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US district judge won't halt attack ads, mailers

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LITTLE ROCK -- A federal judge on Thursday rejected an Arkansas Supreme Court justice's effort to halt attack ads and mailers from a Washington-based conservative group that is trying to unseat her in next week's election.

U.S. District Judge Brian Miller denied Justice Courtney Goodson's request for a preliminary injunction halting the attacks from the Republican State Leadership Committee's Judicial Fairness Initiative. Goodson is running against David Sterling, an attorney for the state Department of Human Services, in Tuesday's election. The RSLC has spent more than $1.2 million this fall attacking Goodson and supporting Sterling.

Goodson argued that the group's attacks over gifts from donors and a pay raise the high court requested last year were false and defamatory. Miller said Goodson's defamation claims were unlikely to succeed and that halting the ads would violate the First Amendment.

"Enjoining RSLC-JFI from further communicating or publishing its campaign advertisements would amount to a constitutionally impermissible prior restraint on speech," Miller wrote.

A 15-second television ad from the group and a mailer cited a $50,000 trip to Italy that Goodson received in 2012 from W.H. Taylor, an attorney and friend of her husband's. Goodson says she has recused herself from cases involving her husband, Taylor or Tyson Foods Inc., a company Taylor has represented. Miller ruled that the group's claims regarding the gifts and donations were true "in isolation" and didn't explicitly connect them with any specific ruling by Goodson.

"Although nothing presented so far proves that Goodson has a bias in favor of particular litigants or lawyers, she has the burden of proving, by clear and convincing evidence, that RSLC-JFI acted with actual malice when it made these allegedly defamatory statements," he wrote.

Miller also ruled that the justice was unlikely to prove the group acted with actual malice when it claimed she requested an $18,000 pay raise last year. Goodson testified Wednesday that she was one of two justices to vote privately against asking for the raise that the court's chief justice requested from a panel that sets elected state officials' salaries. The panel rejected the request and instead raised justices' pay by 2 percent, giving her a $3,330 raise.

RSLC praised the ruling and said the decision, along with its criticism of the justice over the gifts and other issues, showed why she should be voted out next week.

"A much better judge than Courtney Goodson just tossed her latest, outrageous assault on the First Amendment," David James, a spokesman for the group, said in an email.

A state judge in May temporarily blocked a TV ad from another group, the Judicial Crisis Network, against Goodson through that month's judicial election. Judicial Crisis Network, which is not required to disclose its donors, has not run any ads in the race since the May election.

Goodson's attorney said the justice's court fight "put sunshine" on spending by outside groups.

"While we lost this battle against dark money this time, Justice Goodson returns today asking the voters to reject the efforts by these outsiders to hand pick someone for our state's Supreme Court," Lauren Hoover said in an email.

Goodson, who lost her bid for chief justice two years ago after facing similar attack ads from Judicial Crisis, has drawn the ire of conservatives for past court rulings including a decision she authored striking down Arkansas' cap on punitive damages.

Arkansas' Supreme Court seats are nonpartisan, but Sterling and Goodson have both made appeals to the right. During her 2016 chief justice bid, Goodson had the endorsement of the National Rifle Association and vowed represent "conservative" values. Sterling, who ran unsuccessfully for the GOP nomination for attorney general four years ago, promotes his membership in the NRA and the Federalist Society in campaign literature.

Arkansas is one of several states where court races have become more partisan and negative, with outside groups spending big. RSLC, which launched its initiative focused on state court races in 2014, and its donors this year have included the U.S. Chamber of Commerce, tobacco company Reynolds American, Bentonville-based Wal-Mart Stores and other major corporations. The group spent nearly $745,000 on the high court race in the spring.

State Desk on 11/02/2018

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