From the Arkansas Advocate:
A federal judge is considering whether to block the Arkansas Democrat-Gazette and Arkansas Times from publishing details of an agreement regarding a West Memphis data center, a move that free speech advocates say would violate the First Amendment.
U.S. District Judge Lee Rudofsky did not immediately rule after hearing three and a half hours of testimony and arguments Tuesday on Entergy Arkansas’ request for an order that would prevent the news outlets from disclosing details about Entergy’s agreements with Altitude Capital LLC, a Google subsidiary being used to set up the data center.
Much of Tuesday’s hearing before Rudofsky Tuesday occurred behind closed doors, with members of the media not allowed in the courtroom — about the request filed earlier that day by Entergy. He said he started the hearing “pretty skeptical” of Entergy’s request.
“I think you have a strong case here,” Rudofsky told Entergy’s attorneys after hearing their public arguments. “But I also think that the First Amendment gives me significant pause.”
Rudofsky, an appointee of President Donald Trump, was nominated last month by Trump to the 8th U.S. Circuit Court of Appeals.
The Democrat-Gazette published a story Monday based on non-public and confidential documents that were released through a Freedom of Information Act request. Entergy said those documents were released in error and were trade secrets.
The Democrat-Gazette reported that the documents it received showed that Google will pay Entergy Arkansas $526 million to build Cypress Solar, a solar field and solar facility that will feed the grid powering the data center. That makes up about one-third of the $1.6 billion facility’s cost.
The Democrat-Gazette said the documents were provided by Jessica Kivell, a central Arkansas resident and nurse who received them through an FOI request with the state Public Service Commission.
“We stand here for the public, to see if we can make all information relevant to the public about an issue of extreme public interest available,” Arkansas Democrat-Gazette Executive Editor Lee Wolverton said after the hearing. “That’s what we’re here to do, that’s our mission.”
In a written statement sent while the hearing was still ongoing, Entergy Arkansas spokesperson Lamor Williams said the “improper release” of the information by the Democrat-Gazette demonstrated that Google was paying its “full cost of service and is fully funding” the grid infrastructure upgrades necessary for its West Memphis project.
“We protect all customer information — whether for a household, a local manufacturer, or a global company — and yesterday’s media publication of incomplete confidential details from Google’s electricity contract violated laws protecting confidential business information as such,” Williams wrote.
The legal fight comes as several Arkansas communities have enacted measures blocking data centers or imposing new restrictions. The centers have sparked bipartisan pushback across the country over concerns about energy use and lack of transparency surrounding such projects.
The Arkansas Times is named as a defendant in the case, though the outlet said it did not have the documents.
In the lawsuit, Entergy also asked that the judge order the outlets to remove any details of its trade secrets from their websites and publications.
Entergy’s lawsuit was widely criticized by press and free speech groups.
Asking a judge to block publication goes against a history of court cases that stretches back to the U.S. Supreme Court’s Pentagon Papers decision in 1971, free speech advocacy groups said.
“They’re going against longstanding Supreme Court precedent on prior restraint by even asking for an order like this,” Seth Stern, chief of advocacy for the Freedom of the Press Foundation.
More recent cases include the Los Angeles Police Department suing a journalist over hundreds of photos of officers that were inadvertently released during a public records request. The city eventually dropped the lawsuit and paid the journalist’s attorneys fees.
Last year, a judge ordered a Mississippi newspaper to remove from its website an editorial criticizing local officials. The judge later vacated that order after the officials dropped the lawsuit that spurred it.
“This isn’t the first time that somebody has attempted to enjoin publication of inadvertently released documents, and it’s very clearly unconstitutional,” Stern said. “It’s prior restraint, which is the quintessential First Amendment violation that is only permissible in the rarest of circumstances, like an imminent threat of terrorism or something of that nature.”
Entergy argued before Rudofsky that laws surrounding intellectual property and trade secrets weakened the stringent requirements necessary for a prior restraint order, and said the injunction was necessary to protect Entergy’s property rights.
Lisa Zycherman, vice president of legal programs for Reporters Committee for Freedom of the Press, said “efforts like this are always cause for concern because a prior restraint threatens press freedom and the public’s right to the free flow of information.”
Adam Steinbaugh, an attorney for the Foundation for Individual Rights and Expression, said seeking this type of action is rare and it’s even rarer to see a judge grant such a request.
“If the government releases information, whether that’s intentional or on accident, you can’t put that genie back in the bottle,” he said. “Their complaint should be with the government for releasing it, not with a newspaper for publishing it. That’s what the First Amendment is for.”
