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<\/p>\nSeth Stern is the director of advocacy for Freedom of the Press Foundation.<\/p>\n<\/div>\n
Two wealthy lawfare<\/span> warriors recently failed in their attempts to bury reporting on government-released documents. Both lawsuits \u2014 one in state court in California, the other in federal court in Arkansas \u2014 were frivolous strategic lawsuits against public participation, known as SLAPPs. Supreme Court precedent<\/a> couldn\u2019t be clearer that it\u2019s not the journalists\u2019 problem if the government accidentally shares information it\u2019s not supposed to disclose.\u00a0<\/p>\n But only the California SLAPP victim had any real recourse against the censorial bully who wanted to shut him up \u2014 not because that case was any more frivolous than the Arkansas one, but because of the court in which it was filed.<\/p>\n Let\u2019s start with the Arkansas case. Jessica Kivell \u2014 a mom, healthcare worker, and concerned citizen \u2014 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<\/a> on them.<\/p>\n Entergy Arkansas, the utility set to build the solar facility, sued<\/a> Kivell, the Democrat-Gazette, its reporter, and the Arkansas Times, which said<\/a> 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<\/a>), 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<\/a> the Democrat-Gazette\u2019s math on how Google would share the costs.<\/p>\n <\/p>\n There are at least four Supreme Court cases<\/a> that should have put Entergy\u2019s lawyers on notice that they had no legal leg to stand on. Even in scenarios involving information far more sensitive than a utility\u2019s purported business secrets \u2014 and far less newsworthy than the public being misled about what a data center would cost them \u2014 the court has rejected \u201cprior restraints<\/a>\u201d that would claw back records that the government released inadvertently.\u00a0<\/p>\n One such case<\/a>, 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\u2019s failure to protect confidences makes sense given that the court has called prior restraints against the press the \u201cmost serious<\/a>\u201d of all First Amendment violations.<\/p>\n There is no economic disincentive stopping Entergy from SLAPPing again the next time a news report interferes with its business.<\/p>\n<\/blockquote>\n<\/figure>\n Ultimately, U.S. District Court Judge Lee Rudofsky rightly denied Entergy\u2019s 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\u2019s motion, reportedly broke down<\/a> 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.\u00a0\u00a0<\/p>\n Arkansas, like 39 other states and the District of Columbia, has an anti-SLAPP law<\/a> allowing those hit with frivolous anti-speech lawsuits to recover their attorneys\u2019 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<\/a> to apply the state\u2019s 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.<\/p>\n That means that other than their own legal fees \u2014 likely a drop in a bucket for them \u2014 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\u2019t be the first time<\/a>, unfortunately), or a scared defendant backs down<\/a> without a fight.\u00a0<\/p>\n Now let\u2019s head to California. In 2023, independent journalist Jack Poulson published a story in his news outlet, All-Source Intelligence<\/a>, 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<\/a> 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.)<\/p>\n 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\u2019s case failed, a judge threw out Blackman\u2019s SLAPP. That decision was affirmed<\/a> by an appeals court last week.\u00a0<\/p>\n Leading its opinion with a quote from the Florida Star case, the appellate court also upheld the lower court\u2019s award of attorneys\u2019 fees to the defendants under California\u2019s robust anti-SLAPP law<\/a>. That means Blackman will need to reimburse his SLAPP target\u2019s legal fees, and that other wannabe SLAPPsters in California might think twice knowing there are consequences for weaponizing the courts against their critics.<\/p>\n While Poulson\u2019s victory was more satisfying than the Arkansas defendants\u2019 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\u2019s a phenomenon Techdirt editor Mike Masnick dubbed the Streisand effect<\/a>, after a privacy lawsuit by the singer backfired and drove exponentially more publicity than it prevented.<\/p>\n\n