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TEGNA, Inc. v. Goodson

Court of Appeals of Arkansas, Division IV

December 12, 2018



          Quattlebaum, Grooms & Tull PLLC, by: John E. Tull III, Vincent O. Chadick, and Christoph Keller, for appellant.

          LaCerra, Dickson, Hoover & Roger, PLLC, by: Lauren White Hoover, for appellees.


         Appellant TEGNA, Inc. (TEGNA), [1] appeals the May 21, 2018 preliminary injunction (PI) issued by the Pulaski County Circuit Court. TEGNA argues that the circuit court erred (1) because the PI is an unconstitutional prior restraint, and (2) in finding that appellees Justice Courtney Goodson and the Courtney Goodson Campaign (collectively Goodson) proved likelihood of success on the merits and irreparable harm. Because the restrictions imposed by the PI expired within the pendency of this appeal, all issues concerning the propriety of the injunctive relief granted are rendered moot by the passage of time. Accordingly, we dismiss.

         Justice Goodson, a sitting Arkansas Supreme Court Justice, ran for reelection in 2018. TEGNA is the parent company of KTHV Channel 11 (KTHV), a news station headquartered in Little Rock, Arkansas, whose viewers include approximately 575, 000 households in Arkansas and the Pulaski County viewing area. On May 2, 2018, the Judicial Crisis Network (JCN) placed an advertisement (JCN Campaign Ad) with KTHV regarding Goodson. The JCN Campaign Ad audio stated the following:

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. What's worse, Goodson asked for an $18, 000.00 raise making her salary bigger than the Governor's. Courtney Goodson: a political insider abusing the system. Tell her to stop taking gifts and asking for money.

         On May 3, 2018, Goodson filed a complaint with the Rapid Response Team (RRT), which is charged by the Arkansas Judicial Campaign Conduct and Education Committee, Inc. The RRT is comprised of Judge Audrey Evans, Danyelle Walker, Hal Bass, Elizabeth Andreoli, and Roy Ockert. The RRT reviews complaints filed only by candidates or campaigns for the Arkansas Supreme Court and the Arkansas Court of Appeals.

         On May 14, 2018, eight days before the election, Goodson filed an emergency motion against TEGNA and other members of the media based on alleged defamation arising out of the publication of the JCN Campaign Ad. Goodson sought an ex parte temporary restraining order or, alternatively, a preliminary injunction prohibiting the media defendants from publishing the JCN Campaign Ad through the conclusion of the election.

         The Pulaski County Circuit Court held a hearing on Friday, May 18, to review the JCN Campaign Ad. The circuit court first heard testimony from Walker, a member of the RRT, who explained that the RRT had received a complaint about the JCN Campaign Ad from Goodson on May 3, 2018. As part of its review of Goodson's complaint, the RRT considered the determination of the Judicial Discipline and Disability Commission (JDDC) from September 18, 2013, which reviewed a complaint filed by Kathy Wells over concerns about Goodson's "reported gifts, among other items in [Goodson's] financial disclosures, a $50, 000.00 vacation to Italy." The JDDC determined that Goodson properly disclosed the gifts in question, which allowed the public to know of any potential conflict; that she had received many gifts in question from her husband during a time in which she was engaged to and dating her husband; and specifically found no evidence of judicial misconduct or wrongdoing by Goodson. The RRT also reviewed a summary of cases and a printout of cases in which Goodson had recused from appeals involving donors or those associated with gifts. Certified copies of Goodson's recusals were provided to the circuit court and admitted into evidence.

         Walker testified that on May 9, 2018, the RRT determined, after reviewing these materials, that the JCN Campaign Ad was false and misleading and requested by letter that JCN either voluntarily withdraw the advertisement or provide evidence refuting the findings of the RRT within twenty-four hours. In its letter, the RRT informed JCN of its finding that under the RRT's rules and procedures, Goodson had met the initial burden of demonstrating that the JCN Campaign Ad was false or misleading. The 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 her duty of confidentiality to reveal her vote on the pay raise. The RRT also determined, based on its review of the materials submitted by Goodson, 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.

         Walker explained that the RRT informed JCN that if JCN failed to respond within twenty-four hours, the RRT would make a final finding that the JCN Campaign Ad and related print ad contained false or misleading information. JCN did not respond to the May 9, 2018 letter, and on May 10, 2018, the RRT delivered to JCN a cease-and-desist letter, in which the RRT issued its final finding that the JCN Campaign Ad contained false and misleading information based on its review of the materials provided by Goodson and JCN's failure to respond within twenty-four hours. After the RRT sent cease-and-desist letter to JCN, Goodson sent a cease-and-desist letter to KTHV and other media companies on May 11, 2018, in which she provided notice to KTHV and other media companies of the falsity of the JCN Campaign Ad. With the exception of Comcast and TEGNA, all other named defendants voluntarily withdrew the ad and did not appear at the hearing.

         The circuit court also heard testimony from Chad Kelley, the national and regional sales manager at TEGNA's KTHV.[2] Although Kelley did not know the exact number of times per day the JCN Campaign Ad ran, he testified that it was probably "more than five times per day." According to his testimony, JCN paid an average of $80, 000 a week for its purchase of the ad. Kelley testified that on May 11, 2018, Goodson sent TEGNA a letter threatening legal action and demanding that TEGNA, along with broadcasters across Arkansas, cease and desist publishing the JCN Campaign Ad. Kelley explained that he was notified about the campaign's letter very late in the day and that he read the letter as soon as he returned to the office on Monday, May 14, 2018. He immediately sent the letter to the liaison between TEGNA and JCN requesting that JCN provide documentation or substantiation of the JCN Campaign Ad. TEGNA received JCN's response that same day.

         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, had authorized Chief Justice John Dan Kemp to appear on behalf of the entire Arkansas Supreme Court before the Independent Citizens Commission to ask for a raise for all the justices. JCN wrote that if Justice Goodson would publicly state that she had voted against the pay-raise proposal, JCN would revise the advertisement. Regarding the statements as to Justice Goodson's acceptance of gifts and money from donors, JCN stated that the statements are true and that Justice Goodson had not denied them. JCN submitted that Justice Goodson's ...

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