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

FOR IMMEDIATE RELEASEContact: Frank D. LoMonte, executive director703.807.1904 / director@splc.org

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

The amicus briefwas filed in support of Rocky Disabato, a Charleston radio talk-show host knownon the air as “Rocky D,” who was denied public records from the South CarolinaAssociation of School Administrators (“SCASA”). The records concern theAssociation’s participation in a debate over federal stimulus funding from the2009 American Recovery and Reinvestment Act.

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

“The trial court’s ruling is extremely dangerous, castingdoubt over the constitutionality of all of South Carolina’s public disclosurelaws,” said attorney Frank D. LoMonte, executive director of the SPLC. “TheFirst Amendment was never meant to ‘protect’ government agencies against thecitizens. The trial court got it exactly backward. It is the citizens who needprotection against the misuse of their tax dollars to advocate for policiesthat are contrary to the public’s best interests, which is why SCASA must betransparent 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, SouthCarolina Attorney General Alan Wilson also filed a brief on behalf of Disabato.

The SPLC is a nonprofit organization founded in 1974 toadvocate for the free-press rights of student journalists. It was joined in thebrief by the Reporters Committee for Freedom of the Press, a nonprofit thatprovides free legal support to professional news organizations in mattersinvolving access to government records and proceedings. The organizations arerepresented by volunteer attorney Marsha A. Ward of Atlanta.

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

“If the release of records in compliance with the FOIAviolates the author’s First Amendment right against compelled speech, then vastamounts of material that are today properly reachable by way of FOIA requestsmay 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 Amendmentdid not override Nevada’s state ethics laws requiring elected officials torefrain from attempting to influence matters in which they have a personalstake. “The SCASA is attempting to make almost the same specious FirstAmendment argument here that the Supreme Court just rejected in Carrigan,” LoMonte said.

The brief also notes that limited FOIA exemptions exist toprotect truly confidential documents from disclosure, such as attorney-clientprivileged documents or those revealing private, personal information aboutindividual SCASA employees.

It concludes: “It is the law in South Carolina, and in allstates, that entities that receive public money and perform public functionsmust operate under transparency laws that enable the citizens to dischargetheir oversight responsibilities. If the trial court’s misapplication of theFirst Amendment is allowed to become the law of South Carolina, then all of thestate’s ‘sunshine’ laws will be constitutionally suspect. This Court shouldrepudiate the reasoning of the trial court and reaffirm that there is nolegitimate constitutional interest in withholding public information from thetaxpayers who have subsidized it.”

Since 1974, theStudent Press Law Center has been devoted to educating high school and collegejournalists about the rights and responsibilities embodied in the FirstAmendment, and supporting the student news media in covering important issuesfree from censorship. The Centerprovides free information and educational materials for student journalists andtheir teachers on a wide variety of legal topics on its website atwww.splc.org.