ACLU says judge’s order stopping ‘dark money’ ads is unconstitutional


FOR FREE SPEECH: ACLU of Arkansas's Rita Sklar (file photo). - BRIAN CHILSON

  • Brian Chilson
  • FOR FREE SPEECH: ACLU of Arkansas’s Rita Sklar (file photo).

The ACLU of Arkansas issued a statement Wednesday condemning Washington County Circuit Judge Doug Martin’s decision to halt some Northwest Arkansas TV stations from airing political ads purchased by the Judicial Crisis Network, an out-of-state “dark money” group.

The JCN’s ads attack Associate Supreme Court Justice Courtney Goodson in her race for reelection on May 22. The group, which does not disclose its donors, has spent over $1 million to bolster the campaign of attorney David Sterling, who hopes to replace Goodson. It’s also attacked the third candidate in the race, Court of Appeals Judge Kenneth Hixson. Goodson has filed suit against the JCN, saying the advertisements make claims about her that are false and defamatory.

On Monday, Martin issued a temporary restraining order blocking the ads. He’s since come under fire for failing to recuse himself over a financial tie between his wife and Goodson’s husband.

Now, the ACLU is wading in on free speech grounds.

“This restraining order is clearly unconstitutional given that it involves the pre-emptive suppression of political speech on a matter of public concern – where the First Amendment’s protections are strongest,” ACLU of Arkansas Executive Director Rita Sklar said in a statement. “Judges should not be in the business of policing what can and cannot be said in a political campaign.”

Sklar said the group is “monitoring the case closely and evaluating our legal options.”

Sklar suggested more disclosure should be required in the campaign finance world, but not more restrictions. “The remedy for false speech is more speech – and in this case, sunshine. Speech that expressly attacks or supports the election of a candidate for judicial office can and should be subject to financial disclosure requirements that give the public timely and useful information about the sources of funds and an opportunity, prior to the election, to evaluate the possible influence of those funds,” she said.

The Judicial Crisis Network, as a 501c4 political nonprofit, does not disclose its donors, making it impossible for the public to tell who is funding the effort to elect Sterling to the Supreme Court. It skirts disclosure requirements in part by avoiding “express advocacy” — that is, explicitly telling the public “vote for” or “vote against”  — though it smears its opponents quite effectively all the same. Some states have passed laws requiring disclosure around such political ads, but an effort to do just that in Arkansas (sponsored by state Rep. Clarke Tucker) failed last legislative session.

Campaign finance restrictions and the First Amendment have often been at odds. The U.S. Supreme Court’s landmark decision in Citizens United, which helped open the door to unlimited spending by theoretically independent groups, was at core a matter of free speech.

Here’s the ACLU’s full statement:

ACLU of Arkansas Statement on Restraining Order Against TV Broadcasters for “Dark Money” Attack Ads

FOR IMMEDIATE RELEASE
May 16, 2018
CONTACT: Channing Grate, [email protected]

LITTLE ROCK – The ACLU of Arkansas today responded to the temporary judicial restraining order against several television stations barring them from airing political advertisements against a state supreme court justice. The ads were aired by a Washington, D.C.-based group, the Judicial Crisis Network, which does not disclose the source of its funding.

ACLU of Arkansas Executive Director Rita Sklar made this statement:

“Freedom of speech is a fundamental principle of our democracy, because if the government can censor one group from expressing its views, then everyone’s speech rights are at risk. This restraining order is clearly unconstitutional given that it involves the pre-emptive suppression of political speech on a matter of public concern – where the First Amendment’s protections are strongest.

“Judges should not be in the business of policing what can and cannot be said in a political campaign. Once we give the government the ability to decide what political speech is permissible, then dissent can be suppressed, protesters can be silenced – and all of our First Amendment rights are imperiled.

“The remedy for false speech is more speech – and in this case, sunshine. Speech that expressly attacks or supports the election of a candidate for judicial office can and should be subject to financial disclosure requirements that give the public timely and useful information about the sources of funds and an opportunity, prior to the election, to evaluate the possible influence of those funds.

“We are monitoring the case closely and evaluating our legal options. We urge all parties to respect the First Amendment right to freedom of speech, even speech that is false, controversial or offensive.”

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