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 court has called prior restraints against the press the “most serious” of all First Amendment violations.
There is no economic disincentive stopping Entergy from SLAPPing again the next time a news report interferes with its business.
Ultimately, U.S. District Court Judge Lee Rudofsky rightly denied Entergy’s request for an emergency gag order. Entergy subsequently dropped the case. But it forced the defendants to lose money, time, and sleep. (Kivell, who rushed to court in her work scrubs for the hearing on Entergy’s motion, reportedly broke down sobbing in the courthouse hallway.) The defendants should have been able to at least recover their legal costs but, because they were in federal court, they could not.
Arkansas, like 39 other states and the District of Columbia, has an anti-SLAPP law allowing those hit with frivolous anti-speech lawsuits to recover their attorneys’ fees. But there is no federal anti-SLAPP statute, and district courts in the 8th U.S. Circuit Court of Appeals, which includes Arkansas, have declined to apply the state’s anti-SLAPP law. Federal courts in some states, like Florida, apply state anti-SLAPP laws, but many others decline to do so, viewing them as in conflict with federal pleading standards.
That means that other than their own legal fees — likely a drop in a bucket for them — there is no economic disincentive stopping Entergy from SLAPPing again the next time a news report interferes with its business in hopes that an incompetent judge grants it unconstitutional relief (it wouldn’t be the first time, unfortunately), or a scared defendant backs down without a fight.
Now let’s head to California. In 2023, independent journalist Jack Poulson published a story in his news outlet, All-Source Intelligence, about the 2021 domestic violence arrest of Maury Blackman, then CEO of Premise Data, a surveillance tech company that holds U.S. government contracts. Poulson reported on and linked to a police report that Blackman claimed the government never should have released because it was sealed. (Under California law, the records could be sealed because charges were not filed.)
Blackman sued Poulson; Substack, which hosted the article; and others in an attempt to not only punish them for their journalism, but also scrub the articles and police report from the internet. For the same reasons Entergy’s case failed, a judge threw out Blackman’s SLAPP. That decision was affirmed by an appeals court last week.
Leading its opinion with a quote from the Florida Star case, the appellate court also upheld the lower court’s award of attorneys’ fees to the defendants under California’s robust anti-SLAPP law. That means Blackman will need to reimburse his SLAPP target’s legal fees, and that other wannabe SLAPPsters in California might think twice knowing there are consequences for weaponizing the courts against their critics.
While Poulson’s victory was more satisfying than the Arkansas defendants’ win, in both cases, the plaintiffs achieved the exact opposite of what they wanted. The stories they tried to bury became national news as their lawsuits got far more coverage than the records they sought to suppress. It’s a phenomenon Techdirt editor Mike Masnick dubbed the Streisand effect, after a privacy lawsuit by the singer backfired and drove exponentially more publicity than it prevented.
Blackman, whose suit was only one component of a multifaceted censorship and intimidation campaign, went from his sealed arrest report appearing on a single, relatively niche blog to being detailed in an opinion from the California Court of Appeals, not to mention reported on by everyone from the San Francisco Chronicle to Courthouse News. Blackman only made things worse when he or his apparent representatives tried to manipulate Google to keep the articles about his arrest and SLAPP suits out of searches, generating even further bad press.
Oddly enough, he now runs a reputation management company. Go figure.
But public shaming is of little use to people like Kivell, whose lives are interrupted by legal nonsense from companies or governments trying to censor them. That’s why Congress needs to pass a federal anti-SLAPP law that would apply even if states decline to enforce their local versions. That would give defendants in federal court, like Kivell, what Poulson had in California: a quick way to get meritless speech suits dismissed, with plaintiffs paying the price.
Nobody’s ability to request public records or publish news should depend on which courthouse a corporation picks.
The post An Arkansas Mom Obtained Public Records About a New Data Center. Then She Got Sued. appeared first on The Intercept.