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Free Speech

Judge's Opinion Denying TRO Against Arkansas Democrat-Gazette as to Publishing of Data Center Plans

Eugene Volokh | 9.3.2026 12:22 PM

This is Entergy Arkansas LLC v. Arkansas Democrat-Gazette Inc., a case I blogged about yesterday, where a data center construction company sought a temporary restraining order barring the Arkansas Democrat-Gazette from publishing certain alleged trade secrets that were allegedly improperly released by the Arkansas Public Service Commission to a citizen (Jessica Kivell) and were then sent by her to the Democrat-Gazette. I now have a copy of the transcript of Judge Lee Rudofsky's oral opinion that he delivered in court yesterday. The opinion is long, but here's a slightly edited excerpt of the First Amendment discussion, which focuses on the TRO request against the press defendants. As usual, I use curly braces ({ and }) to indicate moved text, clean up some of the citations, and add or remove some paragraph breaks.

The court concluded that, even "assuming arguendo that there's a fair chance that the press defendants have violated the federal and state trade secrets provisions," the First Amendment would preclude the TRO:

What Entergy is asking for with regard to the press defendants is actually or is the equivalent of a prior restraint. Entergy is asking that the Court prevent the press defendants from publishing news articles that include information Entergy believes to be trade secrets….

[S]ome of [what follows] are quotes, some of these are slight paraphrases…. The Supreme Court has held that "prior restraints of expression come to courts bearing a heavy presumption against constitutional validity." … Bantam Books v. Sullivan (1963). "Prohibiting the publication of a news story is the essence of censorship." … Matter of Providence J. (1st Cir. 1986)…. "A plaintiff must make an extraordinary showing of harm in order to obtain a court order that stops the news media from publishing information on a matter of public concern." New York Times v. U.S. (1971)….

The prior restraint doctrine has been applied in the context of trade secrets cases as well, and although the Court acknowledges that in this context, just as in some other contexts, courts continuously note that not all prior restraints are per se unconstitutional…. [T]here is an absence of cases where a court has actually prevented the press from publishing trade secrets. Indeed, as I understand it from yesterday, plaintiff has only pointed to one case from the California Supreme Court. And, quite frankly, that case is both unpersuasive and very far afield from the facts of our case.

Overall, … courts in trade secrets cases have noted that "To justify a prior restraint on pure speech, publication must threaten an interest more fundamental than the First Amendment itself." Procter & Gamble Co. v. Bankers Trust Co. (6th Cir. 1996)…. This exception to the prior restraint rule, a very, very small exception for when publications threaten an interest more fundamental than the First Amendment itself, has turned out to be extremely, extremely narrow, which, again, is really no surprise given the language of the Supreme Court and other cases used to describe that narrow exception. The Supreme Court has held that, "Even where questions of allegedly urgent national security or competing constitutional interests are concerned," it........

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