18, 2018, in the Circuit Court of Pulaski County, Second Division, the Honorable Chris Piazza presiding, with Ms. Lauren Hoover appearing for plaintiffs Courtney Goodson and the Courtney Goodson campaign (jointly, “Goodson”), Mr. John Tull and Mr. Vincent Chadick on behalf of defendants TEGNA Inc. (“TEGNA”), and Mr. Philip Kaplan and Ms. Bonnie Johnson on behalf of defendant Comcast of Arkansas, Inc. (“Comcast”) (R. 0093)].
1. Plaintiffs’ Case
• Direct Examination of Danyelle Walker by Plaintiffs
I am affiliated with a group charged by the Arkansas Judicial Campaign
Conduct and Education Committee. I am a representative of the Rapid Response
Team, an association with the Arkansas Judicial Campaign Conduct Committee that
is charged with reviewing, if brought to our attention, complaints by candidates,
appellant candidates, about possible false and misleading advertisements. The
members of the Rapid Response Team include Judge Audrey Evans, myself, Hal
Bass, Elizabeth Andreoli, and Roy Okert. I have been authorized by this team to
speak on its behalf today. (R. 0097).
[ABSTRACTOR’S NOTE: The campaign advertisement which is the subject of this proceeding was shown in open Court. (R. 0098-99)]
The Rapid Response Team received a complaint regarding the advertisement
from Linda Napper. Ms. Napper filed that complaint on behalf of Justice Courtney
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Goodson’s Campaign. Only candidates, or their campaigns, for the Arkansas Court
of Appeals or the Arkansas Supreme Court can file complaints with the Rapid
Response Team. (R. 0099-100).
When the Rapid Response Team receives a complaint, we initially review the
complaint on its face. If we believe that there is not sufficient evidence attached to
the complaint, we contact the complainant and request additional information. That
is what we did in this instance. We reviewed several items attached to this
complaint. The Chair, Judge Audrey Evans, received the majority of the
information. She disbursed and shared that information with the members of the
Rapid Response Team. I believe that we received a decision by the Judicial
Discipline Commission about a complaint that was made about Justice Goodson
back in 2013 that found that some of these same allegations were false or that they
did not find any warrant in the allegations. (R. 0100).
The document marked as Plaintiffs’ Exhibit One (Add 38) is the letter issued
by the Judicial Discipline & Disability Commission in response to the 2013
complaint made against Justice Goodson. The complaint had some of the very same
allegations. (R. 0101). I see on page one that the concerns raised by the complaint
included reported gifts in her annual financial disclosures. I see that it says
specifically a $50,000 vacation to Italy. (R. 0101-02).
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• Evidentiary Ruling
MR. TULL: Objection, Your Honor, hearsay and relevance. What the
judicial commission did with respect to an allegation against Justice Goodson has
no relevance to a request for an injunction of speech. It has no relevance. (R. 0102).
THE COURT: Well, I'm going to overrule that too. And I understand that
you're asking for a Temporary Restraining Order.
MS. HOOVER: That’s correct, Your Honor.
THE COURT: I think that because this hearing is not a trial, that I can
take a look at all the information that the Commission acted upon, and I understand
that it may be hearsay and it maybe, you know, this Commission is not a publicly
appointed commission like that we generally have a for different types of entities,
like the termite board. This is a little bit different because I don't see anything where
there's a legal penalty for a Court case in the things that they do. But, it certainly
could be a guide to see whether there's a temporary injunction, whether a temporary
restraining order should apply. (R. 0103). And then later if we get to a trial on the
merits of this thing, I probably would agree with you. (R. 0104).
Plaintiffs’ Exhibit One (Add 38), was admitted over Comcast’s and TEGNA’s
objections. (R. 0104-05).
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• Continued Direct Examination of Danyelle Walker by Plaintiffs
The Judicial Discipline & Disability Commission determined that Justice
Goodson properly disclosed the $50,000 vacation to Italy, which allowed the public
to know of any potential conflict. (R. 0105). When the Rapid Response Team
reviewed the campaign advertisement in question in this case, the Rapid Response
Team determined that the advertisement’s statements that Justice Goodson was
hearing cases in her Court from donors were false and misleading.
The Judicial Discipline & Disability Commission determined that Justice
Goodson received many gifts in question from her husband while they were dating
or engaged. As Justice Goodson would have recused from her husband’s cases
anyway, these gifts did not raise any ethical considerations after they were valued
and reported. Regarding the Italy trip, the Judicial Discipline & Disability
Commission determined (R. 0106) that W.H. Taylor, who was affiliated with that
trip, had personally represented Justice Goodson, so no new recusal issue arose out
of the vacation with Mr. Taylor.
After receiving the complaint filed by Courtney Goodson’s campaign, the
Rapid Response Team reviewed a summary of cases and a printout. (R. 0107).
Plaintiffs’ Exhibit Two (Add 41), was admitted over TEGNA’s and
Comcast’s objections. (R. 0107-08).
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Plaintiffs’ Exhibit Three (Add 74), was admitted over TEGNA’s and
Comcast’s objections. (R. 0108-09).
After reviewing these materials, the Rapid Response Team determined, from
the review of all of the evidence presented to us, the campaign advertisement in
question is false and misleading. The Rapid Response Team sent a request to the
Judicial Crisis Network to voluntarily withdraw the ad or provide evidence refuting
our findings. The Rapid Response Team gave the Judicial Crisis Network twenty-
four hours to do that. (R. 0109).
I identified the May 9, 2018, Request for Voluntary Withdrawal of
Advertisement sent by the Rapid Response Team to the Judicial Crisis Network.
The Rapid Response Team gave the Judicial Crisis Network an opportunity to
respond to the Request for Voluntary Withdrawal of Advertisement, but the Judicial
Crisis Network did not respond. The advertisement in question reviewed by the
Rapid Response Team was playing on local television stations in Pulaski County,
and I believe it was also sent out in circulars in the U.S. mail. (R. 0110).
Plaintiffs’ Exhibit Four (Add 263), was admitted over Comcast’s and
TEGNA’s objections. (R. 0110-11).
When the Rapid Response Team did not receive a response from Judicial
Crisis Network, and the advertisement continued to air, the Rapid Response Team
issued a Cease and Desist Letter. The Rapid Response Team sent the letter to the
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Judicial Crisis Network. I identified the document labeled as Plaintiffs’ Exhibit 5
(Add 268) as the Cease and Desist Letter. I do not believe that the Rapid Response
Team received a response to the Cease and Desist Letter. (R. 0112).
Plaintiffs’ Exhibit Five (Add 268), was admitted over TEGNA’s and
Comcast’s objections. (R. 0112-13).
The Rapid Response Team’s Cease and Desist Letter is not binding. The
Rapid Response Team does not have the force of a governmental agency. The Rapid
Response Team’s charge is to ensure that the public, who are exercising their right
to vote, do not rely on false and misleading information. It is extremely important
to our judicial system. Our judicial races should not be bought, and information
should be provided that is correct and not misleading. It is only fair. (R. 0113).
I believe the Rapid Response Team was established in 2016. I was not
involved on the commission then. I am familiar though, through my role on the
commission, that these types of advertisements have been utilized successfully
before. I believe they have been utilized successfully against Justice Goodson. (R.
0114).
Plaintiffs’ Exhibit Six (Add 271), was admitted over TEGNA’s and
Comcast’s objections. (R. 0118).
In the 2016 race between Dan Kemp and Courtney Goodson for Chief Justice
of the Arkansas Supreme Court, (R. 0119) Judge Kemp received 57.75 percent of
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the vote and Justice Goodson received 42.25 percent of the vote. In the 2016
Associate Justice race between Clark Mason and Shawn Womack, Judge Womack
received 67.50 percent of the vote. With respect to the 2016 elections, dark money
ads were run against Justice Goodson and Mr. Mason. In the 2016 Associate Justice
race between Tim Cullen and Robin Wynne. I do not recall whether Judge Wynne
was supported by dark money, but I was aware that Mr. Cullen lost partly because
of ads that were being run against him. I do not know the particulars. (R. 0120).
The second portion of the advertisement alleges that Justice Goodson asked
for an $18,000 pay raise. The Rapid Response Team determined that, although the
Rapid Response Team does not know Justice Goodson’s specific position on the
raise, or how she voted on the raise, that is not the procedure of how a raise is
presented or obtained, and that would have to go through Chief Justice Kemp. (R.
0121). Chief Justice Kemp appeared before the Independent Citizen’s Commission
and requested the raise. (R. 0122). I do not know how Justice Goodson voted, and
neither did any member of the Rapid Response Team. (R. 0123).
• Cross Examination of Danyelle Walker by TEGNA The Rapid Response Team has no jurisdiction over any parties that are present
in this courtroom. The Rapid Response Team issues nonbinding opinions as far as
the information that we review. The Rapid Response Team’s communication was
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with the Judicial Crisis Network. (R. 0124). The Rapid Response Team had no
communication with KTHV Channel 11.
The Rapid Response Team’s letter to the Judicial Crisis Network, Plaintiff’s
Exhibit 4 (Add 263), is dated May 9, 2018. The Rapid Response Team gave the
Judicial Crisis Network twenty-four hours to respond. (R. 0125). There is a
statement in the letter that if the Judicial Crisis Network does not respond, the Rapid
Response Team will make a finding. (R. 0125-26). The Rapid Response Team did
not receive anything from the Judicial Crisis Network supporting the Judicial Crisis
Network’s position in the advertisement. The decision was based on what we
reviewed. The Rapid Response Team did not receive anything from the Judicial
Crisis Network that might have supported their contention that the ads were fair and
accurate.
The Rapid Response Team is not stating or is not suggesting that gifts were
not made to Justice Goodson. The Rapid Response Team is not contesting that there
was a cruise that was provided that was properly disclosed by Justice Goodson. The
Rapid Response Team is not contesting that there was a request for a raise by the
Supreme Court which was in fact received by the Justices. (R. 0126).
Attack ads have been around, but they’ve gotten uglier recently. The Rapid
Response Team does not have any expertise to determine what particular ad at what
particular time might have influenced a voter for a particular judicial race. (R. 0127).
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• Cross Examination of Danyelle Walker by Comcast The Rapid Response Team has procedures for the steps the Rapid Response
Team will take when evaluating complaints. I am not sure that it delineates what
factors the Rapid Response Team will and will not review. I was a part of the
deliberations in this case. The issue of constitutional protections of free speech and
the First Amendment was raised in connection with the deliberations. We did not
discuss specific cases. We only reviewed evidence that was presented to us. I do
not recall the Rapid Response Team receiving any evidence of Supreme Court cases
regarding how speech should be evaluated. (R. 0128).
Although I practice almost exclusively in the bankruptcy arena, I am familiar
with the concept of strict scrutiny with regard to state action. I do not believe the
Rapid Response Team evaluated the complaint based on a review of strict scrutiny
with regard the ad. (R. 0129).
• Re-Direct Examination of Danyelle Walker by Plaintiffs
The Arkansas Judicial Campaign Conduct and Education Committee was
created to assist candidates, to assist the pubic, and to allow candidates that were
aggrieved to have a forum to complain and have a determination made. Whatever
resources or options they would have are probably limited. This was to be one of
their main resources. I do not decide which candidates to help. (R. 0132).
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• Re-Cross Examination of Danyelle Walker by TEGNA
Part of the way that the Arkansas Judicial Campaign Conduct and Education
Committee assists candidates is by having a website. Plaintiff’s Exhibit 5 (Add
268), the Cease and Desist letter directed to Judicial Crisis Network, was posted on
the Arkansas Judicial Campaign Conduct and Education Committee’s website. The
Rapid Response Team issued a press release, which would have been sent to
newspapers and television stations throughout the state. (R. 0133).
• Re-Cross Examination of Danyelle Walker by Comcast
The Rapid Response Team believes that the Cease and Desist Letter sent by
the Rapid Response Team to the Judicial Crisis Network is the truth. (R. 0134).
Highlighting false information or misleading information is the best way to deal with
false claims. (R. 0135). There are competing views in the public with regard to
whether the advertisement in question is false or misleading. We have the Rapid
Response Team’s response and we have what the Judicial Crisis Network says. (R.
0136).
• Direct Examination of Chad Kelley by Plaintiffs I am National and Regional Sales Manager at KTHV Channel 11. TEGNA is
our parent company. (R. 0138). KTHV Channel 11 covers approximately 575,000
households, including Pulaski County.
Ab 11
The Judicial Crisis Network advertisements were placed at our station. (R.
0139). I do not recall how many times the advertisement ran. I know that the
advertisement started running around May 2, 2018, and is currently running. I do
not know the exact number of times per day the advertisement runs. I know that it is
probably more than five times per day. This type of campaign advertisement (R.
0140) is on pretty much every day from the beginning of the day till the end of the
day during an election.
The Judicial Crisis Network paid an average of $80,000 (R. 0141) per week
for its advertising buy. This advertisement has been running since May 2. The
Judicial Crisis Network is not only running the Justice Goodson advertisement, they
have another advertisement running in rotation with it. The other advertisement is
against another Judge running for Supreme Court. (R. 0142). It is fair to say that
from May 2 until last week, the only buys made by the Judicial Crisis Network were
for the commercial in question. (R. 0143).
I was notified that the station received a letter from the Courtney Goodson
Campaign very late in the day on Friday, May 11, 2018. I saw the letter first thing
Monday morning upon my return to the office. (R. 0144). I was notified very late
Friday that we had received either a legal complaint or a legal document regarding
one of the advertisements.
Ab 12
For political advertisements, I view the advertisement for compliance as far
as what the FCC requires, which is whether the advertisement contains a disclaimer
of who paid for the advertisement. I also look for any violent content or things of
that nature. That is all we are really required to do.
I reviewed the letter on Monday. I immediately took the letter and notified
our national representative (R. 0145) firm in Philadelphia that works as the liaison
between myself and the advertising agency for the Judicial Crisis Network. I
immediately sent the letter to them requesting backup documentation or
substantiation of the advertisement. I immediately sent the information provided by
the Judicial Crisis Network and the Cease and Desist letter to our corporate
attorneys. (R. 0146). The TEGNA attorneys are located in Washington D.C. (R.
0147).
• Cross Examination of Chad Kelley by TEGNA Other television stations in this market are running the campaign
advertisement in question. I know that the station received the Cease and Desist
Letter, on Friday, May 11. (R. 0147). The letter was on my desk Monday morning.
The person who called me Friday put the letter in my office first thing. I immediately
went into action, which is standard operating procedure. Anytime something like
this is received, we immediately request backup substantiation from the party that
the letter is referring to.
Ab 13
On Monday, May 14, I received substantiation from the party that had placed
the advertisement. I sent that substantiation and the Cease and Desist letter, to the
Covington Law Firm, which is outside counsel for our parent company. (R. 0148).
After receiving a response from the Covington Law Firm, I decided to continue
running the advertisement.
Regarding political advertisements, I am not there as a censor of any type. I
am there because the FCC, who is the ruling party, tells me to look for disclaimers
and things of that nature and have documentation on file to place on the FCC public
site. That is what we are required to do. (R. 0149).
• Cross Examination of Chad Kelley by Comcast I have watched the advertisement in question. Each time there was an
allegation with regard to what conduct Justice Goodson was alleged to have engaged
in, there was a little clip down at the bottom that at least purported to say where the
that information came from; the source of the information. (R. 0150). I do not recall
which exact sources were cited in the advertisement in question. (R. 0151).
• Re-Direct Examination of Chad Kelley by Plaintiffs I did not go to the sources cited in the advertisement. That is not up to me. I
am not a censor of any type. Groups like the KKK have not tried to buy ads on our
station. It is possible that hate groups or other fringe groups have tried to buy ads
on our station. I am not the only one who handles sales. So, that may have happened
Ab 14
in the past. There have been questionable groups that have tried to buy (R. 0152)
before. I am not sure if the advertisements were of a political nature. I am not sure
what happened. I am not a censor. (R. 0153). I have never personally prevented an
advertisement from being placed on our station. I do not know if an advertisement
has even been prevented from being placed with our station. (R. 0154).
• Re-Cross Examination of Chad Kelley by TEGNA
On the very day I first read the Cease and Desist Letter, within hours I sent
the Cease and Desist Letter along with substantiation from the client running the
advertisement to Covington, one of the leading First Amendment law firms in the
country. (R. 0155-56)
[ABSTRACTOR’S NOTE: Plaintiffs rested (R. 0182)]. 2. Motion Hearing
MR. TULL: Your Honor, I assume this is a Motion for Directed Verdict and
a Motion to Dismiss wrapped up with a closing all at the same time because my
witness has also been on.
As a preliminary matter, I would like to incorporate Mr. Kaplan’s argument
regarding the procedural failures, which is basis alone for the dismissal of this action.
Rule of Civil Procedure 3(a) provides that a civil action is commenced by filing a
complaint with the clerk. A complaint (R. 0189) has not been filed or served upon
my client in this case.
Ab 15
Rule 7(a) provides what pleadings are allowed in: complaint, answer, et.
cetera. Within Rule 7(a), it does not say that a case may be started by the filing of
an emergency motion, which is what we have in this case. To the extent the Court
treats that as a pleading, it is inadequate and must be dismissed without prejudice
because there’s no claim for relief, and we have not had an opportunity to understand
exactly what the claim is.
We have this pleading that says it is based upon defamation. I do not know
what the exact words are complained of. I do not know exactly what is alleged to
be untrue. I thought when I came in here that we were dealing with the straight
defamation matter. I do not know if we are dealing with defamation by innuendo
which Arkansas recognizes. Without a complaint, without a pleading to understand,
we simply are unable to proceed, and Arkansas law is settled that service of process,
service of valid process as necessary to give a Court jurisdiction. Because we have
not been served with a complaint, this Court doesn’t have jurisdiction over this
matter, and we would ask that we be dismissed on (R. 0190) that basis alone.
Moving to the merits, I also echo what Mr. Kaplan has argued. I will not
revisit many of his arguments and will attempt to provide new argument to the Court.
But, the request that is made in this case is a request for injunction of speech as Mr.
Kaplan mentioned. It is political speech. That is what an advertisement is, political
speech. That is a prior restraint.
Ab 16
Prior restraint of speech, of political speech, is simply unconstitutional under
the First Amendment, and it has been well recognized for many years. The
recognition of that is so clear that that is why we have disparate groups such as the
Arkansas Project and the Arkansas ACLU that have publicly stated their option to
this case and to the injunction because it is a violation of free speech. It is a prior
restraint of free speech.
I point the Court to Nebraska Press Association v. Stuart, 427 U.S. 539, which
is a similar case of prior restraint. At the conclusion, I will present the Court with
the cases I am going to review. It is a similar case of prior restraint and relied upon
New York Times v. The United States, (R. 0191) 403 U.S. 713.
In those cases, the United States Supreme Court confirmed the heavy
presumption against the constitutional validity, that any order restraining publication
is valid. The Arkansas Supreme Court has likewise recognized the heavy
presumption against any restraint on speech.
In the 2006 case Helena Daily World v. Simes, the Arkansas Supreme Court
stated that this Court does not favor prior restraints. We have held that any
restriction on the freedom of the press even though narrow in scope and duration is
subject to the closest scrutiny and will be upheld only upon a clear showing that at
an exercise of this right presents a clear and eminent threat to the fair administration
Ab 17
of justice. We have also stated that a prior restraint bears a heavy presumption
against its constitutional validity.
I would also point the Court to Arkansas Democrat Gazette v. Zimmerman,
341 Ark. 771, a 2000 case where again the Supreme Court dismissed a prior restraint
that was entered in a child criminal matter in northwest Arkansas and echoed many
of the same statements that were (R. 0192) addressed in Simes.
This hearing is not about which candidate you support in this race. This
hearing before the Court is not about which political party you belong to. This
hearing today is not about whether you believe dark money is dangerous and a bad
thing, or whether you believe that every person, that people should hear every idea
that someone wants to present. This case is about free speech. It’s not about dark
money. It is not about whether somebody won a race or lost a race because of ads
from outside sources. It is about free speech and whether an injunction of political
speech is an impermissible prior restraint under the First Amendment.
The burden is on the Plaintiff in this case. And the Plaintiff, Justice Goodson,
is asking this Court for an injunction. The Court is well aware that for an injunction,
two things must be presented. One, irreparable harm. And two, a likelihood of
success on the merits. I will deal with irreparable harm first. Before I move to that,
let me state I’m going to submit a Law Review Article from the Syracuse Law
Review by one of the leading experts (R. 0193) on First Amendment. It is
Ab 18
Chemerinsky, and he specifically finds in that and traces through the constitutional
law, his belief that an injunction and defamation case can never be constitutional.
But, dealing with irreparable harm, Your Honor. Arkansas Courts have
specifically held that a claim of damage to reputation does not support a finding of
irreparable harm. I cite the Court to Esskay Art Gallery v. Gibbs, 205 Ark. at 1157.
In that case, the Supreme Court stated that it is settled by the decisions where no
breach of trust or contract apply, equity will not enjoin liable or slanderous
statements, injurious to Plaintiffs. And the Federal Court interpreting Arkansas law
has found the same thing.
In the case of Baptist Health v. Murphy, 365 Ark. at 115, a 2006 case, the
Arkansas Supreme Court specifically found a claim of damage to reputation. In that
case, it was not extending hospital privileges to a physician, but that could not be
shown as support for irreparable harm.
In this case, what has been presented to the Court singularly as far, that is in
the record at this point, is the possibility that Justice Goodson might (R. 0194) lose
this election. That is the only evidence of irreparable harm. That is certainly not
assured to happen. Justice Goodson is in the midst of the campaign, is a good
campaigner, and she may well win. But, that is the only evidence before this Court
of irreparable harm. What I expected to see was evidence of damage to reputation.
But, the Court doesn’t have that. Not only does Arkansas not recognize damage to
Ab 19
reputation as irreparable harm, but the Court has no evidence before it of any
irreparable harm in this case
So, on the first test as far as whether there is irreparable harm, there is simply
no showing in this case of irreparable harm.
The second is even more clear and more difficult for the plaintiff because she
bears the burden of proving, even though we do not have a complaint, presumably
defamation. She must prove and the Court must find that there is a likelihood of
success on the merits right now. But, she must prove that the advertisement is false,
and I submit there is no evidence of that.
The only evidence is that there were gifts, that there was a trip, that those
things were disclosed. And the statements by the Rapid Response Team is not (R.
0195) a finding of falsity. That was not any find on the merit. First, she did not have
jurisdiction. But, that decision was made as Ms. Walker testified on the basis of
only looking at what Justice Goodson provided to it and not receiving any response
from the Judicial Crisis Network, who is not my client and not Mr. Kaplan’s client.
That is that third party that should be here. But, the Judicial Crisis Network did not
respond. The Rapid Response Team did not have any jurisdiction. I presume they
did not respond because they did not think they needed to. And, so, the decision was
made by the Rapid Response Team. And there was no finding of any falsity. It was
a finding of falsity or misleading. Misleading is not recognized as defamation. I
Ab 20
mean there are many things that are misleading. And virtually in every political race
I have ever observed, one candidate or the other claims that something is misleading.
That is not recognized under the law of defamation in this state or constitutionally.
So, there is no evidence before the Court of falsity. Nor is there any evidence
of actual malice. Justice Goodson is a sitting Judge on the Supreme (R. 0196) Court.
She is a public official and also a public figure. As that, she has the burden of
proving actual malice. That is a subject of standard. Evidence must be presented to
the Court today that KTHV Channel 11 knew that the ads were false or recklessly
disregarded the truth or falsity of that statement, and there is simply no evidence of
that at all.
The only evidence that Ms. Hoover presented to the Court was that they
received money. They received money for running an ad. But, Mr. Kelley testified
and it is completely, it is the antithesis of actual malice because what Mr. Kelley
testified was that he received the Cease and Desist letter from Justice Goodson’s
campaign. He immediately sent it to his agency that placed the advertisement and
asked for backup documentation that substantiated the claims and the advertisement.
The agency, according to Mr. Kelley, then contacted the Judicial Crisis Network
who provided documentation which was then provided to my client, Channel 11. My
client then went one step further, Your Honor, and sent it to one of the most
recognized First Amendment law firms in the country, the Covington Burling Firm
Ab 21
in Washington, D.C. where, after receiving information, they continued to run the
advertisement. There is absolutely no (R. 0197) evidence that the Court can find that
there was, there is a substantial likelihood of proving actual malice in this case. There
is just simply the absence of it.
So, the Court is left with basically a plea to the Court not to allow this dark
money advertisement to continue. And that simply will not chin the bar. There is
presumption against a prior restraint. There is strict scrutiny that is required by this
Court to view the advertisement and view the speech. There is a requirement that
there must be a presentation of irreparable harm and substantial likelihood of success
on the merits. And that is just absent in this case. And, so, we respectfully ask that
the Court dismiss Plaintiffs’ claim at this time. (R. 0198).
MS. HOOVER: Your Honor, thank you for the Court’s time today, and thank
you for the opportunity to be here.
I want to first address Tegna’s argument that there is no complaint before you,
and this is somehow procedurally defective. Your Honor, there are annotations
attached to the rules that he has cited that found error when there were dismissals
because something was not named the magic words. But, I think it is very clear that
what was filed in this action is an application sufficient to give notice to the
Defendants of what relief we were seeking. And every day on the third floor, Your
Honor, motions are filed all the time. Every day motions start actions. Ex parte
Ab 22
petitions for orders of protection, brought every day seeking ex parte emergency
relief. There is no complaint filed with that. I submit to you under Rule 3, Rule 7,
Rule 65, as it is stated that there is no procedural error there. These Defendants
know why we are here, Your Honor. And so let us just get down to it. And I believe
the Court knows why we are here.
Mr. Kaplan gave a long list when talking (R. 0199) about content base speech
restrictions, where in those content-based restrictions where there have been some
exceptions carved out. And in that list that Mr. Kaplan gave, it included defamation.
Under some circumstances at least a newspaper’s editorial judgment in connection
with an advertisement take on the character of an advertisement. And in those cases,
the scope of the newspaper’s First Amendment protection may be affected by the
content of the advertisement. In the context of a libelist advertisement, for example,
this Court has held the First Amendment does not shield a newspaper from
punishment for libel when with actual malice it publishes a falsely defamatory
advertisement. Your Honor, the case that I am reading from is, let me get it perfect
for everybody, Pittsburg Press, 413 U.S. 376, and it is citing New York Times v.
Sullivan.
So, there is a basis for this, Your Honor, in the law. And under the First
Amendment, and I am not discounting the arguments of counsel. But, this speech is
different. As I just read, the United States Supreme Court says that a newspaper
Ab 23
who publishes a libelist advertisement is (R. 0200) not shielded from the First
Amendment.
Now, let’s talk about prior restraint. A prior restraint says to me that I am
stopping the advertisement from airing. This has aired. There is no order in this
case right now saying the advertisement cannot be aired. In fact, TEGNA, they are
still airing it. Comcast took a wiser approach. They stopped airing the advertisement
on May 10 and May 13. Cox Media is not here, Your Honor. We have dismissed
them because they stopped running the advertisement and will not run the
advertisement through the election. KATV has stopped running the advertisement.
As to whether or not they knew what I was asking for in the application, the very
fact that Mr. Tull knows to start talking about actual malice and reckless disregard
for whether the advertisement is true or false is because it is in paragraph eight of
my application.
The evidence before this Court that there is reckless disregard has to do with
the testimony that comes from both Comcast and from TEGNA. They look to see if
it is sourced, and they look for a paid for disclaimer. But TEGNA’s testimony (R.
0201) is once I saw that it had the paid for stuff and there were sources played in the
ad, the advertisement that I played this morning, it was good enough. He did not go
look at those sources, and that is reckless.
Ab 24
The Arkansas Democrat Gazette published the article for all of us to read, and
I am sure we did read it on May 15, 2017. Justice Goodson was not there asking for
a pay raise. That is the source for the claim that Justice Goodson asked for a pay
raise. That is reckless disregard and that is actual malice.
You heard the testimony from TEGNA, Your Honor, that he got a call on
Friday, May 11, and then on Monday my letter was on his desk. And yet, they
continued to run the advertisement. That is reckless disregard for whether the
advertisement is true or false. The issue of irreparable harm, Your Honor, I have
provided to this Court evidence of past elections in this state where dark money was
used and what occurred. Within that same packet, you will see that when now Justice
Goodson ran in 2010, when no dark money was present, you’ll see how (R. 0202)
much she carried the vote by, qualified candidate on the other side, contested race,
no dark money. And on the merit, she won it. I believe it is fifty-seven percent, fifty-
six percent, the Court has my copy.
But, when dark money has been involved, specifically Judicial Crisis Network
as we’ve seen in this advertisement, we have to look at the past to understand what
might happen in the future. And the past is undeniable that in every race in which
these folks from D.C. have been involved running dark money, the candidate who
had the support won. And, Your Honor, we are here so that the people of this State
Ab 25
can make a decision on the merits. And I submit to you that that is irreparable harm.
Success on the merits, that argument.
I can see the Rapid Response Team, Your Honor, that is not binding on you.
But, the Court gave great latitude for which I appreciate, but that is an independent
third-party group whose goal is to protect the judiciary. They will review any
complaint filed by any candidate or any campaign so long as it is for a Court of
Appeals or Supreme Court race. They do not have a dog in this hunt.
The second issue about the merits is that the only place in Arkansas that you
can go to have the (R. 0203) merits of your Complaint against a Judge be determined
is at the Arkansas Judicial Disability and Discipline Commission. Amendment 66
of the Arkansas Constitution as well as the enabling statutes and Arkansas Code
Annotated establish that the Complaint regarding Judges are to be investigated and,
in some cases, tried and determined originally by the Arkansas Judicial Disability
and Discipline Commission. And so before this Court, one of the exhibits that has
already been admitted is the finding of the Arkansas Judicial Disability and
Discipline Commission, which specifically talks about gifts, which specifically
talked about that Italian yacht, and that, that body, Your Honor, found that there was
no cause to proceed. It went to panel, Your Honor, it went to panel, and after the
investigative panel, they made specific findings that I will ask the Court to review
when making its decision here today.
Ab 26
So, while this Court has the obligation and the authority to decide this matter,
I can see that success on the merits have been proven by the Judicial Discipline and
Disability Commission. Nowhere else could someone come, a complainant could
not come here and file a complaint against Justice Goodson. They tried that in
Perroni v. Sachar, (R. 0204) a 2017 Arkansas Supreme Court case. They asked for
declaratory judgment. The Arkansas Supreme Court dismissed the appeal because
the only place to make that complaint is through the Arkansas Judicial Disability and
Discipline Commission. It was investigated and a finding was made. And she was
exonerated.
The advertisement itself, Your Honor, consists of about six sentences. And
in the context of the whole advertisement with the background, the, in quotations,
“the sourcing” the advertisement states that cases from donors went to her Court.
The Arkansas Supreme Court is not her Court. She is just one of seven. And that is
why this is important. There are over forty cases where Justice Goodson has recused
from folks that were close personal friends before she was a Justice, before she ever
went on a trip, and who even personally represented her. Of course, it would not be
proper for her to hear those cases. But, that is not what the advertisement says.
And so, Your Honor, I would ask you to review the advertisement again. I
can provide that link, but this Court can Google it. I am asking for you to grant
Ab 27
injunctive relief that will order the Defendants in (R. 0205) this action that remain
to simply stop publishing this libelist advertisement through the end of the election.
3. Comcast’s Case
• Direct Examination of Chad Kelley by Comcast
TEGNA received a copy of what is marked as Comcast Exhibit Six (Add
279). (R. 0207-08). I forwarded that letter to the Covington Law Firm.
Comcast’s Exhibit Six (Add 279) was admitted over Plaintiffs’ objection.
[ABSTRACTOR’S NOTE: Comcast rested. (R. 0208). TEGNA rested.]
4. Court’s Ruling THE COURT: I suppose everybody takes their own experiences and where
they are in life. I first became acquainted with the Arkansas Supreme Court in 1974.
I clerked for Frank Holt, and that Court was wonderful. They had such a variable
number of people. They were people from farms, Connelly Byrd came from
Redfield. He would dig potatoes out of his garden and take them and put them on
everyone’s desk with the dirt on them still to let them know that they represented the
whole state. (R. 0209)
Judge George Rose Smith was just an eccentric genius. Now, he was fun to
be around. Climb up in his tree house and write his report after Monday’s
conference. And then he would bring it on Tuesday. And he had a secretary who
Ab 28
had to be 106 years old that would type. And he had a hundred-dollar bet with her
which was a lot of money back then that she couldn’t find a grammatical error, and
she never did. We would peek around the corner and watch her.
Judge Fogleman, we didn’t have computers back then, but if you wanted to
find an issue that somebody had covered the whole thing, you would find Judge
Fogleman, and, you know, and my Judge was a wonderful guy. He was the
prosecutor here in 1957 during the Central crisis, and when he ran for Governor in
the 1960s he got beat because he got tagged for being an integrationist because he
prosecuted folks that rioted over there at Central. And they are all elected. And I
always felt that that was the best way to do. And I am afraid that what we are headed
is for a system where we have appointment by merit.
You know my spouse is one of the same organization that, and to get in that
organization, they vetted her for a year. And they had people that (R. 0210) watched
her trials, that talked to Judges that she was before, and then they make a
recommendation based on that. And there is something obscene about what is going
on right now with the type of judicial advertising. And, and the Supreme Court, and
it’s not on point because Williams-Yulee v. Florida Bar, and I think she goes by
Yulee, was trying, she was soliciting campaign contributions which you cannot do
in Florida, and they, the United States Supreme Court said that the, that you could
make those type of conditions on a Judge to keep the sanctity of the process. And I
Ab 29
found that the Judge is charged with exercising strict and independence cannot
supplicate campaign donors without diminishing the public confidence and the
judicial integrity. This principle dates back at least eight centuries to the Magna
Carta which proclaim to no one, will we sell to no one, will we refuse or delay right
or justice. And that is like eight centuries ago. You know, that is pretty powerful.
And so, the problem in this case is that we are not talking about just going out and
collecting money from donors. We are talking about speech and First Amendment
rights. And to tell you the truth, when I was given (R. 0211) the motion for the
temporary stay and injunction, I have never granted a temporary stay or had an ex
parte unless I have let all the parties know that we are going to do it, and give them
some notice to be here because that’s not the way to do things. Now, sometimes you
have to do it on the third floor when you have got somebody who is in eminent
danger, but that is not the case here. So, it is a rush to get here.
The committee to ensure the integrity of these judicial races has Truman
Moore, Annabelle Tuck, Betty Dickey, McGowan, Bob Brown, Jim Julian, Mark
Nichols, Nate Coulter, that is a fine bunch of people. They get a Response Team,
and Rapid Response because of the nature of these ads, and, you know, Phil said
truth always is the best way to deal with false claims. And that is absolutely true.
But what we have in this case is a mixture of ads.
Ab 30
In the Citizens United case, you have got just tons of money getting thrown
into these races, dark money, you cannot, you do not know who is doing them, and
it has a lot of power. Fifty thousand or five hundred thousand customers if it is,
Channel 11, and these ads are going (R. 0212) five and six times a day, and the Task
Force has looked at them, said they are inaccurate. Now, the response from the party
that should be here is that the lawyers say it is not false and misleading.
Here is what I have decided. I have seen these ads. I have seen them
constantly, and, you know, they really are misleading. They make the people think
that Judge Goodson has taken money and favors from people and if they come
through her Court, she is part of that. They have proved it is not true. She has
recused on those cases. We are also in a situation where we have got to attempt to
curtail speech, and that is sacred territory.
I do not think we are in a proper forum to conclude this at all. But, what I am
going to do is grant the temporary stay until after the election. And then I am going
to allow the plaintiff to rethink how this case should be filed because it is not in a
form that we can get anywhere. My mom said if you do not have anything good to
say, do not say anything at all. But I think it is just revolting that our judiciary is
relegated to (R. 0213) this place in society.
We should appoint Judges and elect Judges based on merit, and I better not
say any more. But I will say what I am going to do is grant the temporary stay and
Ab 31
let you decide how you are going to do this in the future because I think we have
already settled that these folks are --
MS. HOOVER: Yes, Your Honor. Thank you, and I will prepare a precedent,
and I will communicate it to the parties. If that is all, I would ask to be excused.
MR. TULL: Your Honor, we would ask for bond, $100,000. This is going
to cost my client serious money. You have heard that there is already been $75,000
or $80,000.00 a week, and we would ask for bond in that amount.
THE COURT: I think the Judicial Network and their nonprofit corporate
entity that is spending this amount of money, they can survive.
MR. TULL: Your Honor, I do not represent them. (R. 0214)
THE COURT: I know, but I think they can survive and they will come back
with another forum and another way of spending money with your client.
MR. TULL: Your Honor, respectfully, you are censoring because there is just
not time to be new advertisements, and so my client will lose money. There is not
time between now and the election for advertisements to come out, so my client is
losing money they would have otherwise received. And, so, I would ask for a proper
bond.
THE COURT: I am going to deny that. I just do not think that is appropriate.
MR. KAPLAN: Judge, the problem that I have is that while we do not run
those advertisements now, it is possible that we could receive an order to run them.
Ab 32
THE COURT: Right. (R. 0215)
MR. KAPLAN: And what the Court has essentially said is that you are
sensitive to all of this dark money, and you are sensitive to the First Amendment,
and it just seems to me that unless you are willing to say that all of this really trumps
the First Amendment, that granting the stay is not the way to deal with it.
The Goodson campaign can make their own advertisements and make their
own buys. It is very little money on Comcast. It was twelve, thirteen thousand
dollars. They are going to spend a whole lot more on attorneys’ fees. There is not
any doubt about that. But, I would hope that you would be willing to say, well, I do
not think the First Amendment applies here.
THE COURT: I do not think I can say that. What I think I am going to say
is when she reformulates this case to go after the proper parties, that this has potential
to end up in the United States Supreme Court.
MR. KAPLAN: But shouldn’t she have done that in the first place? (R. 0216)
Shouldn’t that have been thought out in the first place?
THE COURT: Well, but then we would not have time to properly prepare
that case because that is going to be an extensive case with a lot of work and a lot of
high powered lawyers. She filed this with me I think on Tuesday. That is not enough
time to do this right.
Ab 33
MR. KAPLAN: Well let us assume for the moment that Justice Goodson is
in a runoff. What is going to happen on the day after the runoff? Is this stay going
to be in effect past election day?
THE COURT: No, we are just going to do it through the election, and then
she can file whatever she wants to file to see if we can put this in a proper perspective
and go after the proper parties. All you can do is amend your complaint and file it
here. I don’t mind listening to it.
MS. HOOVER: Yes, Your Honor. (R. 0217)
MR. TULL: Your Honor, I am sorry, but the record is very important in this
case. So, please indulge me. With respect to my previous request for security rule,
65(c) provides the Court may issue preliminary injunction or temporary restraining
order only if the movant gives security in an amount that the Court considers proper
to pay the cost and damages sustained by any party found to be wrongfully enjoined
or restrained. We ask for that again, Your Honor. But we also ask pursuant to Rule
65 a specific finding of the Court so that we understand the parameters of what the
Court is ruling. We are here on a preliminary injunction. So, presumably, the Court
is making a finding of irreparable harm in that the elements have been met, and I
would ask the Court to announce those so that we can understand the injunction and
the basis for it at this time. (R. 0218)
Ab 34
THE COURT: I think it is obvious that the harm is you have got an election
in a few days, and to pepper the public with ads that are possibly defamatory could
cause a person not to move on in this campaign. And that is serious business. But,
it is not just to Judge Goodson, it is to all of us in the judiciary and all of the citizens
in this State.
We cannot survive as a country unless we have an independent judiciary. And
you have got to have the distinction between the executive and the legislative branch,
and this is the only way we can have that. And if it is being skewed by the type of
conduct that I have seen in this election, it is going to hurt all of us. So, I think there
is irreparable harm here, but --
MS. HOOVER: Your Honor, with respect to the bond in Washington County
we have posted a five-thousand-dollar bond, we will post a five-thousand-dollar
bond. We would ask (R. 0219) the Court, because of the interest in the independence
of the judiciary as the Court just identified that the bond not be, cost prohibitive, you
know. We can post a five-thousand-dollar bond.
THE COURT: Go ahead, that is fine.
MS. HOOVER: Okay, thank you.
MR. TULL: Your Honor, I would still ask for a ruling. Is the Court finding
that there is a substantial likelihood of success on the merits for whatever this is, and
Ab 35
I would also ask for a ruling on our Motion to Dismiss based on the procedural and
the problems that are presented in the case.
THE COURT: Well, I think if you take this to a jury, I think there’s a
substantial likelihood of success. As far as the procedural, that’s why we’re going
to terminate these parties, and she just can refile with the proper party, and we’ll go
into, if she wants, may just stop it here, and we’ll go into the tougher issue as to the
First Amendment. (R. 0220)
MR. KAPLAN: Is it the Court’s position that Comcast is not a proper party?
I mean when you say she terminate these parties, are we not a proper party?
I do not think we are, but --
THE COURT: Well, in terms of a temporary stay to get through the election,
you are a proper party. But as far as the other issues as to who is responsible for the
defamation, then I think that’s --
MR. KAPLAN: She’s a public figure, and New York Times v. Sullivan makes
it real clear that as a public figure you have to show actual malice. This letter at least
indicates that the, the media outlets could not conceivably have engaged in malice
when they receive something like this. It is just impossible to think that. And she
never alleged, you know, what both Mr. Tull and I complained about is that we did
not have notice of what their theory was. And when counsel in her response started
Ab 36
talking about well this is indicative of malice, where does the word malice appear in
this (R. 0221) motion? I mean she doesn’t have anything.
MS. HOOVER: Paragraph eight, Your Honor.
MR. KAPLAN: There is, you know, no indication of what my client did that
was malicious. What did my client, and now on the evidence, what did Mr. Tull’s
client do that was malicious? I mean it just does not seem right.
THE COURT: Well, when she refiles this and she gets other parties in here,
I’m sure you’re not going to end up in here.
MR. KAPLAN: I’m sorry?
THE COURT: I’m sure you will not end up back in here when she refiles it
the proper way.
MR. KAPLAN: I would hope not. (R. 0222)
MS. HOOVER: Your Honor, I understand Mr. Tull needs to make a record.
We have another hearing at 2:00.
MR. TULL: I have the same hearing.
MS. HOOVER: I understand that. But, if this TRO is to mean anything, Your
Honor, I have got to get it to you to be signed so it can be, if, in order, I need to have
time to have that order presented to the Court so the TRO can be in place and we can
stop the ad.
THE COURT: Well, will you let the other parties see what you write.
Ab 37
MS. HOOVER: Sure, sure.
MR. TULL: Your Honor, Mr. Kaplan’s point as far as, I just need to make
sure that based on this record, you are finding a substantial likelihood of finding
actual malice against the media defendants? (R. 0223)
THE COURT: I think that is a great possibility, but this is just a temporary
restraining order. This is not a trial on the merits.
MR. TULL: No recorded case in Arkansas history has found actual malice
against a media defendant, Your Honor.
MS. HOOVER: May we be excused, Your Honor.
THE COURT: You may, but make sure they see the Order before you --
MS. HOOVER: Yes, sir.
MR. TULL: May we be excused, Your Honor?
THE COURT: Yes, thank you. (R. 0224)
SOC 1
STATEMENT OF THE CASE Justice Courtney Goodson is a sitting Arkansas Supreme Court Justice
running for re-election in 2018. On May 14, 2018, eight days before the election,
Justice Goodson and her campaign, Courtney Goodson Campaign, (jointly,
“Goodson”) filed an emergency motion (“the Action”) against TEGNA and other
members of the media based upon alleged defamation arising out of the publication
of a campaign advertisement produced by the Judicial Crisis Network (“JCN”).
Add 1. TEGNA is the parent company of KTHV Channel 11 (“KTHV”), a CBS-
affiliated station headquartered in Little Rock, Arkansas. Ab 10. In the Action,
Justice Goodson sought an ex parte temporary restraining order or, alternatively, a
preliminary injunction prohibiting the media defendants from publishing the JCN
advertisement (“the JCN Campaign Ad”) through the conclusion of the election.
Add 7.
The Pulaski County Circuit Court held a preliminary injunction hearing on
Friday, May 18. Ab 1. Goodson played the JCN Campaign Ad for the Circuit Court,
which states:
Courtney Goodson has been taking gifts and big money from donors for years. Hundreds of thousands of dollars from law firms with cases before her court. Even a fifty-thousand-dollar trip to Italy on a donor’s luxury yacht and what’s worse, Goodson asked for an $18,000 raise making her salary bigger than the Governor’s.
Ab 1; Add 13.
SOC 2
The Circuit Court heard testimony from Danyelle Walker. Ab 1. Ms. Walker
is a member of the Rapid Response Team (“RRT”), a group formed in 2016 to
review complaints about potentially false and misleading campaign advertisements
in Arkansas appellate judicial elections. Ab 1, 6. Ms. Walker testified that RRT is
not a governmental agency and its opinions are not binding. Ab 6.
RRT received a complaint about the JCN Campaign Ad from Justice
Goodson’s campaign on May 3. Add 264. After reviewing materials provided by
Justice Goodson’s campaign, RRT sent JCN a Request for Voluntary Withdrawal of
Advertisement on Wednesday, May 9. Ab 5; Add 264.
In its May 9 letter, RRT informed JCN of its finding that, under the RRT’s
rules and procedures, Justice Goodson’s campaign had met its initial burden of
demonstrating that the JCN Campaign Ad was false or misleading. Add 264-266.
RRT determined that a person of ordinary intelligence would conclude that Justice
Goodson did not request a pay raise, as there is no evidence to support the statement
that she requested a pay raise and it would be a violation of Justice Goodson’s duty
of confidentiality to reveal her vote on the pay raise. Add 266. RRT also
determined, based upon its review of the materials submitted by Justice Goodson’s
campaign, that a person of ordinary intelligence would conclude that Justice
Goodson did not hear cases filed by or on behalf of donors, meaning donors did not
receive benefits from Justice Goodson. RRT based both determinations solely upon
SOC 3
its review of the materials submitted by Justice Goodson’s campaign. Ab 8.
RRT instructed JCN to either withdraw the JCN Campaign Ad (and a similar
print ad) or submit within 24 hours evidence demonstrating that the statements in
the JCN Campaign Ad are true. Add 266. RRT informed JCN that if JCN failed to
respond within 24 hours, RRT would make a final finding that the JCN Campaign
Ad and related print ad contain false or misleading information. Ab 8; Add 266.
JCN did not respond to the May 9 letter. Ab 8.
On Thursday, May 10, RRT issued a cease and desist letter to JCN, in which
RRT issued its final finding that the JCN Campaign Ad contained false and
misleading information. Ab 5-6; Add 269. RRT based its final finding upon its
review of the materials provided by Justice Goodson’s campaign and JCN’s failure
to respond within 24 hours. Ab 8, Add 269-270.
The Circuit Court also heard testimony from Chad Kelley, the National and
Regional Sales Manager at TEGNA’s KTHV. Ab 10. Mr. Kelley testified that on
Friday, May 11, Justice Goodson’s campaign sent TEGNA a letter threatening legal
action and demanding that TEGNA, along with broadcasters across Arkansas, cease
and desist from publishing the JCN Campaign Ad. Ab 11; Add 276-277. Mr. Kelley
was notified about the campaign’s letter very late in the day. Ab 11.
Mr. Kelley read the letter first thing upon returning to the office on Monday,
May 14. Ab 12. He immediately sent the letter to the liaison between TEGNA and
SOC 4
JCN requesting that JCN provide documentation or substantiation of the JCN
Campaign Ad. Ab 12. TEGNA received JCN’s response that day. Ab 27, Add
279-281.
In its response, JCN wrote that the statement regarding Justice Goodson’s
request for a pay raise is true because, by Justice Goodson’s own admission, the
Arkansas Supreme Court, of which she is a member, authorized Chief Justice Kemp
to appear on behalf of the entire Arkansas Supreme Court before the Independent
Citizens Commission and ask for a raise for all justices. Add 280. JCN wrote that
if Justice Goodson publicly stated that she voted against the pay raise proposal, JCN
would revise the advertisement. Add 280. As for the statements in the
advertisement regarding Justice Goodson’s acceptance of gifts and big money from
donors, JCN wrote that the statements are true, and Justice Goodson does not deny
them. Add 279. JCN argued that Justice Goodson’s response regarding recusal was
a red herring because the JCN Campaign Ad says nothing about the issue of recusal,
which is a separate matter from the issue of accepting gifts and large campaign
donations. Add 279.
Within hours after arriving at the office Monday morning and reading the
letter from Justice Goodson’s campaign, KTHV’s Mr. Kelley sent the cease and
desist letter and JCN’s response to Covington Burling, TEGNA’s outside counsel.
Ab 13-14. After receiving a response from counsel, TEGNA decided to continue
SOC 5
running the JCN Campaign Ad. Ab 13. Goodson commenced the Action against
TEGNA and the other media defendants at 12:44 p.m. that afternoon. Add 1.
After hearing testimony from Ms. Walker, Mr. Kelley, and Coburn Howell, a
local sales manager for defendant Comcast, the Circuit Court entered a preliminary
injunction order (“the PI”) prohibiting the media defendants from publishing the
JCN Campaign Ad through May 22, the date of the election. Ab 30, 33; Add 31-
33. The Circuit Court found that continued publication of the JCN Campaign Ad
would cause irreparable harm to Justice Goodson’s campaign and that Goodson had
demonstrated a likelihood of success on the merits of a defamation claim against the
media defendants, including a likelihood of proving actual malice. Add 33.
TEGNA and Comcast filed timely notices of appeal. Add 34-37.
Arg 1
ARGUMENT
STANDARD OF REVIEW
Usually the Arkansas Supreme Court “reviews the grant of a preliminary
injunction under an abuse-of-discretion standard,” and “will not delve into the merits
of the case further than is necessary to determine whether the circuit court exceeded
its discretion in granting the injunction.” City of Jacksonville v. Smith, 2018 Ark.
87, 5-6, 540 S.W.3d 661, 666 (2018) (citing Baptist Health v. Murphy, 365 Ark. 115,
226 S.W.3d 800 (2006)). The instant action, however, is not a usual case, and
therefore a more rigorous standard of review applies.
Indeed, “where the first amendment is involved, the appellate court is
obligated to make an independent examination of the whole record to make sure the
judgment does not constitute a forbidden intrusion on the field of free expression.”
Thomson Newspaper Pub., Inc. v. Coody, 320 Ark. 455, 461, 896 S.W.2d 897, 901
(1995) (citing Harte–Hanks Communications, Inc. v. Connaughton, 491 U.S. 657
(1989)). Issues of state and federal constitutional interpretation are reviewed de
novo. Weiss v. McLemore, 371 Ark. 538, 541, 268 S.W.3d 897, 899 (2007) (“We
review issues of both statutory construction and constitutional interpretation de
novo.”); El-Farra v. Sayyed, 365 Ark. 209, 211–12, 226 S.W.3d 792, 793–94 (2006)
(conducting de novo review of the interpretation of the United States Constitution).
Arg 2
I. THE CIRCUIT COURT ERRED BECAUSE THE PRELIMINARY INJUNCTION IS AN UNCONSTITUIONAL PRIOR RESTRAINT
This case concerns a political advertisement critical of Justice Courtney
Goodson’s fitness for judicial office (“the JCN Campaign Ad”). Justice Goodson
and the Goodson campaign (jointly and individually “Goodson”) believe that certain
statements made in the JCN Campaign Ad are defamatory. Justice Goodson, as is
her right, has publicly responded to these statements throughout her campaign. She
has responded to speech that she dislikes with her own speech.
Goodson, however, took the unprecedented step of asking courts across
Arkansas to suppress speech critical of her re-election campaign. Rather than pursue
a claim for damages, which public figures may recover if they prove at trial all
elements of defamation, Goodson sought an ex parte temporary retaining order or,
alternatively, a preliminary injunction prohibiting media broadcasters from
publishing the JCN Campaign Ad. Circuit Courts in Arkansas’s two largest media
markets agreed, at least preliminarily, with Justice Goodson.1
1 The Washington County Circuit Court entered an ex parte temporary restraining
order prohibiting the publication of the advertisement. After holding a hearing, the
court dissolved the temporary restraining order and denied Goodson’s request for a
preliminary injunction, which Goodson did not appeal.
Arg 3
Campaign advertising is controversial, particularly in the context of judicial
elections. Many abhor negative campaign tactics. However, it is only in fiercely
protecting speech we abhor that we can ensure the freedom of the speech we cherish.
The protection of contemptible speech is “one of the costs of the First Amendment.”
United States v. Alvarez, 567 U.S. 709, 729 (2012). Time and again, the United
States Supreme Court has reaffirmed that “[t]he remedy for speech that is false is
speech that is true[:] . . . [t]he response to the unreasoned is the rational; to the
uninformed, the enlightened; to the straightout lie, the simple truth.” Id. at 727
(citing Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring)).
Almost a half century ago, the Supreme Court recognized that applying
“traditional concepts of tort law to the conduct of a political campaign is bound to
raise dangers for freedom of speech and of the press.” Monitor Patriot Co. v. Roy,
401 U.S. 265, 275 (1971). Sharp differences are unavoidable in political debate,
where “the tenets of one man may seem the rankest error to his neighbor.” Cantwell
v. State of Connecticut, 310 U.S. 296, 310 (1940). During campaigns, speakers may
“resort[] to exaggeration, to vilification of men who have been, or are, prominent in
church or state, and even to false statement.” Id. It is undoubtedly tempting for
anyone to wish to silence what he or she considers to be an unfair or misleading
criticism of a candidate for public office. However, the American people “have
ordained in the light of history, that, in spite of the probability of excesses and
Arg 4
abuses, these liberties are, in the long view, essential to enlightened opinion and right
conduct on the part of the citizens of a democracy.” Id.
The present case illustrates the precise dangers the Supreme Court recognized
in 1971. By granting Goodson’s request for a preliminary injunction (“the PI”), the
Circuit Court silenced campaign speech in the critical days before the election.
This Court must reverse the PI and hold that the Constitutions of both the
United States and Arkansas prohibit temporary restraining orders and preliminary
injunctions silencing campaign speech, as: (1) campaign advertisements are
protected speech; (2) temporary restraining orders and preliminary injunctions
prohibiting publication of campaign advertisements are prior restraints; and (3)
Goodson cannot overcome the heavy presumption against the constitutional validity
of prior restraints. Holding that the PI prohibiting publication of the JCN Campaign
Ad is an unconstitutional prior restraint will bring Arkansas in line with the
overwhelming majority of courts finding that such orders are unconstitutional.
Failure to do so will result in a biennial flood of defamation suits from aggrieved
political candidates across Arkansas, who will follow Goodson’s lead and sue the
press to silence speech harmful to their campaign. See Monitor Patriot Co., 401
U.S. at 274 n.4 (1971) (noting that “[i]f actionable defamation is possible in
[campaign advertising], one might suppose that the chief energies of the courts, for
some time after every political campaign, would be absorbed by libel and slander
Arg 5
suits.’”) (quoting Dix W. Noel, Defamation of Public Officers and Candidates, 49
Col. L. Rev. 875 (1949)).
A. The Campaign Advertisement Is Protected Speech
The speech at issue in this case, a campaign advertisement criticizing a
candidate for the highest court in Arkansas, is protected under the First Amendment
to the United States Constitution and Article 2, Section 6 of the Arkansas
Constitution. It is well-settled that the “freedom of expression upon public questions
is secured by the First Amendment.” New York Times Co. v. Sullivan, 376 U.S. 254,
269 (1964); see also Ark. Const. art. II, § 6 (“The free communication of thoughts
and opinions, is one of the invaluable rights of man; and all persons may freely write
and publish their sentiments on all subjects . . . .”). The constitutional guarantee of
free speech and a free press “‘has its fullest and most urgent application precisely to
the conduct of campaigns for political office[,]’” because the “[d]iscussion of public
issues and debate on the qualifications of candidates are integral to the operation of
the system of government established by our Constitution.” Buckley v. Valeo, 424
U.S. 1, 14-15 (1976) (quoting Monitor Patriot, 401 U.S. at 272). Accordingly,
campaign speech is afforded “the broadest protection” under the First Amendment.
Id. at 14. This robust protection of speech is predicated on what the Honorable
Learned Hand described as America’s fundamental assumption “that right
conclusions are more likely to be gathered out of a multitude of tongues, than
Arg 6
through any kind of authoritative selection.” United States v. Associated Press, 52
F. Supp. 362, 372 (S.D.N.Y. 1943). “To many this is, and always will be, folly; but
we have staked upon it our all.” Id.
The JCN Campaign Ad does not lose its considerable constitutional protection
merely because JCN paid TEGNA to run it. New York Times v. Sullivan, the seminal
case on defamation claims brought by public officials, concerned an advertisement
paid for by the NAACP criticizing the City of Montgomery (AL)’s draconian
response to the civil rights movement. The Supreme Court held that “if the allegedly
libelous statements would otherwise be constitutionally protected from the present
judgment, they do not forfeit that protection because they were published in the form
of a paid advertisement.” Sullivan, 376 U.S. at 266. To conclude otherwise “would
discourage newspapers from carrying ‘editorial advertisements’ of this type, and so
might shut off an important outlet for the promulgation of information and ideas by
persons who do not themselves have access to publishing facilities . . . .” Id. at 266.
The JCN Campaign Ad also does not lose its constitutional protection because
Goodson considers the speech to be unfair or false. America has a “profound
national commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open, and that it may well include vehement, caustic,
and sometimes unpleasantly sharp attacks on government and public officials.” Id.
at 270 (citations omitted). Speech on matters of public concern, regardless of
Arg 7
whether it is distasteful, unseemly, or even hateful, “‘occupies the highest rung of
the hierarchy of First Amendment values, and is entitled to special protection.’”
Snyder v. Phelps, 562 U.S. 443, 453 (2011). The constitutional guarantee of free
speech “does not turn upon ‘the truth, popularity, or social utility of the ideas and
beliefs which are offered.” Sullivan, 376 U.S. at 271 (internal quotation omitted).
This is particularly true in the realm of political debate, where it is commonly
understood “that some false statements are inevitable if there is to be an open and
vigorous expression of views in public and private conversation, expression the First
Amendment seeks to guarantee.” United States v. Alvarez, 567 U.S. 709, 718 (2012)
(citing Sullivan, 376 U.S. at 271).
B. Preliminary Injunctions In Defamation Cases Are Prior Restraints Goodson argued that the Circuit Court could enter a preliminary injunction
prohibiting publication of the JCN Campaign Ad without violating the First
Amendment by claiming that the JCN Campaign Ad is defamatory. The Circuit
Court agreed and entered the PI after finding that Goodson demonstrated “a
likelihood of success on the merits including the likelihood of proving actual
malice.” Add 33. This finding, and the entry of the PI, is reversible error.
The First Amendment does not prohibit a public figure like Justice Goodson
from suing TEGNA for damages if Justice Goodson would be able to prove at trial
that TEGNA, acting with actual malice, published a falsely defamatory
Arg 8
advertisement. See Pittsburgh Press Co. v. Pittsburgh Comm’n on Human
Relations, 413 U.S. 376, 386 (1973) (“[T]he First Amendment does not shield a
newspaper from punishment for libel when with actual malice it publishes a falsely
defamatory advertisement.”) (citing Sullivan, 376 U.S. at 269-70); see also
Greenberg v. Horizon Arkansas Publications, Inc., 2017 Ark. App. 328, 5, 522
S.W.3d 183, 187 (recognizing that a public figure may recover damages for
defamation if there is “clear and convincing proof that any false statements were
made with actual malice”). However, “libel can claim no talismanic immunity from
constitutional limitations” and “must be measured by standards that satisfy the First
Amendment.” Sullivan, 376 U.S. at 269. While Goodson may seek damages for
defamation, the First Amendment prohibits the entry of temporary restraining orders
or preliminary injunctions, which are prior restraints.
Prior restraints are the governmental restriction of speech or publication
before its actual expression. See Alexander v. United States, 509 U.S. 544, 550
(1993) (“The term prior restraint is used ‘to describe administrative and judicial
orders forbidding certain communications when issued in advance of the time that
such communications are to occur.’”) (quoting M. Nimmer, Nimmer on Freedom of
Speech § 4.03, p. 4–14 (1984)); see also Helena Daily World v. Simes, 365 Ark. 305,
308, 229 S.W.3d 1, 3 (2006) (“A prior restraint is a governmental restriction on
speech or publication before its actual expression.”) (citing Black’s Law
Arg 9
Dictionary, 1212 (7th ed. 1999)). A court-ordered injunction prohibiting speech is
a prior restraint. See Arkansas Democrat-Gazette v. Zimmerman, 341 Ark. 771, 786,
20 S.W.3d 301, 310 (2000) (holding that a gag order issued by the juvenile court
constituted a prior restraint of the press). Indeed, the United States Supreme Court
recognizes that “[t]emporary restraining orders and permanent injunctions—
i.e., court orders that actually forbid speech activities—are classic examples of prior
restraints.” Alexander, 509 U.S. at 550.
Injunctions prohibiting speech are prior restraints. In a defamation case
brought by a public figure, the Supreme Court found that a permanent injunction
issued by a state trial court after a bench trial was a prior restraint. See Tory v.
Cochran, 544 U.S. 734, 738 (2005). Furthermore, Justice Blackmon, writing for the
Supreme Court, granted an emergency stay of preliminary injunction entered by a
state circuit court prohibiting CBS from airing a news story critical of a meat packing
company, holding that the preliminary injunction was an unconstitutional prior
restraint. CBS, Inc. v. Davis, 510 U.S. 1315, 1318 (1994) (Blackmun, J., in
chambers). Noting that “a single Justice may stay a lower court order only under
extraordinary circumstances,” Justice Blackmon determined that a preliminary
injunction barring the press from publishing speech on a matter of public concern
qualified as one of the rare cases justifying immediate intervention by a Supreme
Court Justice. Id. at 1317. Justice Blackmon also concluded that damages, not the
Arg 10
suppression of protected speech, would be the appropriate remedy for any violation
of state law. Id. at 1318 (“If CBS has breached its state law obligations, the First
Amendment requires that [plaintiff] remedy its harms through a damages proceeding
rather than through suppression of protected speech.”).
The Supreme Court’s Cochran opinion and Justice Blackmon’s decision to
take the extraordinary step to stay a state court order in Davis establish that
preliminary injunctions barring speech on matters of public concern are prior
restraints. Decisions from courts across the country bolster this conclusion.
The most recent analysis on the constitutionality of injunctions prohibiting
speech comes from the First Circuit Court of Appeals. In an opinion published on
July 11, 2018, the First Circuit concluded that an injunction prohibiting the
republication of six statements, issued after a final adjudication that the statements
were defamatory, was “a paradigmatic example of a prior restraint.” Sindi v. El-
Moslimany, No. 16-2347, 2018 WL 3373549, at *19 (1st Cir. July 11, 2018). Citing
Supreme Court cases concerning obscenity, the First Circuit acknowledged that “an
injunction against speech sometimes may pass constitutional testing if it follows an
adjudication that the expression is unprotected, and the injunction itself is narrowly
tailored to avoid censoring protected speech.” Id. at *20. However, the court noted
“significant distinctions between obscenity and defamation that make injunctions of
obscene communications less problematic in constitutional terms.” Id.
Arg 11
The First Circuit recognized that “works adjudged obscene . . . are immutable
forms of expression[,]” meaning a “permanent injunction there could be carefully
crafted to ensure that it applied only to the specific publications found obscene
without exposing the bookseller to contempt sanctions for distributing other
publications that might be protected under the First Amendment.” Id. Conversely,
“defamation is an inherently contextual tort” as “[w]ords that were false and spoken
with actual malice on one occasion might be true on a different occasion or might
be spoken without actual malice.” Id. Injunctions intended to apply narrowly to
defamatory language inherently cannot “make any allowance for contextual
variation,” meaning an injunction entered in a defamation case is far more likely to
punish protected speech. Id. at *21. Accordingly, the First Circuit held that the
permanent injunction violated the First Amendment. Id.
The First Circuit Court of Appeals’ recent opinion is consistent with decisions
issued by numerous other federal circuit courts and state supreme courts. For
example, the Seventh Circuit Court of Appeals found that preliminary injunctions in
speech cases are unconstitutional prior restraints while also questioning, without
resolving, the constitutionality of permanent injunctions entered after an
adjudication on the merits. McCarthy v. Fuller, 810 F.3d 456, 462 (7th Cir. 2015)
(“An injunction against defamatory statements, if permissible at all, must not
through careless drafting forbid statements not yet determined to be defamatory, for
Arg 12
by doing so it could restrict lawful expression.”). The Texas Supreme Court went
farther than the Seventh Circuit, holding that any injunction prohibiting future
speech is a prior restraint. See Kinney v. Barnes, 443 S.W.3d 87, 93–94 (Tex. 2014)
(concluding that all injunctions prohibiting future speech are prior restraints) (citing
Erwin Chemerinsky, Injunctions in Defamation Cases, 57 Syracuse L. Rev. 157, 165
(2007)). The Idaho Supreme Court affirmed the dismissal of a complaint seeking a
preliminary injunction in a defamation case, holding that the preliminary injunction,
which would have enjoined speech criticizing public officials, would be an
unconstitutional prior restraint. Nampa Charter Sch., Inc. v. DeLaPaz, 140 Idaho
23, 27, 89 P.3d 863, 867 (2004).
Some state and federal courts permit entry of permanent injunctions in
defamation cases after a final adjudication that the statements to be enjoined are
defamatory. However, no state supreme court or federal circuit court has upheld an
injunction entered for an allegedly defamatory campaign advertisement.
Furthermore, the overwhelming majority of these courts pointedly clarify that, while
narrowly tailored permanent injunctions issued after an adjudication on the merits
may be constitutional, preliminary injunctions are not. See, e.g., Lothschuetz v.
Carpenter, 898 F.2d 1200, 1208–09 (6th Cir. 1990) (finding that a permanent
injunction barring commercial speech against a non-public figure was constitutional,
but limiting “the application of such injunction to the statements which have been
Arg 13
found in this and prior proceedings to be false and libelous”); Balboa Island Vill.
Inn, Inc. v. Lemen, 40 Cal. 4th 1141, 1155–56, 156 P.3d 339, 349 (2007) (holding
that an injunction “issued only following a determination at trial that the enjoined
statements are defamatory, does not constitute a prohibited prior restraint of
expression.”); Hill v. Petrotech Res. Corp., 325 S.W.3d 302, 309 (Ky. 2010) (same);
Retail Credit Co. v. Russell, 234 Ga. 765, 779, 218 S.E.2d 54, 63 (1975) (same).
Justice Goodson may seek legal remedies for the alleged defamatory
statements. She is, however, barred by the First Amendment from seeking a
temporary restraining order or preliminary injunction prohibiting speech. And, here,
the Circuit Court’s PI is a (prohibited) prior restraint. See Alexander, 509 U.S. at
550 (“Temporary restraining orders and permanent injunctions—i.e., court orders
that actually forbid speech activities—are classic examples of prior restraints.”).
C. The Prior Restraint Censoring Political Speech Is Unconstitutional
A prior restraint is not unconstitutional per se, but there is a “heavy
presumption against its constitutional validity.” Carroll v. President & Comm’rs of
Princess Anne, 393 U.S. 175, 181 (1968) (quoting Bantam Books, Inc. v. Sullivan,
372 U.S. 58, 70 (1963)); see also Simes, 365 Ark. at 308, 229 S.W.3d at 3 (“We have
also stated that a prior restraint bears a heavy presumption against its constitutional
validity.”) (citing Orrell v. City of Hot Springs, 311 Ark. 301, 844 S.W.2d 310
(1992)). Prior restraints are subject to “the most exacting scrutiny” under the First
Arg 14
Amendment. Smith v. Daily Mail Pub. Co., 443 U.S. 97, 102 (1979) (collecting
cases). Furthermore, as stated by the Arkansas Supreme Court, “[a]ny restraint on
the freedom of the press, even though narrow in scope and duration, is subject to the
closest scrutiny and will be upheld only upon a clear showing that an exercise of this
right presents a clear and imminent threat to the fair administration of justice.”
Arkansas Gazette Co. v. Lofton, 269 Ark. 109, 110–11, 598 S.W.2d 745, 746–47
(1980) (citing U. S. v. CBS, Inc., 497 F.2d 102 (5th Cir. 1974)).
The PI entered against TEGNA cannot overcome the “heavy presumption”
against the constitutional validity of prior restraints, nor can any preliminary
injunction barring the press from publishing campaign speech. The Supreme Court
has recognized only a few limited “exceptional cases” justifying a prior restraint,
such as the publication of troop movements in a warzone, distributing obscenity, or
inciting violence. Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 716
(1931). The Court has consistently rejected attempts to justify prior restraints
outside of these exceptional cases.
The Supreme Court has already held that prior restraints intended to prevent
potentially defamatory statements made by the press against public officials violate
the First Amendment. Id. at 719-20. The Supreme Court found that “[w]hile
reckless assaults upon public men . . . exert a baleful influence and deserve the
severest condemnation in public opinion,” any such abuse of the freedom to speak
Arg 15
does “not make any the less necessary the immunity of the press from previous
restraint in dealing with official misconduct.” Id. Other instances where prior
restraints did not survive the heavy presumption against constitutional validity
include: (1) a gag order on the press issued to protect a criminal defendant’s Sixth
Amendment right to a fair trial; (2) a statute intended to protect the anonymity of
juvenile criminal defendants; and, (3) an injunction delaying publication of the
Pentagon Papers. See Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 555 (1976)
(holding that a prior restraint was not justified even by a legitimate concern for
protecting a criminal defendant’s Sixth Amendment right to a fair trial); Smith v.
Daily Mail Pub. Co., 443 U.S. 97, 104 (1979) (holding that a statute prohibiting the
publication of a juvenile criminal defendant’s identity was an unconstitutional prior
restraint); New York Times Co. v. United States, 403 U.S. 713, 714 (1971) (holding
that an injunction prohibiting the publication of the Pentagon Papers was an
unconstitutional prior restraint).
The Supreme Court’s decision in Near is controlling. Even if it were not, in
each of the above cited cases, the justification for a prior restraint was significantly
stronger than any governmental interest in protecting a candidate from what the
candidate considers to be an unfair criticism of his or her fitness for office. This
Court should reverse the entry of the PI and hold that any temporary restraining order
or preliminary injunction prohibiting campaign speech is unconstitutional.
Arg 16
In addition to the heavy presumption against the constitutionality of prior
restraints, courts must impose “careful procedural provisions, designed to assure the
fullest presentation and consideration of the matter which the circumstances permit”
and “to obviate the dangers of a censorship system” before issuing a prior restraint.
Carroll, 393 U.S. at 181. These procedural protections are critical. Unlike a
criminal penalty or civil judgment for defamation, which “is subject to the whole
panoply of protections afforded by deferring the impact of the judgment until all
avenues of appellate review have been exhausted[,] . . . [a] prior restraint, by contrast
and by definition, has an immediate and irreversible sanction.” Stuart, 427 U.S. at
559. Courts must follow strict procedural safeguards before issuing a prior restraint,
as “[i]f it can be said that a threat of criminal or civil sanctions after publication
‘chills’ speech, prior restraint ‘freezes’ it at least for the time.” Id.
The Circuit Court’s PI is unconstitutional because the unique circumstances
resulting in the issuance of the order for injunction failed to provide sufficient
procedural safeguards to TEGNA. In granting the PI, the Circuit Court relied on the
RRT’s finding that the JCN Campaign Ad is factually incorrect. Add 32. RRT is
not an adjudicative body with any authority over TEGNA or its advertisers. Ab 7.
Furthermore, the RRT’s rules and procedures bear zero semblance to due process,
as the RRT’s finding was based solely on materials provided by Goodson and JCN’s
failure to respond within the RRT’s 24-hour deadline. Ab 8.
Arg 17
The circumstances in this case are reminiscent of Near, where the Supreme
Court “cut through mere details of procedure” and found that the state statute at issue
essentially allowed members of the media charged with publishing defamatory
materials to be drug in front of a judge, “and, unless the owner or publisher is able
and disposed to bring competent evidence to satisfy the judge that the charges are
true and are published with good motives and for justifiable ends, his newspaper or
periodical is suppressed.” Near, 283 U.S. at 713. The Supreme Court labeled the
process “the essence of censorship.” Id. This Court should reach the same
conclusion and hold that the Circuit Court’s PI is an unconstitutional prior restraint.
II. THE CIRCUIT COURT ERRED IN FINDING APPELLEES PROVED LIKELIHOOD OF SUCCESS ON THE MERITS AND IRREPARABLE HARM, AND IN ENTERING THE PRELIMINARY INJUNCTION
An injunction is an “extraordinary remedy” and is “one which is reserved for
extraordinary circumstances.” Drummond Citizens Ins. Co. v. Sergeant, 266 Ark.
611, 621, 588 S.W.2d 419, 424 (1979). The burden of proving entitlement to a
preliminary injunction is heavy.
To be awarded a preliminary injunction, a plaintiff must demonstrate a
likelihood of success on the merits and also that, without the injunction, she will
suffer irreparable harm. Baptist Health v. Murphy, 365 Ark. 115, 121, 226 S.W.3d
800, 806 (2006).
“[W]hen the outcome of the preliminary hearing turns on disputed facts, the
Arg 18
court should hold a hearing before resolving the motion.” Muntaqim v. Hobbs, 2017
Ark. 97, 4, 514 S.W.3d 464, 467. Moreover, when determining issues regarding the
proof in a defamation action, “a trial judge must bear in mind the actual quantum
and quality of proof necessary to support liability under New York Times….”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Finally, Rule 65 requires that “[e]very order granting an injunction…must,”
inter alia, “state the reasons why it issued” and “state its terms specifically.” Ark. R.
Civ. P. 65(d)(1).
The Circuit Court erred in granting the PI Goodson requested. Goodson was
unable to demonstrate a likelihood of success on the merits of a defamation claim:
there is no clear and convincing evidence that TEGNA made defamatory statements
about Goodson, causing harm to her reputation, with actual malice, nor is there proof
that TEGNA published any statements that were not, at a minimum, “substantially
true.” Likewise, Goodson cannot prove irreparable harm, i.e. harm for which legal
remedies are unavailable. And, last, the Circuit Court’s reliance on dubious proof
and failure to provide sufficient reasons why the PI was issued all constitute
reversible error.
A. Goodson Failed To Establish Likelihood Of Success On The Merits
The First Amendment to the United States Constitution requires holding a
“public figure” defamation plaintiff to a higher standard of proof than a “private
Arg 19
figure” plaintiff. As this Court has explained, “public figures normally enjoy greater
access to effective channels of communication and, thus, have more realistic
opportunities to counteract false statements than do private individuals . . . .” Little
Rock Newspapers v. Fitzhugh, 330 Ark. 561, 579, 954 S.W.2d 914, 924 (1997)
(citing Gertz v. Welch, Inc., 418 U.S. 323, 344 (1974)).
Under New York Times v. Sullivan and its progeny, a defamation plaintiff who
is a “public figure” for First Amendment purposes cannot prevail unless she proves
“by clear and convincing evidence” that the defendant made the allegedly
defamatory statements with “actual malice.” Southall v. Little Rock Newspapers,
Inc., 332 Ark. 123, 133, 964 S.W.2d 187, 193 (1998). To prove “actual malice,” a
defamation plaintiff must establish that the defendant made the defamatory
statement “with knowledge that it was false or with reckless disregard of whether it
was false or not.” Id., 332 Ark. at 133, 964 S.W.2d at 192.
As defined by the Supreme Court, actual malice, in the defamation context,
necessitates proving a subjective state of mind by clear and convincing evidence:
A “reckless disregard” for the truth, however, requires more than a departure from reasonably prudent conduct. “There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” The standard is a subjective one--there must be sufficient evidence to permit the conclusion that the defendant actually had a “high degree of awareness of…probable falsity.” As a result, failure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient to establish reckless disregard.
Arg 20
Harte-Hanks, 491 U.S. at 688 (citations omitted). See also Campbell v. Citizens
for an Honest Gov’t, Inc., 255 F.3d 560, 575-76 (8th Cir. 2001) (applying the
Harte-Hanks “actual malice” definition to find that defendant did not act with
“actual malice,” despite reliance on various sources, each of questionable
credibility).
According to the Eighth Circuit, “[t]he standard is, therefore, a ‘daunting
one,’” particularly because “[i]t is not material that the speaker has a personal
motive.” Campbell, 255 F.3d at 569 (“actual malice” standard is “daunting”; “a
defendant’s ill will, desire to injure, or political or profit motive does not suffice.”)
(citations omitted); Lancaster v. Daily Banner-News Publ’g. Co., 274 Ark. 145, 148,
622 S.W.2d 671,672 (1981) (personal motive is immaterial to actual malice test).
Furthermore, a defamation action fails when the allegedly defamatory
statements are “substantially true.” This Court explicitly endorsed the “substantial
truth” doctrine as a defense to defamation liability in Pritchard v. The Times
Southwest Broadcasting, Inc., 277 Ark. 458, 463, 642 S.W.2d 877, 880 (1982).
There, this Court recognized that “[t]he truth of the matter is a defense to a charge
of defamation, but the exact truth is not required:”
[I]t is now generally agreed that it is not necessary to prove the literal truth of the accusation in every detail, and that it is sufficient to show that the imputation is substantially true, or as it is often put, to justify the “gist”, the “sting” or the “substantial truth” of the defamation.
Arg 21
Pritchard, 277 Ark. at 463 (1982) (quoting William L. Prosser, Handbook of the
Law of Torts 798-99 (4th ed. 1971)).
Under Pritchard and other precedents, the “substantial truth” defense does
not turn on the literal falsity of a single statement. Courts must look, instead, at the
entirety of the allegedly defamatory statements to examine the “gist.”
To determine whether the “substantial truth” defense has been established,
Arkansas courts apply a test that compares whether the allegedly defamatory
statement produces the same basic effect on the recipient as the precise truth would.
See Butler v. Hearst-Argyle Television, Inc., 345 Ark. 462, 468-69, 49 S.W.3d 116,
120 (2001) (“A statement is substantially accurate if its ‘gist’ or ‘sting’ is true, that
is, if it produces the same effect on the mind of the recipient which the precise truth
would have produced.”) (citation omitted).
In Butler, the defendant news station reported a story detailing a sexual
relationship between a district attorney and an individual being prosecuted by his
office. Although the plaintiff disputed many specific facts in the report, this Court
upheld summary judgment on the substantial truth defense because the evidence
showed that a sexual relationship had indeed taken place. Id. at 471 (“[W]e cannot
say that the trial court erred by finding that appellees’ report was a fair and
substantially true account . . . .”). The truth of various individual facts did not alter
the overall effect of the story on the public. Id.
Arg 22
“In defamation actions, there must be evidence that demonstrates a causal
connection between defamatory statements made and the injury to reputation.”
Boellner v. Clinical Study Centers, LLC, 2011 Ark. 83, 18, 378 S.W.3d 745, 757
(quoting Ellis v. Price, 337 Ark. 542, 990 S.W.2d 543 (1999)). The showing of harm
may be slight, but a “plaintiff must establish actual damage to his reputation….” Id.
Goodson does not have a colorable defamation claim against TEGNA due to
its running the JCN Campaign Ad, and therefore the Circuit Court’s entry of the PI
– which required a finding that Goodson is likely to succeed on the merits of a
defamation action – is reversible error.
First, Goodson cannot prove TEGNA acted with actual malice, something she
must establish with clear and convincing evidence. Assuming arguendo Goodson
could demonstrate the JCN Campaign Ad is false, nothing about TEGNA’s conduct
could support a finding that the JCN Campaign Ad was published by TEGNA “with
knowledge that it was false or with reckless disregard of whether it was false or not.”
Southall, 332 Ark. at 133, 964 S.W.2d at 192.
The undisputed facts were that Chad Kelley, the National and Regional Sales
Manager at TEGNA’s KTHV, first read the demand from Goodson (transmitted by
Friday, May 11 letter) to cease and desist publishing the JCN Campaign Ad on
Monday, May 14. Ab 1, 11; Add 276-277. Upon reading Goodson’s May 11 letter,
Mr. Kelley “immediately went into action,” forwarding the letter to the Philadelphia-
Arg 23
based, national liaison between TEGNA and JCN, and requesting JCN’s
“substantiation” for the JCN Campaign Ad. Ab 12. After receiving from JCN – on
that same day, May 14 – the requested substantiation, Mr. Kelley sent the
information from JCN along with Goodson’s May 11 letter to TEGNA’s outside
counsel, a national and leading First Amendment law firm, Covington & Burling,
and awaited counsel’s response. Id., Ab 12, 14. Mr. Kelley received Covington’s
response the same day, still May 14. After receiving both the JCN substantiation
information and the response from its First Amendment counsel, TEGNA’s KTHV
(through Mr. Kelley) decided not to pull the JCN Campaign Ad. Id. 2
Through Mr. Kelley, TEGNA’s conduct was exceptionally quick and prudent,
far surpassing the minimal threshold of acting without malice or “reckless
disregard”. TEGNA immediately forwarded Goodson’s May 11 cease and desist
letter along with a request for substantiation from JCN, and then obtained a response
from legal counsel before deciding not to pull the JCN Campaign Ad. Not a shred
of evidence presented to the Circuit Court even hints that TEGNA was
demonstrating malicious behavior, which is the “daunting” standard Goodson has to
meet by “clear and convincing” evidence.
2 Before the JCN Campaign Ad was ever run by TEGNA’s KTHV, it was submitted
by KTHV to the FCC to satisfy reporting and compliance requirements. Ab 11-12.
Arg 24
Second, to prevail on a defamation case, Goodson must do more than simply
offer the literal falsity of any single defamatory statement in the JCN Campaign Ad
– and it seems unlikely that she could accomplish even that.
Goodson complains about two parts of the JCN Campaign Ad: (1) “Courtney
Goodson has been taking gifts and big money from donors for years. Hundreds of
thousands of dollars from law firms with cases before her court. Even a fifty-
thousand-dollar trip to Italy on a donor’s luxury yacht,” and, (2) “what’s worse,
Goodson asked for an $18,000 raise making her salary bigger than the Governor’s.”
Ab 1; Add 13.
Goodson does not deny that she has accepted gifts and donations, or even that
she accepted the gift of a trip on a luxury yacht valued at $50,000. Goodson’s
defamation claim appears to hinge upon the conclusion by RRT that the JCN
Campaign Ad contains “language to cause a voter to believe that gifts are given by
donors to Justice Goodson, and that she hears cases in which those donors appear as
counsel or party in the case, and in return for donation or gifts, Justice Goodson rules
in favor of the donor entities or persons.” Add 13. Likewise, although Goodson
admits a pay raise of $18,000 was requested, she insists “that Chief Justice Kemp
made a request for a pay raise on behalf of the Supreme Court . . . .” Add 14.
The Circuit Court, in granting the PI, seems to have agreed with Goodson’s
assertions. In fact, in the PI, the Circuit Court observed that the RRT “found that
Arg 25
Justice Goodson did not request a pay raise and did not hear cases that were filed on
behalf of donors of gifts to her.” Add 32.
But to prevail on defamation, Goodson is unable merely to claim that each
statement in the JCN Campaign Ad is not literally “exact truth.” Pritchard, 277 Ark.
at 463 (1982). Goodson’s defamation claim fails if the JCN Campaign Ad is
“substantially true,” i.e., if the gist or sting of the ad is sufficiently similar to the
truth. Goodson produced no evidence – and the Circuit Court did not find – that the
gist of the JCN Campaign Ad was untrue. Goodson did receive gifts and donations,
including from lawyers with cases before this Court, as stated in the JCN Campaign
Ad. (And, there is no assertion in the ad, as implied by RRT, that she “rules in favor
of the donor entities or persons.”) The fact that Goodson has presented evidence of
recusals in many cases does not render untruthful the gist of the JCN Campaign Ad.3
3 Goodson provided to RRT and the Circuit Court a “recusal list” and claimed she
“always recused from participating in any cases involving” such persons and entities.
Add 19, 26. Tyson is included on Goodson’s recusal list. Id. Goodson, however,
did not recuse in the 2011 Green v. George’s et al decision, in which Tyson was a
defendant in an alleged toxic tort suit. In fact, Goodson authored the opinion ruling
in favor of Tyson. 2011 Ark. 70, 378 S.W.3d 715 (2011).
Arg 26
Likewise, there is no dispute that the $18,000 pay raise was requested, and the
resultant salary would have been greater than the salary paid to the Governor.
Goodson claims the statement is false because Chief Justice Kemp, not Justice
Goodson, made the pay raise request to the Independent Citizens Commission
(“ICC”). Add 27. However, the Chief Justice was speaking on behalf of, and
making the pay raise request for, Justice Goodson and the other members of this
Court. In fact, the ICC’s minutes reflect clearly that “Chief Justice John Dan Kemp
spoke on behalf of the Justice and Judges of the Supreme Court and gave the handout
titled: Proposed Judicial Pay Plan.” Add 27 (emphasis supplied). Surely, this
authorized request on behalf of the Court on which Goodson sits as one of seven
members constitutes her “ask[ing] for” a raise which, if granted, would have made
“her salary bigger than the Governor’s,” as stated in the JCN Campaign Ad. See
e.g., Houston General Ins. Co. v. Arkansas Louisiana Gas Co., 267 Ark. 544, 545,
592 S.W.2d 445, 446 (1980) (finding in a negligence suit against gas company for
leak causing an explosion that a gas employee’s statement that there was “one
helluva leak in that alley” was attributable to the gas company); see also,
e.g., Mahlandt v. Wild Canid Survival & Research Center, Inc., 588 F.2d 626, 630
(8th Cir. 1978).
At a minimum, the statements in the JCN Campaign Ad are substantially true,
and certainly the gist of the statements is accurate. Consequently, Goodson cannot
Arg 27
prevail on a defamation claim, making the Circuit Court’s PI, conditioned on a
likelihood of success on the merits, erroneous.
Finally, to prevail on a defamation claim there must exist “actual damage” to
reputation caused by the allegedly defamatory statement, and Goodson presented the
Circuit Court with no evidence of reputational damage. Boellner, 2011 Ark. 83, 18,
378 S.W.3d at 757. Goodson’s proffer of evidence regarding the results of past
elections–some including her and some not–is not indicative of actual damage to her
reputation caused by the JCN Campaign Ad.
Without evidence of actual damage to her reputation caused by the JCN
Campaign Ad, Goodson cannot succeed on her defamation claim. The Circuit
Court’s grant of the PI, based on a likelihood of success on the merits of a cause of
action on which no proof on a critical element was presented, is error.
B. Goodson Failed To Establish Irreparable Harm
Irreparable harm is the touchstone of injunctive relief. City of Dover v. City
of Russellville, 363 Ark. 458, 461, 215 S.W.3d 623, 625 (2005). Harm is considered
irreparable when it cannot be adequately compensated by money damages or
redressed in a court of law. Id. As this Court explained:
Essential to the issuance of a temporary restraining order is a finding that a failure to issue it will result in irreparable harm to the applicant. The prospect of irreparable harm or lack of an otherwise adequate remedy is the foundation of the power to issue injunctive relief.
Arg 28
AJ & K Operating Co. v. Smith, 355 Ark. 510, 517, 140 S.W.3d 475, 480 (2004)
(internal citations omitted).
In a defamation action, the time-honored, well-established remedy is legal,
i.e., compensatory damages arising from the claiming party’s reputational injury.
See e.g., United Ins. Co. of Am. v. Murphy, 331 Ark. 364, 961 S.W.2d 752 (1998)
(Abolishing doctrine of presumed damages in defamation cases, so that plaintiffs in
all defamation cases are now required to prove reputational injury).
No evidence was presented to the Circuit Court that Goodson would suffer
irreparable harm – that is, harm for which there is no adequate legal remedy – unless
the JCN Campaign Ad were pulled. The suggestion that the JCN Campaign Ad
might change the outcome of the election – which could not be proved by credible
evidence – does not constitute the type of reputational damage claim available in
defamation cases, and for which there is available adequate compensation by money
damages.
Furthermore, the possibility of harm – what might happen – is not sufficient
to justify entry of a preliminary injunction. Goodson was required to present
evidence that irreparable harm to Goodson would have, with certainty, resulted. AJ
& K, 355 Ark. at 517, 140 S.W.3d at 480. No such evidence was produced or,
indeed, exists.
Arg 29
Absent proof that irreparable harm would have occurred without issuance of
the injunction requested by Goodson, the Circuit Court erred in granting the PI.
C. The PI Was Entered In Error
In considering Goodson’s request for an injunction, the Circuit Court was
bound to rely upon admissible evidence. See generally Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986); see also Rankin v. City of Fort Smith, 337 Ark. 599,
604, 990 S.W.2d 535, 538 (1999). By its own statement, the Circuit Court seemed
to concede it considered information that would be inadmissible “if we get to a trial
on the merits of this thing.” Ab 3.
The hearing on Goodson’s request was designed, in part, to determine if there
was a likelihood that Goodson could prevail on the merits of the defamation claim
against TEGNA. In considering the application for an injunction, the Circuit Court
should not have relied upon information that would be inadmissible at a trial on the
merits. To do so constituted error.
Further, Rule 65 expressly requires that “[e]very order granting an
injunction…must,” inter alia, “state the reasons why it issued” and “state its terms
specifically”. Ark. R. Civ. P. 65(d)(1). The Circuit Court’s PI fails in this regard.
In particular, the Circuit Court’s PI does not explain what “clear and
convincing” evidence supports a finding that TEGNA acted with actual malice; does
not identify how TEGNA acted with “reckless disregard” of whether the JCN
Arg 30
Campaign Ad was false; and, does not address the “substantial truth” of the content
of the JCN Campaign Ad. Add 31-33. In fact, except for quoting language from
findings of RRT, the Circuit Court does not independently make a finding that the
JCN Campaign Ad is false.
Similarly, the Circuit Court, in its PI, does not explain what actual damage to
Goodson’s reputation would be caused by the JCN Campaign Ad and does not
address how Goodson would suffer irreparable harm (harm for which no legal
remedy is available) unless the JCN Campaign Ad was pulled.
The PI entered by the Circuit Court fails to comply with the requirements of
Rule 65 and, therefore, is deficient as a matter of law. Entry of the PI was error.
CONCLUSION
The Preliminary Injunction Order is an unconstitutional prior restraint. Even
if it were constitutional, the Circuit Court abused its discretion by finding irreparable
harm and that Goodson demonstrated a substantial likelihood of success on the
merits. This Court should reverse the Preliminary Injunction Order.
Arg 31
Respectfully submitted,
QUATTLEBAUM, GROOMS & TULL PLLC 111 Center Street, Suite 1900 Little Rock, Arkansas 72201 (501) 379-1700 (501) 379-1701 (facsimile) [email protected] By: /s/ John E. Tull III John E. Tull III (84150) Vincent O. Chadick (94075) Christoph Keller (2015145) Attorneys for TEGNA Inc.
CoS 1
CERTIFICATE OF SERVICE I hereby certify that on July 30, 2018, a true and correct copy of the foregoing was electronically filed with the Clerk of Court using the eFlex electronic filing system, which shall send notification of such filing to all counsel of record. I further certify that a true and correct copy of the foregoing was served, via electronic mail and regular U.S. Mail, postage prepaid, upon the following:
Lauren Hoover LACERRA, DICKSON, HOOVER, & ROGERS, PLLC 212 Center Street, 2nd Floor Little Rock, Arkansas 72201 [email protected]
Philip E. Kaplan Bonnie J. Johnson Alec Gaines Williams and Anderson PLC 111 Center Street, Suite 2200 Little Rock, Arkansas 72201 [email protected] [email protected] [email protected]
And via U.S. Mail, postage prepaid, upon the following:
The Honorable Chris Piazza Pulaski County Courthouse 401 West Markham, Suite 230 Little Rock, Arkansas 72201
/s/ John E. Tull III John E. Tull III (84150)
ADDENDUM TABLE OF CONTENTS
Page
A. Pleadings
1. Plaintiffs’ Emergency Motion For Ex Parte Temporary Restraining Order; Request For Emergency Hearing, Or, In The Alternative, Preliminary Injunction And Incorporated Brief In Support Thereof (Record (“R.” 4) ................................ Add 1 • Exhibit A –
Rapid Response Team’s Request For Voluntary Withdrawal Of Advertisement Sent To Judicial Crisis Network On May 9, 2018 (R. 16) ........................ Add 13
• Exhibit B – Rapid Response Team’s Cease And Desist Letter Sent To Judicial Crisis Network On May 10, 2018 (R. 20) ............................................................................. Add 17
• Exhibit C – Plaintiffs’ Cease And Desist Letters Sent To Press On May 11, 2018 (R. 22) ................................................ Add 19
• Exhibit D – Recused Cases (R. 29) .................................................... Add 26
• Exhibit E –
Draft Minutes For May 16, 2017, Meeting Of Independent Citizen’s Commission (R. 30) ................... Add 27
2. Plaintiffs’ Motion To Dismiss Cox Media, LLC,
Without Prejudice (R. 67) ......................................................... Add 28
3. Order Of Dismissal As To Separate Defendant Cox Media, LLC (R. 78) ........................................................... Add 30
4. Preliminary Injunction (R. 79) .................................................. Add 31
ii
5. Comcast of Arkansas, Inc.’s Notice Of Appeal
(R. 82) ........................................................................................ Add 34
6. TEGNA Inc.’s Notice Of Appeal And Designation Of The Record (R. 84) .................................................................... Add 36
B. Hearing Exhibits
1. Plaintiffs’ Exhibit No. 1 –
Judicial Discipline & Disability Commission Letter To Justice Goodson (R. 225) ..................................................... Add 38
2. Plaintiffs’ Exhibit No. 2 – List Of Recusals (R. 228) .......................................................... Add 41
3. Plaintiffs’ Exhibit No. 3 – Record Of Recusals (R. 261) .................................................... Add 74
4. Plaintiffs’ Exhibit No. 4 – Rapid Response Team’s Request For Voluntary Withdrawal Of Advertisement Sent To Judicial Crisis Network On May 9, 2018 (R. 450) ............................... Add 263
5. Plaintiffs’ Exhibit No. 5 – Rapid Response Team’s Cease And Desist Letter Sent To Judicial Crisis Network On May 10, 2018 (R. 455) .................................................................................... Add 268
6. Plaintiffs’ Exhibit No. 6 – Election Results (R. 458) ........................................................ Add 271
7. Plaintiffs’ Exhibit 7 – Plaintiffs’ Cease And Desist Letter Sent To Press On May 11, 2018 (R. 462) ...................................................... Add 275
8. Comcast’s Exhibit 6 – Judicial Crisis Network’s Response To Cease And Desist Letter Dated May 14, 2018 (R. 489) .................... Add 279
iii
C. Preparation of Record 1. Reporter’s Certificate of Costs (R. 492) ................................. Add 282
2. Clerk’s Certificate (R. 493) ..................................................... Add 283
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CV-18-522
IN THE COURT OF APPEALS OF ARKANSAS
COMCAST OF ARKANSAS, INC.; and TEGNA, INC.; APPELLANTS v. COURTNEY GOODSON; and COURTNEY GOODSON CAMPAIGN APPELLEES
APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS
THE HONORABLE CHRIS PIAZZA
ADDENDUM OF APPELLANT TEGNA INC.
VOLUME II OF II
John E. Tull III (84150) Vincent O. Chadick (94075) Christoph Keller (2015145) QUATTLEBAUM, GROOMS & TULL PLLC 111 Center Street, Suite 1900 Little Rock, Arkansas 72201 Telephone: (501) 379-1700 Facsimile (501) 379-1701 [email protected] [email protected] [email protected] Attorneys for TEGNA Inc.
ii
ADDENDUM TABLE OF CONTENTS
Page
A. Pleadings
1. Plaintiffs’ Emergency Motion For Ex Parte Temporary Restraining Order; Request For Emergency Hearing, Or, In The Alternative, Preliminary Injunction And Incorporated Brief In Support Thereof (Record (“R.” 4) ................................ Add 1 • Exhibit A –
Rapid Response Team’s Request For Voluntary Withdrawal Of Advertisement Sent To Judicial Crisis Network On May 9, 2018 (R. 16) ........................ Add 13
• Exhibit B – Rapid Response Team’s Cease And Desist Letter Sent To Judicial Crisis Network On May 10, 2018 (R. 20) ............................................................................. Add 17
• Exhibit C – Plaintiffs’ Cease And Desist Letters Sent To Press On May 11, 2018 (R. 22) ................................................ Add 19
• Exhibit D – Recused Cases (R. 29) .................................................... Add 26
• Exhibit E –
Draft Minutes For May 16, 2017, Meeting Of Independent Citizen’s Commission (R. 30) ................... Add 27
2. Plaintiffs’ Motion To Dismiss Cox Media, LLC,
Without Prejudice (R. 67) ......................................................... Add 28
3. Order Of Dismissal As To Separate Defendant Cox Media, LLC (R. 78) ........................................................... Add 30
4. Preliminary Injunction (R. 79) .................................................. Add 31
iii
5. Comcast of Arkansas, Inc.’s Notice Of Appeal
(R. 82) ........................................................................................ Add 34
6. TEGNA Inc.’s Notice Of Appeal And Designation Of The Record (R. 84) .................................................................... Add 36
B. Hearing Exhibits
1. Plaintiffs’ Exhibit No. 1 –
Judicial Discipline & Disability Commission Letter To Justice Goodson (R. 225) ..................................................... Add 38
2. Plaintiffs’ Exhibit No. 2 – List Of Recusals (R. 228) .......................................................... Add 41
3. Plaintiffs’ Exhibit No. 3 – Record Of Recusals (R. 261) .................................................... Add 74
4. Plaintiffs’ Exhibit No. 4 – Rapid Response Team’s Request For Voluntary Withdrawal Of Advertisement Sent To Judicial Crisis Network On May 9, 2018 (R. 450) ............................... Add 263
5. Plaintiffs’ Exhibit No. 5 – Rapid Response Team’s Cease And Desist Letter Sent To Judicial Crisis Network On May 10, 2018 (R. 455) .................................................................................... Add 268
6. Plaintiffs’ Exhibit No. 6 – Election Results (R. 458) ........................................................ Add 271
7. Plaintiffs’ Exhibit 7 – Plaintiffs’ Cease And Desist Letter Sent To Press On May 11, 2018 (R. 462) ...................................................... Add 275
8. Comcast’s Exhibit 6 – Judicial Crisis Network’s Response To Cease And Desist Letter Dated May 14, 2018 (R. 489) .................... Add 279
iv
C. Preparation of Record 1. Reporter’s Certificate of Costs (R. 492) ................................. Add 282
2. Clerk’s Certificate (R. 493) ..................................................... Add 283
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