JOURNALISTS IN SOUTH CAROLINA are closely watching a court hearing this morning in which a judge could send a polarizing political blogger to jail after he refused a court order to identify confidential sources.
The blogger is Will Folks, a political consultant who was a controversial spokesman for former Gov. Mark Sanford before he started FITSnews.com and who 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 popular politics, sports, and culture blog, Folks—a self-styled libertarian bad boy of Palmetto State politics—often rips politicians and traditional media. He also breaks news, relies on unnamed sources, editorializes, and gets involved in elections.
In 2015, Folks earned himself a defamation suit from a former lawmaker named Kenny Bingham. The ex-pol sued Folks and his site after multiple posts appeared on FITSnews stating Bingham was 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.)
I am honor bound, not as a reporter but as a human being, to keep my word. 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.
Folks’s libel case took a strange twist last fall when a judge told him he would have to identify the unnamed sources for his Bingham stories if asked to do so during a deposition. Folks brazenly declined do so, saying he would not rat out a source. Bingham’s attorney, John E. Parker, filed a motion to hold Folks in contempt.
Today, the blogger faces the consequences in a Lexington County courtroom.
Folks says at the request of his attorneys, he asked his sources if they would waive confidentiality, and they declined. “As a result of that, I am honor bound, not as a reporter but as a human being, to keep my word,” Folks told CJR on Monday. “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.”
When I first wrote about Folks in January, his case had attracted little press attention. At the time, I noted that his case “imposed an uneasy feeling across South Carolina’s journalistic landscape, which hasn’t exactly embraced Folks.” South Carolina Press Association director Bill Rogers wouldn’t comment about it. When I asked the the press group’s attorney, Taylor Smith, if he would consider the case a press freedom issue, he called it an “interesting question.” Except for brief blurbs published when the lawsuit was filed, the case hadn’t received much coverage until this week.
Now, though, “it’s being watched with concern,” Rogers told me Monday. He added that he supports Folks and fears a ruling against the blogger could have a chilling effect on both sources and reporters in South Carolina. A statehouse corruption probe is currently roiling Columbia, and members of the press corps have relied heavily on unnamed sources in their coverage.
The Palmetto State has a reporter’s shield law, but it does not apply to a journalist who is party to a civil suit. Rogers worries that a ruling against Folks could enable a new threat against the press: civil libel suits filed by story subjects to uncover anonymous sources who speak about them to reporters.
While Will may not be ‘my kind’ of journalist…Will is a journalist, by definition, and I admire him for refusing to give up his sources under pressure.
I asked Rogers if the press association is getting involved in the Folks court action. “I called him and wished him luck. That’s about all we can do right now,” he told me. If there’s an appeal, Rogers expects the press association will file a friend-of-the-court brief.
Folks’s unlikely position as a potential martyr for press freedom seems readymade for eye-rolls in certain parts of South Carolina. Sometimes Folks calls himself a journalist; other times he doesn’t.
“He’s not going to be defined as a traditional journalist, but he does journalism,” Rogers says of Folks. “And I think [what’s happening to him] would be very easily expandable to the members of the press association. So we’re watching.”
Meg Kinnard, a politics and legal affairs reporter for the Associated Press in South Carolina, posted on Facebook that she supports the blogger. Folks, she said, occupies a unique niche in state news and politics.
“While Will may not be ‘my kind’ of journalist, and FITSNews may not always be ‘my kind’ of journalism, Will is a journalist, by definition, and I admire him for refusing to give up his sources under pressure,” she wrote.
A recent legal motion from Folks’s attorney, a current Republican state senator named Tom Davis, is replete with references to how reporters interact with confidential sources. Folks, Davis argued, is “conforming to an accepted and respected code of journalistic ethics,” and outing his sources would damage the blogger’s ability to obtain and report information. Folks didn’t comply with the judge’s order, Davis wrote, in order to “avoid a breach of journalistic ethics and liability for breach of contract.”
Reporters in South Carolina have previously been threatened with—and in some cases received—jail time for not giving up information. In the 1990s, four journalists covering a state government corruption scandal spent about eight hours over two days in the pen when they refused to testify in a court case. They were released when it became clear they wouldn’t change their minds. A reporter in a famous case involving Susan Smith, who was convicted of drowning her kids in a South Carolina lake, faced jail for not revealing a source to the judge in that case. The reporter told the judge she had “a contract with the source not to reveal their identity.” In 2013, a South Carolina political blogger who was sued for libel did reveal unnamed sources as part of a settlement.
Jay Bender, the state’s preeminent First Amendment attorney, says he sees Folks’s case as a way for a lawmaker to interfere with the blogger and his sources.
“In those circumstances the Supreme Court of the United States has suggested there should be a constitutional protection for the reporter,” Bender says.
Parker, Bingham’s attorney, says he does not believe Folks is a journalist, and is only claiming that status because it’s advantageous to do so.
“That’s really never been an issue— but it will be one on Wednesday, I promise you,” Parker said in an interview. He declined to elaborate, but offered this: “If you want to find out about it, come to the hearing. It’ll be entertaining.”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 firstname.lastname@example.org.