cv-18-522 - media.arkansasonline.com · 31.07.2018 · this is an interlocutory appeal of a...

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


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


Rapid Response Team’s Cease And Desist Letter Sent To Judicial Crisis Network On May 10, 2018 (R. 455) ................................................................................... Add 268


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

https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1999129920&pubNum=0000713&originatingDoc=Iaa5e7ffa408611e09d9dae30585baa87&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Keycite)

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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

Ab 1

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

Ab 2

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).

Ab 3

• 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).

Ab 4

• 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).

Ab 5

Plaintiffs’ Exhibit Three (Add 74), was admitted over TEGNA’s and


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

Ab 6

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


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

Ab 7

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).

Ab 9

• 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).

Ab 10

• 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-

https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1999129920&pubNum=0000713&originatingDoc=Iaa5e7ffa408611e09d9dae30585baa87&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Keycite)

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 –


• 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





ii


(R. 82) ........................................................................................ Add 34


B. Hearing Exhibits



2. Plaintiffs’ Exhibit No. 2 – List Of Recusals (R. 228) .......................................................... Add 41



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


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


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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.

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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 –


• 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





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(R. 82) ........................................................................................ Add 34


B. Hearing Exhibits



2. Plaintiffs’ Exhibit No. 2 – List Of Recusals (R. 228) .......................................................... Add 41



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


8. Comcast’s Exhibit 6 – Judicial Crisis Network’s Response To Cease And Desist Letter Dated May 14, 2018 (R. 489) .................... Add 279

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C. Preparation of Record 1. Reporter’s Certificate of Costs (R. 492) ................................. Add 282


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cv-18-522 - media.arkansasonline.com · 31.07.2018 · this is an interlocutory appeal of a...

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