So a lawmaker, a lobbyist, and a football coach walk into a plaintiff’s bar…
If that sounds like the beginning of a joke, journalists in South Carolina might not be laughing. Those are some pretty upper-echelon positions in the Palmetto State—and it just so happens that they’re the occupations of people who have recently sued a range of news organizations across the state for libel.
The football coach sued an alternative weekly in Charleston (and has been sued in return). A member of the state House of Representatives is suing a prominent political blogger near the state’s capital. And, in the case that’s made headlines most recently, a state appeals court has upheld a substantial judgment in favor of a lobbyist who successfully sued the Myrtle Beach Sun News. Altogether, the cases cut quite a swath across the state’s media landscape.
The Sun News case stems from a series of articles written in 2010 about campaign contributions in the governor’s race by investigative reporter David Wren, now of the Charleston Post and Courier. A lobbyist identified in the stories sued—nearly two years later—saying the coverage had damaged his reputation by indicating he had run afoul of ethics laws. The defense argued there was nothing factually incorrect in the stories, which had primarily focused on the source of the funding, and the lobbyist was interpreting some language improperly. A jury ruled for the lobbyist and awarded $400,000 in actual damages and $250,000 in punitive damages. Last week, a panel from the South Carolina Court of Appeals unanimously affirmed the verdict.
Jay Bender, the state’s preeminent First Amendment attorney and the paper’s lawyer in the case, says he’ll ask the appeals court to re-consider, and if that fails he plans to petition the state Supreme Court. “I think the court did not apply the correct constitutional standard in evaluating the evidence,” Bender said. Whatever the outcome, the newspaper has sunk money into the lawsuit it will never recover.
I can’t say for sure whether this cluster of cases in the news is part of an uptick in litigation against media outlets—apparently, there’s no good database tracking libel suits against news organizations (so if you’re an aspiring media law researcher, get on that!) Still, it got me thinking: Is South Carolina, where I worked as a journalist for the better part of the last decade, a place where reporters have to be especially wary?
There’s some reason to think the answer is yes.
“From the press’s perspective, it’s fair to say that South Carolina’s courts have struggled to apply the First Amendment and other liberalizing trends to the old common law of libel,” said Dave Heller, deputy director of the Media Law Resource Center, a membership group for media outlets and defense lawyers based in New York.
The idea that the state’s libel and defamation law is a messy mix of different frameworks has a long pedigree—it was summed up most famously by Jean Toal, the former chief justice of the South Carolina Supreme Court, who described certain areas of the law as “mind-numbingly incoherent” in a 1998 opinion. “[T]he law lacks consistency and predictability, and confounds the bench, the bar, members of the general public, and media personnel who have to make important decisions based on court precedent,” she wrote at the time.
Toal, who is still an active senior judge in the state’s court system, didn’t want to offer an updated assessment for this story. Asked if she might recommend another expert, she suggested Bender—not a disinterested source, clearly, but one who knows the territory. For his part, Bender pointed to a few factors that make South Carolina unique.
For one, the state has a relatively long statute of limitations for filing a libel suit—two years where in most states it’s one, he said. For another, Bender said, in his experience judges there are less likely to grant summary judgment, so cases are more likely to get in front of a jury. And jurors don’t necessarily like the press or value journalists’ self-appointed role of pointing out corruption and malfeasance. (OK, maybe that last part is not so unique to South Carolina, though this is the only state where a lawmaker has proposed a “responsible journalism registry.”)
There also could be something else at play, Bender added:
It probably goes back to history where we’ve had in South Carolina this huge commitment to the protection of reputation, which is why we probably had a lot of duels in South Carolina compared to other places because we’re going to protect reputation at the point of a gun. Fortunately no newspaper man that I know of has been killed by a gun since N.G. Gonzales, the editor of The State, was shot by the lieutenant governor. But it’s dangerous in terms of liability.
That’s colorful stuff. (The lieutenant governor got off, by the way, despite plenty of witnesses to that 1903 murder. There used to be more hazardous things to worry about than plaintiffs’ briefs.)
Unsurprisingly, one of the state’s leading plaintiff’s attorneys in defamation cases sums up the situation a little differently.
“I think reputation is extremely important. Once lost it is never gained,” says John E. Parker, the attorney for both the football coach and the lawmaker in those two pending suits.
He doesn’t see the state’s approach to libel and slander as notably different than elsewhere, though he’s familiar with Toal’s opinion and doesn’t disagree with it. And he doesn’t think it’s easier to win a libel lawsuit in South Carolina than anywhere else. “If you’ve been libeled and you prove it then you will probably have a good case,” he said. “I wouldn’t take it unless it was that way.”
In recent days, meanwhile, the Sun News ruling has been closely watched by reporters in the state. Among other things, the Court of Appeals justices examined Wren’s e-mails and correspondence with multiple sources to try to determine his state of mind as he approached his stories.
That point wasn’t lost on Doug Pardue, a reporter for The Post and Courier and now a colleague of Wren’s. Pardue said he did not believe the recent ruling will have a chilling effect on investigative journalism, at least not at his paper.
“However, it does highlight several cautions for journalists,” he told me. “The first is to exercise precision in word choice and sentence structure. The second is to exercise the same precision in emails and other communications, along with a little caution.”
Ron Aiken, a reporter for The Nerve, a think tank-based investigative newsroom, drew a similar conclusion about the need for care and precision, given the scrutiny applied by the court–though there’s a big difference between careful and being cowed.
“Reporters should be as fearless as ever in bringing light to matters of fraud, waste, abuse and corruption,” he said. “Every case, whether won or lost, is of immense use to those in the field. I trust the lesson here is to only strengthen journalism, not weaken it, in South Carolina.”