An Orleans Parish judge was wrong when he forced judicial candidate Suzy Montero to pull TV ads that questioned the legal experience of her opponent, Rachael Johnson, on the day before the March 25 primary election, an appeals court panel ruled Wednesday.
But it's uncertain whether Montero will resume running the ads before her April 29 runoff with Johnson for a seat on the Orleans Parish Civil District Court.
Montero's ads claimed that Johnson, the daughter of Louisiana Supreme Court Chief Justice Bernette Johnson, had practiced law in Louisiana for only six years, had never tried a case in the court she hoped to join and had never been lead trial counsel in a case in any court.
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Civil District Chief Judge Sidney Cates IV issued a preliminary injunction on Friday, barring Montero's campaign from "publishing, posting, distributing or in any way making the false statements currently contained in her campaign materials."
But a panel of the 4th Circuit Court of Appeal ruled that Cates' injunction amounted to an unconstitutional restraint on free speech because Cates never found that Montero acted with "actual malice."
The term comes from a 1964 U.S. Supreme Court ruling that rejected civil judgments over the publication of falsehoods about public figures without first showing "knowledge that it was false or (was made) with reckless disregard for whether it was false or not."
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The appeals court found that Cates' order was overly broad and failed to show that Montero meant to mislead voters.
"Absent a finding of malice, the injunction cannot withstand constitutional scrutiny," 4th Circuit Judge Madeleine Landrieu wrote. She was joined by Judges Rosemary Ledet and Sandra Cabrina Jenkins.
After an attack-filled primary campaign, Montero led the voting with 45 percent to 43 percent for Johnson. Placing third was attorney Marie Williams, who took 11 percent.
It's unclear whether Montero considers the ruling a green light to air the same claims against Johnson in the runoff — or whether doing so after Cates found them to be false would now constitute malice.
Cheron Brylski, a Montero spokeswomant, said the campaign hasn't decided what it will do.
"We have made no final decision about our paid messaging going forward into the runoff except that we will continue to educate voters about the differences in the two candidates' level of experience in Louisiana, and the Civil District Court in particular," Brylski said in a statement.