SPLC Urges S.C. Supreme Court to Overturn Ruling Threatening Constitutionality of FOI Law

FOR IMMEDIATE RELEASE Contact: Frank D. LoMonte, executive director 703.807.1904 / director@splc.org

In a friend-of-the court brief filed Wednesday, the Student Press Law Center urged the South Carolina Supreme Court to overturn a trial court’s decision that clouds the constitutionality of the state’s Freedom of Information Act.

The amicus brief was filed in support of Rocky Disabato, a Charleston radio talk-show host known on the air as “Rocky D,” who was denied public records from the South Carolina Association of School Administrators (“SCASA”). The records concern the Association’s participation in a debate over federal stimulus funding from the 2009 American Recovery and Reinvestment Act.

In August 2011, Circuit Judge G. Thomas Cooper Jr. ruled in favor of SCASA, finding that applying the public records law to SCASA infringes on the organization’s First Amendment right not to speak publicly. He held that SCASA, a nonprofit corporation, is entitled to significant First Amendment protection because it “engages in core political speech and issue advocacy.”

“The trial court’s ruling is extremely dangerous, casting doubt over the constitutionality of all of South Carolina’s public disclosure laws,” said attorney Frank D. LoMonte, executive director of the SPLC. “The First Amendment was never meant to ‘protect’ government agencies against the citizens. The trial court got it exactly backward. It is the citizens who need protection against the misuse of their tax dollars to advocate for policies that are contrary to the public’s best interests, which is why SCASA must be transparent in how it is spending public money.”

Hall & Bowers, LLC, the law firm representing Disabato, appealed in October to the South Carolina Supreme Court. Last month, South Carolina Attorney General Alan Wilson also filed a brief on behalf of Disabato.

The SPLC is a nonprofit organization founded in 1974 to advocate for the free-press rights of student journalists. It was joined in the brief by the Reporters Committee for Freedom of the Press, a nonprofit that provides free legal support to professional news organizations in matters involving access to government records and proceedings. The organizations are represented by volunteer attorney Marsha A. Ward of Atlanta.

The SPLC’s brief argues that the SCASA is a public body under the state’s Freedom of Information Act, because it is subsidized largely by the government-reimbursed dues of its member public officials, enjoys governmental privileges such as access to the state health plan, and exercises statutorily delegated powers: “The SCASA looks like a public body, walks like a public body, and quacks like a public body. The conclusion is obvious: it is a public body.”

“If the release of records in compliance with the FOIA violates the author’s First Amendment right against compelled speech, then vast amounts of material that are today properly reachable by way of FOIA requests may be sheathed in secrecy,” the brief said.

In the brief, the SPLC and the RCFP explain that the U.S. Supreme Court just decided last term, in the case of Nevada Commission on Ethics v. Carrigan, that the First Amendment did not override Nevada’s state ethics laws requiring elected officials to refrain from attempting to influence matters in which they have a personal stake. “The SCASA is attempting to make almost the same specious First Amendment argument here that the Supreme Court just rejected in Carrigan,” LoMonte said.

The brief also notes that limited FOIA exemptions exist to protect truly confidential documents from disclosure, such as attorney-client privileged documents or those revealing private, personal information about individual SCASA employees.

It concludes: “It is the law in South Carolina, and in all states, that entities that receive public money and perform public functions must operate under transparency laws that enable the citizens to discharge their oversight responsibilities. If the trial court’s misapplication of the First Amendment is allowed to become the law of South Carolina, then all of the state’s ‘sunshine’ laws will be constitutionally suspect. This Court should repudiate the reasoning of the trial court and reaffirm that there is no legitimate constitutional interest in withholding public information from the taxpayers who have subsidized it.”

Since 1974, the Student Press Law Center has been devoted to educating high school and college journalists about the rights and responsibilities embodied in the First Amendment, and supporting the student news media in covering important issues free from censorship. The Center provides free information and educational materials for student journalists and their teachers on a wide variety of legal topics on its website at www.splc.org.



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