United States Project

Will a South Carolina political blogger go to jail to protect his sources?

January 6, 2017

“I’m not going to rat a source out.” That’s what political blogger Will Folks, who runs FITSnews.com in South Carolina, told CJR this week on the eve of his latest deposition in a libel lawsuit brought by a former state lawmaker.

It was a bold statement–especially because a state judge ordered Folks in October to reveal, if asked to do so in a deposition, the identities of unnamed sources he cited in blog posts about the ex-lawmaker, Kenny Bingham, who is suing him for defamation.

Folks defied the judge’s order and refused to cough up the names during a deposition today.

So, what happens now?

“We will move to hold him in contempt and the court will take whatever action it thinks is appropriate,” says Bingham’s attorney John E. Parker in an interview. Asked if that could mean potential jail time for Folks, Parker says yes.

The former lawmaker is suing Folks after multiple posts appeared online at FITSnews.com stating Bingham was the subject of an ethics complaint and, in one story, stating how “insiders” at the Statehouse once believed an indictment against Binghman “would be issued.” The ex-lawmaker wants to know the identities of unnamed sources in multiple posts, though there was one on-the-record source. In Bingham’s complaint he said the allegation is false. He has not been indicted.

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Folks maintains his unnamed sources are irrelevant to the lawsuit. Bingham’s attorney disagrees.

An attorney for Folks, Tom Davis, who is a current state senator, says Folks should not have to divulge those sources in a civil deposition because confidential sources are to journalists what trade secrets are to companies. And, he argues, Folks has a First Amendment right to protect his sources. He has also asked the state Supreme Court to weigh in and sort it out, which would be unusual.

“One should not be able to uncover a reporter’s confidential sources by the simple expedient of filing a civil action and then making a ‘relevant’ discovery request,” Davis wrote in his motion to the High Court.

Bingham declined to comment for this story, saying he would let Parker, his attorney, speak on his behalf. Parker says the lower court has already ruled Folks is required to answer the questions, and the law doesn’t protect him. He says he doubts the Supreme Court will get involved.

The latest drama in this case has imposed an uneasy feeling across South Carolina’s journalistic landscape, which hasn’t exactly embraced Folks. Folks is a smash-mouth libertarian proprietor of an irreverent political blog who breaks news, regularly blisters local politicians, and sometimes slams reporters. He often relies on unnamed sources. Sometimes Folks calls himself a journalist, sometimes he claims he is not.

“What I call myself is irrelevant. What I do is the ultimate standard,” he says in an email. “I break news and offer my insights on it. … Whatever I call myself, there is a voluminous body of work attesting to the news-gathering function I provide to the people of this state.”

Adding to the heightening stakes is the request by Folks’ attorney for the state Supreme Court to intervene. The state’s highest court can choose whether to hear the case. Doing so would be an unusual move.

That, coupled with the prospect of a blogger being held in contempt for not coughing up a source, has put the state’s journalistic community in a tricky place: Weigh in or stay out of it?

Beyond brief blurbs when the lawsuit was first filed last year, the case hasn’t received much coverage in state media. Bill Rogers, director of the South Carolina Press Association, declined to comment about the case to CJR through the group’s attorney, Taylor Smith.

Asked this week whether he would characterize the situation as a press freedom issue for the Palmetto State, Smith said, “That’s an interesting question right now.”

South Carolina has a reporter’s shield law, but it does not apply when a reporter is sued civilly. However, Smith says he would like to see the Supreme Court hear the case, despite his personal opinion that Folks is not a journalist.

“If Mr. Folks prevails in this litigation, what it may open the door up to is opportunities for journalists in the future to assert such a privilege under the First Amendment when they’re being sued for defamation and want to keep their confidential sources safe,” Smith says.

Mainstream reporters in the state, those who are aware of the case anyway, are paying close attention.

“Like others, I am interested to see where it goes,” says Meg Kinnard, an Associated Press reporter based in the state’s capital. “I know that there is frequently a conversation about what role bloggers play in journalism. Should they be considered reporters? Should they have the same rights or privileges as other reporters?”

Doug Pardue, a watchdog and public service reporter for The Charleston Post & Courier, said he wouldn’t say Folks is not a journalist.

“The question is what kind of journalist he is,” Pardue says. “I would say he borders on being a gossip columnist, and he suffers from the same problems that gossip columnists suffer from, and that is that he uses unnamed sources.”

Indeed, the blogger’s use of unnamed sources is now at the heart of this current legal battle. How it shakes out is of concern for Doug Fisher, who teaches journalism at the University of South Carolina and was news editor in the state for the AP from 1992 to 2001. He worries about a potentially bad precedent that could have a long-term adverse affect for journalists.

“The case scares me,” he told me in a phone interview Wednesday as he gamed out the potential outcomes. One is that the Supreme Court declines to hear the case. Another is that the court hears it and rules in the blogger’s favor. Or the court hears it and rules against him. “That makes it one in three that you get a ruling that’s in your favor. I don’t like those odds.”

Image by: wp paarz, via Flickr

Corey Hutchins is CJR’s correspondent based in Colorado, where he teaches journalism at Colorado College. A former alt-weekly reporter in South Carolina, he was twice named journalist of the year in the weekly division by the SC Press Association. Hutchins writes about politics and media for the Colorado Independent and worked on the State Integrity Investigation at the Center for Public Integrity; he has contributed to Slate, The Nation, the Washington Post, and others. Follow him on Twitter @coreyhutchins or email him at coreyhutchins@gmail.com.