AlaFileE-Notice

To: BOLGERBETHANYLYNN
bbolger@rsjg.com
01-CV-2014-000488.00
Judge:ROBERTS.VANCE
NOTICEOFCOURTACTION
INTHECIRCUITCOURTOFJEFFERSONCOUNTY,ALABAMA
Acourtactionwasenteredintheabovecaseon9/23/20148:31:50AM
ALABAMAGASCORPORATIONVSTHEADVERTISERCOMPANYDBAETAL
01-CV-2014-000488.00
ORDER
NoticeDate: 9/23/20148:31:50AM
[Filer:]
ANNE-MARIEADAMS
CIRCUITCOURTCLERK
JEFFERSONCOUNTY,ALABAMA
716N.RICHARDARRINGTONBLVD.
BIRMINGHAM,AL35203
205-325-5355
anne-marie.adams@alacourt.gov
JEFFERSONCOUNTY,ALABAMA
GRANTED Disposition:
Judge: RSV
ALABAMA GAS CORPORATION, )
Plaintiff, )
)
V. ) Case No.: CV-2014-000488.00
)
THE ADVERTISER COMPANY
DBA,
)
MULTIMEDIAINC, )
GANNETT COMPANY INC, )
Defendants. )
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA
BIRMINGHAM DIVISION
ORDER
Pending is a Motion to Dissolve Temporary Restraining Order, filed by defendant,
The Advertiser Company. In its motion, this defendant argues that the TRO
entered on September 12, 2014, constitutes an improper prior restraint contrary to
the rights afforded by the First Amendment to the U. S. Constitution and Article 1,
4 of the Constitution of the State of Alabama.
A succinct definition of a prior restraint comes from Cooper v. Dillon, 403 F.3d
1208, 1215 (11th Cir. 2005), where the U.S. Court of Appeals for the Eleventh
Circuit stated that [a] prior restraint on speech prohibits or censors speech before
it can take place. The Eleventh Circuit went on to observe that [c]lassic prior
restraints have involved judge-issued injunctions against the publication of certain
information. Id., citing Nebraska Press Ass'n v. Stuart, 427 U. S. 539, 55658,
96 S. Ct. 2791, 280103 (1976).
From New York Times Co. v. United States, 403 U. S. 713, 714, 91 S. Ct. 2140,
2141 (1971), comes that principle that [a]ny system of prior restraints of
expression comes to this Court bearing a heavy presumption against its
constitutional validity (citation omitted). Plaintiff, Alabama Gas Corporation,
thus carries a heavy burden of showing justification for the imposition of such a
restraint. Id. This court also notes Justice Blackmuns view that [w]here ... a
direct prior restraint is imposed upon the reporting of news by the media, each
ELECTRONICALLY FILED
9/23/2014 8:31 AM
01-CV-2014-000488.00
CIRCUIT COURT OF
JEFFERSON COUNTY, ALABAMA
ANNE-MARIE ADAMS, CLERK
passing day may constitute a separate and cognizable infringement of the First
Amendment. Nebraska Press Assn. v. Stuart, 423 U. S. 1319, 1329, 96 S. Ct.
237, 254 (1975) (Blackmun, J., in chambers). Thus, even though an evidentiary
hearing is set for only two days from now on the plaintiffs motion for a
preliminary injunction, this court is obliged to carefully scrutinize the defendants
pending motion.
The final piece of authority on which this court now relies is CBS, Inc. v. Davis,
510 U.S. 1315, 1317, 114 S. Ct. 912, 914, (1994). The Supreme Court there noted
that [e]ven where questions of allegedly urgent national security, see New York
Times Co. v. United States, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971),
or competing constitutional interests, Nebraska Press Assn., 427 U.S., at 559, 96
S. Ct., at 2802, are concerned, we have imposed this most extraordinary
remed[y] only where the evil that would result from the reportage is both great
and certain and cannot be mitigated by less intrusive measures. Id., at 562, 96 S.
Ct., at 2804. As defendants counsel characterized it, such a prior restraint might
arguably be proper only if it serves to avert a clear and present danger to this
countrys national security.
At this stage, the court cannot see such a clear and present danger. In its motion
for a temporary restraining order, the plaintiff raised the danger of terrorism and
sabotage if data within its Distribution Integrity Management Plan were publicly
disclosed. While such possibilities might exist, they now appear to be only vague
phantoms. On reflection, the court finds that it too readily focused on such ghosts
in entering the Temporary Restraining Order sought by the plaintiff.
The plaintiff cites other grounds justifying the entry of the TRO here. It argues
that the DIMP is private property not properly subject to public disclosure. While
this may be true, it is also uncontested that the plaintiff voluntarily produced the
DIMP to the Public Service Commission, thereby ceding unfettered control over
its property.
Further, the plaintiff has shown some evidence that The Advertiser Company did
not comport with requirements imposed by PSC regulations in requesting the
DIMP. At this point, however, the court cannot conclude that any such
transgressions are severe enough to trump the heavy presumption against prior
restraint. See CBS, Inc. v. Davis, 510 U. S. at 1318, 114 S. Ct. at 914.
Mindful of the constitutional implications involved, this court concludes that it
erred in granting the plaintiffs motion for a temporary restraining order. That
/s/ ROBERT S. VANCE
CIRCUIT JUDGE
order is therefore vacated and set aside, effective immediately.
This order does not affect the hearing set for this coming Thursday on the
plaintiffs motion for a preliminary injunction.
DONE this 23rd day of September, 2014.