LITTLE ROCK -- The race for a seat on Arkansas' Supreme Court was widely expected to be another battleground for out-of-state conservative groups that are waging increasingly expensive and bitter campaigns to reshape the nation's courts. What wasn't expected that it would also prompt a fight over just how far the courts can go in restricting political speech.
The conflicting decisions late last week over an out-of-state group's ads in the race set the stage for a legal battle that could stretch well beyond Tuesday's non-partisan judicial election and a potential runoff in November for the high court seat. It's a debate that could ultimately end up being resolved by the same state Supreme Court that's been the target of this campaign.
Pulaski County Circuit Judge Chris Piazza on Friday ordered several Little Rock area TV stations to stop running the Judicial Crisis Network ad going after state Supreme Court Justice Courtney Goodson. Hours later, another Pulaski County judge assigned to take up Goodson's lawsuit challenging the spots in northwest Arkansas said they could resume up there. Goodson is running against State Appeals Court Judge Kenneth Hixson and Department of Human Services Chief Counsel David Sterling.
Both Pulaski County judges called the ads -- which criticize Goodson over gifts from donors and a pay raise the court requested last year -- misleading. But they reached very different conclusions on what the law would allow them to do about it.
"There's something obscene about what's going on with the type of judicial advertising that's going on right now," Piazza said.
Pulaski County Circuit Judge Mackie Pierce also criticized the ads, but said he didn't believe he could legally stop them. He also questioned how effective such a move would be, suggesting it could prompt JCN to tweak its spot to address any concerns raised in an injunction.
The rulings add a new dimension to the debate over out-of-state and "dark money" groups that have become a hallmark of Arkansas' judicial campaigns and have turned them into some of the roughest in the nation. Goodson lost her bid for chief justice two years ago after facing a similar barrage of ads and mailers from JCN and another group, the Republican State Leadership Committee. Combined, the groups and the candidates for chief justice and another high court seat spent more than $1.6 million on television ads that year.
Goodson is portraying her fight as one against groups like JCN, which doesn't disclose its donors, and says legal action is necessary to halt ads that she's described as false and defamatory.
"No one is ever going to be able to compete with dark money. Their resources are endless...How does one good candidate in any race stand toe-to-toe with those kinds of resources?" Goodson told reporters.
Judicial Crisis Network, however, has defended its 30-second spot as true and factual and says voters have a right to be informed about their judges.
"This is censorship, plain and simple; a blatant attack on free speech," Carrie Severino, the group's chief counsel and policy director, said.
Efforts to block the ads have also drawn the ire of the American Civil Liberties Union of Arkansas and First Amendment advocates who say courts shouldn't be in the position of deciding what kind of political speech is acceptable.
"However we might even detest dark money or even however we might say that it's inappropriate to have something that's misleading, the fact is that in the public marketplace these things are protected and have been protected since the establishment of this republic," Philip Kaplan, an attorney who represents Comcast of Arkansas in the Little Rock-area case, said at Friday's hearing.
The fight will continue even as Goodson and her rivals make their final pitches to voters, with her third lawsuit focusing on Fort Smith TV stations going before a judge Monday.
Andrew DeMillo has covered Arkansas government and politics for The Associated Press since 2005.
Editorial on 05/22/2018