When you advocate for free speech, it's inevitable that you'll end up defending the constitutional rights of liars or the expression of ideas you may find personally to be repulsive.
As a rule, it's not speech the majority of Americans love to hear that needs protection from government interference.
When Tim Tebow says "I want to improve as a football player, but even more importantly, I really want to improve as a person," there's hardly a fight necessary to protect his right to express his view. People eat it up. But when Colin Kaepernick says "I'm not going to stand up to show pride in a flag for a country that oppresses black people and people of color," let's just say defending his right becomes a little more challenging ... and lonely.
So today, we rise to defend the Judicial Crisis Network, a lily-livered, shadowy collection of conservative donors who want to influence elections but don't have the backbone to stand up publicly in their advocacy. Their tactics -- spending millions of dollars to make outrageous and intentionally incomplete claims against their targets -- are despicable. Theirs is the worst kind of political activism and what they say cannot be trusted.
What’s the point?
A Washington County circuit judge should have recused from a Supreme Court candidate’s lawsuit seeking to stop political commercials opposing her. He also went too far in his order to ban the commercials from airing on local televison and cable stations.
With defenders like us, they don't need detractors, right?
Where we do defend this group is in the situtation it finds itself right here in Arkansas, where a Washington County circuit judge this week issued a restraining order to block local television stations from airing Judicial Crisis Network's nasty political advocacy commercials in the race that pits Courtney Goodson, Kenneth Hixson and David Sterling in competition for a seat on the Arkansas Supreme Court.
Goodson, who holds the position now, and Hixson are in the crosshairs of Judicial Crisis Network, which is willing to say just about anything to convince Arkansas voters that neither of them deserve a vote for the state's highest court, or even for the lowly dogcatcher. That, one can fairly deduce, leaves Sterling as the group's candidate of choice. For the court, not for dogcatcher.
Goodson, who felt the barbs of the Judicial Crisis Network in her unsuccessful 2016 race for chief justice, has had enough. She filed lawsuits in different parts of the state to stop the airing of television ads she says include fictitious claims by the out-of-state group.
But it was only Washington County Circuit Judge Doug Martin who acted immediately, without benefit of a hearing, on Monday. He issued a temporary restraining order to prevent the ads from being aired. This all took place with only a week left before Tuesday's nonpartisan (yeah, right) judicial elections.
Score one for Goodson, but not for free speech. Martin used his judicial post to engage in prior restraint, a phrase coined in the courts' long history of First Amendment precedent-setting. His is a disturbing decision for advocates of constitutionally protected speech for all Americans. A judge should never find it so easy to so quickly rob anyone of free-speech rights on the simple filing of an allegation by someone who doesn't care for what's being spoken.
Historically, the bar for restraining speech has been extraordinarly high. In Martin's court, it seems slapping a muzzle on speech Goodson doesn't like met with little legal hesitation at all. For everyone's protection, it sure seems judges ought to at least take a little testimony and evidence before gagging anyone. We're not lawyers, but we suspect it's not hard to figure out just how unconstitutional an appeals court would find Martin's action.
Beyond the free speech issue, Martin's own connections to Goodson quickly exposed a conflict that should have immediately led to his recusal from the case. It didn't, until this newspaper reported Martin received income in 2017 through his wife's legal work with Keil & Goodson, the Texarkana firm where John Goodson, Justice Goodson's husband, is a partner. Amy Martin, the judge's wife, was also a one-time contributor to Goodson's campaign.
Justice Goodson herself sought Martin's removal after the financial entanglements were revealed.
On Thursday, every other judge in Washington County recused from the Goodson case, too. Goodson once upon a time was from Fayetteville, suggesting her past relationships here could be an entanglement for all the judges. Or it may just be the local judges would rather this mess be some other judge's problem.
Meanwhile, Martin's likely unconstitutional prior restraint order for local television and cable stations to stop airing the Judicial Crisis Network's ads remains in place. That's good for Goodson's re-election campaign.
Interestingly, once all the local judges recuse, whose job is it to appoint a special judge to consider the case? Supreme Court Chief Justice Dan Kemp, who defeated Goodson in that 2016 race in which the Judicial Crisis Network also ran so-called dark money ads opposing her.
Perhaps all of this works to benefit Sterling, an Asa Hutchinson-appointed state Department of Human Services attorney who unsuccessfully ran for attorney general back in 2014 when Leslie Rutledge bested him. Lest there be any confusion, we're not advocating for Sterling's election by taking note of Martin's encroachment on the Judicial Crisis Network's First Amendment rights. Indeed, this secretive organization wants Sterling elected, and that's enough to convince us he shouldn't be. In this editorial space, we've recommended voters put Kenneth Hixson in the post.
For the record, we believe federal law should require groups like Judicial Crisis Network to reveal their donors. This secrecy backed up by millions of dollars for ad buys is not beneficial to our elections or the long-term health of our judicial system.
Meanwhile, every minute the Judicial Action Network's ads are blocked by Judge Martin's orders is a victory for Goodson and a defeat for the concept of free speech in the United States. And the financial entanglements of the man who issued that order do not inspire trust in the state's judiciary.
It makes us long for the days when judicial elections were the boring ones.
Commentary on 05/18/2018