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ALABAMA GAS CORPORATION, )Plaintiff, )

)

V. ) Case No.: CV-2014-000488.00

)

THE ADVERTISER COMPAN

DBA, )

MULTIMEDIA INC, )

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 FILED9/23/2014 8:31 AM

01-CV-2014-000488.00CIRCUIT COURT OF

JEFFERSON COUNTY, ALABAMANNE-MARIE ADAMS, CLERK

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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 theDIMP. At this point, however, the court cannot conclude that any such

transgressions are severe enough to trump the heavy presumption against prior

restraint. SeeCBS, 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

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/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.