On Monday, Arkansas state trial judge Doug Martin issued a temporary restraining order preventing the conservative Judicial Crisis Network (JCN) from airing television ads critical of Arkansas Supreme Court Justice Courtney Goodson. The ads alleged, among other things, that Justice Goodson accepted monetary gifts from lawyers. Justice Goodson sued JCN, alleging that the ads were false and defamatory. The election is scheduled for next Tuesday, May 22; early voting has already commenced.
The TRO raises a number of evergreen issues in judicial elections, including the degree to which it constitutes an unconstitutional prior restraint on free speech, and whether the harm done to the judicial system by attack ads outweighs any benefits from selecting judges by the ballot. The additional twist here is that the propriety of conduct during judicial elections was itself determined by an elected judge — that is, someone who has a clear stake in the judicial selection process. Indeed, Judge Martin is no stranger to election controversies, having been censured for statements made about his opponent in the 2014 campaign. Of course, any Arkansas state judge would have some professional interest in the outcome of the case (since all face election), and I am not aware of any aspect of Justice Goodson’s complaint that would have made the case fit to be heard by a federal judge with a lifetime appointment.
As the name implies, a TRO is used to stop offending activity for only a short period, and typically expires within a few days. This TRO is no exception; the parties will return to court tomorrow for further hearings on whether to issue a preliminary injunction. Given the high profile of the case and the stakes for Judge Martin’s reputation, I expect that he will carefully and extensively probe the First Amendment issues with the parties before issuing another order.
The Interdependent Third Branch 