Special Investigations

Press Freedom Defense Fund

An Arkansas Mom Obtained Public Records About a New Data Center. Then She Got Sued.

Cases in Arkansas and California show how desperately we need a federal law against lawsuits intended to chill free speech.

Seth Stern is the director of advocacy for Freedom of the Press Foundation.

Two wealthy lawfare warriors recently failed in their attempts to bury reporting on government-released documents. Both lawsuits — one in state court in California, the other in federal court in Arkansas — were frivolous strategic lawsuits against public participation, known as SLAPPs. Supreme Court precedent couldn’t be clearer that it’s not the journalists’ problem if the government accidentally shares information it’s not supposed to disclose. 

But only the California SLAPP victim had any real recourse against the censorial bully who wanted to shut him up — not because that case was any more frivolous than the Arkansas one, but because of the court in which it was filed.

Let’s start with the Arkansas case. Jessica Kivell — a mom, healthcare worker, and concerned citizen — sought to find out who was paying for a data center project in West Memphis. She filed public records requests with the Arkansas Public Service Commission and received documents indicating Google would cover only one-third of the cost of a new solar plant to power the facility, contradicting its promises that ratepayers would not be on the hook. Kivell shared the documents with the Arkansas Democrat-Gazette, which reported on them.

Entergy Arkansas, the utility set to build the solar facility, sued Kivell, the Democrat-Gazette, its reporter, and the Arkansas Times, which said it never even had the records. It claimed the commission erred by releasing the records to Kivell, that they contained trade secrets (sidenote: baseless invoking the need to protect trade secrets to duck public records laws is also a serious problem), that she and the press should be restrained from discussing them, and the Democrat-Gazette should have to take down what it had already reported. Entergy also disputed the Democrat-Gazette’s math on how Google would share the costs.

There are at least four Supreme Court cases that should have put Entergy’s lawyers on notice that they had no legal leg to stand on. Even in scenarios involving information far more sensitive than a utility’s purported business secrets — and far less newsworthy than the public being misled about what a data center would cost them — the court has rejected “prior restraints” that would claw back records that the government released inadvertently. 

One such case, Florida Star v. BJF, involved a newspaper that published the name of a rape victim in violation of state law. The court held the law was unconstitutional to the extent it barred news outlets from publishing information released by the government, regardless of whether the government intended to release it. The red-line rule against holding the press liable for the government’s failure to protect confidences makes sense given that the........

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