This is Entergy Arkansas LLC v. Arkansas Democrat-Gazette Inc., a case I blogged about yesterday, where a data center construction company sought a temporary restraining order barring the Arkansas Democrat-Gazette from publishing certain alleged trade secrets that were allegedly improperly released by the Arkansas Public Service Commission to a citizen (Jessica Kivell) and were then sent by her to the Democrat-Gazette.
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that → blogge → Gazette
I now have a copy of the transcript of Judge Lee Rudofsky's oral opinion that he delivered in court yesterday.
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he → have → court
The opinion is long, but here's a slightly edited excerpt of the First Amendment discussion, which focuses on the TRO request against the press defendants.
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which → edit → defendants
As usual, I use curly braces ({ and }) to indicate moved text, clean up some of the citations, and add or remove some paragraph breaks.
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I → use → breaks
The court concluded that, even "assuming arguendo that there's a fair chance that the press defendants have violated the federal and state trade secrets provisions," the First Amendment would preclude the TRO:
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Amendment → conclude → TRO
What Entergy is asking for with regard to the press defendants is actually or is the equivalent of a prior restraint.
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asking → ask → restraint
Entergy is asking that the Court prevent the press defendants from publishing news articles that include information Entergy believes to be trade secrets….
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Entergy → ask → information
[S]ome of [what follows] are quotes, some of these are slight paraphrases….
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some → follow → these
The Supreme Court has held that "prior restraints of expression come to courts bearing a heavy presumption against constitutional validity." …
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restraints → hold → validity
"Prohibiting the publication of a news story is the essence of censorship."
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Prohibiting → prohibit → censorship
"A plaintiff must make an extraordinary showing of harm in order to obtain a court order that stops the news media from publishing information on a matter of public concern."
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that → make → concern
The prior restraint doctrine has been applied in the context of trade secrets cases as well, and although the Court acknowledges that in this context, just as in some other contexts, courts continuously note that not all prior restraints are per se unconstitutional….
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restraints → apply → contexts
[T]here is an absence of cases where a court has actually prevented the press from publishing trade secrets.
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court → prevent → secrets
Indeed, as I understand it from yesterday, plaintiff has only pointed to one case from the California Supreme Court.
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plaintiff → understand → Court
Overall, … courts in trade secrets cases have noted that "To justify a prior restraint on pure speech, publication must threaten an interest more fundamental than the First Amendment itself."
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publication → note → Amendment
This exception to the prior restraint rule, a very, very small exception for when publications threaten an interest more fundamental than the First Amendment itself, has turned out to be extremely, extremely narrow, which, again, is really no surprise given the language of the Supreme Court and other cases used to describe that narrow exception.
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which → threaten → exception
The Supreme Court has held that, "Even where questions of allegedly urgent national security or competing constitutional interests are concerned," it has imposed this most extraordinary remedy, meaning prior restraint, "only where the evil that would result from the reporting is both great and certain and cannot be militated by less intrusive measures."
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that → hold → measures
If threats to national security are only sometimes sufficient to warrant a prior restraint, the threat to plaintiff's trade secrets are woefully inadequate….
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threat → warrant → secrets
There is no case the Court or Entergy itself appears to be aware of in the entire federal system that holds otherwise….
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that → be → system
I want to emphasize, this is a TRO [temporary restraining order] ruling.
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this → want → ?
For a PI [preliminary injunction] ruling, I will have more time to do additional research, and maybe I will find that that's not the case.
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that → have → research
In any event, Entergy's stated harms are in my view also much too vague to overcome the vital First Amendment interest here.
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harms → state → interest
As … Justice Brennan said in a concurring opinion in [New York Times v. U.S.], "The First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result."
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consequences → say → surmise
In my view, Entergy's contentions that the publication of pricing information and contract terms will actually harm its ability to negotiate with similar entities in the future is at best and on this record speculation.
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publication → harm → record
It's certainly not clear enough to overcome the First Amendment prior restraint doctrine.
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It → overcome → doctrine
I'll also note here that to the extent we had any conversations yesterday about interests that were sort of not Entergy's, meaning interests that were Entergy's negotiating partner's interests, that negotiating partner is not here.
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partner → note → interests
They are not a plaintiff in this suit, and so I am not considering those interests….
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I → consider → interests
[Entergy also] argued that the prior restraint doctrine only applies to matters of significant public concern ….
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doctrine → argue → concern
[But t]he information that Entergy alleges to be trade secrets in my view does constitute a matter of public concern, and that's true for a few reasons.
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that → allege → reasons
First, from what the Court heard yesterday, it appears that the pricing information and other terms of the contract have, at the very least, an indirect effect on ordinary ratepayers throughout Arkansas….
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information → hear → Arkansas
Arkansans certainly have an interest in why their electric bills are whatever they are.
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they → have → interest
Relatedly, while Entergy is a private company, it is also properly thought of as a public utility, and as the Court understands it, Entergy essentially or close to essentially has a monopoly—again, maybe something close to it; the record needs to be more developed on that point—over Arkansans' electric services.
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record → think → services
Given this monopoly or something close to a monopoly and the public nature of Entergy's business, including the need for PSC [Public Service Commission] approval generally and specifically related to this deal, Entergy's workings, its dealings, and the details of its business arrangements, especially with large users of power, for example, Altitude or Google, are matters that an ordinary Arkansan citizen may very well want to be aware of.
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citizen → give → that
{And I do want to, again, emphasize here I am making these determinations on a completely undeveloped record; nobody's fault again, but just given that this case is a day old.}
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case → want → record
Nothing that I'm saying should suggest in one way or the other, you know, whether this stuff can be discoverable under FOIA [Arkansas's Freedom of Information Act], whether the PSC should release this information, whether or not the PSC should have a protective order in place to cover this information; that is not my point here.
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that → say → information
My point is that taking as a baseline that this information has somehow gotten its way to the press, I have to decide whether or not it's of public interest with respect to the First Amendment.
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it → take → Amendment
I will also add here, there is nothing that I heard yesterday that suggests the Arkansas Democrat-Gazette or the other press defendants sort of, you know, nefariously got this information, or, you know, sort of were using Ms. Kivell or anyone else as a stooge to get this information.
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you → add → information
What I understand is through no sort of, you know, attempt of its own in these particular narrow circumstances, the information was given to the Arkansas Democrat-Gazette freely after the PSC provided it to Ms. Kivell…
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PSC → understand → Kivell
A public utility company's [one-off] arrangement with a large datacenter may very well have repercussions across the state presumably, or at least potentially, in both very positive and potentially or presumably very negative ways, too.
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arrangement → have → ways
That is precisely why these sorts of service agreements must be filed in the first place with the Public Service Commission and the Public Service Commission gets to review them.
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Commission → file → them
…and 31 more, not listed.
The Aporia
