South Carolina Circuit Court Judge William Keesley ruled this week that political blogger Will Folks will not go to jail for defying a court order to reveal unnamed sources in a libel case, a decision some see as important for reporters seeking to protect confidential sources in the state.
At issue was whether Folks, a blogger for FITSnews.com, should be held in contempt for not revealing sources in stories he published about Kenny Bingham, a former member of the South Carolina House of Representatives. A previous judge ordered Folks to reveal those sources in a deposition and he refused.
I’m obviously pleased that their recognition of that underlying issue results in me not spending any time in the slammer, because that would not have been fun.
“This is the first time in a civil suit [in South Carolina when] a plaintiff has sought to get a journalist to reveal a source and the court actually ruled on what the obligations are,” Folks’s attorney and South Carolina Senator Tom Davis tells CJR. “So it really is a victory for the First Amendment and for the press in terms of protecting their sources.”
However, the ruling is not a flat-out win for Folks, a polarizing figure in the Palmetto State politics and media worlds. If Bingham’s two-year-old defamation lawsuit against Folks goes to trial, Folks will not be able to rely on his unnamed sources as part of his defense against a libel accusation unless he identifies them. Folks has maintained that his sources told him things in confidence, and he has a duty to keep their identities secret.
“I’m thankful,” Folks tells CJR about the ruling. “I’m glad that the court saw the really important issue here … and I’m obviously pleased that their recognition of that underlying issue results in me not spending any time in the slammer, because that would not have been fun.”
To Taylor Smith, an attorney for the South Carolina Press Association, the ruling is a single sliver of a larger civil case that narrowly deals with sanctions and contempt as part of legal discovery. Because the ruling comes from a trial court judge and not an appeals court, it does not provide mandatory guidance for other judges to follow.
However, Smith says he appreciates the ruling for its recognition that the press has a legitimate, essential reason for gathering and reporting information from confidential sources. “It does help as a check on power and those who hold positions of public trust here in South Carolina,” he says.
In 2015, Bingham sued Folks and FITSnews for defamation after multiple posts on the site identified the then-lawmaker as the subject of an ethics complaint. One story claimed “insiders” at the statehouse once believed an indictment against Bingham “would be issued.” Bingham has not been indicted.
Last fall, a judge told Folks he would have to identify the unnamed sources for his Bingham stories if asked to do so in a deposition. Folks brazenly refused, saying he would not rat out a source. Bingham’s attorney, John E. Parker, filed a motion to hold Folks in contempt.
“I am honor bound, not as a reporter but as a human being, to keep my word,” Folks told CJR on the eve of his June 28 contempt hearing. “So that’s what I’ve done, that’s what I’m going to do, and if I have to go to jail as a result of that, that’s fine, I’ll do that.”
In his ruling, which FITSnews posted online, Judge Keesley wrote that the Folks case “reveals the tension involved in protecting both free speech and the right of a person not to have his reputation wrongfully damaged.” Referring to a FITSnews slogan that appears on top of the website— “Unfair. Imbalanced.”— the judge wrote, “If that is a comedic attempt, it certainly conveys no humor to one who is defamed.”
In order to determine how or whether to sanction Folks, the judge wrote, it was pertinent to determine whether Folks is a journalist. That determination has long been a point of contention in South Carolina’s journalistic landscape, which hasn’t exactly embraced the blogger. An aggressive Libertarian polemicist, Folks is also a political consultant who was a controversial spokesman for former Gov. Mark Sanford before he started FITSnews.com. Folks made headlines in 2010 for claiming he had an “inappropriate physical relationship” with Sanford’s successor, Nikki Haley, now the US ambassador to the United Nations.
On his blog, Folks breaks news, regularly blisters local politicians, and sometimes slams reporters. He once wrote he has “little use for South Carolina’s ‘mainstream media,’” which he called an “intellectually and ideologically bankrupt assemblage of bought-and-paid for mouthpieces parroting the propaganda of the Palmetto State’s failed status quo.” Folks often relies on unnamed sources. During the years I’ve known him, Folks has called himself a journalist but has also said he wasn’t one. He now calls himself a “hybrid.”
Though Keesley ultimately declared Folks “a member of the press,” the judge also wrote that “courts must exercise caution in labeling a media outlet as legitimate or illegitimate” — a challenge the judge likened to determining “what constitutes a valid religion” to determine religious protections. Keesley elaborated:
The press has legitimate, essential, and beneficial reasons for gathering and disseminating information from confidential sources, particularly concerning persons in power and those who hold positions of public trust. The claim that confidential sources were promised confidentiality related to the articles in dispute is credible. The refusal by the defendants to comply with Judge Kelly’s directives is willful in the sense that it involves a conscious decision to disobey a court order. It is willful in that the defendants have a true choice, as discussed above. This is not a situation, however, where the defendants are ignoring the court. The refusal is based on articulated reasons, components of which deal with difficult, but very real and important decisions associated with the use of confidential sources.
The judge’s sanctions barring Folks from relying on his unnamed sources to defend himself against the defamation lawsuit “means our side wins,” says Parker, Bingham’s attorney and one of the state’s leading plaintiffs’ attorneys in libel cases.
“The jury will be charged that even though he said that he had a source … that he didn’t have a source,” Parker tells CJR. He adds that there is no trial date set, but he expects one within a year. “We hope to get a judgement,” Parker says. “He defamed Mr. Bingham. He falsely accused him of crimes.”
Meanwhile, Folks’s attorneys—Davis and former US attorney Pete Strom—call the ruling reasonable, and frame it as a win for press freedom in South Carolina.
Journalists are still going to get sued. And if this judicial approach is used, yes, they can protect their sources, but it would be easier for damages to come from them protecting their sources.
Journalists and the South Carolina Press Association have watched the case since Folks first declined to reveal his sources. Some worried that the case against Folks might set a bad precedent for other reporters who work with confidential sources. While the state has a reporter’s shield law, that law doesn’t protect journalists from civil lawsuits, which led to a concern that a ruling against Folks might enable more civil defamation suits by subjects of stories who want to uncover anonymous sources who speak about them to reporters.
Following this latest ruling in the Folks case, state press association lawyer Smith says it might be time to try and change the state’s reporter shield law.
“Journalists are still going to get sued,” he says. “And if this judicial approach is used, yes, they can protect their sources, but it would be easier for damages to come from them protecting their sources.”
Jay Bender, South Carolina’s preeminent First Amendment attorney, cautions that reporters should still be explicit in agreements with sources about confidentiality, a decision he says that should involve newsroom management. “If the promise is ‘I won’t put your name in the story,’” says Bender, “that’s quite a bit different from saying ‘I’ll go to jail to protect giving up your identity.’”