Does Arkansas law prohibit a newspaper from publishing the names of potential jurors?

Plain-English summary

Representative Frances Cavenaugh asked whether Ark. Code Ann. § 16-32-111 prohibits a local newspaper from publishing the names and other information of potential jurors. Her question came from a real situation: a local paper had a list of potential jurors and either had published or planned to publish the names.

Attorney General Leslie Rutledge said no. The statute is not a general gag rule on the press. It does two things: (1) it provides a procedure for a court to order specific juror information confidential on a finding of "good cause," and (2) it then prohibits a closed list of recipients (attorneys, parties appearing pro se, audit and similar government activities, and grand juries or courts) from re-disclosing that confidential information except to a tightly defined further list (clients, attorney employees, associated attorneys, and consultants on a specific case). Newspapers are not on either list. The AG also flagged a constitutional point in a footnote: a broad ban on the press publishing lawfully obtained juror names "would likely constitute prior restraint and thus violate the first amendment to the United States Constitution."

The AG offered one cautionary note. If a person who lawfully received the confidential juror information leaked it to the press, that person could be prosecuted for the unlawful disclosure. The newspaper's publication is protected, but the leaker's disclosure is not.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Section 16-32-111 has been amended periodically. The list of authorized recipients and the penalty structure may have changed since 2019. Anyone relying on this analysis today should pull the current statute and check for newer AG opinions or Arkansas Supreme Court guidance on jurors' privacy and press access.

Historical context

What the statute actually does (as of 2019)

Section 16-32-111 has two operating parts.

Part 1: A confidentiality-order mechanism. Under § 16-32-111(b), on application of any person and findings of good cause on the record, a circuit court or circuit clerk may order specific "juror information" confidential. "Juror information" is defined narrowly in § 16-32-111(a) as: an original or copy of a list of potential jurors; a list of potential jurors who have been sworn and qualified; a response to a juror questionnaire; or a list of an individual venire panel.

Part 2: A closed list of permissible recipients and re-disclosers. When juror information is confidential, the statute prohibits release except to:

1. Any attorney eligible to represent a party in a proceeding before the circuit court.
2. A party appearing pro se in a proceeding before the circuit court (limited to the juror information relevant to that proceeding).
3. Audit or similar activities authorized by law.
4. A grand jury or court when the information is necessary for a determination before it.

Anyone receiving the confidential juror information on this list is then barred under § 16-32-111(d) from re-disclosing it to anyone other than: a client of an attorney; an attorney's employee; an associated attorney; or someone with whom an attorney or pro se party may consult about potential jurors in a specific case. A violation is a Class C misdemeanor under § 16-32-111(e).

Why the statute does not cover newspapers (as of 2019)

The statute is silent about the press. The AG used the plain-meaning rule from MacSteel Div. of Quanex v. Arkansas Okla. Gas Corp., 363 Ark. 22, 210 S.W.3d 878 (2005): when statutory language is plain and unambiguous, it is construed as written. The list of restricted persons is explicitly enumerated, and newspapers are not on it. The statute therefore cannot be read as a general prohibition on press publication of juror information.

The AG also flagged the First Amendment problem. A general statutory ban on the press publishing lawfully obtained juror names would face a near-fatal prior-restraint challenge under U.S. Supreme Court doctrine. The AG cited Kenneth J. Melilli, Disclosure of Juror Identities to the Press: Who Will Speak for the Jurors?, 8 Cardozo Pub. L. Pol'y & Ethics J. 1, 21 (2009): "[O]nce the press has access to information, any attempt to restrict publication of that information would, with virtual certainty, be an unconstitutional prior restraint."

What the AG did not bless

The AG was careful to flag the back end. The statute does not protect a leaker. If an attorney, party, government auditor, or grand juror with lawful access to confidential juror information passes it to a journalist, the leaker can be prosecuted under § 16-32-111(e). That is enforcement against the disclosure, not the publication. The Class C misdemeanor reaches the leaker, not the press.

Common questions

Q: Can a newspaper publish a list of potential jurors that it gets from a public source?
A: Per the AG, yes. Section 16-32-111 only prohibits disclosure of juror information that a court has actually ordered confidential, and only by the specific persons enumerated in the statute. Newspapers are not on that list.

Q: What if the court orders the juror list confidential? Can the paper still publish?
A: The statute does not prohibit the newspaper from publishing if the paper lawfully obtained the list. A statutory ban on press publication of lawfully obtained information would likely violate the First Amendment.

Q: Who is restricted from disclosing confidential juror information?
A: The closed list at § 16-32-111(b): attorneys, pro se parties, audit-and-similar government activities, and grand juries or courts. Each can use the information for the proceeding, and can re-disclose only to a narrow set (clients, employees, associated attorneys, consultants on a specific case).

Q: What if someone with authorized access leaks confidential juror information?
A: They can be prosecuted under § 16-32-111(e), a Class C misdemeanor. The leaker, not the newspaper, faces criminal exposure.

Q: Why is the First Amendment relevant here?
A: Because a general statutory ban on the press publishing lawfully obtained information about jurors would almost certainly be a prior restraint, which the U.S. Supreme Court has held is presumptively unconstitutional. The AG flagged this constitutional issue to reinforce the statutory reading.

Background and statutory framework

Ark. Code Ann. § 16-32-111 was enacted to protect jurors from harassment and retaliation. It was a calibrated compromise between juror privacy and traditional public access to court proceedings. The statute does not generally close juror lists to the public; it provides a case-specific mechanism for a court to seal them on good-cause findings, and then narrowly controls who can receive and re-share the sealed information.

The AG's interpretation reflects standard Arkansas statutory-construction doctrine: when the statute lists specific persons or entities, the omission of others is meaningful. The press's omission here is decisive. Combined with the First Amendment overlay, the AG's reading was the only one that made sense.

The cited MacSteel case stands for the plain-meaning rule: when statutory language is clear and unambiguous, courts construe it as written. The same principle is restated repeatedly in Arkansas Supreme Court statutory-interpretation cases.

Citations and references

Statutes:

• Ark. Code Ann. § 16-32-111(a) (definition of "juror information")
• Ark. Code Ann. § 16-32-111(b) (confidentiality order; authorized recipients)
• Ark. Code Ann. § 16-32-111(c) (receipt requirement)
• Ark. Code Ann. § 16-32-111(d) (restriction on re-disclosure)
• Ark. Code Ann. § 16-32-111(e) (Class C misdemeanor)
• U.S. Const. amend. I (First Amendment, prior restraint)

Cases:

• MacSteel Div. of Quanex v. Arkansas Okla. Gas Corp., 363 Ark. 22, 210 S.W.3d 878 (2005), Ark. Supreme Court, plain-meaning rule

Reference:

• Kenneth J. Melilli, Disclosure of Juror Identities to the Press: Who Will Speak for the Jurors?, 8 Cardozo Pub. L. Pol'y & Ethics J. 1 (2009)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Opinion No. 2018-114
February 19, 2019

The Honorable Frances Cavenaugh
State Representative
701 Park Lane
Walnut Ridge, AR 72476-2046

Dear Representative Cavenaugh:

This is in response to your request for an opinion on the following question:

Pursuant to Ark. Code Ann. § 16-32-111, does state law prohibit a newspaper from publishing the names and other information of potential jurors?

As background for your question, you state in your request letter that "[a] local newspaper has or seeks to publish the names of potential jurors in the newspaper." You provide no other background information.

RESPONSE

I take your question to be asking if Ark. Code Ann. § 16-32-111, which concerns making certain juror information confidential and subsequently restricting that information's disclosure, prohibits a newspaper from publishing information concerning potential jurors. The answer is "no." The statute is not a general prohibition on publishing such information. Section 16-32-111 only prohibits certain persons from disclosing juror information that a court has ordered to be confidential. The news media is not among the class of persons listed in the statute who are prohibited from disclosing confidential juror information.

DISCUSSION

I infer from your request for my opinion that the local newspaper in question already has a list of potential jurors that it either has published or intends to publish. I have not been provided any information as to how the newspaper in question obtained such a list. However, based on the statute you specifically asked about, Ark. Code Ann. § 16-32-111 (Supp. 2017), those details are likely irrelevant to your question. This statute only applies to juror information that has specifically been ordered confidential by the court, and then only to those people or entities specifically enumerated in the statute. Newspapers and the news media more broadly are not listed.

The question you present is one of statutory interpretation. The relevant portions of section 16-32-111 have two main provisions. The first is the process by which juror information may be ordered confidential. The second concerns the prohibition against disclosing such confidential information except to certain parties enumerated in the statute, who are themselves then prohibited from further disclosing the information.

The first relevant portion of section 16-32-111 states:

(b) Upon application by any person and findings on the record for good cause, any juror information submitted to a circuit court or circuit clerk from which the identity of a particular juror can be determined is confidential and shall not be released or otherwise made available except:

(1) To any attorney eligible to represent a party in a proceeding before the circuit court;
(2) To a party appearing pro se in a proceeding before the circuit court and limited to the juror information relevant to that particular proceeding;
(3) For any audit or similar activity conducted with the administration of any plan or program by any governmental agency that is authorized by law to conduct the audit or activity; or
(4) To a grand jury or court upon a finding that the juror information is necessary for the determination of an issue before the grand jury or court.

It is important to note at this point that there would be no issue with disclosing the juror information you have asked about if there is no court-ordered confidentiality. If the persons or entities listed above lawfully receive the confidential juror information, the statute then bars them from disclosing the information to anyone other than: (1) A client of an attorney (or the client's legally authorized representative); (2) an employee of an attorney; (3) another attorney who is associated with an attorney who receives the juror information; or (4) someone with whom an attorney or a pro se party may consult or confer regarding potential jurors in a specific case. A violation of section 16-32-111's disclosure prohibitions is a Class C misdemeanor.

The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary meaning and usually accepted meaning in common language. MacSteel Div. of Quanex v. Arkansas Okla. Gas Corp., 363 Ark. 22, 210 S.W.3d 878 (2005). When the language of the statute is plain and unambiguous, there is no need to resort to rules of statutory construction.

Section 16-32-111 is clear and unambiguous, both as to what it permits and what it prohibits. It permits juror information to be ordered confidential upon an application and the subsequent findings of good cause made on the record. It then prohibits that confidential information from being "released or otherwise made available" except to the people or parties expressly allowed by the statute, who are in turn prohibited from disclosing the confidential information. Yet section 16-32-111 is silent regarding the disclosure or publication of the confidential information by a party that is not authorized to have it.

A general, broad-based prohibition against the publication of jurors' names that a news organization has obtained would likely constitute prior restraint and thus violate the first amendment to the United States Constitution.

In sum, section 16-32-111 only applies to certain information from which the identity of a particular juror can be determined and that a court has ordered confidential. Furthermore, the prohibition against disclosure of such confidential information is applicable only to the persons or entities specifically enumerated in the statute. In my opinion, that statute cannot be read as a general prohibition against a newspaper's publishing a list of potential jurors.

A person who lawfully obtained the confidential information can be prosecuted for unlawfully leaking the information to the media.

Sincerely,

Leslie Rutledge
Attorney General