Federal Judge Brian Miller today turned down Supreme Court Justice Courtney Goodson’s request for a preliminary injunction to stop attack advertising by a Washington-based special interest group in support of her opponent David Sterling.

The judge’s order.

He said an injunction would “impermissibly restrain free speech” and he said she was unlikely to prevail at trial on the merits.

The Republican State Leadership Committee Judicial Fairness Initiative, a shadowy outfit that spends millions in corporate contributions to elect corporate-friendly Republicans, is spending $1 million to defeat Goodson. It’s hammered her ties to trial lawyers. She’s claimed the ads were defamatory. The RSLC said they were factual. One mailer said incorrectly, it developed only yesterday, that she’d supported a pay raise for justices sought by Chief Justice Dan Kemp. She said she’d voted against in private conference the proposal for an 11 percent pay raise, but had chosen to keep her position quiet until testimony yesterday out of respect for other members of the court. She said one other unnamed member of the court opposed the increase too.

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Goodson argued that even ads with established facts about gifts and contributions were false by implication because they lack mitigating facts — such as her recusals from cases involving lawyer friends.

Lauren Hoover, Goodson’s attorney, found something positive in the case:

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Important takeaways from today’s ruling: Dark money is on notice in Arkansas and the Court ruled there was no evidence presented yesterday that Justice Goodson has ever given special treatment to any person or interests despite what is implied by the ads.

This fight has put some sunshine on the fact that JCN/RSLC and other D.C. interest groups are funneling dark money at the rate of a million dollars at a time to buy seats for their handpicked candidate. While we lost this battle against dark money this time, Justice Goodson returns today asking the voters to reject the efforts by these outsiders to hand pick someone for our State’s Supreme Court. 

David James, spokesman for RSLC said:

A much better Judge than Courtney Goodson just tossed her latest, outrageous assault on the First Amendment. From her “wholly unprecedented” and “improper” attempt to silence us through the courts, to using her courtroom to shoot political ads, to taking gifts valued over $50,000 and campaign contributions from law firms that do business before her court, Goodson proves again and again that she is unfit to serve on Arkansas’ Supreme Court, and should be replaced with conservative David Sterling.

Judge Miller’s ruling said:

A preliminary injunction would be a prior restraint on speech because it would stop RSLC–JFI from publishing its campaign materials, which is tantamount to restricting it from speaking. 

This is a First Amendment violation, he wrote.

He said even in cases of defamation an injunction would be unprecedented.

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Without a judgment in Goodson’s favor on the defamation claim, enjoining RSLC–JFI’s speech would violate the First Amendment because it would impermissibly restrain RSLC–JFI’s ability to engage in free speech. 

The fact that the case concerns political speech requires even more caution, the judge said.

As to the merits of her defamation claim, the judge said “the record does not indicate that she has a reasonable probability of succeeding..”

As a public official, the judge said Goodson must show the statements were issued with actual malice — a knowledge that they were false, for example. “Substantial truth” is a defense, he noted. He said she was unlikely to be able to prove that about statements relative to a trip to Italy and contributions she’d received. No explicit quid pro quo is alleged, he noted.  He added:

Moreover, it is clear that Goodson accepted a trip to Italy from a trial lawyer, that her campaign received contributions from plaintiffs’ law firms, and that she has made rulings favorable to plaintiffs. 

He concluded as to these allegations:

Although nothing presented so far proves that Goodson has a bias in favor of particular litigants or lawyers, she has the burden of proving, by clear and convincing evidence, that RSLC–JFI acted with actual malice when it made these allegedly defamatory statements. This is a very heavy burden to shoulder, and because each fact is true in isolation, it seems unlikely that she will be able to do so at trial. 

He also said she was unlikely to prove actual malice regarding the statement about her support for a pay raise.

Indeed, nothing presented so far indicates RSLC–JFI made this statement knowing it to be false or that it was very likely false. Goodson’s testimony, however, has now placed RSLC–JFI on notice that she voted against the raise.

Goodson sued broadcast media to stop similar ads in the primary and won a favorable decision from Judge Chris Piazza in Pulaski County and lost an identical case against media in Northwest Arkansas. A TV station has continued an appeal to the Supreme Court against Piazza’s ruling.