Lawsuit Challenges SC Prisoner Gag Rule

Published April 2024

Eric Robinson
By Eric P. Robinson, USC School of Journalism and Mass Communications

The Alex Murdaugh trials brought new unprecedented attention to South Carolina’s legal system, including how it deals with the media in high-profile cases.

And his incarceration—both during trial and after his convictions—brought new attention to the South Carolina Department of Corrections policy which provides that “Personal contact interviews with any SCDC inmate … or death row inmate by anyone will be prohibited.” According to prison officials, the policy does allow media interviews by mail.

In February the ACLU of South Carolina filed a lawsuit challenging the policy under the First Amendment. The lawsuit alleges that “(b)y threatening to punish prisoners for corresponding with the media or other individuals for the purpose of publication, and threatening to punish non-incarcerated persons who publish the speech of incarcerated people, the Challenged Policy chills the First Amendment rights of all incarcerated people and impedes Plaintiff’s [the ACLU’s] right to receive and publish information under the First Amendment,” and also “intentionally stifles the public’s access to information on matters of deep political concern.”

According to the SCDC, the “longstanding” policy is “rooted in victims’ rights,” based on the  belief that “victims of crime should not have to see or hear the person who victimized them or their family member on the news.” SCDC adds, “Inmates lose the privilege of speaking to the news media when they enter SCDC.”

In the Murdaugh case this prohibition was somewhat circumvented when the Murdaugh Murders Podcast obtained recordings of Murdaugh’s non-legal phone calls from Richland County’s Alvin Glenn Detention Center under South Carolina’s Freedom of Information Act, consistent with a 2011 opinion by the South Carolina Attorney General’s Office. This led other news organizations to make similar requests and also led Murdaugh’s attorneys to file a federal lawsuit seeking an injunction against any additional release of the phone call recordings. The effort failed, as did an effort by another inmate to revive the case. But the perils of such access being mishandled became evident when the Colleton County Sheriff’s Office mistakenly included a recording of a call between Murdaugh and his attorneys in response to a FOIA request.

Murdaugh’s lawyer seemingly breached the policy by recording and releasing recordings of phone calls in which Murdaugh read his prison diary for the Fox Nation documentary “The Fall of the House of Murdaugh.” Murdaugh was punished for the infraction.

In announcing the lawsuit over the policy, the ACLU stated that “this blanket policy impoverishes public understanding of vital matters including prison conditions, treatment of LGBTQ individuals and other vulnerable prisoners, and the propriety of capital punishment.” According to Allen Chaney, legal director for the ACLU of South Carolina, the policy “operates to insulate SCDC from real public accountability and to suppress the public’s knowledge about the violence committed against prisoners — wrongs that are committed in the public’s own name.”

The lawsuit is pending in the U.S. District Court in Columbia.

Eric P. Robinson focuses on media and internet law as associate professor at the USC School of Journalism and Mass Communication, an affiliate of USC’s Joseph F. Rice School of Law and in an “of counsel” position at Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 25 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.

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