Seth Stern is director of initiatives at the Freedom of the Press Foundation.
two wealthy lawyers Warriors recently tried and failed to cover up reports of the government releasing documents. The two lawsuits — one in a California court and the other in an Arkansas federal court — are frivolous strategic lawsuits against public participation, known as SLAPPs. Supreme Court precedent makes it abundantly clear that if the government accidentally shares information that it should not disclose, that’s not the reporter’s problem.
But only the victim of the California SLAPP has any real recourse against the censorship bullies who want to silence him — not because the case is more frivolous than the Arkansas case, but because of the court in which it was filed.
Let’s start with the Arkansas case. Jessica Kivell is a mother, health care worker and concerned citizen trying to find out who is paying for a data center project in West Memphis. She filed a public records request with the Arkansas Public Service Commission and received documents showing that Google would only cover one-third of the cost of powering new solar farms, contradicting Google’s promise that taxpayers would not be held responsible. Keevil shared the documents with the Arkansas Democrat-Gazette and reported on them.
Entergy Arkansas, a utility preparing to build solar facilities, sued Kivell, the Democrat-Gazette, its reporters and the Arkansas Times, which said it never had the records. It claims the committee was wrong to release the records to Keewell, that they contain trade secrets (side note: baselessly invoking the need to protect trade secrets to evade public records laws is also a serious problem), that she and the media should limit discussion of the records, and that the Democrat-Gazette should be required to remove what has been reported. Entergy also questioned the Democrat-Gazette’s calculations of how Google would share costs.
At least four Supreme Court cases should have made Entergy’s lawyers realize they had no legal basis. Even in cases involving information far more sensitive than a utility company’s purported trade secrets — and far less newsworthy than the public being misled about the cost of a data center — courts have rejected “prior restraint,” which would retract records that the government inadvertently released.
One of the cases, Florida Star v. BJF, involved a newspaper violating state law by publishing the name of a rape victim. The court found the law unconstitutional because it prohibited news outlets from publishing information released by the government, regardless of whether the government intended to release the information. Given that courts have called prior restrictions on the press the “most serious” of all First Amendment violations, objections to redline rules that would hold the press accountable for the government’s failure to protect secrets make sense.
There’s no economic reason to stop Entergy from getting slapped in the face the next time a news story disrupts its business.
Ultimately, U.S. District Court Judge Lee Rudofsky correctly denied Entergy’s request for an emergency gag order. Entergy later dropped the case. But it forced the defendant to lose money, time and sleep. (Kievel rushed the courtroom in overalls for the hearing on Entergy’s motion and reportedly sobbed in the courthouse hallway.) The defendants should at least be able to recoup their legal fees, but because they’re in federal court, they can’t.
Arkansas joins 39 other states and the District of Columbia in enacting anti-SLAPP laws that allow those hit by frivolous anti-speech lawsuits to recover attorney fees. But there is no federal anti-SLAPP statute, and a district court in the U.S. Court of Appeals for the Eighth Circuit, which includes Arkansas, declined to apply the state’s anti-SLAPP law. Federal courts in some states, such as Florida, apply state anti-SLAPP laws, but many other states refuse to do so, arguing that the laws conflict with federal pleading standards.
This means that, other than their own legal fees (which are likely to be a drop in the bucket for them), there is no financial factor preventing Entergy from getting another slap in the face the next time a news story interferes with its business, hoping that an incompetent judge will grant it unconstitutional relief (unfortunately, this won’t be the first time), or that scared defendants will back out without a fight.
Now let’s head to California. In 2023, independent journalist Jack Poulson published a report on his news outlet All-Source Intelligence about the 2021 arrest for domestic violence of Maury Blackman, the then-executive of Premise Data, a surveillance technology company that held U.S. government contracts. Poulson reported and linked to the police report, which Blackman claimed the government should never have released because it had been sealed. (Under California law, the records can be sealed because no charges have been filed.)
Blackman sued Poulsen; Substack, the article’s host; and others in an attempt not only to punish them for their news coverage but also to remove the article and police report from the web. Entergy’s case failed for the same reason, and the judge dismissed Blackman’s SLAPP. The Court of Appeal confirmed the decision last week.
The appeals court cited the Florida Star opinion and upheld a lower court’s ruling awarding attorneys’ fees to the defendants under California’s strong anti-SLAPP law. That means Blackman will need to pay back the legal fees of his SLAPP targets, and other would-be SLAPPs in California may think twice about using the weapons of the courts against their critics, knowing the consequences.
While Paulson’s victory was more satisfying than the victory for the Arkansas defendants, in both cases the plaintiffs achieved the exact opposite of what they wanted. The story they were trying to cover up became national news as their lawsuit received far more coverage than the record they were trying to suppress. Techdirt editor Mike Masnick calls this phenomenon the “Streisand effect” after a privacy lawsuit launched by the singer backfired and drew more publicity than it prevented.
Blackman’s lawsuit was just one component of a multifaceted campaign of scrutiny and intimidation, with his sealed arrest report appearing on a relatively niche blog and later detailed in a California Court of Appeals opinion, not to mention coverage by everyone from the San Francisco Chronicle to Courthouse News. It only makes matters worse when Blackman or his apparent representatives try to manipulate Google into excluding articles about his arrest and SLAPP lawsuit from searches, thereby generating more negative press.
Oddly enough, he now runs a reputation management company. Go do the math.
But public shaming is of little use to people like Keevel, whose lives are disrupted by legal nonsense from companies or governments seeking to censor them. That’s why Congress needs to pass a federal anti-SLAPP law that would apply even if states refuse to enforce their local versions. That would give defendants in federal courts like Keevil what Paulson did in California: a way to quickly dismiss baseless speech lawsuits and make the plaintiffs pay.
The ability of anyone to request public records or release news should not depend on a company’s choice of court.